ENCINITAS — The Encinitas City Council has denied a developer’s appeal seeking to avoid making roadway improvements along El Camino Real for a proposed 120-unit, five-story multifamily housing project that includes affordable units.
The council’s decision at its Feb. 25 meeting upheld a prior Planning Commission vote and aligned with staff recommendations to require the frontage improvements for Sage Canyon Apartments.
Wermers Properties plans to build Sage Canyon, a 120-unit development on a 5.23-acre site just south of Sage Canyon Drive and El Camino Real. The project would include a club room, fitness center and pool, according to city documents.
Of the 120 units, 24 would be deed-restricted to low-income households — 22 in perpetuity and two for 55 years — allowing the project to qualify for density bonus waivers under state law that loosen requirements for building height, open space and storage space. The remaining 96 units would be sold at market rate.
The appeal focused on whether the developer could be exempt from constructing public frontage improvements along El Camino Real, a prime arterial road with a prevailing speed of 56 mph, according to the city. Municipal standards require sidewalks, bike lanes and additional travel lanes along such corridors.
The requested concession would have saved the developer about $172,000 — “much less than one percent of the project cost,” according to city documents.
Christina Bustamante, a city planner, told the council that the state’s Density Bonus Law allows developers to seek incentives, concessions and waivers that reduce development standards or modify zoning requirements if affordable housing thresholds are met.
Bustamante said the applicant is entitled to up to two incentives or concessions and an unlimited number of waivers. The project requested six waivers and one concession under state law.
Under state law, cities must grant concessions unless they violate state or federal law, do not result in an actual cost reduction, or “would have a specific, adverse impact…upon public health and safety,” per state guidelines.
“The concession would result in adverse public health and safety impacts to pedestrian safety and accessibility, bicycle safety, traffic safety, and evacuation time in the event of an emergency,” Bustamante said. “The resulting unsafe conditions impact pedestrians from the project who desire to reach an offsite location. The current bicycle lane is not buffered from vehicular traffic, increasing the risk of collisions with vehicles and making it difficult for drivers to maintain the three-foot separation required by state law.”
Dan Nutter, the city’s director of engineering, said staff prepared a 32-page memorandum outlining “quantifiable, significant, direct and unavoidable impacts” if the development were built without the frontage improvements.
“We show over 32 pages of the memorandum – that I did draft – that there are quantifiable, significant, direct and unavoidable impacts that would occur if this development is built and the frontage improvements are not included with that,” Nutter said.
Patrick Zabrocki, a project representative, argued that the city failed to meet the high legal threshold for denying a concession under the density bonus law.
“Meeting this threshold is notoriously difficult because the law mandates that the city prove an impact, not an existing condition, be directly linked to the project and their claim has to be supported by substantial evidence based in fact,” Zabrocki said.
Zabrocki said the city’s memo “makes it feel like there would be a safety impact, but the law does not allow for the city to deny concessions based on feelings.”
Tim Hutter, an attorney representing the developer, said the issue largely came down to the project’s estimated 720 additional daily vehicle trips and a projected four-second increase in evacuation times for nearby neighborhoods.
“In the city engineer’s report, it says ‘every second counts,’” Hutter said. “I think we all agree with that, but ‘every second counts’ is not a legal or written objective standard.”
Austin Wermers, principal of Wermers Properties, said the cost of the roadway improvements would be a deal breaker.
“I believe housing is a fundamental right and not a luxury,” Wermers said. “Even though sometimes Encinitas feels like a luxury, I just fundamentally have a strong opinion on that.”
Wermers added that he has not ruled out litigation.
“The last ditch effort – my only option from here, because I will not build the project [without the concession] – is to go through litigation,” Wermers said. “That is my next step to do.”
Public comment largely supported requiring the improvements. Eric Cusick, a nearby resident, urged council members to follow the staff’s recommendation.
“There’s a lot of things you couldn’t fight on because these waivers are state mandated,” Cusick said. “We can fight on this one…This is the fight you can win, your staff is telling you that.”
Deputy Mayor Jim O’Hara said the council had to focus on evidence rather than sentiment.
“When we up here look at it, we can’t look at sentiment. We have to look at merit,” O’Hara said. “I want to thank the staff. I think the staff provided the merit to provide the evidence of impact.”
Mayor Bruce Ehlers said that without improvements, pedestrians would be forced to walk along what he described as a “goat path” in the brush beside the roadway.
“That’s wrong,” Ehlers said.
Ehlers added that cyclists would not have a three-foot buffer from traffic.
“This is a clear danger,” Ehlers said. “It’s a clear danger not only to the people that use that road today, but more importantly, it’s a clear danger to the portion of the 68 pedestrians and bicyclists that will be generated by this project. That is clear, that is specific, that is quantified.”
Councilmember Marco San Antonio said that while he supports increasing housing supply, he could not support the exemption.
“I understand that we do need to build homes, but for me safety is number one,” San Antonio said. “I believe it’s our responsibility as a City Council and as our city staff to fight for the safety of our residents – the kids for now and in the future.”
Councilmember Joy Lyndes echoed that sentiment.
“We’re passionate about our safety – of our pedestrians and our bicyclists – and the safety on our roadways,” Lyndes said. “This is about the safety of pedestrians.”
Councilmember Luke Shaffer thanked staff for doing “a phenomenal job” and said the matter was both a safety issue and “a moral issue at some level” for the developer.
“Why would you not want to put this in for the people you’re going to put in the places that you’re going to build? They’re going to be moving here, paying significant money to live there,” Shaffer said.
