Encinitas Council approves controversial subdivision

The Encinitas City Council, over the objections of neighbors, has approved a nine-home subdivision on Fulvia Street in Leucadia where a 1924 farmhouse currently stands and will be demolished for the new project.

The action came after a public hearing lasting more than four hours at the council’s meeting on Wednesday, May 25. The council voted 4-1, with Councilman Mark Muir dissenting, to approve the project, which was controversial because it falls under the state’s density bonus housing law. In addition, an intersection next to the project, at Fulvia Street and Hymettus Avenue, is prone to flooding after rainstorms.

Neighbors also contended that an environmental impact report prepared for the project contained numerous errors.

Dozens of speakers testified for and against the project, and numerous technical studies on topics such as hydrology, engineering and neighborhood characteristics were discussed. The council did take the step of requiring that the CC&Rs (Covenants, Conditions and Restrictions) for the project must come before the Planning Commission when they are completed, to ensure they comply with conditions imposed by the city.

The project is planned for a 2.25-acre site at 378 Fulvia Street. The developer, CityMark Communities LLC, sought approval to build nine single-family homes, eight of them two-story and one single-story home. One of the homes will be designated as affordable housing to comply with the state’s density bonus law.

The project was approved April 21 by the Encinitas Planning Commission, and that decision was appealed by residents Chriss Brumfield, Bill Probert and Steve Dempsey, who live across from the proposed development.

The residents asked the City Council to overturn the Planning Commission’s decision, while the city’s Planning and Building Department recommended that the council reject the appeal and uphold the Planning Commission’s approval of the project.

According to a city staff report, the project falls under the state’s density bonus law, which allows developers to build more housing on a parcel than city rules allow, in exchange for reserving at least one unit as low-income. Opponents of the law argue that it results in too many homes being packed onto parcels, while supporters say it provides much-needed affordable housing.

In the case of the project on Fulvia Street, the application called for sub-dividing two existing legal lots into nine residential lots. Under the density bonus law, the applicant could have built a maximum of 10 homes, but reduced its project to nine homes, said a city staff member.

Residents who spoke before the council objected to the project on health and safety grounds, and said it would not mesh with the existing community character. Residents also wanted the developer to plant more trees than required by the Planning Commission’s conditions.

They also said that the project’s environmental impact report contained numerous mistakes, and that contrary to the report, they believed the project would worsen an existing flooding problem in the neighborhood.

City staff and the developer denied those contentions, instead saying that the project — while it would not solve the flooding problem — would make it better because less water will run off the property when it rains, once the project is built.

City council members, during their discussion, conceded that the neighborhood where the project is planned, as well as surrounding areas of Leucadia, have a flooding problem, which they promised to address during upcoming planning for the city’s capital improvement budget.

Another objection raised by neighbors, that the existing farmhouse on the property has historic value, was disputed by city staff and consultants, who said any historic significance had been negated by repeated modifications to the structure over the years.

In one indication of the stakes for both sides, an attorney who represents the residents, Felix Tinkov, told the council he has been authorized to “litigate” against the project if the council approves it. None of the parties involved would want that, said the attorney, because it would take several years and cost hundreds of thousands of dollars.

The Encinitas Council passed rules to restrict density bonus developments in 2014, but later reversed those restrictions as part of a settlement of a lawsuit filed by the Building Industry Association of San Diego.

After the first lawsuit was settled, another lawsuit was filed against the city by a developer, alleging that its development rules are still too restrictive and that they violate state law.