Lies, distortions and deceptions

On May 15, a group associated with the development industry mailed a tasteless smear-campaign flier, in opposition to Proposition A, to every household in Encinitas. 

The flier, paid for by development interests, is full of half-truths, distortions and outright lies. It was put together by a small group of opponents, including controversial Christy Guerin, a former police officer and City Councilwoman, in association with legal/political lobbyists, who together are doing business under the fictitious name of “Encinitas Residents, Businesses and Taxpayers Opposing Prop A,” registered April 25, 2013 for this purpose only.

Make no mistake; they do not represent the average resident or taxpayer of Encinitas. The flier also claims that the entire City Council endorsed the false innuendos made in this hit piece.

Since then, Mayor Teresa Barth, Deputy Mayor Lisa Shaffer, and Councilman Tony Kranz have publicly denied that they endorsed this flier. I leave it to the reader to figure out who was behind this. Nevertheless, we find it disconcerting that our mayor, deputy mayor and Councilman Kranz, have chosen to align themselves with the deceptive arguments made in so-called independent studies by so-called experts, while entirely ignoring the well thought-out statements in Prop A made by the citizen’s land use Attorney Everett Delano, who drew up the Initiative, and by former Planning Commissioner Bruce Ehlers. Both are respectable and knowledgeable gentlemen who have studied the City’s General Plan and Zoning Codes for decades and know them inside out.

The “independent legal analysis” made by the pro-development legal firm, Rutan & Tucker was full of distortions and full of “unintended probable consequences,” and was anything but independent. Their unintended consequences of Prop A are highly hypothetical and mostly fictitious. They have nothing to do with Prop A, and they could occur through misinterpretations of the present codes as well. Similarly, the so-called “impartial analysis of Prop A” by the Council’s Attorney Glenn Sabine is anything but impartial.

Sadly, the two new council members and the mayor, who had not been bought by development interests, swallowed the distorted truths and hypothetical “unintended consequences” in the biased analyses hook, line and sinker. Many of our citizens who voted the two into office view this as a betrayal.

Here are a few of the erroneous statements made in the flier and by Council members (CM), followed by factual counter arguments:

CM Lisa Shaffer: “I think the initiative could lead to more development.” “The harder we make it for property owners to build…, the more likely they are to use density bonus law to circumvent our constraints.”

Counter: Developers always ask for the maximum to maximize their profits. Without Prop A in place, Council can approve a density zoning increase of 1,000 percent, and the developer will still insist on an additional density bonus. Even if the developer does not choose to take advantage of the density bonus, he has made out like a bandit. With Prop A, he will have to ask the public for the up-zoning, who may not grant it to him.

So he stays within his zoning rights and asks for a 40 percent increase in density bonus. Would you rather let the Council give him a 300 percent to 1,000 percent increase in density or would you prefer to grant him a 40 percent density bonus? CM Shaffer’s argument is not logical.

CM Gaspar: “Prop A could prevent you from improving or restoring your home.”

Counter: Prop A does not interfere with the Zoning Code that gives a home owner the right to improve or rebuild his home, as long as he stays within present zoning codes. Even if the home is presently non-conforming, he can rebuild within the previous non-conforming envelope. And he can measure new building height from a previously approved reference level.

Flier: “Prop A redefines how building height is measured, leading to taller structures.”

Counter: This is a fabricated lie. Language in Prop A regarding maximum building height is identical to the language in the General Plan. It also does not change other specific building height limitations in the Zoning Code which, e.g. limit maximum residential building heights to 21 plus 4 feet, or lower if on steep slopes.

Flier and CM Muir: “Prop A could cost taxpayers millions of dollars for expensive citywide elections (and possible law suits) impacting police, fire and emergency services.”

Counter: Under Prop A, a citywide election will only be triggered if developers do not want to follow the law and instead ask for the moon. The developer, not the taxpayer and not the city, will have to pay for the election. More developers will stay within the law, keeping community character intact.

There is no credible analysis in the independent reports that predict more lawsuits under Prop A than under present rules. The latter are largely kept untouched by Prop A.

Our City Council and staff are opposed to Prop A because they do not want to relinquish even a small amount of control over urban development and associated payoffs.

Take control over your community back. Vote Yes on A!

