Density bonus is a law written by developers to benefit themselves under the guise of providing "affordable" housing, thereby assuring diverse communities. It mocks true democracy. Density bonus is all about developers maxing their profits, and they don't do it in the neighborhoods where they live.
The owner of this property wants to sell the property - and I do not blame him. On the other hand - City Mark development is doing everything within their power to "ghettify" Encinitas out from under all the good people who live there. City Mark has a deposit on the property - which is non-refundable - and if the plans cannot be approved - they will lose their deposit. PLEASE, PLEASE, PLEASE - do your utmost to repel these cockroaches from Encinitas. City Mark has only ONE interest in this project - and unless you are extremely mentally disabled - you know what that motivation is. Why has the city not looked into making this a preservation property? The ranch house is I believe the oldest building in Encinitas proper. I know of many communities that have preserved historical properties via eminent domain types of scenarios. Hopefully most who are interested in this have watched the city planning commission meeting - within which City Mark and their cronies are basically exposed for fudging ALL the numbers in their reports - to attempt to conform to city/state/county laws. This project will RUIN this neighborhood period. Why no one listened to the only logical conclusion to this issue is beyond me - which was to divide this property and sell the lots to individual buyers. Kick City Mark to the curb - and let them continue what they are good at - building projects in inner cities that would actually improve the communities they are in.
Of the two principals in the company that wants to build on Fulvia, one lives on Point Loma. I forget where the other one lives, but it's in a wealthy area in San Diego, maybe La Jolla, but that's a guess.
There is no way that they can argue that there will be no impact on the neighborhood. I went to the on site meeting and I don't even live in the neighborhood and it was as clear as it could be that it would have significant impacts on drainage, traffic, parking and safety of residents who already live there. This is a terrible plan--as bad as many others we have seen recently.
So what are you all going to do about it? I hear a lot of talk on this blog, but I don't see much action. Complaining is not going to change things. Get Involved if you really care and don't want to see our City look like another "cookie cutter" community.
The high density townhouses that Marco used in one of his presentations were built during the time that Olivenhain was under the county. That project was what caused many people like Marge Gaines to fight for the formation of the City. Some of the projects referenced were what caused a backlash and were held up as something that should never happen again. Desert Rose developers and Marco are trying to say that they should be able to degrade the neighborhood similarly. Not!
Call your Councilmembers and tell them to fire Sad Sac. Vina supports the super densification of Encinitas to pay for his $220,000 a year forever. More units means more taxes which means more chance he'll keep getting those fat checks coming in along with all the other tax leaches like Muir and all the others.
A majority of you are missing the point: Vina works for the Council: as do all the department heads. Vina is doing what Teresa and the Council wants him to, not the other way around. As long as "the people is a beast", (Napolean?) and let's face it, after the last election instead of declaring victory, you all immediately attacked your own candidates, the Council will hide behind Vina/Sabine, and with supposed friends and supporters like those posting here, who can blame them? Pray for Sheila to run!
9:19, we didn't "attack our own candidates." Our candidates, immediately after the last General Election, SET THEMSELVES UP IN OPPOSITION TO US and their previous campaign platforms, and promises, by opposing the Right to Vote on Upzoning Initiative, which helped to get them elected.
That's a start 8:05. Let the Council know you are unhappy with Vina, Sabine or whoever. You can email them. Their email is on the City's website. You can call City Hall and file a complaint, or go to a Council meeting and speak during Oral Communications. If everyone did this, things might change for the better. It can't hurt, that's for sure.
7:53 - you don't see much action? For starters, over 120 people turned up on the property to enumerate their issues with the project to developers, one another, and the Coast News.
Countless joined a letter-writing campaign and some met with city planners to review points of contest.
Do more. Lobby Council members. Write Commentaries in the Coast News. Get the word out to the people who don't know what's going on. Get involved inside, as in a Commission. Don't let them take our town away. Let's all put money and effort into this. Hire our own P.R. person.
I agree, you have to keep the heat on, but where was that heat when they built on Hermes and behind La Especial Norte?
My point is the movement has to surpass NIMBY, and go citywide. All 5 communities have to come together and demand change. This has to be made an election issue to get traction.
This is happening because the city is sticking to their "that's the way we've always done it" approach. Profitable projects for developers mean income to city coffers to cover financial mismanagement and looming pension shortfalls.
We all know the reasons for why the city is willing to destroy community character and quality of life for residents. Aside from pleading with the city to be honest in its dealings on such projects, concerned residents citywide are certainly open to suggestion on how to change. Any ideas?
Council should do an immediate rezoning of all large open lots to decrease density 35% to offset the density bonus. The state law suck and our City Leaders have their head in the sand on this one. Gus likes it cause it help secure his $220,000 a year retirement check. He could care less about our neighborhoods.
I'm not a lawyer, but I believe that "spot zoning" is unconstitutional. In other words, I don't feel that it would be legal to decrease density 35% by "rezoning of all large open lots to decrease density 35% to offset the density bonus."
It does seem unfair, inequitable, however, that the Density Bonus laws do create a kind of State mandated system of spot zoning! Probably no one has ever challenged these laws on those grounds. There's always a "balancing of equity," in these types of lawsuits.
In a lawsuit, the Court would balance the social need for more affordable housing, with the need to create even-handed laws, that do not give cities too much discretion in changing up zoning within the same neighborhoods. My experience has been that most judges and lawyers are not too familiar with zoning laws, and typically defer to County and City Attorneys.
Zoning laws, in my opinion, often "trump" the Constitution. Not many can afford to fight the zoning ordinances. Developers LIKE the Density Bonus laws. One group that is fighting overly burdensome zoning restrictions are Medical Marijuana dispensaries. But even they have found it easier to qualify a petition as an initiative that will be on the ballot for our 2014 General Election, rather than attempting to work through the Courts, which, as I've said, typically show bias in favor of public entities, (Cities, Counties, etc.) especially when it comes to interpretation of zoning laws.
These weak willed council people look blankly into the cameras as the community character erodes under the developers' domain. They laugh at the community activists, as they can do nothing to stop the rampage. The general public sleeps, while the unique environment is destroyed by greed.
An immediate rezoning of all large open lots to decrease density 35%? Dumb. Dozens of lawsuits would immediately follow and the city would likely lose. The city would also incur hundreds of thousands of dollars in legal fees. Next suggestion?
They can choose a candidate who has a proven record in cost-cutting and living within the city's means rather than going on a spending spree and piling on debt, deferred maintenance, and unfunded obligations.
For that matter, they could direct Vina to do the same.
Council directed the sports park construction and borrowing. That's not Vina's fault.
I would fault him for not bringing serious discussion of our long-term financial problems to the council, and continuing to spend recklessly on staffing and pensions.
The people voted for the council that directed the park construction. The majority of Encinitans want the park built. If Vina is the guy that got it done, then he will be a hero to a lot of people. Unless it bankrupts our city of course...
The increase in the number of houses on the Fulvia property was rigged by Encinitas planning and doesn't follow the County guidelines.
The County has their guidelines and FAQ's that require the developer to provide information to the County. Note that the term reserved unit refers to the very low income or low income house the developer promises to build. The County's FAQ's explain the procedure on waiving or reducing a development requirement -
What is an incentive? An incentive is a request from the applicant that the County waive or reduce a development requirement as defined in California Government Code Subsection 65915(k). The number of incentives that may be requested varies with the amount and type of reserved units.
What incentives are available? The applicant may request incentives, such as a reduction in setback requirements or a reduction in private open space requirements, that make the reserved units possible. The applicant must demonstrate that each requested incentive results in identifiable, financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of the reserved units.
Why do I need a density bonus permit? The permit verifies eligibility for the density increase and provides notice to future owners. In addition, a Density Bonus Housing Agreement must be executed. If incentives are requested, the permit process verifies the necessity, validity, and approval of each incentive. The permit is filed with the County Recorder.
What is a pro-forma? A financial pro-forma is a form provided by the County that must be submitted as part of the Density Bonus Permit whenever the applicant has requested any incentives. The pro-forma requires financial information which compares the revenue, cost, and income of the project without reserved or bonus units with the revenue, cost, and income of the project with reserved and bonus units and with each requested incentive.
Why do I need to do a pro-forma? The financial information submitted on the pro-forma demonstrates whether a requested incentive results in identifiable, financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of the reserved units. The cost of the County’s analysis of the pro-forma will be passed on to the applicant.
11:04 AM You don't understand. This is about density bonus guidelines. Does Encinitas planning have a financial pro-forma for the developers to submit?
Each city/county adopts their own ordinances and guidelines/forms. In the case of density bonus they are required to meet the state minimums detailed in the legislation but are allowed flexibility on how to implement them. Therefore, any forms or guidelines would be unique to the city or county.
Encinitas planning doesn't require any financial justification for a waiver of development standards. This certainly is unique to Encinitas. Encinitas wants to give the developer everything requested. This certainly is unique to Encinitas. Encinitas planning goes out of its way to give more in density bonus. This certainly is unique to Encinitas. See a trend here. Time for a grand jury investigation.
WCV- I doubt if there is any Grand Jury charges. Just business as usual at CIty Hall. And, citizens may need to hire their own P.R. person if they want the message of what is going on at City Hall to come out. For example, even the Parks and Rec. Commission was not told about the Rossini Creek situation. And some of the members of the Commission asked. We have not been told a lot of things, which makes it difficult to do anything, especially when one asks a question and gets an incorrect answer. It is no wonder that citizens are frustrated. However we may need a higher profile. I would bet the Coast News would run Op-Ed pieces if anyone wanted to write one.
And, one more thing. We cannot keep spending money on attorneys to get what should be ours anyway. I'm thinking of the Kevin Cummins situation. It should have never gotten to that, and for that I blame Sabine.
12:47 PM. Please understand. The city attorney doesn't make those decisions, the council does. The city attorney in those situations advises the council on the law and possibly on their chances to prevail given a course of action. It not unlike a criminal attorney advising a client. The client may want to go to trial and the attorney may advise against it but the decision rests ultimately with the client.
FYI: Here is a paragraph from the County of San Diego Grand Jury website for those interested and the URL is below.
The grand jury reviews and evaluates procedures, methods and systems utilized by government to determine whether they can be made more efficient and effective. It may examine any aspect of county government and city government, including special legislative districts and joint powers agencies, to ensure that the best interests of San Diego County citizens are being served. The grand jury may inquire also into written complaints brought to it by the public.
Hey, now we're getting somewhere! For people who have been complaining for years that City government behaves badly, going to the civil grand jury is a course of action that doesn't require lawyers or ballot initiatives. You do need a good, well-documented case, however.
3:29, why don't you sign your OWN NAME. I don't know that 12:47 is Lorri, and you don't either! How hypocritical you sound when you call out someone by name, but don't reveal your own.
Glenn Sabine could have avoided the Kevin Cummins California Public Records Act (CPRA) lawsuit, with better advice to Council. He does tell Council Members what he thinks they want to hear, not bothering to explain the "nuances" of the law, as he should. I wonder if he even knows the nuances. Council's recent evaluations of City Manager Gus Vina and City Attorney Glenn Sabine were unmitigated failures. Every Council Member let us down by unanimously giving Gus Vina an excellent and "supporting" Glenn Sabine.
