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

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

Press Contact: Bruce Ehlers 760-944-9482, [email protected], Citizen’s Group Files Suit Challenging Unconstitutional Settlement Agreement between City of Encinitas and Building Industry Association of San Diego