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Citizen’s Group Files Suit Challenging Unconstitutional Settlement Agreement between City of Encinitas and Building Industry Association of San Diego


Citizen’s Group Files Suit Challenging Unconstitutional Settlement Agreement between City of Encinitas and Building Industry Association of San Diego
Today, the Encinitas Residents Alliance, supported by the North County Advocates, filed a lawsuit against the City of Encinitas and CityMark Development. The lawsuit challenges an unconstitutional settlement agreement the City made in August 2015 when it granted its authority over development decisions to the Building Industry Association of San Diego (BIA). Encinitas Residents Alliance (or ERA) aims to invalidate the pact between the City and the BIA and overturn the Council’s approval of the CityMark Hymettus Estates density bonus project in Leucadia – one of six pipeline projects treated specially as a result of the unlawful BIA deal.
“This illegal agreement binds the City in their decision making and gives unique, preferential treatment to six density bonus projects including Hymettus Estates. It changes how they calculate the number of units permitted and the net result is almost double the number of housing units allowed by our local zoning,” said Bruce Ehlers, former City of Encinitas Planning Commissioner and Boardmember of North County Advocates.
The contested activity arose after the BIA sued the City of Encinitas to reverse several density bonus-related development policies and ordinances in 2014. Density bonus is a state-mandated program, implemented by every city, to incentivize growth, granting builders up to 35% more units than the maximum local zoning allows, along with multiple waivers of local development requirements when the developer agrees to construct a minimal number of low income units. As little as 1 very low income unit for every 20 market rate homes qualifies a project for the state’s density bonus program.
The method of calculating the number of bonus units is especially important in smaller developments, the most common type in Encinitas. Encinitas’ method of density bonus calculation previously included rounding down the number of units and subtracting certain undevelopable acreage to calculate the “net acreage.” The BIA suit challenged these methodologies and the illegal settlement reverted to the BIA’s preferred calculation on six active projects in the City’s development pipeline. The calculation the City is bound to in the contested settlement agreement resulted in 9 houses, an 80% bonus, far exceeding the state mandate bonus of 35%.
The Encinitas Council took steps to clarify the City’s method of calculating “net acreage” – the land available for development after impediments like steep slopes, ponds, and roads are discounted from the total acreage – and “base density” – the number of units which can be built, computed by multiplying net acreage against a property’s zoning. In 2014, the City clarified that planning staff should round fractional base density down, as provided in Encinitas municipal code, whether or not a project sought a density bonus. While also applicable to density bonus projects, the Council’s 2014 efforts were applicable to all projects, reiterating existing law and matching other Southern California City’s practices, including the City of Los Angeles, Solana Beach, Imperial Beach, and Lemon Grove.
Shortly after the BIA sued the City in 2015, the two settled the dispute by agreeing to give six “pipeline projects” special benefits not enjoyed by any other property owner in Encinitas. Under the settlement agreement, Hymettus Estates (approved on May 25, 2016 for a nine unit development at 378 Fulvia Street) was allowed to round base density up and not reduce net acreage due to a large stormwater
detention pond on the property, contrary to the municipal code. These advantages are significant for developer CityMark because rounding down would only permit seven houses to be built using density bonus, not the nine houses (80% bonus) the City approved. All parties agree: without density bonus, only five houses could be built.
ERA’s lawsuit also challenges the City’s approval of the deficient Hymettus Estates Environmental Impact Report (EIR) that failed to adequately disclose and analyze all environmental impacts and the violation of Encinitas’ Municipal Code when it exceeded height limits and ignored other code requirements. Further, the City’s failure to disclose communications with the developer violated ERA’s right to public records.
The BIA settlement agreement affects all of Encinitas and it binds the City Council’s decisions on formulating and approving the Housing Element Update (HEU). The HEU is a mandatory element of the City’s General Plan and it defines zoning density and other zoning characteristics. The contested settlement requires placing the HEU on an accelerated timeline and that it be placed on the November 2016 ballot. It further requires the adoption of the HEU regardless of the election outcome. If the ballot measure fails, the BIA has threatened to overturn the voters’ will by having a judge force the adoption of the draft HEU, contrary to the mandate set forth in the 2013 Encinitas Right To Vote Initiative, also known as Prop A.
Encinitas Residents Alliance (ERA) is a grassroots community organization formed to ensure the conscientious management of development in Encinitas for the maximum benefit of its citizens, protecting those things that make the City such a great place in which to live, work and play. Learn more about ERA here: www.encinitasresidentsalliance.com.
North County Advocates (NCA) was formed in 2009 and is a group of local volunteers whose mission is to preserve and protect the quality of life, the environment and the character of Coastal North County San Diego, especially in La Costa, Carlsbad and Encinitas. They strive to expose and oppose the negative impacts of excessive development, increased traffic, increased zoning density, increased intensity of use, pollution, (air, water, land or light) or similar detrimental factors whether proposed or initiated by private or public entities. Learn more about NCA’s efforts at www.NorthCountyAdvocates.com.
Press Contact: Bruce Ehlers 760-944-9482, Bruce@Ehlers-Online.com