Lobby your Councilmen and women. They take Vina at his word, on that I can assure you. So, you have to tell Council what is going on. Best people to get through to are Schaffer and Muir(believe it or not). Get on Commissions. Make your voices heard in a way that attracts Encinitas voters, like a commentary in the Coast News. Speak up at Council meetings or let someone have your time. These are just a few suggestions. If I cared any more I would run for Council.
The commissions have no status! They have to follow the orders of the council. Case in point, the Planning Commission voted against Desert Rose because of multiple problems that gave them the right and obligation to deny the project, and Council overturned it.
4:53-Unfortunately you are right about the Commissions. However, from this year on any Commissioner can go directly to Council with something they would like to accomplish, or any other thing that relates to their Commission. I know that it has been a while since the Council has asked the P@R Commission to put any input into the CIty Council. I think that be because staff needs to keep the work, or they might fear they will be let go. Just guessing on that, but the new Director of Parks and Rec. likes to keep projects close to her and she doesn't ask for input.
True, the planning commission can be overruled by the council, it's happened many times in the last 20 years.
None of this stuff is new people, although I think some of the planning commissions of the past were more aligned with the councils direction on development, ie most everything got put through...
FPPC investigation of local newspaper involved in council politics is humming along below the surface. Y'all be surprised soon? Will a former supe be revealed? Follow the money.
Where's Hoodlink and ETA these days? Paying large fines?
8:58, you sound like a political operative sockpuppet. The FPPC has investigated some members of our community for not correctly and completely filling out complicated disclosure forms. When missing material was subsequently supplied, FPPC has dropped its "investigation."
But one private individual, from out of area, a development shill, sues individuals, privately, in nuisance lawsuits designed to stifle free speech, freedom of petition and freedom of assembly, under the "Private Attorney General Act."
Newspapers owners and editors are allowed to endorse particular candidates and propositions. Their editorial pages, in particular. are forums that they can control.
Some of these lawsuits are ridiculous. What if a private person could be sued by another private person because he or she made a mistake in filling out his or her tax forms? No, the person is informed of the mistake, and given the opportunity to correct.
Yet corporations are able to donate millions of dollars anonymously to non-profit Political Action Committees, while the "little guy" is persecuted to shut him up, shut him down. Through overt tactics, bullies, who think "might makes right, try to scare concerned, knowledgeable citizens, often elderly, out of the activists' arena.
We've all heard the saying, "if you can't stand the heat, stay out of the kitchen." Well these jerk bullies throw gasoline on the fire, and don't care who gets burned in the process.
The great irony here is that Harwood lived right across the street from this property.He has since moved to Ranco Sante Fe which, despite being county, has the most restrictive building codes in the county.The other irony is that the new owners were prop A supporters. The Cabezon
Harwood found the perfect buyer by holding out for one willing to develop to the max; his buyer is from OC. He found the perfect partner in the planning department, which welcomes and approves all and any density bonus applications.
Open lot developers looking to build less than the max say city planners push the density bonus program when fewer houses are planned. City workers have their marching orders: sell the city as dense as you can. There are bills to pay!
Really? Which developers and who specifically told them. Check back on this blog to one of the original posts on Fulvia where someone explains about the way developers look at the money on a development. They are always going to max it out. You're not going to put two homes where there can be 4. That's been true in So Cal for 30-40 years....
"Open lot developers looking to build less than the max say city planners push the density bonus program when fewer houses are planned."
That's a pretty damning comment without any specifics. What developers got "pushed" to use density bonus and by which planners. Without and specifics I find it hard to believe. I know it supports the "we need development to support our pensions" meme but without any evidence it's just not believable.
Why don't you call the planning department and ask them whether they have any guidance for someone looking to develop a property? See what they say and report back.
I'm speculating here but if a developer wants to build more than the midrange of units, their only usual recourse is density bonus which actually pushes them over the maximum. In that situation I can see a planner advising the developer of that option. However, I can't see city planners pushing density bonus on any developer who wants to develop their property at the midrange or below. Without specifics, it's just antagonistic hearsay.
Per the city's website: The property is 2.25 acres and has two addresses. They are 832 Hymettus and 378 Fulvia. Zoning is R3. Owner is Cope Family Trust, 111 W. Avenida Gaviota, San Clemente. The developer is CityMark.
2:10, if by saying the owners of the parcel were Prop A supporters you're going by the Yes on Prop A sign that was displayed on Leucadia Blvd. just north of the Fulvia intersection, that's a different parcel. The proposed density bonus parcel borders on Fulvia and Hymettus, not Leucadia Blvd.
5:16- You can also do a Freedom of Information request on how many density bonus developments there has been since 1999. You don't need a Grand Jury for that. Just ask Kathy Hollywood at the City. A request might say something like: Pursuant to the Freedom of Information Act I request ------Just add what you want. They have 10 working days to comply with your request. Go for it.
Watching council meeting KRISTIN GASPAR IS BACK one month on vaation.I wasted may vote on her and does LYNN like anything about this council. How sad she is.
Gaspar's the developers' tool, not sure where you think she's "BACK" from unless you're referring to a recent sit-down with David Meyer? in which case, guess she's BACK from a reminder on just who's really pulling her strings.
I am not an apologist for anyone on Council. But Kristin Gaspar asked last night that a future agenda item could be set to look at establishing a new General Amnesty in order to bring more accessory units onto the City's "books" so that less changes would have to be made to the General Plan to accommodate higher density, due to affordable housing mandates.
Developers who want to push the density "envelope," don't want a new General Amnesty, because then the mandates could be filled by counting already existing affordable housing.
Tony and Teresa both concurred with a future agenda item, but Tony wrongly stated that "we already have an amnesty." Lisa passed along this misinformation in her latest newsletter, in which she states:
"We will also have a review of our amnesty program for "accessory units" at the request of Councilmember Gaspar (she asked that we agendize creating an amnesty program, but since we already have one on the books, but rarely used, the agenda item will be a report on the existing program)."
Just as Teresa Barth tried to put words in Kristin Gaspar's mouth, re her position on the I-5 expansion, so also did Lisa Shaffer attempt to put words into Kristin's mouth. What now exists is an Affordable Unit Policy NOT an actual General Amnesty.
Kristin Gaspar asked that a NEW amnesty could be studied. As part of that, Planning staff should look at the original amnesty of 1991.
The correct phrasing is "providing amnesty" - amnestying is not a word, never has been a word, and will never be a word. To use it is a clear indicator of intellectual laziness............. .....but I get your point.......
1:58, you DO get it: Gaspar is "potentially" interested in amnesty for illegal units. Wait and see if she does indeed vote for it in direct opposition to what her developer handlers tell her to do. When the time comes, she won't. My money is on her finding a way to weasel around to a "no."
2:25. You are correct, but my point remains the same. Lynn is supporting Gaspar and Muir because she's hoping they will vote her way on grandfathering in units that to this point have been considered illegal in the city.
Her whole support for bringing in currently available units (granny flats, accessory unit, or whatever you want to call it) has a personal angle to it.
I'm ok with that, I just don't know why she won't disclose it if we're going to have to hear about it. I guess if there's ongoing litigation, negotiation etc going on there I can see why you wouldn't want to talk about it, but it's plain as day, and as such becomes a little bit surreal when she keeps referring to it in the 3rd person.
We'll see if they will be "providing amnesty" on this issue, but I don't care if Gaspar said she'd personally clean up the vomit downtown on a Saturday night, she's already proven that she's the one who's lazy and intellectually incapable of providing input into council matters without her mentors, Stocks and David Mayers..
It would behoove the entire City to recognize and count what is described as "grandfathering." Many people have pre-existing accessory structures which could be used for affordable counting, at least to count as "potential" affordable housing.
7:32, it's easy for you to attack others anonymously, isn't it? What are you proving about yourself? You provide no facts, only ad hominem attacks.
Since nothing will change your closed mind, I won't waste more time addressing your obvious and irrelevant attempts at a smear campaign.
Barth testy with Sheila, perhaps Barth should look to what an effective example of community service SC has been unlike Barth who has dropped her compass as well as "civility" it seems.
Barth testy with Gaspar, that was one short honeymoon. What will Barth boast about if she can't point to the council all getting along as her greatest accomplishment?
At least Kristin Gaspar agreed that the Traffic Commission should remain in balance, with one Commissioner from each of our five Communities, as with the Planning Commission; she also recommended a new General Amnesty for pre-existing accessory units, as a future agenda item, so that affordable housing mandates can be met with fewer changes to the General Plan.
That would be about the only common sense thing she's ever done. Why are we cheerleading for Gaspar all of sudden. Out of the 5 council people this term and last term, she ranks dead last.
"We're" not, it's only Lynn. Apologies Lynn, but this is an election year and talk comes cheap. Gaspar is held firmly by developers and the big money that wants to run this town, residents be damned.
I don't care what she says she's going to do, how much fiscal sense she seems to have at times, or how prettily she spins her political record. Don't be fooled.
Gaspar and Muir voted against having more secret, unnoticed Council subcommittees. Kranz and Barth are currently on one, as supported by Shaffer, Vina and Sabine.
Gaspar and Muir voted to keep the Traffic Commission in balance, as the Planning Commission is, with one Commissioner from each of our five communities. Shaffer, although she supposedly taught ethics, refused to consider adding an Ethics and Safety Commission.
Gaspar, Muir and Kranz did not support Barth and Shaffer's plans, announced and drafted at the CC policy and protocol subcommittee meeting, to do away with individual time donations for agenda items.
Subcommittees and commissions are small potatoes and easy gimmes for her to offer up. Take a step back and think about the larger issues.
Where do you think she stands on Prop A, Ecke/Carltas "rights," Streetscape? Remember her claim that under Prop A, you could not remodel your kitchen?? She never corrected that lie that took a lot of grassroots work to convince voters wasn't true. The woman is dangerous. Don't be fooled.
KG stood with the rest of Council re N101 Streetscape and Prop A. She recused herself on ERGA. Mark Muir recused himself on Desert Rose. Mark Muir asked for a future agenda item re putting Streetscape through Leucadia on 101, on the 2014 General Election ballot.
No one on Council corrected any of the lies, which were spread through fear generated by the false speculation and conjecture of the Rutan & Tucker Report and the NOT impartial analysis of Glenn Sabine, LIES published in the voters' pamphlets at our expense. At least Kristin and Mark didn't sign the petition to get elected, then back down, and do a turnaround, like Lisa and Tony.
On July 29, Planning finally put out a FAQ sheet to correct the lies that residential height limits WOULD be raised by Prop A and that the city would be bifurcated by the requirement for an LCP Amendment if Prop A were to pass.
Lisa would have won the election whether she signed the prop A petition or not. It's irrelevent.
What's not irrelevant is the above poster not acknowledging support for Muir and Gaspar due to a misguided belief they might support a grandfathering of existing units.
Guess what, they're not going to vote for it. That is not what the developer side of the equation wants.
All this tit for tat stuff on the council is nonsense at this point, save your breath for the mayoral election later in the year...
You do not know that Lisa would have won without Prop A support. That is conjecture, not based on verifiable facts, and your blanket assumption is therefore irrelevant.
Why don't you wait and see what happens re the amnesty? The Court has found in a recent case (not one involving me or my property) that if there is evidence that accessory units pre-existed the City's incorporation, then because permits were not maintained (County permits were destroyed), these units are NOT illegal, and can continue to be maintained.
