ENCINITAS — The Encinitas City Council on Feb. 9 unanimously denied a property owner’s appeal to rebrand a Jack in the Box restaurant on San Elijo Avenue into a Starbucks drive-thru coffee shop, determining the change constituted an intensification of a non-conforming use.
A “non-conforming use” is typically a land use or structure that was legal when established but no longer conforms to current standards or regulations.
The Jack in the Box location has operated at 1967 San Elijo Avenue in the community of Cardiff-by-the-Sea since 1969, prior to city incorporation. At the time of construction, the location was within a county zone that allowed drive-thru restaurants.
The property owners, Jack in the Box Properties, presented a plan as part of the fast-food chain’s desire to sell the property to CalBay Development & Investments and convert it into a Starbucks drive-thru location. But the Cardiff-by-the-Sea Specific Plan, last updated in August 2021, does not allow for drive-thru restaurants.
Citing increased vehicular traffic and city codes that were not in place when the location was originally constructed, the City Council voted unanimously to uphold the Planning Commission’s decision to deny the new use.
During the appeal, Jennifer Chavez of Sheppard, Mullin, Richter & Hampton, a legal representative of Jack in the Box Properties, claimed the city did not have the right to deny the change.
“A legal, non-conforming use is a legal right, it runs with the land,” Chavez said. “So whoever picks up the property next gets the legal non-conforming use rights as well.”
Chavez said the issue over the drive-thru has been holding up the sale of the property for some time.
“It’s our position that they can sell the property and whoever buys it next can continue to operate that drive-through,” Chavez said.
Alison Wielechowski, executive director of Cardiff 101 Main Street, spoke directly to the council, urging them on behalf of other business owners in Cardiff to uphold the denial.
“Any effort to change or intensify this space should not be permitted to continue based on the language of the Cardiff-By-The-Sea specific plan,” Wielechowski said. “Besides the location being discussed, there are no other drive-thrus in the Cardiff downtown district.”
The appellant also pointed to a change in use some years ago in Encinitas along El Camino Real when a KFC drive-thru location was allowed to sell its property for a new Starbucks drive-thru.
Wielechowski, and others, say that change has caused major headaches in traffic flow.
“I’ve had a personal experience in that parking lot in which the increased drive-through traffic blocked the normal functioning of the parking lot to such a degree that my husband had to get out of the car to help physically direct us through the traffic,” Wielechowski said. “Essentially the parking lot had ceased to function as designed.
Citing data from the Institute of Transportation Engineers, city staff said that a coffee shop location would result in an increase of 66.7 trips from 7 to 9 a.m. on weekdays and an increase of 44.84 trips during peak times on weekends.
Chavez said that if the city desires to determine intensification based on data from the Institute of Transportation Engineers, the city should spell it out in the code.
“The public needs to be able to review a code and understand what that means when they’re making the decision to come into Encinitas and buy a site,” Chavez said.
The council was not persuaded by Chavez’s arguments and upheld the commission’s decision.
“From my perspective, this is an intensification of the existing non-conformity,” said Mayor Catherine Blakespear.