Objections to the Caruso Affiliated 85/15 Initiative in Carlsbad, CA


Caruso Affiliated, a major high end shopping center developer, submitted an initiative to the City of Carlsbad in May 2015.  Their proposed project was described as the 85/15 Plan which purported to preserve 85% of the site as open space while developing only 15% for a regional shopping center.  The area addressed by the initiative is 203.4 acres on the South side of Agua Hedionda Lagoon.  It is generally between Cannon Rd and the lagoon from I-5 east to close to the AH Discovery Center.   The initiative creates a Specific Plan (SP) for this area which exempts it from existing zoning and amends numerous provisions of the city’s General Plan, Agua Hedionda Land Use Plan, and city municipal code.

While called “Preserving Open Space the Right Way” this is not about open space- it is about a huge shopping center being built adjacent to a sensitive coastal lagoon.  The developer stated that he chose to submit an initiative rather than going through the standard project review in order to avoid the California Environmental Quality Act (CEQA) process.

Background on the Site

The majority of the land they claim to save as open space has already been “saved.”  The Habitat Management Plan (HMP) adopted in 2004 identified 75.8 acres of this site as hardline preserve land.  This was “saved” as open space at that time.   In 2006 there were 2 ballot measures to “Save the Strawberry Fields.”  The citizen’s initiative included this entire site and more.  The City sponsored alternative initiative excluded the 48 acre parcel on the west, but includes the remaining 155 acres.   Both initiatives passed, but Prop D, the city’s version, received slightly more votes and prevailed.   This retained the existing Travel/Recreational Commercial designation on the 48 acre parcel Caruso is now proposing to develop as a shopping center.  Prop D also placed conditions on the remaining 155 acres.   Agricultural uses could continue, but when no longer economically viable, Prop D would “ensure that this area is permanently protected and preserved for open space uses. “

Caruso has options to purchase both the western 48 acre developable parcel and the eastern 155 acre open space parcel from SDG & E.  The initiative removes the entire 203 acres from many existing provisions of the city’s land use requirements and instead has them subject only to several vague terms found in the SP.  The site is within the Coastal Zone so the project is subject to approval by the California Coastal Commission.

Key Issues of Concern

Process Issues               


  • Project bypasses CEQA


The California Environmental Quality Act (CEQA) is the key state law that protects our health and the environment.  We all want clean air to breathe, clean water to drink, and natural lands preserved.  This law requires developers to analyze the impacts of their project on our health and the environment- and mitigate any impacts that could adversely affect us all.  CEQA doesn’t force the developer to make specific changes.  But it requires them to analyze impacts, and if they are not mitigated the agency must adopt a statement of “overriding considerations” justifying their decision to allow such impacts to occur.  This process assures that both the decision makers and the general public can assess whether a project is good for a community or not.   This developer intentionally used a recent loophole in the law to completely bypass this process that benefits us all.  This is a dangerous precedent- not just for this project, but for all other development in the state.

