With state regulators watching, Del Mar council to decide fate of petition to repeal North Commercial upzone

A petition by Del Mar residents to repeal a recently approved zoning ordinance has been certified by the county, setting the stage for one of the City Council’s first big decisions of 2021.

The ordinance increases the density of 16 parcels of land off Jimmy Durante Boulevard, zoned as North Commercial, to 20 residential units per acre to fulfill state housing mandates. City planners estimate that the upzone would result in 19 affordable housing units.

But in response to the petition, council members have to either accept the repeal themselves or let residents vote in a future election.

If the ordinance is ultimately struck down, the city could face state-imposed fines, litigation, “by-right” development that circumvents city review or other consequences, according to city planners.

Del Mar resident Arnie Wiesel, who helped launch the petition on behalf of the Del Mar Hillside Association, said he wants “more relevant and sensitive” zoning changes that preserve Del Mar’s quaint, village-like atmosphere.

Wiesel added that he thinks the council, which includes two newly sworn-in members who campaigned against more density, will be “concerned and representative” of residents’ wishes when they address the petition in January.

But the city also faces mounting pressure from the state’s Department of Housing and Community Development (HCD). In a letter to the city last summer, the agency said that it expected the council to pass the North Commercial upzone. That upzone was part of the housing element that the city submitted to HCD as part of the state’s fifth Regional Housing Needs Allocation cycle, which spans from 2013 to 2021.

When the council failed to approve it in September, HCD sent another letter warning that “the City’s housing element no longer substantially complies with California’s Housing Element Law.” HCD gave Del Mar 30 days to respond.

By a 3-2 vote in October, council members finally approved the North Commercial upzone. But by another 3-2 vote, the council failed to adopt a corresponding Community Plan Amendment, which requires at least four votes. Then-Deputy Mayor Terry Gaasterland and City Councilman Dave Druker were the no votes in both instances.

HCD said in another followup letter that it was satisfied with the progress, referring to the North Commercial parcels and steps taken by the city to accommodate the proposed 48-unit Watermark project in the North Commercial zone. In September, the council also unanimously approved both a Community Plan amendment and zoning ordinance to upzone four parcels of land zoned as Professional Commercial to 20 residential units per acre.

The future of the North Commercial zoning, and whether the city will be penalized by the state’s Department of Housing and Community Development, now depends on how the council responds to the petition. A decision to add it to the ballot on a to-be-determined election date could prolong the process.

HCD spokeswoman Alicia Murillo said via email that HCD “will need to closely evaluate the petition and effects on the housing element.”

“The action would likely negatively impact their housing element and potentially trigger other housing laws such as the Housing Crisis Act,” she continued, referring to a 2019 law designed to streamline new construction.

Two of the council members who voted for the North Commercial upzone, Ellie Haviland and Sherryl Parks, did not run for reelection. They have been replaced by two newcomers who said during their campaigns they want to avoid rezones that add more density.

Gaasterland, who is now mayor, signed the petition. When the council deliberates next month about what to do with it, she said she wants to better understand the potential consequences.

“We’ve been given many hypotheticals and worries that have not been nailed down to worst-case scenarios yet,” she said.

Gaasterland added that she wants the city to “shift the conversation away from what does the state legislation say we have to do by the letter of the law, to how can we generate this housing in Del Mar in a way that fits in Del Mar and improves people’s lives?”

The North Commercial upzone was one of the wedge issues during the Nov. 3 council election, in which three at-large seats were up for grabs. Of the six candidates, three opposed it and three supported it. All three who opposed it won.

Given those results, Gaasterland said she will reflect on whether the new council has “a sufficient mandate” to reverse the zoning, or if residents should vote.

Druker, the lone incumbent of the three council members who won in last month’s election, said he remained neutral on the petition. The two newcomers, Tracy Martinez and Dan Quirk, did not respond to requests for comment by press time.

The City Council listened to a presentation on the housing element by city planners on Dec. 14. Joseph Smith, Del Mar’s planning and community development director, repeatedly emphasized during the meeting that the state requires cities to have adequate sites for affordable housing. For Del Mar, an adequate site needs to be at least 20 residential units per acre. He told council members that repealing the North Commercial upzone would be “a step in the wrong direction.”

City Councilman Dwight Worden is the only remaining council member who voted for the North Commercial upzone. Over the past few months, he’s echoed a concern raised by city staff that if HCD decertifies Del Mar’s housing element, the city might become ineligible for state grants.

Those grants would be needed to prepare for 51 units of affordable housing at the Del Mar Fairgrounds, which is a key component of the city’s draft housing element for the sixth RHNA cycle, covering 2021 to 2029. For that cycle, the city needs to show that it has zoning for 175 new housing units, including 113 affordable units.

If the fairgrounds option falls through, the city’s backup plan is to zone for more density on the north and south bluffs.

Worden added that it’s important for the community to understand the adequate sites component of the housing element.

“I think hopefully there are going to be some eureka moments for people to go, ‘Oh, I didn’t really get that.’ We have to not only show how we’re going to produce units, we have to rezone some property at 20 units per acre,” he said, adding that a May 2020 survey showed residents preferred the North Commercial parcels for accommodating more density. “You start to wonder why some people are preventing us from doing that.”