The City already has a policy of recognizing conditions which pre-exist NEW regulations, such as the ordinance created by Prop A as legal, non-conforming, which = "grandfathered in." This is the City's policy because it is the law as established by legal precedent and Statutory Code.
Shaffer reported back that not 1 city out of 20 (including Solana Beach and Del Mar) agreed that something needed to be done about Bonus Density. They all believe BD is a good tool for proper development. Don't believe me, ask Shaffer yourself!
I'll have to watch that comment. I believe its how you ask the question. Should the State be involved in establishing the zoning for local Cities?
Should the state have the ability to increase densities within Cities up to 35% without the consent of the City?
If the council member doesn't not believe in local control of , I have no use for them and will try and vote them out.
clearly many Council members need to be replaced. I only see one of our Councilmembers living in higher density living. The others choose to live in the berb style living with 3 living in HOAs
If Encinitas was OZ match up who is: Wicked Witch, Auntie Em, Lion, Wizard, Scare Crow, Dorothy, and a Munchkin. Council members, Vina & Sabine are your choices. Last nights council meeting is a good clue.
Oz = California Kansas = Kansas Emerald City = San Diego Munchinkinland = Encinitas Witch of the East = Redevelopment The house that landed on her = The Teten House Wicked Witch of the West = Density Bonus Auntie Em = The General Plan The poisonous poppies = Desert Rose The yellow brick road = Streetscape (especially because it begins at a roundabout) The Ruby Slippers = Prop A The Lollypop Guild guy in the red suit = me And yes Auntie Em, there's no place like Leucadia
One of the low points of last night's meeting was Vina talking about cost savings when he and his Strategic Plan are the biggest waste of funds we have. His Strategic Plan has no legal status at all, and he is trying to replace our General Plan with his Strategic Plan—which is his own personal vision for how the council should decide on issues to benefit Gus Vina. He is a scammer, and the council look like they are inviting him in to steal from us.
Watch it… Vina will cause traffic jams all over Encinitas to scold all those citizens that are speaking the truth about his motives and actions that are bad for Encinitas
Desert Rose appeal to City Council was illegal. Encinitas municipal code requires that any subdivision appeals has ten days of the date of determination, approval or denial, of the project. The Desert Rose project was denied on Nov. 1. The appeal submitted by Marco was dated Nov. 26. The planning department should have rejected his appeal.
Sorry to derail this current strain of conspiracy but the actual filing deadline is from the planning commission's resolution of denial which occurred on November 15. When the planning commission formally denies a project they request staff to return with a resolution of denial which is often done at the following meeting.
The planning commission heard the project on the 1st of November and directed staff to return with a formal denial resolution at the next meeting which was November 15.
The City Council should never have heard the appeal for Desert Rose because Marco missed the deadline! The Planning Commissions decisions should have been upheld.
If the Save Desert Rose neighbors would have lost at the Planning Commission, would they have allowed their attorney to file an appeal 26 days later? Fat chance!
There are examples of residents who submitted appeals under an hour after the 5:00 deadline to submit them to the city.
Residents who were 30 minutes late in submitting paperwork for an appeal were rejected. Why were the developers for the Desert Rose property given 26 days to appeal the Planning Commission decision?
11:00 AM You are wrong. The determination as required by the municipal code was on Nov.1. The Nov. 15 PC meeting wasn't another denial. The Nov. 15 PC meeting had the planning commission voting (5-0) that the "events" of the denial determination on Nov.1 was what the commissioners remembered. The planners involved then changed the date on the resolution from Nov. 1 to Nov. 15 and used the 3-2 vote of Nov. 1 on the falsely dated Nov. 15 resolution.
Sorry but you're wrong. The staff recommendation for the November 1 meeting was for approval and the attached draft resolution reflected that so a new resolution had to be drafted that reflected denial which didn't occur until the November 15 meeting. It didn't become official until the planning commission formally adopted a resolution of denial which was the 15th.
Oh, in case you're wondering because the Thanksgiving holiday occurred during that period, as per municipal code 1.12 Appeals section 010 (D) Whenever a time limit provided for in this chapter falls upon a city holiday, the limit shall be extended to 5 PM of the next business day of the city.
November 26 was the next business day after the Thanksgiving holiday which included Friday.
11:25 AM You are wrong. The planning commission didn't adopt a resolution of denial on Nov. 15. The Nov. 15 date had the planning commission voting (5-0) that the denial determination on Nov. 1 was what the commissioners remembered. The municipal code section under appeals defines determination - A. As used in this Chapter, " determination" refers to a final, non-recommending determination by a Board, Committee, Commission, or Department subordinate to the City Council. Unless otherwise provided by law, or this Code, or an action of the City Council, an appeal of a determination shall be made and processed in accordance with the provisions of this Chapter. The determination of denial was made on Nov.1. Go back and watch the Nov. 15 video.
You can say this until you're blue in the face but technically the planning commission voted on November 1 to not accept staff's recommendation of approval and directed staff to return with a formal resolution of denial. That's the way it's always worked and the determination doesn't become final until the commission votes on the resolution. The resolution is the final determination and that didn't occur until November 15.
11:54 AM Funny, that's not what's said in the municipal code chapter on appeals. Nothing in the municipal code about technically or "that's the way it's always worked" or the determination doesn't become final. Where is that wording found in the municipal code chapter on appeals?
Maybe if I approach it from a different angle you'll understand but this is my last try. The planning commission has to give justifiable reasons for a denial. Justifiable in the sense that the reasons are supported in city code and state law. They can't just say we don't like it. So in the motion to not accept staff's recommendation, the commissioner making the motion has to state on what grounds their motion rests. These are stated verbally. Often there is discussion and give & take among the commissioners on the reasons. Sometimes adding, sometimes dropping and sometimes clarifying. All the while staff is trying to record what is being said. If you've ever watched a planning commission meeting, the commissioners aren't always clear about their reasons.
The reason that staff is directed to return with a resolution of denial is to state clearly in the resolution what the reasons for denial and the justifications for it. When the resolution for denial is then presented to the commission in a subsequent meeting, the commissioners have a chance to verify and clarify their reason. At this point the can't add new ones but they can clarify what was said from the previous meeting. The commission then votes to confirm the actions and the reasons for it and adopt that as a resolution.
That is why the appeal clock doesn't start ticking until the resolution for denial is adopted to be sure that the applicant understands the reasons for denial and the basis upon which to form their appeal.
That is why the commission's determination isn't final until they adopt the resolution. And to be clear, that vote is only to confirm the commission's previous action so all commissioners are able to vote in the affirmative whether or not they supported the denial.
11:51 PM That is not what is stated in the appeals chapter in the municipal code. If the council wants to amend the municipal code to include a "don't pay attention to this code because we do it differently and won't put it in the code" clause, the council should do it. But all references in the code to appealing a determination DON'T mention what you are using as an excuse. The planners also changed the date on the determination. Go back and watch the Nov. 15 video.
The planning commission conveys it's action through resolution. That is it's official record of approval or denial. When the commission approves a project there is usually a draft resolution accompanying the staff report stating that approval but the commission may make changes to it before adoption. In that resolution for approval are the stated reasons for approval and the the city code from which it is based. So when the commission votes to approve, they are voting to adopt the resolution stating that. If someone wants to appeal the planning commission's approval to the city council the clock starts then.
However, when the commission does not approve a project, there is no resolution to adopt at that meeting. It's just a vote to not approve. It requires a formal resolution of denial, containing the reasons for it, to be adopted.
The planning commission legally transmits its actions through resolution. Until it's in a resolution it's not final.
Maybe this will help. It's the Planning Commissioner's Book from the Governor's Office of Planning and Research. The publication is a little dated but this is very much current.
Under Part Two, The Legal Side of Planning.
Findings
Planning commission decisions must be based on a rational decision-making process. Often, the commission must adopt written "findings" explaining the factual reasons for its decision. A finding is a statement of fact relating the information that the commission has considered to the decision that it has made. If a decision is challenged in court, the findings will be used to trace the commission's reasoning and to determine whether its action was legally justified.
Findings must be supported by evidence in the hearing record (i.e., testimony, reports, environmental documents, etc.) and should not contain unsupported statements. Complete findings should be included in the commission's resolution of approval or denial. Keep in mind that findings will not rescue a decision if the commission has failed to follow the other procedures required by law.
The book is online here: ceres.ca.gov/planning/plan_comm/
2:26 & 3:18 PM You are in the dark as to how the city planners present the projects to the planning commission. Very seldom does a staff report contain a resolution of denial. In 99% of the staff reports the planner recommends approve and ignores any resolution of project denial. Besides planner "guidance" to the planning commission on how to vote, the approval findings given by the city staff planners are ludicrous. Example - if the planning commission approves the project it will meet the requirements. if the planning commission approves the project it will be legal. Resolutions may "memorialize" findings but resolutions aren't mentioned the appeals chapter in the municipal code. Other cities also use the same word - determination for the decision. The city of San Diego makes it even clearer on by spelling out the time limitation of an appeal on the ORIGINAL DECISION DATE. In the case of Desert Rose the determination was made on Nov.1.
From the city of Coronado appeals information sheet - When to File: Within ten (10) calendar days following the determination for which the review is sought. The city of San Diego has a tiered appeal process, but still with a 10 business day appeal period of the ORIGINAL DECISION DATE (emphasis added). From the city of San Diego appeals information - All appeals must be made in accordance with the procedures listed in SDMC Chapter 11, Article 2, Division 5. All appeals must be made no later than close of business, within ten (10) business days of the original decision date (Process Three and Four), and within twelve (12) business days of the original decision date for Process Two decisions only. Business days are defined within SDMC Sections 113.0103 and 21.04.
The easiest way to prove your theory is take the city to court. Get a judge to agree with you. First though you have to find a lawyer who thinks you have a case. Nothing gets decided hear. What other cities do is interesting and maybe Encinitas can benefit from them but as long as they are all following the law, each city can do things the way they choose.
. I would like for the Planning Department to provide findings or historical precedents of other Encinitas Planning Commission cases where an appellant got to do the same thing that Marco did on Desert Rose.
Every appeal has 10 days from the date the resolution was adopted. When the planning commission adopts the resolution in the initial staff report then the 10 days begin at that vote. If staff have to return with a new resolution, the 10 days start when the commission votes to adopt it.
By the way, it works both ways. If the initial staff report had a recommendation to deny and included a draft resolution of denial and the planning commission decided to approve instead, staff would have to return at another meeting with a draft resolution to approve.
The key point here whether the resolution is to approve or deny, the important date is when that resolution is adopted. Then it becomes official and then the 10 day appeal window begins. It really is that simple.
I take it you're not a lawyer. The adopted resolution, whether for appeal or denial, is the final determination. Any appeal to the city council must address those issues in the resolution, or the absence there of, in their written appeal. When before the city council they can only address those issues and the information provided in the planning commission resolution and their written appeal. In other words they can't introduce anything new.
Remember, in cases like Desert Rose the planning commission is acting in a quasi-judical roll with all the legal ramifications. Just as a judge issues a legal opinion in deciding the case, the planning commission issues its legal opinion in a resolution.
So in fairness to any appellant, they need the official final determination to adequately write their appeal. Fairness extends to both sides.
Finally, you have been assuming that the Desert Rose applicants didn't know all this ahead of time. I'm sure they would have filed the appeal within the 10 days following the initial vote if they had too.