  • Eliminates all of the normal project review procedures


The City of Carlsbad has an extensive system in place to review all development- that is why it is the community it is with high standards.   The process includes three rounds of multi-department internal reviews, plus external notifications to adjacent cities, other agencies and interested parties.  It starts with detailed information about the project including engineering drawings that show exactly what will be built, and what a project will look like.  Caruso has provided no engineering drawings and has bypassed this entire review process.  We do not know what we are really getting with this project.


  • Eliminates opportunities for community input in the process


By eliminating both the CEQA and the internal review process the public has been shut out of being able to provide any meaningful input on the details of this project.   The details are what often determine whether a project really is a good fit with its neighborhood and the entire community.  Nearby residents and businesses are often directly impacted by a project – things like where new driveways are built,  building height or setbacks that block views or create shadows,  lights that spill over onto adjacent properties. With a project of this size such impacts can impact not just the immediate neighborhood- but much of North County.


  • Establishes unprecedented “ministerial” review for 15 years


The initiative establishes the Specific Plan (SP) as the single source for all development conditions for the entire project site.   It eliminates all review by city Boards and Commissions.   The process specifies that there is ministerial review only and sign-off by the City Planner, with essentially no discretion and with very short time limits specified.  A key issue is that the elected officials of the city, city staff, and the Planning Commission have no ability to approve/modify any of this for 15 years!


Project Issues


                –  Creates new zoning codes that only apply to this site


The SP changes the existing zoning in the city’s General Plan to five new zoning designations.  It sets up its own conditions for these new zones- making it very clear that parking and   other uses that support the shopping center are of paramount concern.  Many acres of land that are now protected as open space could become parking lots for this new shopping center.  This is not our vision for open space.


  • Inadequate protection of Agua Hedionda Lagoon and coastal resources


Shopping centers can be built anywhere, but our coastal lagoons can only exist right where they are.  This lagoon is a priceless resource to everyone who lives in this area.  Technical studies show the proposed storm water system is insufficient to prevent contaminants from reaching the lagoon.  These include heavy metals that are toxic to marine life.


  • Unacceptable traffic congestion


The developer’s own traffic study says the project will generate over 33,000 vehicle trips per day.  They then go through some hocus pocus to artificially reduce this number and claim that with an additional turn lane on Cannon Rd and some other minor changes that traffic will actually be better with the project than it is without it!  As preposterous as that statement is, it is made worse by ignoring the increased congestion along I-5.  A letter from Caltrans says that the Cannon Rd ramps cannot be fixed until 2035.  Until then thousands of people will be impacted every day by the increased traffic this regional center will generate.


  • Air and soil contamination


Our air quality expert identified numerous concerns about Caruso’s analysis of air quality.  The project will greatly exceed the thresholds for many pollutants- not by just a little bit- but in one case it is 8 times the allowed limit.  We already have too many children with asthma and seniors walking around connected to oxygen tanks.  And in spite of earlier soil tests that showed 21 of 25 sites exceeded the human health limits for Toxophene, Caruso proposed no further soil testing or site clean-up.


  • Visual impacts


If this project had followed CEQA they would have had to provide visual simulations- but they did none.  Every day thousands of people experience the lagoon as they drive north along I-5.  Instead 35 foot high buildings will be built right next to the freeway- likely completely blocking most if not all of this public view.    In another city the community became incensed when they realized how their views would be impacted.  We expect that is why Caruso has tried to ignore that issue here.


  • Green House Gasses


Carlsbad just adopted their first Climate Action Plan (CAP) – a plan to reduce Green House Gasses (GHG) to the levels now required by state law so we can turn the corner on climate change.   This project will add 33,076 metric tons per year of GHG.  While the CAP assumed there would be some development on this site- it did not assume a project of this size that generates so many tons of GHG.  Our grandchildren will pay the price for pretending this is not a problem.


