Encinitas says yes to 199 apartments on Clark Avenue

A high-density housing project in Leucadia that will include low-income rental units has been approved 4-0 by the Encinitas City Council, overturning a decision to deny it.

Spurred by angry neighbors, the city's planning commission in August refused permits for the 199-unit apartment complex on Clark Avenue, citing traffic impacts, a subdivision issue and not enough outreach to the area's many Spanish-speaking residents.

There are only 14-15 houses on Union Street, one of the roads that will feel the most pain from the addition of so many new homes. Those living there see the traffic causing a sea of change to the neighborhood.

Two appeals were filed, one by the developer, Western National Properties, who argued that it's a true 20 percent low-income, by-right project because they haven't used state density bonus law to build more than the base zoning allows.

That law lets developers build more homes on a lot than the city allows if some of them are for the low-income. At least 195 units are slated for the site in the city’s Housing Element update, in an area designated for high density.

"We could have proposed up to 299 units and taken advantage of a significant number of parking reductions to make that fit," said attorney Marco Gonazalez.

The project's 15 buildings, to be spread over six acres, include 159 market-rate and 40 low-income units.

Another recent apartment project that set aside 41 of 277 units for low-income people was turned down last November - which led the state attorney to warn the city that the denial violated state law.

The city approved the project, known as the Encinitas Boulevard Apartments, in June this summer.

In case the city's long history of battling new affordable housing was about to continue when they took up the appeals last week, a letter from YIMBY Law, a non-profit that sues cities when they fail to comply with state housing laws, warned the council.

"Should the city fail to follow the law, YIMBY Law will not hesitate to file suit to ensure that the law is enforced."

Like the Encinitas Boulevard project, the Clark apartments rely on the consolidation of lots, which the planning commission objected to as a "subdivision," requiring the developer to carry out an environmental impact report.

Gonzalez said that wasn't the case since it was only four lots being consolidated, not six; a number that would require a subdivision map.

As for outreach, Encinitas has no Spanish-speaking requirement in their code, and the developer had already agreed to support translation services at city meetings, he added.

A second appeal was filed by Clark Development Action Group, which fights "irresponsible, by-right high-density development" in Encinitas.

They objected to the commission’s denial for not going far enough.

A central complaint was the dearth of street improvements, which neighbors felt should precede any new housing.

Opponents say there are 15 high-density developments proposed throughout Encinitas without adding infrastructure and roads.

The entrance and exit routes for the 199-unit Clark project will create hazards for pedestrians and drivers,.they said.

A traffic study completed by the developer found there would be no serious impacts from the projected increase of 1,200 vehicle trips per day - but the group's attorney, Craig Sherman, argued that the road's capacity is that of a rural road - not a residential collector, as the city classified it.

According to Gonazalez, the traffic study found that the levels of service will be acceptable. Covid's influence on traffic "was absolutely considered" in their counts.

Most important, he said, is that Clark Avenue and Union Street are non-circulation element roads, and the city lacks legal standards for the design of these roads, or capacity standards.

If traffic calming or a stop sign is ever needed once the project is developed, he said they will pay for those types of improvements.

"But absent objective design standards, there's simply no evidence by which we can be saddled with the improvement of that entire street," he said of Union.

"If you're going to deny or reduce the density of a project, you have to have specific objective adverse impacts on public health and safety and no feasible way to mitigate them."

Project opponents failed to identify any, he said. Community character and things like view obstruction don't count, because courts have decided they are not objective.

"There's nothing for them to hang their hat on other than the hope you'll agree with their subdivision argument...."