Dietmar Rothe is a Cardiff-by-the-Sea resident.

 

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  1. Xavier Watson says:

    Well as the saying goes — even a broken clock is correct twice a day. Mr. Rothe has a reputation, built over many years, of having a problem with accuracy. In fact ALL City Council members have publicly stated and voted to oppose Prop A. And to show that they have no desire to prevent the voters from their say, they last night to delete the 4/5 vote provision from the General Plan, even though the provision has never been used to approve a major project. The Prop A house of card is built upon this provision. Now it is gone. They also agreed to bring the item forward to allow the voters to ratify their decision so that only a future vote of the people could undo what they have done.

    So once you strip away the right to vote issue, Prop A looks even worse. In the end, I will take the opinion of one of the top law firms in the State on land use matters over Mr. Rothe’s that what is left of Prop A will be very BAD for Encinitas. Oh and don’t try that they are just in the pocket of the real estate industry. This is just old and tired. I’m still voting NO on Prop A.

    • Lynn Marr says:

      Mr. Xavier, no one in the City knows who you actually are, since you are not posting under your actual name, but a pseudonym. So, we don’t really care how you are voting, and we don’t take your criticism of Dietmar Rothe seriously. I have known Mr. Rothe for many years, and know him to be a man of great intelligence, keen insight, compassion and integrity.

      You do not support your opinion that Rutan & Tucker is “one of the top law firms in the state,” with any evidence whatsoever. From the research that I did, personally, it is known to be pro-development. Joel Kuperberg is not expert with sections in Real Property Law (including, but not limited to zoning, land-use, and initiatives) and Real Estate Law, as is Everett DeLano, who carefully wrote the initiative to be consistent with our existing General Plan.

      DeLano is a very well respected North County Attorney; Joel Kuperberg is based out of Orange County. Rutan & Tuker, and Joel Kuperberg were selected because the City Manager knew, in advance, that a negative, NOT neutral or impartial, impact report would be written by him to manipulate Council into advocating against Prop A.

      The slanted, pro-development impact report was the shaky foundation upon which Council built its arguments, and upon which the City Attorney based his NOT impartial analysis, which took the fear-based, untrue speculation and conjecture that lower residential height limits could be raised in the impact report, to Glenn Sabine’s LIE and distortion in the NOT impartial analysis that lower height limits WOULD be raised. That conclusion was NOT impartial, fact-based, or accurate.

      As was pointed out by public speaker, Peter Stern, at last Wednesday at the Encinitas Council Meeting, there already exists in the General Plan several loopholes that WON’T BE ELIMINATED by Council’s having decided to delete the 4/5 vote provision for what has been described as allowed for “significant public benefit.” Council has always defined exactly what constitutes public benefit. But although that MAY be brought forward to be put on the ballot at a future General Election, eliminating that one loophole, WOULD NOT ELIMINATE SEVERAL OTHER LOOPHOLES, WHICH PROP A WOULD!

      Without passage of Prop A, as Peter Stern pointed out, Council, by a simple majority, not a super majority of four out of 5 council members, can presently change the definition of intensity of use. As Peter described, an office building could NOW be rezoned to light commercial, including retail. That is a big change, for neighbors adjacent to a particular property zoned in a category THAT WE KNOW IS NOT EQUAL IN INTENSITY TO THE NEW PROPOSED USE.

      With Pacific View surplus school site, Council may claim that residential use is less intensive than public/semi-public, and therefore, after purchasing Pacific View, could rezone part of it as residential and sell it off to finance the purchase price, which is precisely what the public DOES NOT WANT TO HAPPEN.

      Also, for properties, such as Pacific View, or the property across the street from Peter Stern, which are under five acres, there’s another loophole in our current General Plan, which says that 5 acres or less will not require a public vote! And finally, there is no protection against Council raising height limits, another glaring loophole, which Council has “glossed over.” Prop A will ALSO protect the public by allowing us to vote whether or not we do want to raise height limits over what is currently specified in our General Plan.