10:41 AM You are wrong. The municipal code time limit has nothing to do with fairness. Any appeal to the council doesn't have to address those issues in the resolution. You flutter all over with descriptions of what happens after an appeal is timely filed and accepted by the planning director. The subject is the appeals chapter of the Encinitas Municipal Code and an appeal that is timely filed. Nov. 1 was the determination date of denial of the Desert Rose case. The appeal wasn't timely filed and should have been rejected.
Speaking of denial you're in it. Tell you what. Take this to the city council during the open comment period of any council meeting. Tell them they incorrectly followed the municipal code and acted improperly. It's free. At best it's 3 minutes or if you can get one or two supporters, you can have 6 or 9 minutes respectively. Make your case. For all the time you've spent here, it doesn't appear that it will take much of an effort.
But I've wasted more time than I should have to help you out.
Since this would be brought up during oral communications, we can't "have 6 or 9 minutes respectively." No time donations allowed.
However, I hope people do address this further inequity during oral communications.
And, with respect to our not doing our own Encinitas LCP for the I-5 expansion, since that is to be an "open agenda item," then the public could address that every week, should we want to. It would probably be listed at the tail end of the agenda, though. I find it challenging to sit through the entire meeting. In my opinion, Council should have more meetings so that they can adjourn earlier, not only on Wednesday nights, for instance. Some Meetings could be on Mondays or Tuesdays, or on Thursdays, when there are no Planning Commission Meetings.
Staff is mostly on salary, anyway. It shouldn't be that expensive. The City should not have to pay for police presence at every meeting, either. The police could be called when necessary, although that has never happened.
I'm glad that on the second reading Council didn't pass new EMC to allow the Sheriff to inspect hotel and motel logs, and require that photo idea and personal information be stored and presented upon inspection, without a warrant. It was found to be an Unconstitutional violation of protections against illegal search and seizure. Solana Beach and other cities will have to strike out local ordinances they created. We appreciate that the government provides for public health and safety, but some laws go too far in taking away our inalienable rights.
Marco, please present us with other Encinitas cases where anyone else got to do an appeal the same way that you did for Desert Rose, and it will help settle the issue. Thanks.
10:21-Right, like Marco's going to tell us how he plays ball. We already know it, so why go there. He sells himself to the highest bidder now that he has managed to get his name in the big papers. He sold out a long time ago.
Planning staff should have had the alternative resolution in the Agenda Packet, or a draft resolution. This could have been drafted from the many e-mails and physical evidence produced by the Desert Rose neighbors and others, ahead of time. It is poor protocol to have a two week gap between the time the determination of denial was made, and the resolution was voted upon, unanimously, by the way.
For your convoluted interpretation of EMC to be true, 2:26, then it would seem that if nothing is official until the resolution of denial is voted upon, then the resolution was adopted unanimously. There WAS no 3/2 vote of the Commissioners on November 15.
As 2:09 stated, you need to go back and view the webcast. You can't just make stuff up as you go along. That book you are referring to is irrelevant, because we are discussing EMC and City policy, in this interpretation, not state law.
If staff was unprepared to craft a resolution of findings, based on the testimony, than a Special Meeting could be called with only 24 hours' notice. Also, Marco and the Developer were present and knew on what evidence the findings were made; they heard the testimony of the applicant and the Desert Rose Neighbors. Marco could have begun drafting his appeal immediately.
I feel that the case has been prejudiced against the Desert Rose neighbors and in favor of the developer, because Marco was given special treatment, an extra two weeks, which is NOT what has been the case for many, many others.
Again, the developer was given special treatment, because when the appeal was heard before Council, there was no RESPONDENT; there was no equity. Marco was given an opportunity for ten minutes to speak at the beginning, and a rebuttal, at the end. Marco was allowed to come up and answer Council questions.
The Desert Rose neighbors' attorney, Everett Delano, was NOT allowed an opening statement and a rebuttal. Had the Planning Commission approved the project, then BOTH applicant/developer and appellant/neighbors and Desert Rose sympathizers, would have had the opportunity to appear before Council and staff, WITH EQUAL STATURE, represented by attorneys. Otherwise, Marco should have only been able to speak at the speaker's dais for a total of 9 minutes, with two time donations, as Everett Delano was only allowed.
Not only was the developer represented by legal counsel, Marco, but also by STAFF. In this case, before the PC and after, before Council, staff should have been more neutral; at a minimum staff could have been and should have been prepared with an outline of a resolution based on findings that could be made, relevant to evidence already abundantly supplied to the City. The Desert Rose neighbors had been working on this for years, and the potential reasons for denying the development, or requiring an EIR should have been well known. Once again, staff was not only prejudiced in favor of the developer, but unprepared with an alternative resolution of denial, for the Planning Commissioners at the time of their denial of the project.
Bottom line, Marco was given special treatment, as was the developer. The case before the City was prejudiced. As I see it, this fact should be part of the ongoing lawsuit. If there is any doubt that the Desert Rose Petitioners did not get due process of Encinitas Municipal Code, and that the Planning Commission's judicious findings were improperly overturned, then at a minimum, the Developer should assuredly be required to complete a FULL EIR.
That's the way Marco works Lynn. He has access to three Council members ears. And those 3 are not Muir and Gaspar. Add them in the mix and you can see what happens. The Desert Rose people never had a chance to begin with. If developers want it all they have to do is hire Marco and they have the whole council.
Jan. 12, 10:41 AM You just defeated your argument. Nov. 1 was the determination date of the project. The planner only had a resolution of approval. If the commission had approve the project and adopted the resolution, the time limit to file an appeal would be ten days from the determination. The appellants would have ten days from Nov. 1 to prepare the appeal. But the commissioners denied the project. The planner had no resolution of denial and was going to bring back to the commission that resolution on Nov. 15 which was 5 days past the appeal filing deadline. The commission vote 5-0 to adopt the resolution of denial at the Nov. 15 meeting. Marco, the attorney, now has another 10 days plus the 15 days from the date of determination to file an appeal. Marco now has 25 days to prepare his arguments for the appeal. He can listen to the video, do research, and compile his arguments with 25 extra days that would have been denied to the community group because they would have only had 10 days for the appeal. Is this fair?
It is a two-tier system. For citizens who the Planning Department does not support, they have 10 days. For developers, they get 25 or maybe even more--if they are going to split it up this way. These developers got 2 1/2 times more time to prepare their appeal than others who get 10 days. It is a problem of perception if not fairness in the application of rules.
The council's Desert Rose hearing was null and void. The planners approved an appeal that was not filed within the 10 day limit as required by the city municipal code. The appeal was filed 25 days after the determination denial of the project. Was the council told the appeal wasn't filed within the deadline? How much did the council know about the manipulation of the date and vote on the resolution? Did the council knowingly approve the planners actions of not following the 10 days appeal time limitation? Did the council approve of giving the developers 25 days to file an appeal?
And yet I've heard no one address this with the council during the open comment period. Bowing to Lynn, who probably knows the in's & out's of the open comments rules better than anyone given her near permanent fixture there, you'll need more than one speaker if you want more than 3 minutes.
I have to believe that if anyone could get any traction out of this it would be Ehlers - and he's silent - so what gives? If true - this is a point of fact that can be argued in court.
There was no awareness at the second meeting that Marco had not already filed the appeal since that 2nd Planning Commission hearing took place on November 15. In aswer to 10:26, this is in a lawsuit against the City of Encinitas now, so issues pertaining to how the process was handled and the project itself will be in front of a judge to decide.
That may be true but I'm talking about recently. There are complaints on this blog that city procedure wasn't followed. I strongly disagree but be that as it may, I haven't seen anyone stand in front of the council and tell them they were wrong. Why not? If you think you are in the right then get up in front of council and tell them so.
Saying you're going to let a judge decide is a little weak. Do you know if the question of improperly following city procedure is even included in the complaint? If not, a judge isn't going to review it.
Density bonus is a law written by developers to benefit themselves under the guise of providing "affordable" housing, thereby assuring diverse communities. It mocks true democracy. Density bonus is all about developers maxing their profits, and they don't do it in the neighborhoods where they live.
ReplyDeleteDavid Meyer married to the Ecke girl brags that he helped to write this onerous law
DeleteThe owner of this property wants to sell the property - and I do not blame him. On the other hand - City Mark development is doing everything within their power to "ghettify" Encinitas out from under all the good people who live there. City Mark has a deposit on the property - which is non-refundable - and if the plans cannot be approved - they will lose their deposit. PLEASE, PLEASE, PLEASE - do your utmost to repel these cockroaches from Encinitas. City Mark has only ONE interest in this project - and unless you are extremely mentally disabled - you know what that motivation is. Why has the city not looked into making this a preservation property? The ranch house is I believe the oldest building in Encinitas proper. I know of many communities that have preserved historical properties via eminent domain types of scenarios. Hopefully most who are interested in this have watched the city planning commission meeting - within which City Mark and their cronies are basically exposed for fudging ALL the numbers in their reports - to attempt to conform to city/state/county laws. This project will RUIN this neighborhood period. Why no one listened to the only logical conclusion to this issue is beyond me - which was to divide this property and sell the lots to individual buyers. Kick City Mark to the curb - and let them continue what they are good at - building projects in inner cities that would actually improve the communities they are in.
DeleteDevelopers don't shit where they eat. They shit in Encinitas and live in Rancho sante fe or del mar which have the strictest land use codes.
ReplyDeleteOf the two principals in the company that wants to build on Fulvia, one lives on Point Loma. I forget where the other one lives, but it's in a wealthy area in San Diego, maybe La Jolla, but that's a guess.
DeleteThe other lives on Coronado.
DeleteCoronado, right, you got it! I just needed a little memory jog.
DeleteYou can bet neither is building a density bonus project near home.
Right, but I wouldn't be surprise if the owner of that property wasn't an out of town absentee landlord as well...
DeleteThere is no way that they can argue that there will be no impact on the neighborhood. I went to the on site meeting and I don't even live in the neighborhood and it was as clear as it could be that it would have significant impacts on drainage, traffic, parking and safety of residents who already live there. This is a terrible plan--as bad as many others we have seen recently.
ReplyDeleteSo what are you all going to do about it? I hear a lot of talk on this blog, but I don't see much action. Complaining is not going to change things. Get Involved if you really care and don't want to see our City look like another "cookie cutter" community.
ReplyDeleteIs it just me, or does the photo art on The Reader article about Desert Rose look exactly like the cul de sac street Bruce Ehlers lives on?
DeleteWhy is that kind of neighborhood in O-Hain OK for him but nobody else?
I don't think that's his neighborhood...
DeleteThat photo is the 10-pack off Daphne behind Mozy Cafe.
DeleteYou obviously have never been to Bruce's house.
DeleteThe high density townhouses that Marco used in one of his presentations were built during the time that Olivenhain was under the county. That project was what caused many people like Marge Gaines to fight for the formation of the City. Some of the projects referenced were what caused a backlash and were held up as something that should never happen again. Desert Rose developers and Marco are trying to say that they should be able to degrade the neighborhood similarly. Not!
Call your Councilmembers and tell them to fire Sad Sac. Vina supports the super densification of Encinitas to pay for his $220,000 a year forever. More units means more taxes which means more chance he'll keep getting those fat checks coming in along with all the other tax leaches like Muir and all the others.
