ENCINITAS — The city of Encinitas is looking to the state Attorney General to render a definitive answer to the question of whether the city can require developers to round down fractional units in so-called density-bonus developments.
Encinitas officials confirmed this week they are seeking a legal opinion from Attorney General Kamala Harris’ office on the issue, though the request had not been submitted at the time of publication.
The move comes a month after a developer threatened to sue the city if it moved forward with a settlement of a previous lawsuit filed by the Building Industry Association’s San Diego chapter over a series of changes the city approved in 2014 to how it interpreted state density bonus law.
In the settlement reached by the city and the BIA, the parties agreed the city would reverse all of its other measures with the exception of the rounding requirement. On the eve of the council voting on the settlement, David C. Meyer, a developer who specializes in these types of projects threatened to sue the city, arguing that state law requires cities to “round up” as oppose to rounding down.
Deputy Mayor Catherine Blakespear confirmed the council’s intent to seek the opinion, but declined further comment, citing ongoing closed-session discussions.
State law allows for developers to build extra, or “bonus” homes on land if one or more of the homes are earmarked for low-income residents.
In July 2014 the City Council voted to close what they called several loopholes that developers were using to build projects that had far more units than intended under state law.
One of the things the council did was vote to require developers to round down the number of units proposed on a site if the number of allowable units was a fraction. In other communities, developers are allowed to round up.
Residents have long criticized the city for allowing developers to round up on density bonus projects, but also expressed concern that an Attorney General opinion in favor of the developers would effectively prohibit the city from requiring developers to round down.
“That is the risk they run by seeking the opinion,” said Bill Butler, who co-founded Save Desert Rose, a group that successfully sued the city over its approval of a density-bonus project in Olivenhain. “It is a risky maneuver,” he said.