By Dr. John E. Warren, Publisher, San Diego Voice & Viewpoint Newspaper
Because of the concerns raised by the Encanto Neighborhoods and Southeastern San Diego Communities, the San Diego City Attorney was asked to provide an opinion of the Legality of Footnote 7 in the San Diego Municipal Code.
It is the opinion of this newspaper, after reading the City Attorney’s Memorandum, that the wrong question was asked and therefore the wrong conclusion was reached.
The question asked by the City Attorney was:
Is Footnote 7 unconstitutional and therefore invalid because it violates federal and state equal protection, due process and fair housing laws?
The short answer given by the City Attorney states:
Legislative enactments, including zoning ordinances, are presumed to be valid.Courts have determined that a land use regulation is a valid exercise of a city’s police power if it bears a substantial reasonable relationship to the public welfare.
The real issue is found in the fact that Footnote 7 violates the equal protection clause by how it affects two or more similarly situated groups in an unequal manner. For the purposes of this discussion, one group here is the Encanto Neighborhood and the Southeastern San Diego communities under the 5,000 square feet Footnote 7 rule, compared to the 20,000 square feet space allocation for the rest of the city which in effect permitted less density than the 5000 square foot rule giving greater density to communities with lesser space.
No logical explanation in terms of property other than finding greater space to put more housing. There was no discussion of Environmental Impact Reports (ERI)
The very fact that the City Council is willing to consider repealing Footnote 7 is proof positive that the inequality has been found and noted. Question, How do you correct the problem without providing the necessary remedy to correct the harm done? The communities are not made whole by removing footnote 7 and leaving permission to build that which would not have been approved if these communities had the same 2000 square feet provisions as the other communities not affected by Footnote 7.
The City Council, the Mayor, and the City Council Member at the time of signing footnote 7, did so without the very community’s input now fighting for the change. All three parties should vote to halt the construction proposed and take their changes with the lawsuits that follow in the interest of fairness and equality for the citizens affected by Footnote – 7
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