Sunday, December 18, 2016

Council majority promised developers something it couldn't deliver

The settlement agreement:
Defendants will adopt an Updated Housing Element in accordance with the Housing Element Law no later than the date that the City Council adopts the resolution required by Elections Code Section 10263 declaring the results of the November 8, 2016 election.
The council majority (Kranz, Blakespear, and Shaffer, with Muir and Gaspar opposed) promised this to developers, knowing that the massive upzoning to three story mixed-use and 48-foot-high buildings without adequate parking would be highly unlikely to be approved by voters.

The city of Encinitas is now in an extremely difficult legal position, being in default of a settlement the council had no right to make nor reason to believe could possibly be fulfilled.

... which leads us to wonder: is this just gross incompetence, or is the council colluding with developers? Outgoing councilwoman Lisa Shaffer's comments would seem to support the latter view as she said:
I think we should be finding the cheapest and fastest way to get this to a judge.

56 comments:

  1. I've been saying for years this council ( actually all councils) is made up of idiots. Perhaps the biggest idiot to sit is the city attorney. He should have known this settlement was ambiguous enough to allow for multiple interpretations...and for some stupid reason we continue to pay this fool.
    But for some reason this is par for the course for Encinitas. Idiots in charge. Idiots on the staff. Idiots elect these idiots. What more do you need to know??

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    1. City attorney the worst disaster in terms of incompetence and cost. But slick and smarmy seem to snow the council.

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    2. From the developers' point of view, Sabine has been the best city attorney ever, the bestest!

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    3. Funny. If you find yourself surrounded by idiots then what does that make you? I'm not saying that to joust. I am asking a legitimate question. If life is so bad in Encinitas, why be here?

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    4. Observation: Julie G. is mad circa 7:49 pm on Sunday night.

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    5. Observation: 9:06 AM has nothing of substance to add to the discussion and resorts to author speculation.

      Let me do a little of my own: Mikey, that you? How's the slime under your rock after last week's big rain?

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  2. Shaffer's comments certainly do point to the latter view. If we look back, there has not been a time where this Council has stood up to developers. Shaffer's opinion cannot be taken as a one off, but rather part of a pattern of developer protection.

    Now think about Tasha's immediate and loud rejection of requiring any affordability for Measure T projects. She's just the latest example in a succession of cozy City/developer relations.

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  3. They're no doubt covered by insurance, but wouldn't the more appropriate target of a Meyer suit be the three who agreed to the deal? He should sue them directly and individually and leave the taxpayers out of it. We would never have signed such a ludicrous agreement. And Blakespear is a lawyer and put her name on it? Remind me not to look her up in the phone book when I need legal work done.

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    1. Insurance? What the hell are you talking about? Insurance doesn't cover the breaching of contracts. There is no applicable insurance here.

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    2. Usually civil servants are indemnified from job related decisions (blunders) and the liability goes to the larger entity; ie, the city. Look at Filner - his actions bordered on criminal and he was bailed out. Where was Sabine when all this went down - getting his knob polished?

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    3. I don't think elected officials have errors and omissions insurance. Their errors are covered by you, the taxpayer!

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  4. Shaffer is now the prophet!? Or is she just ducking for cover on 4 years of incompetence? She'll claim the plastic bag ban as her crowning achievement.

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    1. Shaffer is irrelevant now. And finally!

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    2. She'll still try to be relevant, just like Barth does through the mimster and the "cluster."

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  5. We're obligated to comply with state law with or without a settlement agreement. DCM could have sued either way, and he will win. The only detail of the settlement that's potentially damaging is the deadline it imposes. That deadline might compel a court to accelerate the path to compliance. They may not allow a year or more to "start over" and vote again. A court could use the breach of contract specific to the date as justification to set aside Prop A. Not saying they will (judges don't take voting issues lightly), but they could.

    There's a lot of ways this could play out, but all of them end up with Encinitas in compliance with state law, and a bunch of grumpy folks shouting. Like I said before the vote: yes or no on Measure T--it doesn't really matter. Both votes lead to the same place.

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    1. Your Meyer-happy opinion comes from ?? "...and he will win...."? Give us a break.

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    2. Probably one and the same....

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    3. 12:24,

      I'm confused. Are you suggesting that we are already in compliance with state housing law?

      Because if we are not, then we can't win against Meyer in court.

      I don't think there's a straight-faced argument on the merits. The only question is what remedy a court could impose.

      If they want to steer clear of the Prop A issue, a court could simply rule that Meyer is entitled to $1000 per day, and that the per diem doubles every six months until the city achieves compliance. That would certainly put the pressure on the city and voters to end this silliness.

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    4. Within the Agreement between Meyer and The City, the 2013-2021 planning period is mentioned. Doesn't this give The City until 2021 to comply (or litigate)? Am I misunderstanding the time to comply or is a false and immediate deadline being put forth by the Meyer camp?