ReplyDeleteA majority of you are missing the point: Vina works for the Council: as do all the department heads. Vina is doing what Teresa and the Council wants him to, not the other way around. As long as "the people is a beast", (Napolean?) and let's face it, after the last election instead of declaring victory, you all immediately attacked your own candidates, the Council will hide behind Vina/Sabine, and with supposed friends and supporters like those posting here, who can blame them? Pray for Sheila to run!
DeleteI love Sheila in a lot of ways, but there is some baggage that would come with her coming back on the scene.
DeleteIt's time for some more new faces...
9:19, we didn't "attack our own candidates." Our candidates, immediately after the last General Election, SET THEMSELVES UP IN OPPOSITION TO US and their previous campaign platforms, and promises, by opposing the Right to Vote on Upzoning Initiative, which helped to get them elected.
DeleteThat's a start 8:05. Let the Council know you are unhappy with Vina, Sabine or whoever. You can email them. Their email is on the City's website. You can call City Hall and file a complaint, or go to a Council meeting and speak during Oral Communications. If everyone did this, things might change for the better. It can't hurt, that's for sure.
ReplyDeleteWe know Muir and Gaspar support this shit as well.
ReplyDeleteDump Density Bonus.
ReplyDeleteDump Density Bonus and its supporters, Vina and all.
Delete7:53 - you don't see much action? For starters, over 120 people turned up on the property to enumerate their issues with the project to developers, one another, and the Coast News.
ReplyDeleteCountless joined a letter-writing campaign and some met with city planners to review points of contest.
Residents are doing all they can to fight this, and are doing all the right things.
DeleteDo more. Lobby Council members. Write Commentaries in the Coast News. Get the word out to the people who don't know what's going on. Get involved inside, as in a Commission. Don't let them take our town away. Let's all put money and effort into this. Hire our own P.R. person.
DeleteI agree, you have to keep the heat on, but where was that heat when they built on Hermes and behind La Especial Norte?
DeleteMy point is the movement has to surpass NIMBY, and go citywide. All 5 communities have to come together and demand change. This has to be made an election issue to get traction.
9:50-Then why is it happening? When you can answer that, you will be able to change things.
ReplyDeleteThis is happening because the city is sticking to their "that's the way we've always done it" approach. Profitable projects for developers mean income to city coffers to cover financial mismanagement and looming pension shortfalls.
DeleteWe all know the reasons for why the city is willing to destroy community character and quality of life for residents. Aside from pleading with the city to be honest in its dealings on such projects, concerned residents citywide are certainly open to suggestion on how to change. Any ideas?
Start with a forensic audit! Gus Vina has told people that he will not allow for this f-word, FORENSIC! What is he hiding?
DeleteThis comment has been removed by the author.
ReplyDeleteCouncil should do an immediate rezoning of all large open lots to decrease density 35% to offset the density bonus. The state law suck and our City Leaders have their head in the sand on this one. Gus likes it cause it help secure his $220,000 a year retirement check. He could care less about our neighborhoods.
ReplyDeleteI'm not a lawyer, but I believe that "spot zoning" is unconstitutional. In other words, I don't feel that it would be legal to decrease density 35% by "rezoning of all large open lots to decrease density 35% to offset the density bonus."
DeleteIt does seem unfair, inequitable, however, that the Density Bonus laws do create a kind of State mandated system of spot zoning! Probably no one has ever challenged these laws on those grounds. There's always a "balancing of equity," in these types of lawsuits.
In a lawsuit, the Court would balance the social need for more affordable housing, with the need to create even-handed laws, that do not give cities too much discretion in changing up zoning within the same neighborhoods. My experience has been that most judges and lawyers are not too familiar with zoning laws, and typically defer to County and City Attorneys.
Zoning laws, in my opinion, often "trump" the Constitution. Not many can afford to fight the zoning ordinances. Developers LIKE the Density Bonus laws. One group that is fighting overly burdensome zoning restrictions are Medical Marijuana dispensaries. But even they have found it easier to qualify a petition as an initiative that will be on the ballot for our 2014 General Election, rather than attempting to work through the Courts, which, as I've said, typically show bias in favor of public entities, (Cities, Counties, etc.) especially when it comes to interpretation of zoning laws.
These weak willed council people look blankly into the cameras as the community character erodes under the developers' domain. They laugh at the community activists, as they can do nothing to stop the rampage. The general public sleeps, while the unique environment is destroyed by greed.
ReplyDeleteAn immediate rezoning of all large open lots to decrease density 35%? Dumb. Dozens of lawsuits would immediately follow and the city would likely lose. The city would also incur hundreds of thousands of dollars in legal fees. Next suggestion?
ReplyDeleteWhy does anyone think that a replacement for Vina would have different priorities or a different salary?
ReplyDeleteCouncil can define the candidate search.
DeleteThey can choose a candidate who has a proven record in cost-cutting and living within the city's means rather than going on a spending spree and piling on debt, deferred maintenance, and unfunded obligations.
For that matter, they could direct Vina to do the same.
WCV
Yes a city manager that fixes roads before spending on a sports park not needed or wanted.
DeleteCouncil directed the sports park construction and borrowing. That's not Vina's fault.
DeleteI would fault him for not bringing serious discussion of our long-term financial problems to the council, and continuing to spend recklessly on staffing and pensions.
WCV
Bravo!!
DeleteThe people voted for the council that directed the park construction. The majority of Encinitans want the park built. If Vina is the guy that got it done, then he will be a hero to a lot of people. Unless it bankrupts our city of course...
Delete8:37am
DeleteNot needed (by you)
Not wanted (by you)
Who is WCV and why is he/she saying all those reasonable things?
DeleteDump the park.
ReplyDeleteWhen you hit a pothole think PARK!
ReplyDeleteDump potholes!
DeleteThe increase in the number of houses on the Fulvia property was rigged by Encinitas planning and doesn't follow the County guidelines.
ReplyDeleteThe County has their guidelines and FAQ's that require the developer to provide information to the County. Note that the term reserved unit refers to the very low income or low income house the developer promises to build.
The County's FAQ's explain the procedure on waiving or reducing a development requirement -
What is an incentive?
An incentive is a request from the applicant that the County waive or reduce a development requirement as defined in California Government Code Subsection 65915(k). The number of incentives that may be requested varies with the amount and type of reserved units.
What incentives are available?
The applicant may request incentives, such as a reduction in setback requirements or a reduction in private open space requirements, that make the reserved units possible. The applicant must demonstrate that each requested incentive results in identifiable, financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of the reserved units.
Why do I need a density bonus permit?
The permit verifies eligibility for the density increase and provides notice to future owners. In addition, a Density Bonus Housing Agreement must be executed. If incentives are requested, the permit process verifies the necessity, validity, and approval of each incentive. The permit is filed with the County Recorder.
What is a pro-forma?
A financial pro-forma is a form provided by the County that must be submitted as part of the Density Bonus Permit whenever the applicant has requested any incentives. The pro-forma requires financial information which compares the revenue, cost, and income of the project without reserved or bonus units with the revenue, cost, and income of the project with reserved and bonus units and with each requested incentive.
Why do I need to do a pro-forma?
The financial information submitted on the pro-forma demonstrates whether a requested incentive results in identifiable, financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of the reserved units. The cost of the County’s analysis of the pro-forma will be passed on to the applicant.
The County's land use rules don't apply here in the city. That's why we incorporated.
Delete11:04 AM
DeleteYou don't understand. This is about density bonus guidelines. Does Encinitas planning have a financial pro-forma for the developers to submit?
Each city/county adopts their own ordinances and guidelines/forms. In the case of density bonus they are required to meet the state minimums detailed in the legislation but are allowed flexibility on how to implement them. Therefore, any forms or guidelines would be unique to the city or county.
Delete11:48 PM
DeleteEncinitas planning doesn't require any financial justification for a waiver of development standards. This certainly is unique to Encinitas. Encinitas wants to give the developer everything requested. This certainly is unique to Encinitas. Encinitas planning goes out of its way to give more in density bonus. This certainly is unique to Encinitas. See a trend here.
Time for a grand jury investigation.
I don't understand the call for a grand jury.
DeleteEncinitas has a long history of encouraging high-density development. The current council could change that, but hasn't.
But that's a policy choice, not a crime. What's the grand jury issue?
WCV
WCV- I doubt if there is any Grand Jury charges. Just business as usual at CIty Hall. And, citizens may need to hire their own P.R. person if they want the message of what is going on at City Hall to come out. For example, even the Parks and Rec. Commission was not told about the Rossini Creek situation. And some of the members of the Commission asked. We have not been told a lot of things, which makes it difficult to do anything, especially when one asks a question and gets an incorrect answer. It is no wonder that citizens are frustrated. However we may need a higher profile. I would bet the Coast News would run Op-Ed pieces if anyone wanted to write one.
DeleteAnd, one more thing. We cannot keep spending money on attorneys to get what should be ours anyway. I'm thinking of the Kevin Cummins situation. It should have never gotten to that, and for that I blame Sabine.
DeleteLorri, why didn't you sign your name to the above blog - we all know it's you???
DeleteAgain, Density Bonus is a state law, and they've implemented it the way they did at Fulvia many times.
DeleteLet's at least get the baseline straight....
12:47 PM. Please understand. The city attorney doesn't make those decisions, the council does. The city attorney in those situations advises the council on the law and possibly on their chances to prevail given a course of action. It not unlike a criminal attorney advising a client. The client may want to go to trial and the attorney may advise against it but the decision rests ultimately with the client.
DeleteCivil grand jury, not criminal. They have jurisdiction over government entities that behave badly.
DeleteFYI: Here is a paragraph from the County of San Diego Grand Jury website for those interested and the URL is below.
DeleteThe grand jury reviews and evaluates procedures, methods and systems utilized by government to determine whether they can be made more efficient and effective. It may examine any aspect of county government and city government, including special legislative districts and joint powers agencies, to ensure that the best interests of San Diego County citizens are being served. The grand jury may inquire also into written complaints brought to it by the public.
www.sdcounty.ca.gov/grandjury/index.html
Hey, now we're getting somewhere! For people who have been complaining for years that City government behaves badly, going to the civil grand jury is a course of action that doesn't require lawyers or ballot initiatives. You do need a good, well-documented case, however.
DeleteDon't doubt criminal activity.
Delete3:29, why don't you sign your OWN NAME. I don't know that 12:47 is Lorri, and you don't either! How hypocritical you sound when you call out someone by name, but don't reveal your own.
DeleteGlenn Sabine could have avoided the Kevin Cummins California Public Records Act (CPRA) lawsuit, with better advice to Council. He does tell Council Members what he thinks they want to hear, not bothering to explain the "nuances" of the law, as he should. I wonder if he even knows the nuances. Council's recent evaluations of City Manager Gus Vina and City Attorney Glenn Sabine were unmitigated failures. Every Council Member let us down by unanimously giving Gus Vina an excellent and "supporting" Glenn Sabine.
Request to see the financial pro-forma for the Desert Rose and Fulvia developments.
ReplyDeleteLobby your Councilmen and women. They take Vina at his word, on that I can assure you. So, you have to tell Council what is going on. Best people to get through to are Schaffer and Muir(believe it or not). Get on Commissions. Make your voices heard in a way that attracts Encinitas voters, like a commentary in the Coast News. Speak up at Council meetings or let someone have your time. These are just a few suggestions. If I cared any more I would run for Council.
