The Coast News Group
The Encinitas City Council will tackle the “Right to Vote” initiative at the March 12 meeting. In the meantime, a new report on the initiative largely maintains that it will negatively impact the city. Photo by Jared Whitlock
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Report critical of ‘Right to Vote’ initiative

ENCINITAS — A local effort to give residents control over land use means well, but would ultimately hurt the city, according to a new report issued by the law firm Rutan and Tucker, LLP. 

The report, which was ordered by Council last month, states that the “Right to Vote” initiative would be costly and make the city vulnerable to lawsuits. But backers of the initiative argue those consequences simply won’t happen. Moreover, they say Rutan and Tucker is biased in favor of development interests.

Council will address the initiative during a special meeting March 12. At that meeting, Council has the option of adopting the initiative outright or within 10 days after that. If Council decides not to approve it, the initiative will be placed on the ballot for a special election, likely to take place June 4. The election would cost the city an estimated $350,000 to $400,000, according to city officials.

Under the initiative, increasing density or building heights beyond 30 feet would require a majority vote of the public. Additionally, changing the zoning type of a parcel in some circumstances would need voter approval.

Many zoning changes are already subject to a public vote. But currently, Council can raise density limits and change the zoning type of a parcel with a four-out-of-five council member vote — a power that would be eliminated under the initiative.

Rutan and Tucker’s report maintains that the city will have a difficult time complying with housing requirements if major zoning decisions are placed in the hands of voters. Right now, Encinitas is updating its blueprint for housing in the city. Part of that process includes planning for where 1,300 state-mandated housing units could be built in the city. To accommodate these units, parcels might have to be rezoned to allow for greater density. And if the initiative becomes law, this type of rezoning would trigger a public vote, according to the report.

Should voters reject the state-mandated housing units, developers could sue the city for being out of compliance with state law. Further, the city could cede its authority over land use, the report states.

Bruce Ehlers, the initiative’s spokesman and a former city planning commissioner, isn’t buying it.

Ehlers challenged the assertion that the initiative would make the city susceptible to lawsuits and more likely to give up land control. First, he said, the initiative isn’t “anti-growth,” it’s only for development that citizens can live with. And should the city face penalties for not meeting state-housing requirements, that would be something voters would take into account when deciding whether to OK projects, he said.

He argued the city could still be sued under the current rules for not conforming to housing that’s mandated by the state.

“If you replace the words ‘right to vote initiative’ with ‘City Council’ in the sections that cover state (housing) requirements in the report, the report would still be the same,” Ehlers said.

“The initiative is only giving voters the final say,” he added.

He said Rutan and Tucker has a history of representing and supporting developers.

“The report is from the lens of developers,” Ehlers said. “I don’t buy their ‘the sky is falling’ interpretation.”

But Joel Kuperberg, an attorney with Orange County-based Rutan and Tucker, said the report was approached “without any political or ideological bias.” He noted the more than 40 lawyers at the firm have represented cities, landowners, developers and environmental groups over the years, as well as analyzed legislation.

Kuperberg said that any law firm versed in California statutes would arrive at the same conclusions as those in the report.

“In light of statutory law, it’s clear,” Kuperberg said, adding that the specific statutes the law firm’s reasoning is based on are listed throughout the report.

The report delves into additional concerns.

According to the report, the initiative could violate the state’s density-bonus law, which lets developers increase density on lots in return for building low-income housing units. Again, litigation is possible for not following the law.

Also, the initiative could increase the cost of mailing notices for public hearings of development projects, the report states. Currently, a project affecting more than 1,000 people can provide notice of a public hearing in a newspaper. But the initiative doesn’t list that option, meaning public notices would have to be mailed to anyone affected by the project — a much larger cost shouldered by the developer or city, depending on the project.

Another notable portion of the report: the California Coastal Commission, the state agency that oversees coastal access and safety, would have to certify the initiative. Until then, the initiative wouldn’t take effect for the parts of the city near the coast.

Council also asked the law firm to address the impact on business.

According to the report, this area too would suffer, “because there may be fewer business and employment sources to relocate to in Encinitas.”

In response, Ehlers said that he heard a reoccurring theme while walking through neighborhoods to collect signatures for the initiative.

“Most of the people I spoke with mentioned community character,” Ehlers said.

“Community character is what attracts businesses and people to Encinitas; the initiative would preserve that,” he added.



