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Council will act on density bonus loopholes next week

ENCINITAS —The Encinitas City Council gave residents protesting so-called “density bonus” developments in the city a “glimmer of hope” Wednesday night.

The City Council unanimously voted to have staff next week prepare an action item to alter the Council’s policy on several practices that residents say have contributed to the super-dense developments, which they said clash with longstanding neighborhood character and create safety and traffic concerns for local communities.

Residents, who packed the council chambers, erupted in applause when the Council voted to place the item on next week’s agenda.

“It is a glimmer of hope,” said Susan Turney, one of 19 people to speak at the council meeting in opposition to the city’s interpretation of state density-bonus laws. “There are plenty of cities throughout the state that have crafted their ordinances to protect residents against the density bonus laws, but have done so within the context of the law.

“Perhaps, this is the beginning of Encinitas doing the same,” Turney said.

State law allows for developers to build extra homes on land if one or more of the homes are earmarked for low-income residents.

Residents for years in Encinitas have said that the city has liberally interpreted the state code to allow developers to build far more units in such projects than the law intended by allowing developers to exploit several loopholes in the law.

One such loophole has allowed developers in the city to round up the number of units proposed on a site if the number of allowable units is a fraction. In other words, if a site can have 5.5 units on a 2-acre site, the city has allowed developers to construct six units. In other cities, such as Los Angeles, developers can only construct five units in that scenario.

Another major one is that Encinitas has allowed developers to include project features such as rain-catching basins and land earmarked for utilities — which can’t be built on — as “developable space.” This allows the developer to calculate the density based on a larger area than what is actually being built on, thus creating more density.

A third such loophole allows for developers to build affordable units that are smaller and contain fewer amenities than market-rate developments, which neighbors said devalue adjacent properties.

Next week’s vote could see the close of those loopholes by requiring developers to round down, exclude undevelopable land from density calculations and building affordable units that are compatible to their market-rate counterparts.

City planning staff has argued in the past that the city was handcuffed in what it could require of developers because they would run afoul of state law and could be sued by developers.

But several residents, citing advice from land-use attorneys, told the Council that they could make changes that were a matter of council policy, and urged the council to use that authority to make the changes.

“These are policy matters that are already in your municipal code,” local activist Donna Westbrook told the Council. “You can make these changes tonight.”

While several of the council members wanted to take action Wednesday, they said the agenda item, which Teresa Barth crafted, was not an action item. Voting could lead to the Council running afoul of state open-meeting laws, City Attorney Glenn Sabine said.

The Council was originally going to send the item to the planning commission, however, Sabine told the Council they could bring back the items on next week’s meeting agenda, which was met by applause from the audience, many of whom said they were tired of waiting for the city to take action on the issue.

Residents said the city’s interpretation of zoning laws have led to several projects with large homes on small lots with very little setback between the street and the homes. Currently, four such projects are making their way through the planning process, including ones of Fluvia and Jason Streets in Leucadia and another on Balour Drive.

Opponents sued the developer of one such project in Olivenhain known as Desert Rose, which the Council approved even after the planning commission denied it on environmental grounds. A judge earlier this year ruled in favor of the residents, saying the project needed more environmental review.