ReplyDeleteThe commissions have no status! They have to follow the orders of the council. Case in point, the Planning Commission voted against Desert Rose because of multiple problems that gave them the right and obligation to deny the project, and Council overturned it.
Delete4:53-Unfortunately you are right about the Commissions. However, from this year on any Commissioner can go directly to Council with something they would like to accomplish, or any other thing that relates to their Commission. I know that it has been a while since the Council has asked the P@R Commission to put any input into the CIty Council. I think that be because staff needs to keep the work, or they might fear they will be let go. Just guessing on that, but the new Director of Parks and Rec. likes to keep projects close to her and she doesn't ask for input.
DeleteTrue, the planning commission can be overruled by the council, it's happened many times in the last 20 years.
DeleteNone of this stuff is new people, although I think some of the planning commissions of the past were more aligned with the councils direction on development, ie most everything got put through...
I like what 5:37 said. I think that staff should be let go!
DeleteFPPC investigation of local newspaper involved in council politics is humming along below the surface. Y'all be surprised soon? Will a former supe be revealed? Follow the money.
DeleteWhere's Hoodlink and ETA these days? Paying large fines?
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Delete8:58, you sound like a political operative sockpuppet. The FPPC has investigated some members of our community for not correctly and completely filling out complicated disclosure forms. When missing material was subsequently supplied, FPPC has dropped its "investigation."
DeleteBut one private individual, from out of area, a development shill, sues individuals, privately, in nuisance lawsuits designed to stifle free speech, freedom of petition and freedom of assembly, under the "Private Attorney General Act."
Newspapers owners and editors are allowed to endorse particular candidates and propositions. Their editorial pages, in particular. are forums that they can control.
Some of these lawsuits are ridiculous. What if a private person could be sued by another private person because he or she made a mistake in filling out his or her tax forms? No, the person is informed of the mistake, and given the opportunity to correct.
Yet corporations are able to donate millions of dollars anonymously to non-profit Political Action Committees, while the "little guy" is persecuted to shut him up, shut him down. Through overt tactics, bullies, who think "might makes right, try to scare concerned, knowledgeable citizens, often elderly, out of the activists' arena.
We've all heard the saying, "if you can't stand the heat, stay out of the kitchen." Well these jerk bullies throw gasoline on the fire, and don't care who gets burned in the process.
8:58 (Mike) get back in your hole.
DeleteThe great irony here is that Harwood lived right across the street from this property.He has since moved to Ranco Sante Fe which, despite being county, has the most restrictive building codes in the county.The other irony is that the new owners were prop A supporters.
ReplyDeleteThe Cabezon
So the original owners sold out, and the new people went out and got the developer?
DeleteInteresting. This has played out a few times, and will continue to play out for the near future....
Harwood found the perfect buyer by holding out for one willing to develop to the max; his buyer is from OC. He found the perfect partner in the planning department, which welcomes and approves all and any density bonus applications.
DeleteOpen lot developers looking to build less than the max say city planners push the density bonus program when fewer houses are planned. City workers have their marching orders: sell the city as dense as you can. There are bills to pay!
Really? Which developers and who specifically told them. Check back on this blog to one of the original posts on Fulvia where someone explains about the way developers look at the money on a development. They are always going to max it out. You're not going to put two homes where there can be 4. That's been true in So Cal for 30-40 years....
DeleteWill not name names, but the city pushing the density bonus program when not requested is SOP in the planning department.
DeleteNot all developers "max it out," some actually do tasteful work of the best quality. Not all subscribe to the Harwood philosophy.
Delete8:42 PM (Jan 8)
Delete"Open lot developers looking to build less than the max say city planners push the density bonus program when fewer houses are planned."
That's a pretty damning comment without any specifics. What developers got "pushed" to use density bonus and by which planners. Without and specifics I find it hard to believe. I know it supports the "we need development to support our pensions" meme but without any evidence it's just not believable.
It happened, whether you believe it or not.
DeleteWhy don't you call the planning department and ask them whether they have any guidance for someone looking to develop a property? See what they say and report back.
I'm speculating here but if a developer wants to build more than the midrange of units, their only usual recourse is density bonus which actually pushes them over the maximum. In that situation I can see a planner advising the developer of that option. However, I can't see city planners pushing density bonus on any developer who wants to develop their property at the midrange or below. Without specifics, it's just antagonistic hearsay.
Delete10:57 AM
DeleteDo you approve fraud in the planning department?
11:35 AM
DeleteNo and nothing even close to that has been established. Or so I've been told by a developer friend, swear to god.
The sellers didn't sell out.
ReplyDeletePer the city's website: The property is 2.25 acres and has two addresses. They are 832 Hymettus and 378 Fulvia. Zoning is R3. Owner is Cope Family Trust, 111 W. Avenida Gaviota, San Clemente. The developer is CityMark.
Delete2:10, if by saying the owners of the parcel were Prop A supporters you're going by the Yes on Prop A sign that was displayed on Leucadia Blvd. just north of the Fulvia intersection, that's a different parcel. The proposed density bonus parcel borders on Fulvia and Hymettus, not Leucadia Blvd.
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Delete5:58: I was refering to the new owners of Harwood's old house.
DeleteA grand jury investigation could include all the density bonus developments since 1999.
ReplyDelete5:16- You can also do a Freedom of Information request on how many density bonus developments there has been since 1999. You don't need a Grand Jury for that. Just ask Kathy Hollywood at the City. A request might say something like: Pursuant to the Freedom of Information Act I request ------Just add what you want. They have 10 working days to comply with your request. Go for it.
ReplyDeleteWatching council meeting KRISTIN GASPAR IS BACK one month on vaation.I wasted may vote on her and does LYNN like anything about this council. How sad she is.
ReplyDeleteGaspar's the developers' tool, not sure where you think she's "BACK" from unless you're referring to a recent sit-down with David Meyer? in which case, guess she's BACK from a reminder on just who's really pulling her strings.
DeleteI am not an apologist for anyone on Council. But Kristin Gaspar asked last night that a future agenda item could be set to look at establishing a new General Amnesty in order to bring more accessory units onto the City's "books" so that less changes would have to be made to the General Plan to accommodate higher density, due to affordable housing mandates.
DeleteDevelopers who want to push the density "envelope," don't want a new General Amnesty, because then the mandates could be filled by counting already existing affordable housing.
Tony and Teresa both concurred with a future agenda item, but Tony wrongly stated that "we already have an amnesty." Lisa passed along this misinformation in her latest newsletter, in which she states:
"We will also have a review of our amnesty program for "accessory units" at the request of Councilmember Gaspar (she asked that we agendize creating an amnesty program, but since we already have one on the books, but rarely used, the agenda item will be a report on the existing program)."
Just as Teresa Barth tried to put words in Kristin Gaspar's mouth, re her position on the I-5 expansion, so also did Lisa Shaffer attempt to put words into Kristin's mouth. What now exists is an Affordable Unit Policy NOT an actual General Amnesty.
Kristin Gaspar asked that a NEW amnesty could be studied. As part of that, Planning staff should look at the original amnesty of 1991.
Lisa Shaffer is not in the position of determining what the agenda item will be, despite her newsletter's misstatement.
DeleteGreat, send her a correction and let her know. At least she makes an attempt to keep those of us who can't go to all the meetings informed.
DeleteOnce again, the poster above does not disclose a personal interest in the amnesty concept....
DeleteI get it, you like GAspar because she's potentially interested in amnestying illegal rental units. Now it all makes sense...
DeleteThe correct phrasing is "providing amnesty" - amnestying is not a word, never has been a word, and will never be a word. To use it is a clear indicator of intellectual laziness.............
Delete.....but I get your point.......
1:58, you DO get it: Gaspar is "potentially" interested in amnesty for illegal units. Wait and see if she does indeed vote for it in direct opposition to what her developer handlers tell her to do. When the time comes, she won't. My money is on her finding a way to weasel around to a "no."
Delete2:25. You are correct, but my point remains the same. Lynn is supporting Gaspar and Muir because she's hoping they will vote her way on grandfathering in units that to this point have been considered illegal in the city.
DeleteHer whole support for bringing in currently available units (granny flats, accessory unit, or whatever you want to call it) has a personal angle to it.
I'm ok with that, I just don't know why she won't disclose it if we're going to have to hear about it. I guess if there's ongoing litigation, negotiation etc going on there I can see why you wouldn't want to talk about it, but it's plain as day, and as such becomes a little bit surreal when she keeps referring to it in the 3rd person.
We'll see if they will be "providing amnesty" on this issue, but I don't care if Gaspar said she'd personally clean up the vomit downtown on a Saturday night, she's already proven that she's the one who's lazy and intellectually incapable of providing input into council matters without her mentors, Stocks and David Mayers..
It would behoove the entire City to recognize and count what is described as "grandfathering." Many people have pre-existing accessory structures which could be used for affordable counting, at least to count as "potential" affordable housing.
Delete7:32, it's easy for you to attack others anonymously, isn't it? What are you proving about yourself? You provide no facts, only ad hominem attacks.
Since nothing will change your closed mind, I won't waste more time addressing your obvious and irrelevant attempts at a smear campaign.
Politics are always local and always personal.
Barth testy with Sheila, perhaps Barth should look to what an effective example of community service SC has been unlike Barth who has dropped her compass as well as "civility" it seems.
ReplyDeleteBarth testy with Gaspar, that was one short honeymoon. What will Barth boast about if she can't point to the council all getting along as her greatest accomplishment?
DeleteI'd be cautious on the first comparison. Personally, I'd be testy too if I had to deal with Gaspar...
DeleteWho wouldn't be testy with Gaspar - agree, so stop the kumbaya crowing and do some real work.
DeleteAt least Kristin Gaspar agreed that the Traffic Commission should remain in balance, with one Commissioner from each of our five Communities, as with the Planning Commission; she also recommended a new General Amnesty for pre-existing accessory units, as a future agenda item, so that affordable housing mandates can be met with fewer changes to the General Plan.
DeleteThat would be about the only common sense thing she's ever done. Why are we cheerleading for Gaspar all of sudden. Out of the 5 council people this term and last term, she ranks dead last.
Delete"We're" not, it's only Lynn. Apologies Lynn, but this is an election year and talk comes cheap. Gaspar is held firmly by developers and the big money that wants to run this town, residents be damned.
DeleteI don't care what she says she's going to do, how much fiscal sense she seems to have at times, or how prettily she spins her political record. Don't be fooled.
Gaspar and Muir voted against having more secret, unnoticed Council subcommittees. Kranz and Barth are currently on one, as supported by Shaffer, Vina and Sabine.
DeleteGaspar and Muir voted to keep the Traffic Commission in balance, as the Planning Commission is, with one Commissioner from each of our five communities. Shaffer, although she supposedly taught ethics, refused to consider adding an Ethics and Safety Commission.
Gaspar, Muir and Kranz did not support Barth and Shaffer's plans, announced and drafted at the CC policy and protocol subcommittee meeting, to do away with individual time donations for agenda items.
Subcommittees and commissions are small potatoes and easy gimmes for her to offer up. Take a step back and think about the larger issues.
DeleteWhere do you think she stands on Prop A, Ecke/Carltas "rights," Streetscape? Remember her claim that under Prop A, you could not remodel your kitchen?? She never corrected that lie that took a lot of grassroots work to convince voters wasn't true. The woman is dangerous. Don't be fooled.
