Here is an edited response to Al’s post:
Al should read Section 7.10 of the Land Use Element of the General Plan.
There is already an existing, city-wide height maximum of 30 feet or two stories in the general plan! All the initiative does is reaffirm this and require a public vote to change this provision.
Does Al understand that the Municipal Code is subordinate to the General Plan and the Municipal Code can (and DOES) set building heights that are lower, such as the 22-foot and 26-foot limits in certain areas and under certain zoning? So, what is the problem?
Here is the limit on residential homes from the municipal code that we have TODAY. These are lower than the "MAXIMUM" set in the general plan that we have TODAY.
The “maximum” is typical of general plans.
The RTV drafters used the same common structure in their language to make it easy to match up with the current general plan. This makes the consequences transparent and clear.
It means that everyone can see that NOTHING IS GOING TO CHANGE, except now the voters own that part of the general plan and only they can change it. This is exactly how the RTV has described the initiative and it is the only reasonable way for an informed reader to read it. Al is likely to realize that the way it was written is actually an asset of the initiative.
Here is what is in the right to vote provision:
As with the current general plan, the Encinitas Municipal Code (EMC) can’t set a higher limit because it puts it in conflict with the GP. The EMC can and does set lower limits. We have those in the code TODAY.
Over the years the Planning Department and Planning Commission have not allowed these lower limits in the EMC to be exceeded, even though the GP already has the higher 30-foot limit. The 30-foot limit has always been interpreted as a maximum, but that it can be lower for specified areas.
Because the initiative language is just like the CURRENT general plan, we can and will have these same lower limits AFTER the Right to Vote passes in June, unless the height limits are raised.
According to the RTV people they have been trying to contact the Al on their list of signature gathers to ask this Al about this issue. Al has not responded to phone calls or emails, according to them. Hopefully, the real Al will explain why the above explanation is wrong or capitulate that he made a mistake. I'm ready to do that and to see how the RTV people and I are wrong. If Al had been right the RTV would be a disaster, however it doesn't look that way.
I think we already have clarity.
Try to answer that Al! In fact members of council might want to read this . They appear to be just as confused as Al.
ReplyDeletePlease see comments below...
DeleteI agree with this post and will vote for the initiative.
ReplyDeleteDon't just agree with it. Ask Mayor Barth.
DeleteDo we have clarity? Because everyone is running around confused as all hell.
ReplyDeleteI think you will find some clarity below...
DeleteWhy is that?
DeleteIs it because someone is trying to muddy the water and the anti-side won't step up to the questions?
This guy Al must be a real pain.
ReplyDeleteWell I looked this over and most people will focus on what you are stating above, but I think that section 9 is indeed where the initiative goes bad. There is some powerful wording there in section 9 that creates a height increase. I'm not a lawyer, but it seems that I may have a lot of people who would agree with me. My basic comments below. It is my understanding that:
1. This initiative revokes Policy 7.10 and replaces it with the wording in Section 6 of the initiative. Repeal means to revoke. See section 7.3 of the initiative.
2. Section 9 of the initiative states that the initiatives provisions will supersede all provisions of the municipal code, ordinances, resolutions, and admin policies of the City. So, that sure sounds like it makes section 6 of the initiative supersede the requirements of existing municipal code.
3. I encourage people to read the initiative and take everyone's mud-slinging comments into consideration after. Ego's need to be put aside when analyzing this document. There is no reason that another initiative that is well written couldn't be approved in the future.
4. The words repeal and supersede are very powerful legal terms. I'm not a lawyer, but I think you will get the same analysis from many lawyers when they read this initiative, and ultimately the initiative needs to stand up in a court of law.
5. http://www.encinitasca.gov/modules/showdocument.aspx?documentid=2679, signed by Barth and Kranz.
6. http://www.encinitasca.gov/modules/showdocument.aspx?documentid=2697
7. http://www.encinitasca.gov/modules/showdocument.aspx?documentid=2678
8. All the info on the City Web site here!!!
http://www.encinitasca.gov/index.aspx?page=119
Only the info that the city wants you to read is there.
DeleteI don't see where you address the real question posed in this post.
Doesn't the current general plan already supersede the muni code? That is key. Also key is why the use of the MAXIMUM city height in the general plan would be different that it is currently used. It currently sets the maximum. Residential lots are set at a lower height than the maximum, so walk me through it because the Mayor won't.
Its only fair to ask the RTV people to address this too. I have emailed Bruce Ehlers and we await his response.
DeleteDon't forget that even the city council doesn't agree that "unknown" is correct. They say it "could" do that, but ask them why that is or under what conditions that would be true and there is no support. So "a lot" of people doesn't include the council as far as we can tell... the Mayor is being silent on how far she goes.
ReplyDeleteI will be the first to contribute heavily against Prop A.But I will not expect our council to come up an initiative that is written better. There is already evidence that their version will not address elements that the RTV people consider key.
For the record. I have done little to develop Prop A, was against the timing of Prop A, against the special election, was against the process of Prop A development, and don't like the way the Prop is laid out. That being said, there has been a lot of vague comments about Prop A that don't seem to be able to withstand inspection. Mostly, we have bigger issues facing Encinitas in terms of the pension liabilities and the current council is going kick the can down the road further.
Ok, yes the general plan takes precedence. After reviewing the general plan I do find partial reference of the present municipal code residential heights. It's in the housing element analysis of potential constraints to density increase, page H-46, which finds the current heights not a constraint. It's not a complete re-state of the current height regulations, and is a reference back to the municipal code. So we would have yet another scenario of inconsistency with the MC and the General Plan. Possible RTV is banking on the reference in the Gen Plan to hold, but the wording in the initiative clearly changes the muni code. I guess the question is, does that wording in the Gen Plan hold. If so great, it's not as bad as I thought, though there are a bunch of other type of issues that I'm not prepared to tackle that I'm sure will cause even more controversy if approved...And that is why I'm siding with Barth and Kranz on this one...It's going to get even more confusing... Lol.
ReplyDelete"Unknown" is misreading the Housing Element, which consist of "Goals" and "Policies." Goals are only general desires with no enforcement behind them. Policies are the governing requirements which must be followed to implement the Goals. Most of the Housing Element is the Housing Plan which is essentially a justification for what is in the General Plan and Municipal Code. There is nothing there to change an interpretation of the initiative.
ReplyDeleteThe initiative Section 9 only supersedes or repeals the things relevant to the initiative, that is, a required public vote for zoning and height increases. Everything else stays the same. It's necessary to include such a statement to be sure there isn't a loophole hidden somewhere that could be used to circumvent the purpose of the initiative.
Well if the first paragraph you wrote is true, then the initiative indeed changes the height regulations for residential and increases them to the 30ft tall "box" scenario. Don't under-estimate the power of Section 9... This initiative is a legal nightmare and will cause unreal problems. I don't like it, but if it's approved there will be a lot of additions and remodels, and many will proceed with or without the Cities Approval, they will take it to court and win.
ReplyDelete