How San Diego cleared the way for Midway Rising to crack the coastal height limit

Midway Rising is still alive, and if its developers succeed in pushing the project through despite the latest legal setback, they’ll have San Diego to thank.

California has been expanding the scope and power of its density bonus law for years. Some of the biggest changes to the law came from San Diego elected officials and court cases.

And now those San Diego-driven expansions that are helping bypass a 50-year-old local ballot measure long seen as a sacred cow in San Diego politics.

The Midway Rising project would redevelop the Pechanga Arena area into an urban district with 4,000 homes, a new entertainment venue and acres of parks. It appeared to suffer a legal setback in October when a court overturned a ballot measure eliminating the coastal height limit in Midway.

Quickly, developers said that wasn’t a problem, even though the project includes 85-foot-tall buildings in an area where new buildings are restricted to 30 feet. When they proposed the project, and again when the measure was on the ballot, they had said they needed to get rid of the height limit.

But after the fall court decision, they said they were already prepared to rely on California’s density bonus law, which lets developers waive local development restrictions — like height limits or density requirements — if they reserve units for low-income residents. The initial proposal included 2,000 affordable homes, far above the requirement for the state program.

“We are confident in Midway Rising’s ability to move forward as planned under state density bonus law,” said Jeff Meyer, Midway Rising’s spokesperson, in a statement. “At its core, our project is a fully integrated mixed-use housing development, and we look forward to working with our local and state partners to make affordable housing history in San Diego.”

The city attorney’s office confirmed it will release a public memo outlining its legal opinion of their argument when the city council is ready to vote on the project.

But that’s a strategy that wouldn’t have been possible without recent expansions to the density bonus law that started right here in San Diego, not in Sacramento.

“Ten years ago this would have been an eye popper and insane to even try,” said Dave Rand, a land-use attorney who has worked on hundreds of density bonus cases across the state. “Now it’s a snoozer, legally speaking, at least from my perspective.”

The 1979 density law started by allowing developers to boost the units in a project 25% above the city’s limit.

In 2020, former San Diego Assemblymember Lorena Gonzalez authored AB 2345, expanding the available bonus to 50% above city zoning. In 2023, San Diego Assemblymember David Alvarez doubled the bonus again, with AB 1287, giving developers a 100% boost.

San Diego’s contribution to the law’s newfound weight didn’t stop there.

In 2022, city planners and the developers of a Pacific Beach project asked state housing authorities if waivers from the density bonus law could breach the coastal height limit. The state concluded that the height limit did not get any special treatment for being enacted by voters in 1972. It could be waived just like any other local restriction.

But just in case that was unclear, Chula Vista-based state Senator Steve Padilla in 2023 introduced SB 713 to change the definition of local restrictions subject to density bonus law so it explicitly included citizens’ initiatives.

San Diego’s biggest contribution to the now-mighty density bonus law, though, came from a 2022 court ruling over a Bankers Hill project.

That case essentially set the precedent that developers don’t need to prove the waivers they use are necessary to make their project work. If city officials want to question whether waiving restrictions will make the project cheaper, it’s the city’s responsibility to prove it.

“It’s the most significant density bonus case ever,” Rand said.

Former San Diego City Attorney Mara Elliott recognized the significance of that ruling. After winning, she took the unusual step of (unsuccessfully) asking the court not to treat her victory as a statewide precedent.

After stacking all of these changes atop each other, Rand said it’s odd, almost funny, that there’s any debate about whether Midway Rising can crack the coastal height limit.

“There is no provision in the law that says you can use it unless the restriction is a sacred cow locally,” he said. “There is no sacred-cow exemption.”

That doesn’t necessarily mean developers can rely on this playbook in every coastal neighborhood.

The boundaries of San Diego’s coastal height limit are larger than the local boundaries of the statewide “coastal zone,” which is governed by the California Coastal Act.

In California’s coastal zone, it’s not as simple as saying a state law trumps a local law. When two state laws clash — like if a project tried to use density bonus in the coastal zone — courts would be expected to reconcile the conflict.

But in areas like east Pacific Beach, Midway, University City and parts of southern San Diego that lie west of Interstate 5 – all considered part of the city’s coastal zone under the terms of the city’s 1972 vote – it’s not that complicated.

“That’s why this is a nothing burger,” Rand said. “This isn’t in the coastal zone. This is just another standard, it’s the same as any other height limit.”