The San Diego City Council voted in January to remove a controversial footnote in city code. It reduced minimum lot sizes for a certain zone of land, allowing much denser housing developments — but only in neighborhoods in Southeastern San Diego which were formerly redlined and remain majority Black and Latino and low-income.
The vote was a victory for community organizers calling for equity and transparency in how the city rezones land. However, it didn’t meet their demand to halt projects already in progress that rely on the footnote. City staff said that would violate state law; projects must be approved based on the local codes in place when the application is completed.
City staff estimated at that meeting that, following the typical timeline of bureaucratic steps, the mayor would likely sign off on the removal in early March, and it would take effect 30 days later. This left organizers concerned — how many more dense housing developments could be approved for their few open spaces before the removal actually took effect?
Now, that timeline may be delayed even further.
The second reading of the amendment to remove the footnote — one of those bureaucratic steps necessary before it can make its way to the mayor’s desk — was on the agenda for Tuesday. Staff removed it after receiving a complaint that the council violated the Ralph M. Brown Act when they passed the amendment in January.
The Brown Act is a state law that prohibits the council from voting on or discussing things not on the public agenda. It’s meant to protect the public’s right to be part of their local government processes and have their voices heard during public comment.
The reason the vote could violate that law is that the councilmember who made the motion to remove the footnote — District 4 Councilmember Henry Foster III — added a second action into the motion. A vote supporting the repeal of the footnote would also include asking city staff to return within 60 days with an action item to repeal the city’s Accessory Dwelling Unity (ADU) bonus program.
His constituents had just raised concerns about that program in their own community planning group meeting, but Foster’s motion appeared to surprise other staff present. The City Attorney’s office warned adding the action on the ADU program could violate the Brown Act. District 3 Councilmember Stephen Whitburn asked Foster to split the motion and vote on the two items separately. Foster refused.
The Brown Act complaint to the city was sent by attorneys for SDRE, a developer behind some of the city’s largest proposed bonus ADU developments, including in the neighborhoods where the footnote applies.
In response to questions for this story, Foster’s Chief of Staff Daniel Horton said only: “Footnote 7 and the ADU Bonus Program are a closed session matter, and our office is unable to comment at this time.”
