BIA vs. Encinitas Lawsuit

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On October 10, 2014, the San Diego County Building Industry Association (BIA), a CA not for profit Trade Association, sued the City of Encinitas in Superior court (case# 37-2014-0034550-CU-WM-NC) because of changes the City Council adopted in how the city should interpret Government Code section 65915, also known as the “Density Bonus Law.”

According to BIA Vice-President Matt Adams, the BIA simply wants the City of Encinitas to “uphold and administer the laws of the State of California.” Encinitas Mayor Kristin Gaspar would only say that “it would be inappropriate to comment on ongoing legal matters.”

The dispute involves changes made to the actual manner in which the city’s Planning Department calculates the number of units a given project can place on a given parcel of property.

According to Mr. Jeff Murphy, the Director of Planning for Encinitas, in response to a Public Records Request, there are currently six projects considered “active density bonus projects” in the City. They would have a combined total of 74 units if the rules the BIA believes state law dictates were applied, but 66 units under the new rules adopted by the Encinitas City Council. That’s a difference of 8 units. This in a city of about 24,000 existing homes. Wow.

So the BIA hired a law firm, Allen Matkins Leck Gamble, Mallory, & Natsis of San Diego to file the lawsuit, and the City of Encinitas hired special outside council, Barbara Kautz of Goldfarb and Lipman out of Oakland to defend its newly adopted policies.

The BIA is not a public agency and as such can’t be compelled to provide data regarding how much they’re paying their lawyers, or what their budget is for this action, but the City, in response to a public records request sent over a copy of their special counsel’s contract as well as their first invoice. The primary lawyers bill at $300 per hour and their invoice for January 2015 was $6,534.02. Another wow.

The State housing law is interesting because in Government Code section 65589.5, the California Legislature declared that the lack of housing in California is a critical problem that threatens the economic, environmental, and social quality of life for its citizens. In particular, the Legislature found that the housing shortage impacts low-income and minority households. The Density Bonus Law was enacted by the Legislature to promote the development of affordable housing. The actions of the Encinitas City Council are diametrically opposed to the goals stated in the state legislation and housing law.

The lawsuit also seeks recovery of attorneys fees and costs of suit, pursuant to Government Code section 65915, Code of Civil Procedure section 1021.5. If the court finds ANY merit to the plaintiff’s case, the City is on the hook for the plaintiffs legal expenses. OOOUUCH!!!

So, bottom line is that the City Council, bowing to some local pressure applied by folks that some would probably label as “NIMBY” (not in my back yard), is risking the expenditure of hundreds of thousands of taxpayer dollars, and is at risk of paying to reimburse the attorney fees accrued by the BIA legal team over what amounts to 8 housing units? Wow wow.

That’s our tax dollars not available to fix Encinitas potholes and maintain the parks, or even fix up the recently acquired but very dilapidated Pacific View School site.

And meanwhile, just a a few miles to the south, the City of San Diego recently approved a 600 unit, 1.5 million square foot mixed use development called 1 Paseo.

The City of Encinitas has about 24,000 existing homes, has very little developable land left, as it is about 95 percent built-out. Can somebody please explain the policy changes that brought about this lawsuit? Because they certainly aren’t pragmatic.

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