KG stood with the rest of Council re N101 Streetscape and Prop A. She recused herself on ERGA. Mark Muir recused himself on Desert Rose. Mark Muir asked for a future agenda item re putting Streetscape through Leucadia on 101, on the 2014 General Election ballot.
DeleteNo one on Council corrected any of the lies, which were spread through fear generated by the false speculation and conjecture of the Rutan & Tucker Report and the NOT impartial analysis of Glenn Sabine, LIES published in the voters' pamphlets at our expense. At least Kristin and Mark didn't sign the petition to get elected, then back down, and do a turnaround, like Lisa and Tony.
On July 29, Planning finally put out a FAQ sheet to correct the lies that residential height limits WOULD be raised by Prop A and that the city would be bifurcated by the requirement for an LCP Amendment if Prop A were to pass.
Lisa would have won the election whether she signed the prop A petition or not. It's irrelevent.
DeleteWhat's not irrelevant is the above poster not acknowledging support for Muir and Gaspar due to a misguided belief they might support a grandfathering of existing units.
Guess what, they're not going to vote for it. That is not what the developer side of the equation wants.
All this tit for tat stuff on the council is nonsense at this point, save your breath for the mayoral election later in the year...
You do not know that Lisa would have won without Prop A support. That is conjecture, not based on verifiable facts, and your blanket assumption is therefore irrelevant.
DeleteWhy don't you wait and see what happens re the amnesty? The Court has found in a recent case (not one involving me or my property) that if there is evidence that accessory units pre-existed the City's incorporation, then because permits were not maintained (County permits were destroyed), these units are NOT illegal, and can continue to be maintained.
The City already has a policy of recognizing conditions which pre-exist NEW regulations, such as the ordinance created by Prop A as legal, non-conforming, which = "grandfathered in." This is the City's policy because it is the law as established by legal precedent and Statutory Code.
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ReplyDeleteShaffer reported back that not 1 city out of 20 (including Solana Beach and Del Mar) agreed that something needed to be done about Bonus Density. They all believe BD is a good tool for proper development. Don't believe me, ask Shaffer yourself!
ReplyDeleteI'll have to watch that comment. I believe its how you ask the question. Should the State be involved in establishing the zoning for local Cities?
ReplyDeleteShould the state have the ability to increase densities within Cities up to 35% without the consent of the City?
If the council member doesn't not believe in local control of , I have no use for them and will try and vote them out.
clearly many Council members need to be replaced. I only see one of our Councilmembers living in higher density living. The others choose to live in the berb style living with 3 living in HOAs
If Encinitas was OZ match up who is: Wicked Witch, Auntie Em, Lion, Wizard, Scare Crow, Dorothy, and a Munchkin. Council members, Vina & Sabine are your choices. Last nights council meeting is a good clue.
ReplyDeleteOz = California
DeleteKansas = Kansas
Emerald City = San Diego
Munchinkinland = Encinitas
Witch of the East = Redevelopment
The house that landed on her = The Teten House
Wicked Witch of the West = Density Bonus
Auntie Em = The General Plan
The poisonous poppies = Desert Rose
The yellow brick road = Streetscape (especially because it begins at a roundabout)
The Ruby Slippers = Prop A
The Lollypop Guild guy in the red suit = me
And yes Auntie Em, there's no place like Leucadia
Now lets do Gilligan's Island.
Did you do Gilligan?
DeleteDid you put on Dark Side of the Moon when working on your little allegory?
DeleteOne of the low points of last night's meeting was Vina talking about cost savings when he and his Strategic Plan are the biggest waste of funds we have. His Strategic Plan has no legal status at all, and he is trying to replace our General Plan with his Strategic Plan—which is his own personal vision for how the council should decide on issues to benefit Gus Vina. He is a scammer, and the council look like they are inviting him in to steal from us.
ReplyDeleteDump the scammer.
DeleteAgree . Dump the scammer and dump those that support him.
ReplyDeleteWatch it… Vina will cause traffic jams all over Encinitas to scold all those citizens that are speaking the truth about his motives and actions that are bad for Encinitas
ReplyDeleteWhat Tunnel are they going to close, the Neptune to El Camino Real tunnel?
ReplyDeleteDesert Rose appeal to City Council was illegal. Encinitas municipal code requires that any subdivision appeals has ten days of the date of determination, approval or denial, of the project. The Desert Rose project was denied on Nov. 1. The appeal submitted by Marco was dated Nov. 26.
ReplyDeleteThe planning department should have rejected his appeal.
Sorry to derail this current strain of conspiracy but the actual filing deadline is from the planning commission's resolution of denial which occurred on November 15. When the planning commission formally denies a project they request staff to return with a resolution of denial which is often done at the following meeting.
DeleteThe planning commission heard the project on the 1st of November and directed staff to return with a formal denial resolution at the next meeting which was November 15.
The City Council should never have heard the appeal for Desert Rose because Marco missed the deadline! The Planning Commissions decisions should have been upheld.
ReplyDeleteIf the Save Desert Rose neighbors would have lost at the Planning Commission, would they have allowed their attorney to file an appeal 26 days later? Fat chance!
There are examples of residents who submitted appeals under an hour after the 5:00 deadline to submit them to the city.
Residents who were 30 minutes late in submitting paperwork for an appeal were rejected. Why were the developers for the Desert Rose property given 26 days to appeal the Planning Commission decision?
ReplyDelete11:00 AM
ReplyDeleteYou are wrong. The determination as required by the municipal code was on Nov.1. The Nov. 15 PC meeting wasn't another denial. The Nov. 15 PC meeting had the planning commission voting (5-0) that the "events" of the denial determination on Nov.1 was what the commissioners remembered.
The planners involved then changed the date on the resolution from Nov. 1 to Nov. 15 and used the 3-2 vote of Nov. 1 on the falsely dated Nov. 15 resolution.
Sorry but you're wrong. The staff recommendation for the November 1 meeting was for approval and the attached draft resolution reflected that so a new resolution had to be drafted that reflected denial which didn't occur until the November 15 meeting. It didn't become official until the planning commission formally adopted a resolution of denial which was the 15th.
DeleteOh, in case you're wondering because the Thanksgiving holiday occurred during that period, as per municipal code 1.12 Appeals section 010 (D) Whenever a time limit provided for in this chapter falls upon a city holiday, the limit shall be extended to 5 PM of the next business day of the city.
DeleteNovember 26 was the next business day after the Thanksgiving holiday which included Friday.
11:25 AM
ReplyDeleteYou are wrong. The planning commission didn't adopt a resolution of denial on Nov. 15. The Nov. 15 date had the planning commission voting (5-0) that the denial determination on Nov. 1 was what the commissioners remembered.
The municipal code section under appeals defines determination -
A. As used in this Chapter, " determination" refers to a final,
non-recommending determination by a Board, Committee, Commission, or Department subordinate to the City Council. Unless otherwise provided by law, or this Code, or an action of the City Council, an appeal of a determination shall be made and processed in accordance with the provisions of this Chapter. The determination of denial was made on Nov.1.
Go back and watch the Nov. 15 video.
You can say this until you're blue in the face but technically the planning commission voted on November 1 to not accept staff's recommendation of approval and directed staff to return with a formal resolution of denial. That's the way it's always worked and the determination doesn't become final until the commission votes on the resolution. The resolution is the final determination and that didn't occur until November 15.
Delete11:54 AM
ReplyDeleteFunny, that's not what's said in the municipal code chapter on appeals. Nothing in the municipal code about technically or "that's the way it's always worked" or the determination doesn't become final. Where is that wording found in the municipal code chapter on appeals?
Maybe if I approach it from a different angle you'll understand but this is my last try. The planning commission has to give justifiable reasons for a denial. Justifiable in the sense that the reasons are supported in city code and state law. They can't just say we don't like it. So in the motion to not accept staff's recommendation, the commissioner making the motion has to state on what grounds their motion rests. These are stated verbally. Often there is discussion and give & take among the commissioners on the reasons. Sometimes adding, sometimes dropping and sometimes clarifying. All the while staff is trying to record what is being said. If you've ever watched a planning commission meeting, the commissioners aren't always clear about their reasons.
DeleteThe reason that staff is directed to return with a resolution of denial is to state clearly in the resolution what the reasons for denial and the justifications for it. When the resolution for denial is then presented to the commission in a subsequent meeting, the commissioners have a chance to verify and clarify their reason. At this point the can't add new ones but they can clarify what was said from the previous meeting. The commission then votes to confirm the actions and the reasons for it and adopt that as a resolution.
That is why the appeal clock doesn't start ticking until the resolution for denial is adopted to be sure that the applicant understands the reasons for denial and the basis upon which to form their appeal.
That is why the commission's determination isn't final until they adopt the resolution. And to be clear, that vote is only to confirm the commission's previous action so all commissioners are able to vote in the affirmative whether or not they supported the denial.
11:51 PM
ReplyDeleteThat is not what is stated in the appeals chapter in the municipal code. If the council wants to amend the municipal code to include a "don't pay attention to this code because we do it differently and won't put it in the code" clause, the council should do it. But all references in the code to appealing a determination DON'T mention what you are using as an excuse.
The planners also changed the date on the determination.
Go back and watch the Nov. 15 video.
The planning commission conveys it's action through resolution. That is it's official record of approval or denial. When the commission approves a project there is usually a draft resolution accompanying the staff report stating that approval but the commission may make changes to it before adoption. In that resolution for approval are the stated reasons for approval and the the city code from which it is based. So when the commission votes to approve, they are voting to adopt the resolution stating that. If someone wants to appeal the planning commission's approval to the city council the clock starts then.
DeleteHowever, when the commission does not approve a project, there is no resolution to adopt at that meeting. It's just a vote to not approve. It requires a formal resolution of denial, containing the reasons for it, to be adopted.
The planning commission legally transmits its actions through resolution. Until it's in a resolution it's not final.
I'm sorry you won't accept this.
Maybe this will help. It's the Planning Commissioner's Book from the Governor's Office of Planning and Research. The publication is a little dated but this is very much current.
DeleteUnder Part Two, The Legal Side of Planning.
Findings
Planning commission decisions must be based on a rational decision-making process. Often, the commission must adopt written "findings" explaining the factual reasons for its decision. A finding is a statement of fact relating the information that the commission has considered to the decision that it has made. If a decision is challenged in court, the findings will be used to trace the commission's reasoning and to determine whether its action was legally justified.
Findings must be supported by evidence in the hearing record (i.e., testimony, reports, environmental documents, etc.) and should not contain unsupported statements. Complete findings should be included in the commission's resolution of approval or denial. Keep in mind that findings will not rescue a decision if the commission has failed to follow the other procedures required by law.
The book is online here: ceres.ca.gov/planning/plan_comm/
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Delete2:26 & 3:18 PM
ReplyDeleteYou are in the dark as to how the city planners present the projects to the planning commission. Very seldom does a staff report contain a resolution of denial. In 99% of the staff reports the planner recommends approve and ignores any resolution of project denial. Besides planner "guidance" to the planning commission on how to vote, the approval findings given by the city staff planners are ludicrous. Example - if the planning commission approves the project it will meet the requirements. if the planning commission approves the project it will be legal.
Resolutions may "memorialize" findings but resolutions aren't mentioned the appeals chapter in the municipal code.