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    5. State law defines specific cycles for housing element updates. We are out of compliance. The current planning cycle was supposed to have been approved and put into effect before 2013, and remain in force until another revision is due (with new RHNA unit allocation) in 2021.

      We can't simply declare that we missed the 2013 cycle, so we don't need to do anything until 2021. That would be like telling the IRS that you missed the April 15 filing deadline, therefore you can't do anything until next April 15.

      If you are out of compliance, you need to get back onside.

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    6. I'm sorry, but all of the intelligence on this HE stuff has left the city building. Best thing to do now is to deliberately fill the deputy director position and director position with someone that knows something about State law and how to comply without doing too much damage. Get someone from mid-coast where there is still some character.

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    7. Planner Strong did talk good game. But what does he have to show for it? A plan that was rejected. We need someone that talks a good game, but also shows it in two-stories or less.

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    8. "Intelligence?" You mean connivance. The tall tales spun and sneaky developer gifts starting with Murphy on down through Strong have left the building. Whew.

      Theoretically the City could hire someone who knows how to do an honest day's work, but that would not serve what certainly appear to be an agenda.

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    9. 1:21 PM Sounds like Sabine.

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    10. 9:58: connivance? as in something illegal at city hall? what is going on that is illegal? tall tales or working on something that is asked from the state are two things that are not illegal. more importantly, you can't place blame on a staff person when the problems persist after their exit. i met with some of the planning staff right before the city council hearings and they seemed good. the line of state vs. local has existed long before this blog. i have to admit i have not been following politics and certainly haven't been following housing stuff up until the summer, but i am starting to see that some of the "tales" are true. not sure that we have to do everything that was created in measure t, but some of it could actually make things better. i don't think anyone want to keep el camino real the way that it is now.

      6:38: doubt it is the city att. ive heard that council members sit and talk on this blog, back and forth to each other. i am starting to see that.

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    11. Murphy, Ranu, and Strong did their jobs. New placement will do their job, much to the chagrin of bloggers. City of Encinitas does not escape rezoning or three stories.

      "Choose your destructor" (Ghostbusters 1984)

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    12. Clearly 9:06 did not read Measure T. There's a section that actually says (paraphrasing): "upzoning can be accomplished within the height confines of Prop A." So if the three stooges did their jobs and that's what they put in there, then I guess we do escape three stories. No one disputes the rezoning part, 9:06.

      "Do your homework so you'll have your facts straight" (me, 2016)

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    13. I think what 9:06 is saying is that you could rezone 30 units per acre in two stories. The problem is that the State will ask you to unlock it to three stories. Better way of putting it, show the city council 30 units per acre density and two stories in this town. If you can build that in Encinitas, then you win. You can become the new city planner.

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    14. The State will not ask us to "unlock" anything, as developers have said they can accommodate 30 units per acre in two stories.

      Your whole argument is moot anyway, as the State has already said 20 units per acre is acceptable.


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    15. Hhhmmmm. Don't speak for me 10:21. I am the commenter (9:06) and wouldn't put it in those terms...I was a little bit more direct.

      They City is in trouble no matter how you play the cards. No matter the card dealer. New Steve Chase is doing what he can but won't escape the same conclusions. You technically tell everyone to build at two stories, but it doesn't mean that it is feasible. You are essentially telling everyone that they have to build 400 sq. ft. homes. You may want to get past this planning piece, but think about how these units will look. Do you really want more mobilehome size units in this community? That's exactly what you are arguing for. Since it is not feasible for most developers to build like this, Encinitas need to find a new set of rules to make it so that it works.

      And to the folks that want 25% inclusionary housing, smh. That is ridiculous. Do you really think that the majority of this town wants more restricted housing? If that is the case, then lets apply the 25% requirement to all single-family development too.

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    16. 20 units per acre is a minimum 10:32. Unless you do a maximum and minimum of 20 units per acre.

      And good luck with that.

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    17. My conclusion is 10:35, 10:33, 10:32, 10:21, 10:14, 9:06, etc. don't know what they are talking about.

      No one cares anymore. Start working on the next planning cycle. Have the same conversation, again and again.

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    18. "smh?"

      Ah yeah, I do think the majority of this town does want restricted housing - isn't that why we're upzoning in the first place? Isn't that what the City's been selling us since day one?

      Interesting to watch the language from the City move in sync with developer-speak from "affordable" housing to "attainable" housing then "housing for all income levels."

      Remember: we were not allocated housing units at "all income levels." We were assigned low and very low. Back to the point of this whole thing, right?

      I get that developers want to build luxury at full market rate, but that is not what the State is asking us to do and that was not how the City originally sold the "mandate." Developers with a complicit City may want to sneakily shift the labels, but residents will continue to reject the bait-and-switch.

      And in anticipation of the next objection: HCD has already said up to 25% - in some cases, higher - is acceptable.

