To comply with its current state-certified affordable housing plan, the council on Oct. 5 “up-zoned” parcels in the North Commercial area, near the San Dieguito Lagoon, by a 3-to-2 vote. The up-zone would allow higher-density multifamily residential development — including lower-income units to meet state-mandated affordable housing targets — on land currently vacant or occupied by commercial buildings.
The decision has been hotly contested, featuring prominently in campaigns leading up to the recent city council election. While those in favor fear state-imposed penalties, those opposed say the North Commercial area is poorly suited for high-density housing and want to propose alternatives to the state government.
A group of about 20 residents, spearheaded by Arnie Wiesel, set out to gather enough signatures to call a referendum, hoping to reverse the council’s decision. According to state law, the group needed at least 345 signatures by Wednesday, Nov. 18. They got 602, according to an unofficial count from city staffer Sarah Krietor as The Coast News goes to press.
Assuming the registrar of voters certifies the results without any hitches, the council must choose either to repeal the up-zoning or else put it to a public vote.
“The groundswell of support was strong and remarkable, especially given the rainy weekend after the election,” said Councilwoman Terry Gaasterland, who opposed the up-zoning. “The petition circulators chose to wait until after the election so the petition would be considered separately from a contentious and difficult election season.”
Gay Hugo-Martinez, who went door-to-door with the referendum petition, told The Coast News she encountered few people who were hesitant to sign.
“It’s the right of the voters to do this,” but “I think it puts us at greater risk,” said Councilman Dwight Worden, who supported the up-zoning. He doesn’t believe opponents have presented any viable alternative parcels that would satisfy the state’s requirements.
Up-zoning opponents could also pursue a lawsuit, irrespective of the referendum.
California law requires that “zoning ordinances shall be consistent with the General Plan of the county or city.” But in Del Mar, parties disagree about how the General Plan pertains to the North Commercial area.
On the one hand, Worden says the General Plan is internally inconsistent, with one chapter (the Housing Element) saying the North Commercial area must include residential use, while another chapter (the Land Use element) doesn’t.
On the other hand, Everett DeLano, the referendum-seekers’ land use attorney, says the Housing Element never actually created a residential use, but only promised the council would eventually amend the General Plan to include such a use — which the council never did.
So, in DeLano’s view, the General Plan doesn’t allow residential use in the North Commercial area, period, rendering the Oct. 5 up-zoning invalid.
“A zoning ordinance that conflicts with a General Plan is invalid at the time it is passed,” according to Lesher Communications, Inc. v. City of Walnut Creek, a 1990 state supreme court ruling.
“The General Plan has been aptly described as the ‘constitution for all future developments’ within the city,” according to Citizens of Goleta Valley v. Board of Supervisors, another 1990 state supreme court case.
In other words, a General Plan serves as the “overarching framework” to which all specific land-use decisions must conform, in the same way that specific legislative acts may not conflict with a constitution, DeLano said.