From: Marco Gonzalez
To: athind; Peter Weichers
Cc: Michael Colantuono; Stephanie L. Cooke; Jace Schwarm Subject: September 23, 2026, City Council Agenda, Item #12F; Objection to Any Retroactive Application to Its Pending Appeal
Date: Monday, September 21, 2026 5:18:07 PM
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Appeals Board Changes Objection to Application to WNG.pdf CAUTION: External Email. Do not click any links or open attachments unless you recognize the sender, verified their email address, and know the content is safe.
Please see attached comments on behalf of WNG regarding next week’s City Council Agenda Item 12F.
-Marco Gonzalez
_________________________________________
Marco A. Gonzalez
(he/him)
Managing Partner
Phone: (760) 942-8505 x102
Direct Line: (760) 942-9870
Coast Law Group LLP
1140 S Coast Hwy. 101
Encinitas, CA 92024
1140 South Coast Hwy 101
Encinitas, CA 92024
Tel 760-942-8505
Fax 760-942-8515
www.coastlawgroup.com
September 21, 2026
VIA ELECTRONIC MAIL
Ajit S. Thind [email protected]
Colantuono, Highsmith & Whatley, PC
City Attorneys, City of Encinitas
701 Palomar Airport Road, Suite 300
Carlsbad, CA 92011
Re: Clark Avenue Apartments – Appeal No. 008834-2026
Agenda Item 12F (September 23, 2026)
Proposed Ordinance No. 2026-21
WNG's Objection to Any Retroactive Application to Its Pending Appeal Dear Ajit:
As you know, we represent WNG HHF Encinitas Apartments, L.P. (“WNG”) in connection with its pending administrative appeal, Appeal No. 008834-2026, filed March 30, 2026, from the Building Official's determination requiring redesign of WNG's building permit applications to comply with the 2025 California Building Standards Code. We write regarding Agenda Item 12F on the September 23, 2026, City Council agenda, which proposes Ordinance No. 2026-21, amending Section 23.12.030(B)(7) of the Encinitas Municipal Code (“EMC”) to change the qualifications, composition, and quorum requirements of the Board of Appeals (“Board”).
WNG does not, in this letter, take a position on whether the City may adopt Ordinance 2026-21 to govern appeals filed in the future. WNG writes to make clear, in advance of the hearing, that the City may not apply that amendment, or any Board of Appeals empaneled under it, to WNG's already-pending appeal. Doing so would be an impermissible retroactive application of a substantive change in the law to a proceeding that was filed, and has been pending, under a different and specifically defined administrative structure.
I. The Proposed Amendment Is Substantive, Not Procedural.
Under the current, operative version of EMC section 23.12.030(B)(7), adopted September 24, 2025, and in effect when WNG filed its appeal, the Board must consist of ten members with defined professional qualifications: four currently employed Certified Building Officials, five currently licensed California design professionals employed and/or residing in San Diego Agenda Item 12F (September 23, 2026)
Clark Avenue Apartments – WNG's Objection
September 21, 2026
_____________________________________________________________________ County, and one accessibility advocate residing in San Diego County, and a quorum of six members is required to act on any appeal. (EMC § 23.12.030(B)(7); CBC §§ 113.3.1, 113.3.3.) The staff report for Item 12F proposes to delete that structure entirely. In its place, staff proposes a Board of only three to five members, defined only by generic “experience and training,” with no requirement that any member hold a particular license, certification, or professional role, and no geographic nexus requirement. Section 113.3.3 (Quorum) is deleted outright, with no replacement quorum provision of any kind. The practical effect is not a narrowing of the existing quorum, but rather the elimination of any quorum requirement for the body that decides WNG's appeal.