GPU in the ruts March 10, 2013 at 1:04 pm

It’s surprising that the city would hire a renown pro-development law firm for an evaluation of the Encinitas Right-to-Vote initiative. Talk about charging us (yes we all pay for it) for a report that goes against the sentiment in the community. It sure seems to me that the city manager was acting fast and loose on this one, having selected this law firm before city council even voted to order a report.
The General plan update has nothing to do with creating a diversity in housing and allowing affordable housing. It’s about bringing higher density zoning to Encinitas, $1M condos along the Coast, and stuffing out already congested traffic corridor with more tacky mixed-use complexes just like Pacific Station.
Time to renegotiate the allocation numbers with SANDAG and tell HCD in Sacramento their process is flawed and in direct conflicts with the aspirations of 5 Encinitas communities.
I will be watching what position Tony and Lisa (and Teresa) take on this one. To me this is the biggest test. Lisa and Tony were voted in mostly because they were entrusted to protect quality of life from the grip of development interests. Let’s see how they respond to the test.

Concerned citizen March 9, 2013 at 10:19 pm

Many feel it was unwise for our fairly new City Manager to contract with a pro-development Orange County (outside SD County) lawfirm that acts as henchman for expansionist forces. The big question is do special interests, including many who have made a ton of money on development in Encinitas, get to decide what is the “highest and best use” of the land.

Encinitas was founded to slow down and control growth, which had been unchecked through the County Supervisors. Unfortunately, Council became “stacked” with development interests. Most people want to slow growth; we’re practically “built out” according to our General Plan, put in by our founding fathers and mothers. But we are going through the painful process of a General Plan UPdate, which would throw the desire of the citizens to the winds of greed at the cost of existing infrastructure, at the cost of ever rising rates and fees, increasing to feed the machine of escalating operating costs and expensive Capital Improvement projects which mainly benefit STAKEHOLDERS, which is another word for special interest groups, like the building industry, Realtors, and property owners looking to sale at inflated rates for high density mixed use development.

The initiative is great; it represents the people, through a populist movement, supported by a big majority, trying to take back some control of land use decisions. The General Plan was initially written to allow the vote. But the loophole that allows for 4 out of 5 Councilmembers to amend our General and Specific Plans to upzone if its determined that would be a “public benefit” is far too broad. The Supreme Court has ruled that development fees, more sales taxes and more property taxes would qualify as public benefit, which takes away from our neighborhood rights to help preserve our community character of a laid back beach town. The initiative should be adopted outright, but if that doesn’t happen, the people will vote YES, in support of our right of self-determination.

Some, who voted for Couuncilmembers Tony Kranz and Lisa Shaffer because they signed petitions for the initiative to be voted upon, are very disappointed in their lukewarm support for it, now. Kranz did have a reasonable suggestion, to save the cost of a special election, to adopt the initiative outright, with a promise to put it on the election, for a possible recall, or verification of Council’s decision to adopt, at the General Election, saving about $300,000!

L. Walshaw March 9, 2013 at 11:08 am

Alarm bells should be ringing for Encinitas voters lest they go down the same path Oceanside’s now embroiled in: a “Charter City” where the votes of 3 members on a City Council get to override the choices made by the majority of VOTERS. Beware of outside “consulting reports” and “studies” paid for at taxpayers’ expense, saying that choices made by VOTERS could “hurt the City.” You’ll wind up, as Oceanside has, with unrestricted building heights, mixed zoning, developer fees waived and taxpayers paying for “studies” about sewer installation that are ordinarily borne by developers.

fred caldwell March 8, 2013 at 10:28 pm

Special elections used to cost $38K. What happened?

Linda Sills March 8, 2013 at 10:06 am

I sure hope that the people of Encinitas will be able to vote on these measures and zoning items especially with regard to high density housing. All of the cities in the state of California need to stand up to and speak out against these “laws” (state) which have been passed inside our state capitol. This environmental greening of California has dire consequences. If you only knew where this is leading. Here are some places you can learn about it: and
None of this is theory, it is fact. Look up on You Tube 1992 under the heading of Nancy Pelosi-Agenda 21. She and a few of her co-horts were pushng this back then.

Doug March 9, 2013 at 8:32 pm

“…”laws” passed inside our state capitol.” Gosh, isn’t that where state laws are usually passed? It seems that they are actually laws, not “laws”. But of course it’s all a UN plot, recommending that cities be arranged so you don’t have to drive everywhere. How un-American!

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