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  6. Meyer. The lemon of Encinitas.

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  7. Looking at the law firm the city hired to defend it (Goldfarb & Lipman), it is my opinion that firm was hired due to political connections rather than competency.

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    1. Exactly: for a predetermined Meyer/BIA-friendly "opinion."

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  8. Que the Benny Hill music, as the council scurries around in hectic circles. Our Judas City Attorney is probably advocating throwing more money Meyer's way. Where did Blakespear get her JD - Trump University? She can't even evaluate on who to hire to defend the city!

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  9. Best thing the City can do is to pass the measure and bypass the vote. Then immediately put residential development under moratorium to study the issue, including inclusionary zoning and affordable unit fee. This will buy the City 6-months. In that process maybe one or two sites can be removed from the SMUP map.

    The thought of complying with state law without rezoning has no merit. We have tried that for the last 20 years. It doesn't work.

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    1. Well, we knew it was coming right.....?

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    2. No. It is not coming. We can still impose a 25% inclusionary requirement. We can still take away the extra ten foot encroachment for elevator shafts. 38 feet is ok. 48, no way. Council can make these changes!

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    3. 8:51 - you actually think a moratorium would not bring an immediate suit from the Meyer lemon? He wants his upzoning, and he wants it NOW.

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    4. 8:51,

      I'm having flashbacks to working on business deals in the Middle East. The moment you sign a contract, the counter party wants to suspend it and renegotiate.

      "Yes, yes. We have a deal. Let's shake hands. Now we need to make some changes before we can implement it."

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    5. Actually 11:31, you have to read that the other way around in Encinitas' case.

      There's always that attempt to calm folks by saying "let's just think about this and consider ways we can make this work." As in "We only have to PLAN for upzoning, that doesn't mean it's going to happen" (but of course it will).

      Reality is: it passes, Meyer/the BIA sue immediately if any roadblocks or "studies" are even hinted at.

      So "Best thing the City can do is to pass the measure and bypass the vote" works only if you're a BIA member. Not so much for residents.

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  10. You folks need to come up with a different moniker for DM - the Meyer lemon is one of the sweetest types of lemons and is used in deserts, cakes, pastry and cocktails. This doesn't seem to be the characteristics you folks have typically attached to DM or developers in general.

    - The Sculpin

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    1. Good point, Sculp. How about "bottom feeder?"

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    2. Nope - that one is already taken....

      - The Sculpin

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    3. I'll say. You could use the company, I'm sure you two will get along famously.

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    4. We've met....our business interests are not aligned...

      - The Sculpin

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    5. ...and most importantly, lemoncello.

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  11. The new state law says every single family home can have a granny flat. State law trumps city laws, granny flats count per state law, just need to have the zoning(don't have to be built), therefore, we are in compliance. Right?

    The state created the environmental protections surrounding Encinitas that must be considered. We are failing at this density.

    One carpool lane and a couple more trains to nowhere will not support the prescribed density.

    This needs to go to the states top courts so the state can decide once and for all what laws have priority. We all know where CA is when it comes to the enviroment. Meyer, once again, fails and screws himself.

    Surfrider/Greenpeace/Sierra Club vs. BIA/Meyer. The non profits have figured out, finally, that nothing affordable has actually been built. Should be a good fight and Encinitas should not cave to the developers until it is settled.

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    1. Granny flats were already legal in Encinitas, so the new state law didn't change anything. We were and still are out of compliance.

      The city was able to use building permit records to determine the rate of affordable unit construction attributable to granny flats. The calculation was used to reduce the amount of land to be rezoned under Measure T, but it wasn't a huge number, because a lot of the granny flat construction happens illegally without permits. People don't like having a public record that can be used to trigger a property tax assessment increase, or tip off the IRS that they might have unreported income from a rental unit.

      Unfortunately, without documentation the city can't claim credit for affordable housing construction. Bob Bonde suggested instrusive house by house searches by the city to expose all the undocumented granny flats. It would be hugely unpopular, but that's what it would take for the city to get full credit.

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    2. Thanks 12:15 that helps. So what if we get a few thousand people to call their garage a granny flat but don't rent them out? The new law makes it way easier and if there is no income, then no taxes. Would that be the same situation as " it does not have to be built?" Is there any incentive the city could offer that would cancel out the extra tax liabilities?

      Bottomline is that all people not paying taxes are just as greedy as the developers whom they are also enabling.

      Could census data be used get a real number? Tax status should not be a criteria to not exist.

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    3. The big benefit here would be the construction of more accessory units than are currently being built. City code allows but does not require. However, under Density Bonus a builder can still get such code requirements waived. This is an example of state laws contradicting each other. I think Accessory Units are on the agenda of the next City Council meeting.

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    4. More accessory units now will help in next cycle. Not now.

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    5. Not what HCD said, 2:30. And their opinion is the one that counts.

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