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Under threat of a lawsuit the Encinitas City Council is opting to discuss new density bonus policies behind closed doors. File photo
Under threat of a lawsuit the Encinitas City Council is opting to discuss new density bonus policies behind closed doors. File photo
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New density bonus policies to be discussed behind closed doors

ENCINITAS — The Encinitas City Council’s discussions on how its new density-bonus policies will affect the controversial Desert Rose development will now occur behind closed doors after the developer threatened to sue the city if it enforced the policy on the project.

The Council voted 3-2 to hold a closed session on the topic after Marco Gonzalez, the attorney representing the project’s developer, Woodbridge Farm Estates LLC, issued the lawsuit threat, arguing that the city’s enforcement of those policies, which the Council adopted in July, would violate state law.

“Considering everything that has been said and written, I think we should move to close session, and preserve our options,” Councilwoman Lisa Shaffer said.

The Council made the decision to abruptly halt the Sept. 24 discussion at the advice of City Attorney Glenn Sabine, who said the Council would compromise its legal position in the event the developers of Desert Rose followed through on their attorney’s threat of litigation.

In July, the Council enacted new rules that require developers to round down the number of units proposed on a site if the number of allowable units is a fraction, build affordable units within the projects to at least 75 percent of the size of their market-rate counterparts and provide evidence to demonstrate the need — financial, physical or otherwise — for a waiver for development requirements.

They also voted to enact the changes immediately on projects that were not fully vested, which marked a shift from the city’s previous interpretation, which had given developers those rights at the time they applied for the project.

At the same time, a Superior Court judge voided the city’s approval of Desert Rose in July after residents successfully sued the city and the developer, arguing the city did not fully vet the environmental impacts of the project on the surrounding community. The developer has since appealed the ruling.

In August, opponents of Desert Rose urged the Council to apply the new rules to the development because it technically did not have vested rights as a result of the judge’s voidance.

Project representatives, however, argued that their appeal of the judge’s ruling stayed the voidance, thus rendering the new measures unenforceable on the project.

Questions surrounding this interpretation prompted the city to place an item on the Sept. 24 agenda, asking the Council for clarification on how the new measures would apply to Desert Rose.

Gonzalez said that the city’s previous interpretation stemmed from state law that governs density bonus development, and that if the city sought to apply the rules to Desert Rose — voided approval or otherwise — he would sue the city.

At the same meeting, Everett Delano, an attorney representing the opposition group Save Desert Rose, asked the Council to not do anything at all at the meeting, but wait until the appeals court ruled on the Desert Rose matter, which would clarify matters.

“I don’t know why this is being discussed today,” Delano said.

Sabine told the Council that a discussion about the interplay between the state code and the city’s intent with its new rules was inevitable, but probably not until the courts determined the fate of Desert Rose.

Gonzalez, however, argued that the legal issue needed to be determined sooner than that so the developer would know their options in advance. Theoretically, Gonzalez said, if the Council ruled the rules didn’t apply to Desert Rose, the developer could choose to go back to the city and perform a full environmental study knowing it would have the rights to develop the project.

Conversely, he said, enforcing the measures on the project or remaining silent on the topic would prompt him to file a suit in which he would seek a judge’s interpretation on the matter.

“The law matters, and while I am not going to defend density bonus, any layperson can read the provisions,” Gonzalez said. “I will say that if you try to take that suite of policy operations you made in July and apply to those to us… you are going to get sued.”


Lisa Shaffer October 2, 2014 at 8:41 am

From my perspective, as a member of the Council, I thought it was important that we give the question careful consideration, and after midnight at the end of a 6+ hour meeting, I know I was not at my best. When it comes back on the agenda, we can decide then whether we need to go into closed session or not. Our action last week at least preserves that option for us if we need it. Deciding not to decide yet does not mean we are supporting Mr. Gonzalez. It means we have rescheduled the item for another time.

Aaron Burgin October 2, 2014 at 10:52 am

I can tell you, Lisa, that after midnight, none of us were at our best. :-)

Billy Bob October 1, 2014 at 2:22 pm

Of course the City went with Marco Gonzalez. The city attorney in Encinitas is terrified of Marco, and he goes along with anything Marco says. Marco once represented the environment but those days are over. His new mantra is “sue anyone you can, especially a city.” Imagine how much he makes from his new found developer friends? Mr. DeLano, who represents the citizens in the Desert Rose project, also spoke, stating there was no need for the behind doors session. Why didn’t the City listen to him? I think anyone who has any knowledge of this City, the City Attorney, and this particular Council, already knows the answer. Many would have expected this before this particular council was elected. But, as the saying goes, “meet the new boss, same as the old boss”. How terribly sad for Encinitas residents who thought by getting in a new voting block, their troubles would be over.

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