A divided San Diego City Council approved a controversial housing development in Encanto on Tuesday, even as they acknowledged the 23-home project was made possible by a since-repealed policy that critics call racist.
The council voted 6-3 in favor of the project after Councilmember Henry Foster, who cast one of the “no” votes, searched unsuccessfully for grounds to reject it that were legally sound enough to satisfy his colleagues.
Council members who voted to approve the project said they had no choice, because the allegedly racist policy that had paved the way for it wasn’t repealed until April — long after the project had gotten far enough into the city’s approval pipeline to be deemed a complete proposal.
Council members said their reluctant approval likely foreshadows similar approvals the council will be forced to grant for large-scale alternative dwelling unit, or ADU, projects in coming months, despite the council voting to roll back the city’s ADU incentive.
With both policy changes — repealing the allegedly racist policy known as Footnote 7 and amending the backyard apartment incentive — the city will be forced to let through projects that pre-date the changes.
“The city may only apply the development standards that were in effect at the time the application for this project was deemed complete,” Deputy City Attorney Leslie Fitzgerald told the council of the 23-unit project in Encanto.
City planners said they are barred by state law from retroactively applying new ordinances, policies and standards.
Footnote 7 is a policy that Planning Department officials say was mistakenly inserted into a land development code update back in 2019. It reduced the minimum lot sizes on some parcels of land in Encanto and Emerald Hills from 20,000 square feet to 5,000 square feet.
Critics say the policy targeted some of San Diego’s neighborhoods with the lowest incomes and the highest concentration of Black residents for a zoning change that was not applied anywhere else in the city.
The discovery last winter of Footnote 7 prompted Foster to demand its repeal and pursue other policies that have brought unwelcome projects to the neighborhoods he represents.
“I have stood by my community when it comes to fighting the concentration of poverty,” he said Tuesday.
Foster asked city planning officials this winter to propose amendments to the city’s bonus incentive for ADUs.
His goal was potentially blocking two ADU projects proposed for Encanto that would each have had more than 40 units. Unrelated to his efforts, those projects got blocked because the area lacks sidewalks.
But Foster’s effort, after many hearings and much debate, eventually led the council to vote 5-4 on June 17 to roll back the ADU incentive — and to cap the number of ADUs that can be built on a single-family lot.
Because the council hasn’t yet approved that change a second time, developers whose projects have been deemed complete in the month since their vote will be able to move forward, despite the rollback.
Council President Joe LaCava and Councilmember Raul Campillo joined Foster in opposition to the 23-home Encanto project, which will be on a 5.7-acre lot on Klauber Drive near Broadway and Radio Drive.
“I believe that Footnote 7 from its inception was improper, and that any fruit that comes from that vine should be denied,” Campillo said.
Without that footnote, 12 single-family homes could have been built on the property, rather than 23. Residents, however, said they had been told for years that the site would likely become a neighborhood park.
Despite being frustrated by Footnote 7, the rest of the council said they had no choice but to approve the project.
“I’m just heeding the city attorney’s caution here,” said Councilmember Marni von Wilpert.
Councilmember Kent Lee said the law was unfortunately clear.
“Rules around development change continuously,” Lee said. “We cannot go back and re-apply new rules to existing projects.”
Foster tried to persuade his colleagues to reject the project based on concerns about wildfire risk and the slope of the property. But he couldn’t get enough support.
Victoria LaBruzzo, the new chair of an umbrella organization for city neighborhood groups called the Community Planners Committee, criticized city officials on Footnote 7.
“What stood out most was the lack of clarity from the Planning Department about how this provision came to be, and why it wasn’t more thoroughly scrutinized at the time — especially considering the communities affected,” she said.
“It creates the perception of a hidden agenda, and that’s not how we build trust,” LaBruzzo continued. “This decision risks eroding trust across all 41 community planning areas, suggesting that zoning protections can be altered without following proper processes.”
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