Other cities also use the same word - determination for the decision.
The city of San Diego makes it even clearer on by spelling out the time limitation of an appeal on the ORIGINAL DECISION DATE. In the case of Desert Rose the determination was made on Nov.1.
From the city of Coronado appeals information sheet -
When to File: Within ten (10) calendar days following the determination for which the review is sought.
The city of San Diego has a tiered appeal process, but still with a 10 business day appeal period of the ORIGINAL DECISION DATE (emphasis added).
From the city of San Diego appeals information -
All appeals must be made in accordance with the procedures listed in SDMC Chapter 11, Article 2, Division 5. All appeals must be made no later than close of business, within ten (10) business days of the original decision date (Process Three and Four), and within twelve (12) business days of the original decision date for Process Two decisions only. Business days are defined within SDMC Sections 113.0103 and 21.04.
The easiest way to prove your theory is take the city to court. Get a judge to agree with you. First though you have to find a lawyer who thinks you have a case. Nothing gets decided hear. What other cities do is interesting and maybe Encinitas can benefit from them but as long as they are all following the law, each city can do things the way they choose.
Delete9:44 AM
DeleteThe typical Encinitas councilman/mayor response. Sue us.
Because wishing doesn't make it so.
Delete. I would like for the Planning Department to provide findings or historical precedents of other Encinitas Planning Commission cases where an appellant got to do the same thing that Marco did on Desert Rose.
ReplyDeleteEvery appeal has 10 days from the date the resolution was adopted. When the planning commission adopts the resolution in the initial staff report then the 10 days begin at that vote. If staff have to return with a new resolution, the 10 days start when the commission votes to adopt it.
DeleteBy the way, it works both ways. If the initial staff report had a recommendation to deny and included a draft resolution of denial and the planning commission decided to approve instead, staff would have to return at another meeting with a draft resolution to approve.
The key point here whether the resolution is to approve or deny, the important date is when that resolution is adopted. Then it becomes official and then the 10 day appeal window begins. It really is that simple.
9:53 AM
ReplyDeleteNo, that is wrong information. The appeals chapter of the municipal code states determination, not resolution.
I take it you're not a lawyer. The adopted resolution, whether for appeal or denial, is the final determination. Any appeal to the city council must address those issues in the resolution, or the absence there of, in their written appeal. When before the city council they can only address those issues and the information provided in the planning commission resolution and their written appeal. In other words they can't introduce anything new.
DeleteRemember, in cases like Desert Rose the planning commission is acting in a quasi-judical roll with all the legal ramifications. Just as a judge issues a legal opinion in deciding the case, the planning commission issues its legal opinion in a resolution.
So in fairness to any appellant, they need the official final determination to adequately write their appeal. Fairness extends to both sides.
Finally, you have been assuming that the Desert Rose applicants didn't know all this ahead of time. I'm sure they would have filed the appeal within the 10 days following the initial vote if they had too.
10:41 AM
DeleteYou are wrong. The municipal code time limit has nothing to do with fairness. Any appeal to the council doesn't have to address those issues in the resolution.
You flutter all over with descriptions of what happens after an appeal is timely filed and accepted by the planning director. The subject is the appeals chapter of the Encinitas Municipal Code and an appeal that is timely filed.
Nov. 1 was the determination date of denial of the Desert Rose case. The appeal wasn't timely filed and should have been rejected.
12:31 PM
DeleteSpeaking of denial you're in it. Tell you what. Take this to the city council during the open comment period of any council meeting. Tell them they incorrectly followed the municipal code and acted improperly. It's free. At best it's 3 minutes or if you can get one or two supporters, you can have 6 or 9 minutes respectively. Make your case. For all the time you've spent here, it doesn't appear that it will take much of an effort.
But I've wasted more time than I should have to help you out.
Since this would be brought up during oral communications, we can't "have 6 or 9 minutes respectively." No time donations allowed.
DeleteHowever, I hope people do address this further inequity during oral communications.
And, with respect to our not doing our own Encinitas LCP for the I-5 expansion, since that is to be an "open agenda item," then the public could address that every week, should we want to. It would probably be listed at the tail end of the agenda, though. I find it challenging to sit through the entire meeting. In my opinion, Council should have more meetings so that they can adjourn earlier, not only on Wednesday nights, for instance. Some Meetings could be on Mondays or Tuesdays, or on Thursdays, when there are no Planning Commission Meetings.
Staff is mostly on salary, anyway. It shouldn't be that expensive. The City should not have to pay for police presence at every meeting, either. The police could be called when necessary, although that has never happened.
I'm glad that on the second reading Council didn't pass new EMC to allow the Sheriff to inspect hotel and motel logs, and require that photo idea and personal information be stored and presented upon inspection, without a warrant. It was found to be an Unconstitutional violation of protections against illegal search and seizure. Solana Beach and other cities will have to strike out local ordinances they created. We appreciate that the government provides for public health and safety, but some laws go too far in taking away our inalienable rights.
Marco, please present us with other Encinitas cases where anyone else got to do an appeal the same way that you did for Desert Rose, and it will help settle the issue. Thanks.
ReplyDelete10:21-Right, like Marco's going to tell us how he plays ball. We already know it, so why go there. He sells himself to the highest bidder now that he has managed to get his name in the big papers. He sold out a long time ago.
ReplyDeletePersonally I wish Marco would go back to defending poor women. Leave our city alone. Marco.
ReplyDeletePlanning staff should have had the alternative resolution in the Agenda Packet, or a draft resolution. This could have been drafted from the many e-mails and physical evidence produced by the Desert Rose neighbors and others, ahead of time. It is poor protocol to have a two week gap between the time the determination of denial was made, and the resolution was voted upon, unanimously, by the way.
ReplyDeleteFor your convoluted interpretation of EMC to be true, 2:26, then it would seem that if nothing is official until the resolution of denial is voted upon, then the resolution was adopted unanimously. There WAS no 3/2 vote of the Commissioners on November 15.
As 2:09 stated, you need to go back and view the webcast. You can't just make stuff up as you go along. That book you are referring to is irrelevant, because we are discussing EMC and City policy, in this interpretation, not state law.
If staff was unprepared to craft a resolution of findings, based on the testimony, than a Special Meeting could be called with only 24 hours' notice. Also, Marco and the Developer were present and knew on what evidence the findings were made; they heard the testimony of the applicant and the Desert Rose Neighbors. Marco could have begun drafting his appeal immediately.
I feel that the case has been prejudiced against the Desert Rose neighbors and in favor of the developer, because Marco was given special treatment, an extra two weeks, which is NOT what has been the case for many, many others.
Again, the developer was given special treatment, because when the appeal was heard before Council, there was no RESPONDENT; there was no equity. Marco was given an opportunity for ten minutes to speak at the beginning, and a rebuttal, at the end. Marco was allowed to come up and answer Council questions.
The Desert Rose neighbors' attorney, Everett Delano, was NOT allowed an opening statement and a rebuttal. Had the Planning Commission approved the project, then BOTH applicant/developer and appellant/neighbors and Desert Rose sympathizers, would have had the opportunity to appear before Council and staff, WITH EQUAL STATURE, represented by attorneys. Otherwise, Marco should have only been able to speak at the speaker's dais for a total of 9 minutes, with two time donations, as Everett Delano was only allowed.
Not only was the developer represented by legal counsel, Marco, but also by STAFF. In this case, before the PC and after, before Council, staff should have been more neutral; at a minimum staff could have been and should have been prepared with an outline of a resolution based on findings that could be made, relevant to evidence already abundantly supplied to the City. The Desert Rose neighbors had been working on this for years, and the potential reasons for denying the development, or requiring an EIR should have been well known. Once again, staff was not only prejudiced in favor of the developer, but unprepared with an alternative resolution of denial, for the Planning Commissioners at the time of their denial of the project.
Bottom line, Marco was given special treatment, as was the developer. The case before the City was prejudiced. As I see it, this fact should be part of the ongoing lawsuit. If there is any doubt that the Desert Rose Petitioners did not get due process of Encinitas Municipal Code, and that the Planning Commission's judicious findings were improperly overturned, then at a minimum, the Developer should assuredly be required to complete a FULL EIR.
That's the way Marco works Lynn. He has access to three Council members ears. And those 3 are not Muir and Gaspar. Add them in the mix and you can see what happens. The Desert Rose people never had a chance to begin with. If developers want it all they have to do is hire Marco and they have the whole council.
ReplyDeleteJan. 12, 10:41 AM
ReplyDeleteYou just defeated your argument.
Nov. 1 was the determination date of the project. The planner only had a resolution of approval. If the commission had approve the project and adopted the resolution, the time limit to file an appeal would be ten days from the determination. The appellants would have ten days from Nov. 1 to prepare the appeal. But the commissioners denied the project. The planner had no resolution of denial and was going to bring back to the commission that resolution on Nov. 15 which was 5 days past the appeal filing deadline. The commission vote 5-0 to adopt the resolution of denial at the Nov. 15 meeting. Marco, the attorney, now has another 10 days plus the 15 days from the date of determination to file an appeal. Marco now has 25 days to prepare his arguments for the appeal. He can listen to the video, do research, and compile his arguments with 25 extra days that would have been denied to the community group because they would have only had 10 days for the appeal. Is this fair?
Thanks for the laugh. I am sooo defeated.
DeleteIt is a two-tier system. For citizens who the Planning Department does not support, they have 10 days. For developers, they get 25 or maybe even more--if they are going to split it up this way. These developers got 2 1/2 times more time to prepare their appeal than others who get 10 days. It is a problem of perception if not fairness in the application of rules.
ReplyDeleteThe council's Desert Rose hearing was null and void. The planners approved an appeal that was not filed within the 10 day limit as required by the city municipal code. The appeal was filed 25 days after the determination denial of the project. Was the council told the appeal wasn't filed within the deadline? How much did the council know about the manipulation of the date and vote on the resolution? Did the council knowingly approve the planners actions of not following the 10 days appeal time limitation? Did the council approve of giving the developers 25 days to file an appeal?
ReplyDeleteAnd yet I've heard no one address this with the council during the open comment period. Bowing to Lynn, who probably knows the in's & out's of the open comments rules better than anyone given her near permanent fixture there, you'll need more than one speaker if you want more than 3 minutes.
DeleteI have to believe that if anyone could get any traction out of this it would be Ehlers - and he's silent - so what gives? If true - this is a point of fact that can be argued in court.
Delete- The Sculpin
Sculpin:
DeleteGood point. Wasn't Ehlers on the planning commission? He should know how it works.
There was no awareness at the second meeting that Marco had not already filed the appeal since that 2nd Planning Commission hearing took place on November 15. In aswer to 10:26, this is in a lawsuit against the City of Encinitas now, so issues pertaining to how the process was handled and the project itself will be in front of a judge to decide.
Delete7:57 AM
DeleteThat may be true but I'm talking about recently. There are complaints on this blog that city procedure wasn't followed. I strongly disagree but be that as it may, I haven't seen anyone stand in front of the council and tell them they were wrong. Why not? If you think you are in the right then get up in front of council and tell them so.
Saying you're going to let a judge decide is a little weak. Do you know if the question of improperly following city procedure is even included in the complaint? If not, a judge isn't going to review it.
Bruce Ehlers was once on the planning commission. Yes, he should know what is fact and fiction.
ReplyDelete