      Mr. “Watson,” what you said about “the provision has never been used to approve a major project,” is completely false. The North 101 Specific Plan and the Downtown Specific Plan, allowed to be developed, for example a major project of Moonlight Lofts (which later went bankrupt, and which violated the viewshed, view corridor provisions of the Specific Plan). Also allowed through the supermajority vote approving these Specific Plans is the mixed use high density development to the immediate south of Caldwell Antiques on North 101, which has inadequate parking, which was NOT supposed to be built, with three stories, next to a one story structure (Fred Caldwell’s home and store), and which also may go bankrupt.

      The N101 and Downtown Specific Plans allow “major projects,” which are inconsistent with the existing language in our General Plan, providing height limits shall not exceed (a cap) of 30 ft. and two stories. This is the same language in the initiative. If and when Prop A passes, and as Peter Stern predicted, we feel it WILL PASS, OVERWHELMINGLY, then the inconsistent Specific Plans, VOTED IN BY A FOUR FIFTHS MAJORITY AGAINST PUBLIC INPUT FROM Specific Plan Action Review input and Community Advisory Board input, will once again be in compliance with State Law and our General Plan.

      State Law requires that Specific Plans must be consistent with our General Plan. The General Plan was never properly amended with respect to the N101SP and the Downtown, 101 Corridor Specific Plan, which both allow higher than 30 ft, 2-story height limits STILL MANDATED by our GP. So, “Xavier,” you are completely wrong, in falsely claiming projects have not been approved by a 4/5 majority vote in the past. That is EXACTLY WHAT HAS HAPPENED, when community input was discounted and overridden by the Planning Commission and then a super majority of Council, at the time.

      When questioned about this inconsistency, Councilmember Tony Kranz, who was out of state when the N101SP was approved, has said, “we would have been sued, if it was done incorrectly.” That’s exactly what former Mayor and Councilmember Jim Bond used to say regarding open government violations. The City was finally sued regarding being more open and transparent, and lost.

      We all know it’s challenging for citizens’ grassroots groups to bring “City Hall” to court. It’s prohibitively expensive, and very few, if any lawyers will take these kinds of cases on “Pro Bono.” They usually have “conflicts,” as they have cases pending before the City.

      So that is another false conclusion, “Xavier.” I question whether you live in Encinitas? But whether you live or work here, or not, it”s apparent to us of those who do that development/building industry interests are the money behind Prop A. We know that a very similar initiative to Prop A was voted in by the Escondido electorate years ago; there have been NO subsequent lawsuits, so the “risk” of lawsuits is also untrue, and highly exaggerated, to defeat the truth, by confusion and fear. We trust the voters here are intelligent enough to see through that ruse, too!

      Thank you very much, Dietmar Rothe, for an excellent, accurate and truthful community commentary. We are voting YES on A, and have helped to pass out hundreds of flyers so that the public can hear the truth. Following the money trail for the organization putting out deceptive, misleading and untruthful misinformation against the public’s right to vote on upzoning or raising height limits, we can clearly see that the money is coming from Real Estate Interests, Building Industry interests, and pro-development interests.

      YES on A, the proponents, are our friends and neighbors who want to slow and control growth, the same people who voted to incorporate Encinitas for those very same reasons! I was on the North Coast Coalition to Incorporate Encinitas, with Marjorie Gaines and Bob Bonde, so I know this to be true from my own personal experience, and our city’s unique history. We were incorporated on 10/1/86, so that we could take back local control from the Board of Supervisors, which was allowing unchecked growth. The residents didn’t want that, and we still don’t.

      Prop A will give the “little guy” the right to decide, to have a say in neighborhood self-determination. If certain areas are appropriate for higher density, such as nearby where Deputy Mayor Lisa Shaffer lives, then we can vote to allow those kinds of projects! The elections would be paid for by the developers, not the City, and could be held during General Election Years, significantly reducing costs.

      We are intelligent, and involved. We deserve to preserve and protect our community character. Vote YES on A, like your quality of life depends on it, because it does! Don’t let lies manipulate you with fear. Trust your own ability to use sound judgment.

  2. Vote Now says:

    Why wait November 2014 if we codify the Right to Vote in June 18th? A lot can happen in the next 18 months, including a General Plan Update that will see at least 3 story buildings and density up to 45 units per acre. If Prop A does not pass, and council does not tweak things and introduce new loopholes, it will be interesting to witness the shady crowd behind the No on Prop A go after a unanimous council in the Fall of 2014.

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