Southeast San Diego residents won a fight on housing density, but another one is brewing between council, mayor

Southeast San Diego residents who opposed two city policies allowing new housing at a higher density in their neighborhoods scored a worthy ally this week: the City Council.

Councilmembers unanimously voted to remove a controversial footnote in the city’s zoning laws that allows developers to build more single-family homes on less land in certain southeastern neighborhoods than what’s allowed in other parts of San Diego.

But the council also made an unscheduled vote toward further limiting accessory dwelling units — also known as ADUs — despite a warning from legal counsel that the move could prompt a lawsuit against the city.

“The lack of transparency and engagement in policy-making affecting neighborhoods, especially those historically discriminated against like District 4, is unacceptable,”
Councilmember Henry Foster III, who represents the area, said about the footnote during Tuesday’s meeting.

“I continue to share in my community’s concern that the process, or lack thereof, regarding (the footnote) was not transparent and inclusive.”

The footnote permits a minimum of 5,000 square feet to build one, single-family home in Encanto. That’s compared to 20,000 square feet elsewhere. 

Some residents have claimed the rule amounts to discrimination, pointing to the area’s higher proportions of Black and brown residents and household incomes that are lower than the rest of the county. 

Officials still haven’t explained why the footnote was added to the city’s municipal code in 2019. Though they have acknowledged that the footnote should have been “directly discussed with the affected communities” during its approval process, staff have said “there is no evidence to suggest it was intentionally racist or designed with discriminatory intent.”

“They know they’re wrong because if they didn’t know they were wrong, they wouldn’t have removed it, the footnote,” Andrea Hetheru, chair of the Chollas Valley Community Planning Group, told inewsource on Wednesday. The group of volunteer residents spearheaded a campaign against the exclusive zoning rule.

Residents say they learned about the footnote while challenging a developer’s proposal last year to build 25 homes on 5 acres along Klauber Avenue. The city has since upheld the planning group’s appeal against the project, though it’s expected that the developer, Klauber Development Corp., will reapply with plans that would build at a lower density.

Removal of the footnote takes effect 30 days after Mayor Todd Gloria signs the amendment. That could halt another housing project on a radio tower site in the Emerald Hills neighborhood, where D.R. Horton Inc. proposed building more than 100 market-rate, single-family homes on 31 acres along Old Memory Lane, according to a community planning group meeting agenda.

Residents urged the council’s repeal of the footnote to be applied retroactively to stop the housing projects that are already in process. But Seth Litchney, a program manager with the city Planning Department, maintained that “retroactively applying new requirements to development project applications already submitted and in review could be a violation of state law.”

Hetheru said her group will likely attempt to block both housing projects, which would cost them at least $2,000 in appeal fees. Pending approval from her group’s board, they may also hire attorneys to help potentially sue the city, she said.

“Given our low resources, the last thing you should do is force us to take you to court,” she said.

An end to the bonus ADU program?

Councilmembers on Tuesday also asked staff to begin the process of stopping the city’s ADU density bonus program, which allows a developer to build a bonus, market-rate unit for every one unit built as a restricted low-to-moderate income rental. In areas close to public transit, the bonus ADU match is unlimited.

Some residents in southeast San Diego have opposed the program, saying it’s a policy that could contribute to “overcrowding, skyrocketing rents, home prices, traffic congestion, unsafe roads, and a vanishing opportunity to purchase a home.”

Foster proposed the amendment, which requests that staff return to the council within 60 days with an action item. City staffers, however, report to the mayor.

“Given that this city has been recognized as a model for how to produce more homes that everyday residents can afford, the mayor is disappointed in the council’s action,” David Rolland, a spokesperson for Gloria, wrote in a statement to KPBS. “We are exploring options for how to respond.”

Councilmembers voted on the amendment against the advice of assistant city attorney Leslie Fitzgerald, who warned they were potentially violating the state’s Brown Act. The city could be vulnerable for a lawsuit for not providing prior notice to the public, Fitzgerald said.

Councilmember Marni Von Wilpert said the vocal rejection of the program from constituents in her district — which includes northern neighborhoods such as Rancho Bernardo, San Pasqual and Scripps Ranch — warranted the risky vote.

“I understand the concern (that) it wasn’t noticed, but this is merely a request,” she said. “We’re not amending the law today.”

Councilmember Jennifer Campbell shared a similar concern from her district. Campbell represents the beaches and western parts of the city such as Point Loma and Mission Beach.

“When it comes back in 60 days, let’s hope everybody knows about it ahead of time, thinks about it, reads it and digests it because this is very, very important about keeping the quality of our neighborhoods in our city,” she said.

Councilmember Sean Elo-Rivera was absent and did not participate in the votes Tuesday.