Whether a change to the law governing a pending matter may be applied to that matter turns on its effect on the parties' rights, not on whether the change is labeled “procedural” or “substantive,” and not on whether it is framed as an administrative “streamlining” measure. (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 420.) A change in law may not be applied to conduct or proceedings predating it if doing so would change the legal consequences of that past conduct or substantially affect existing rights and obligations, unless the legislative body has clearly expressed an intent that it apply retroactively. (Elsner v. Uveges (2004) 34 Cal.4th 915, 936–937.) That is true even of a statute that would ordinarily be classified as procedural or remedial: if it substantially changes existing rights, its operation on those rights is retroactive because it changes the legal effect of past events, and it will be construed to operate only prospectively absent a clear contrary legislative intent. (Aetna Casualty & Surety Co. v. Industrial Acc. Com. (1947) 30 Cal.2d 388, 394.) The composition and quorum of a decision-making body are not incidental “housekeeping.” In Grimm v. City of San Diego (1979) 94 Cal.App.3d 33, the court rejected the argument that a quorum requirement for a retirement board was a mere procedural rule, holding that quorum and composition requirements have a substantive effect on the representativeness, fairness, and competence of the body's decision-making, there upholding a heightened quorum precisely because it furthered the charter's goal of ensuring the board's decisions reflected its full range of expertise and interests. (Id. at pp. 39–41.) The same reasoning applies here with even greater force, because the City's proposed amendment moves in the opposite direction: it reduces, rather than reinforces, the range of professional expertise required to decide a buildingcode appeal, and it removes the quorum safeguard altogether.
Agenda Item 12F (September 23, 2026)
Clark Avenue Apartments – WNG's Objection
September 21, 2026
_____________________________________________________________________ II. Applying the Amendment to WNG's Pending Appeal Would Be Retroactive and Improper.
WNG's appeal was filed, and has been pending, under the Board structure the City Council adopted on September 24, 2025, and reaffirmed as recently as the City's September 3, 2026, letter to the undersigned, which advised that the City intended to appoint members to the Board under that same structure at its September 16, 2026, meeting. WNG has relied on the City's repeated representations that its appeal would be heard by a Board possessing the specific professional qualifications and the minimum quorum EMC section 23.12.030(B)(7) currently requires. WNG's substantive arguments on appeal turn on technical, code-cycle, and plan-check issues that the current Board composition was specifically designed to ensure the decision-maker is competent to evaluate.
Applying Ordinance 2026-21 to WNG's pending appeal, whether by having a Board reconstituted under the new, reduced qualifications hear the appeal, or by treating the new (nonexistent) quorum standard as governing, would not merely adjust the mechanics of a hearing that has not yet occurred. It would change, after the fact, the composition and legal competence of the tribunal empowered to decide WNG's substantive rights, and it would do so in a proceeding the City itself has already delayed for nearly six months. That is precisely the kind of substantial effect on existing rights and obligations that the retroactivity doctrine forbids absent a clear legislative statement of retroactive intent. (Elsner, 34 Cal.4th at pp. 936–937; Aetna, 30 Cal.2d at p. 394.) Ordinance 2026-21 contains no such statement. To the contrary, Section Five of the proposed ordinance provides only that it “shall take effect and be in force thirty (30) days after its passage” -- language of ordinary prospective effect, not retroactive reach into appeals already on file.
Nor can the City rely on its own difficulty recruiting volunteers to justify retroactive application. The City's inability to staff the Board it adopted in September 2025 is the same administrative failure WNG has already raised in its August 13, August 26, and prior correspondence regarding the City's non-compliance with Government Code section 65913.3 and the Housing Accountability Act. WNG does not consent and has not at any point consented to having the rules governing its pending appeal rewritten because the City failed to maintain the tribunal its own Code requires. That position is unchanged by Item 12F.
III. Request.
WNG requests that the City Council's action on Ordinance 2026-21, if it proceeds, expressly confirms that any amendment to EMC section 23.12.030(B)(7) applies prospectively Agenda Item 12F (September 23, 2026)
Clark Avenue Apartments – WNG's Objection
September 21, 2026
_____________________________________________________________________ only and does not govern WNG's pending Appeal No. 008834-2026. WNG further requests written confirmation from your office, in advance of the September 23, 2026, hearing, that WNG's appeal will be heard and decided by a Board of Appeals meeting the qualifications and quorum requirements in effect on March 30, 2026 (i.e., four Certified Building Officials, five licensed California design professionals, and one accessibility advocate, with a quorum of six members required to act).
Nothing in this letter waives, and WNG expressly reserves, all rights, remedies, and arguments available to it, including without limitation its right to seek writ, injunctive, or other relief should the City apply Ordinance 2026-21, or any Board constituted under it, to WNG's pending appeal, and its rights and claims in the related pending litigation.
Sincerely,
COAST LAW GROUP LLP
Marco A. Gonzalez
cc: Client
Pete Weichers, City Clerk