  • Water use


They claim that because recycled water is being extended to the site (at taxpayer expense) the new project will actually use less water than the existing strawberry fields.   All of us who live here are watching our lawns turn brown- while this development adds 117 toilets and acres of landscaping.   Actual total water use will greatly exceed current use.




We have identified numerous issues of concern with this project.  If it were going through the normal process, we and others would be able to sit down with the developer and try to make changes that would address these issues and might result in an acceptable project.  Since the initiative process does not allow that, our only option is to oppose the project using all available means at our disposal.  We have initiated legal action over procedural issues with the initiative including that it is an overreach by Caruso, it illegally mandates administrative acts and conflicts with state law, the state constitution, the City Charter and the City’s Growth Management Plan.  We will continue to inform the public about our concerns with this project and to take such other actions as are needed.


North County Advocates

Check out this website about the $50,000 grant which NCA gave Buena Vista Audubon Society

Check out this website about the $50,000 grant which NCA gave Buena Vista Audubon Society to help with the purchase of land by the lagoon. This purchase was just completed:



New Article by our attorney

New Article by our attorney Everett Delano in Voice of San Diego

North County Advocates Pledges $50K to Local Open Space Acquisition

North County Advocates, (NCA), a non-profit organization headquartered in Carlsbad dedicated to preserving open space and the quality of life in North County San Diego Coastal Communities, is pleased to announce that it has pledged $50,000 to support the Buena Vista Audubon Society’s (BVAS) plan to purchase two separate Oceanside properties adjacent to sensitive wetlands.

Buena Vista Audubon Society to purchase Oceanside properties adjacent to sensitive wetlands with funds raised.

The BVAS has entered into purchase agreements with two separate landowners. One parcel is 3.56 acres along Pacific Coast Highway in South Oceanside next to the Buena Vista Lagoon. The land is directly across the highway from the BVAS Nature Center. The other property is 31 acres adjacent to the San Luis Rey River, just a few hundred yards west of the Whelan Lake Bird Sanctuary and bordered on the north by Camp Pendleton. Both represent important opportunities for restoration.

“We are thrilled to assist the BVAS with these purchases because we know how precious our natural spaces are becoming in San Diego’s Coastal Communities,” says Patricia Bleha, Director and Founding Member of the NCA. “Preserving natural habitats for endangered species while ensuring a healthy balance of open space and development with area cities is our main focus. Supporting the BVAS is in perfect alignment with our mission at the NCA.”

According to the BVAS, the land is expected to appraise between $3-4 million. Not only is funding needed to purchase the land, but to restore it and establish an endowment to provide for ongoing habitat management. Additional organizations are also stepping forward to pledge funds as part of the BVAS matching grant campaign entitled the Clipper Rail Society.

Please consider making a donation to BVAS. Write on the left bottom corner of your check or money orders: “Clapper Rail Society – NCA”. All donated funds will do directly to the BVAS.

For more information, please contact Pat Bleha, at pat@northcountyadvocates.com. You can also contact Andy Mauro at the BVAS at 760-753-1266.

New Carlsbad General Plan

Where are all the parks and open spaces the City of Carlsbad promised us? Since 1986 when the Carlsbad Growth Management Plan (GMP) was adopted, we were promised 40 percent open space at buildout for parks, trails and natural lands. That space is now being reduced by up to 750 acres — a loss of open space 20 times the size of Alga Norte Park! Unfortunately, every quadrant of the city is shortchanged on parks. In many neighborhoods, the ONLY park is a schoolyard that is fenced and locked. The proposed New General Plan for Carlsbad will add:

* 7,880 residential unis
* 7.5 million sf of commercial/office/industrial space
* 2,360 hotel rooms

This new plan shortchanges that original commitment and DOESN’T add int he parks and open space that can keep all of this growth from turning Carlsbad into a place where no one will want to live! We need a BALANCED plan!

The time to fix it is now. Contact NCA and learn how to correctly submit your concerns to the City. Incorrect submissions are simply thrown away.

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