Wednesday, October 28, 2015

Desert Rose ruling overturned on appeal

Developer attorney Marco Gonzalez wins a unanimous decision, meaning the 16-unit density bonus project will go forward. Background here.

Ruling here.

HT: Anonymous.

27 comments:

  1. So the NIMBYs are going to have to now put up with neighbors. Wah wah

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  2. Question:

    What happens to the legal fees SDR won at the Superior Court level?

    Also, who is liable for legal fees associated with the appeal?

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    1. Citizens of Encinitas will foot the bill, as always. We always foot the bill for Mr. Sabines follies.
      What is this now...Marco 6 Sabine 0 ??

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    2. Sabine and Marco were on the same side in this one.

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    3. 4:27 PM

      "What is this now...Marco 6 Sabine 0" This is why I never take anything said here for granted. It must have been written by reflex without any thought. Marco, in effect, was defending the city and carrying the burden. So as EU said above they were on the same side. But that doesn't fit the bias here.

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    4. The fee award to Save Desert Rose is overturned with the decision on appeal. Save Desert Rose will be liable for costs (but not fees) associated with both the lower court proceedings and the appeal. The City (and taxpayers) are not responsible for fees or costs.

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  3. Hey get rid of Sabine already. Institutional history of bad legal counsel.

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    1. Unbelievable that Sabine remains in spite of all his blunders and failures. Does the City Manager have any say or is it strictly the council? If only the council, Sabine is safe.

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  4. How did the developers have standing to sue or oppose the superior court decision? This was strictly a writ of mandate challenging the council's adoption of the MND.

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    1. Save Desert Rose sued both CoE and the developer. They are a direct part in the action.

      The developer also has a clear financial stake in the outcome.

      Standing is not an issue.

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  5. Consider the people behind this. One doesn't live here and the other brought Vista mentality and has never fit in. Your rock is looking for you to crawl back under.

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    1. What's a Vista mentality?

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    2. No doubt has a skewed view.

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  6. While many here may not agree with the result, the city won even though it was the developer fronting the legal defense. The opinion says nothing about legal fees.

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    1. Presumably SDR has no assets to go after if they structured it right.

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    2. Wouldn't that suggest they can't appeal?

      How can you claim to have no funds, but then turn around and find an appeal?

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  7. It's important to remember that while the Density Bonus Law is flawed and should be reformed, that doesn't mean that CEQA challenges are the answer to every project approval. At some point, you have to accept that the City Council, and heaven forbid, even Glenn Sabine, got it legally correct this time.

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  8. So I finally sat down and tread the opinion. I have to say it was quite a noble attempt at a Hail Mary!

    Here it is an a nutshell:

    City overrides planning commission, and in turn makes MND more stringent

    Raptors not an issue since there is no shortage of eucalyptus trees

    Wetland habitat buffer now currently non-existent – Expert states that a 50’ buffer is preferable to a 25’ buffer – Conservation groups comments are vague and unsupported

    Aesthetics and views not impacted since a tree is a tree, and they’ll be more trees after the project is completed

    Community character – loss of a commercial enterprise is not an impact to the environment, equestrian use will be enhanced because of the new equestrian trail, besides the place has been and is zoned residential.

    Storm water expert bases his conclusions on incomplete reports –

    Traffic study written by an electrical engineer, not a traffic engineer –methodology challenged. Linscott’s table inconsistent, but never raised with the city, therefore cannot be raised at trial.

    Safety – Ingress to project is pre-existing. The project itself has no effect on the pre-existing road since it was bad before, and it will be bad after.

    Parking – same theory – the project doesn’t cause a bad parking situation if it’s already bad.

    I love the inference that an equestrian trail is equal in benefit to a commercial horse facility. Any rider knows a horse doesn't need a trail, but it does need a home!
    I wish they had prevailed on the safety issue since that would mean anyone building on Lone Jack would have to straighten out that hairpin and S turn.....ha!

    - The Sculpin

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    1. The property is zoned for residential. The owner has a right to replace the stables with homes. The state density bonus law makes it difficult to deny a DB project based on the additional homes. There has to be a clear health and safety issue. Finally, even if Desert Rose had to do an EIR, that doesn't mean it would be denied.

      I'm not trying to be snarky here but Desert Rose is an example that no area of the city (or any city) is immune to density bonus. Welcome to the club.

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    2. I fully agree! Reading the appeal it makes you wonder why the trial judge ruled in the way that she did.

      - The Sculpin

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    3. Maybe because she didn't read both parties' briefs?

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  9. Again Sabine does something to lower quality of life in Encinitas, that is not a WIN! That stable horse facility is one of the remaining pieces of "SOUL" in Encinitas. Between city attorney, planning, council, we are becoming San Elijo hills. Again how many decision makers at city hall live here? They don't care.

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    1. 1:42 PM

      "That stable horse facility is one of the remaining pieces of "SOUL" in Encinitas." If you and your neighbors feel strongly about this then buy the property. It's zoned for residential and the owner has the right to build houses on the property. Would you be this exercised if the owner decided to build only at the mid-range density?

      I'm all for stables but whether the property is a stable or residences is up to the owner.

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    2. Elect Mr. Ed to the council - he is pro-stables!

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  10. There is something called "thoughtful development" that considers neighbors and community. This does neither, nor do the lawyers that represent the developer. There is something beyond greed and money, sure it could be developed using density and design that is considerate vs. this ugly duckling!

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  11. Bottom feeder, I certainly hope the next density bonus project goes in next to you. You might sing a different song if you were negatively affected, the way so many others are, when these lies of providing homes for low income gets built in your backyard. Now that would be justice served. If only that could happen.

    We, who question these community character destroying projects, would still welcome you to our side, if that ever occurs, so rest assured you will not want for supporters to mitigate the impact on your own homestead.

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    1. What are you talking about?

      Read again. Sculpin was explaining the judges' explanation for the decisions--not offering his own opinion.

      In fact, he said he wished SDR would have won on the public safety issue.

      Are you so parochial that you cannot distinguish between an objective analysis of what the judges said, and advocacy for the developer?

      Or is it just that you are paranoid, and see enemies everywhere?

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