ENCINITAS — A Southern California nonprofit has filed a lawsuit against the city of Encinitas seeking to overturn its recent approval of the Piraeus Point affordable housing development, claiming the city refused to identify environmentally sensitive habitat areas at the project site.
In late September, the Endangered Habitats League filed a writ of mandate petition seeking to overturn the Encinitas City Council’s decision to greenlight the project, which allegedly violated “numerous state and local laws,” including the California Environmental Quality Act, California Coastal Act, and the city’s general plan.
Piraeus Point, a 149-unit residential townhome development by Lennar Homes, consists of 16 three-story buildings on a 6.88-acre parcel at the corner of Piraeus Street and Plato Place in Leucadia. Under the state density bonus law, the residential development will yield 15 units reserved for “very low”-income households.
Due to the sensitive natural habitat in the area, the development will also establish a preserve area in a neighboring lot to help mitigate the project’s impact on the local environment.
The complaint alleges the city approved the project despite the documented presence of federally protected animal species, such as the coastal California gnatcatcher, and threatened native plants, namely coastal sage scrub and southern maritime chaparral. The city’s final Environmental Impact Report claimed there was “no Coastal Act-designated (environmentally sensitive habitat areas) ESHA on the subject site.”
The Coastal Act defines ESHA as “any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.”
According to Caltrans, potential ESHA includes coastal sage scrub, southern maritime chaparral, Torrey pine forest, oak woodland, southern dune scrub, and southern foredunes.
Plaintiff Daniel Silver, a retired physician and CEO of the Endangered Habitats League, questions why the city would propose such an expensive property saddled with environmental regulatory obstacles as a potential location for high-density affordable housing.
“The city, for reasons I can’t explain, put a site that’s chock full of endangered species and plants into its housing element,” said Silver. “It struck me as questionable planning. There are a lot of unhappy issues here. We wrote to the city and suggested identifying the ESHA, but the city nonetheless approved the project. So, we filed a lawsuit.”
In a letter to the California Coastal Commission, Hamilton Biological, a consulting firm based in Long Beach, wrote the city had “carefully sidestepped” goals and policies outlined in its own local coastal program and general plan, leading to the “false assertion” that the project “has been designed in conformance” with those same goals and policies.
When the group confronted the city about Piraeus Point infringing upon sensitive areas, the city stated it was “not obligated to identify potential ESHA where no Local Coastal Program amendment is proposed and issuance of a non-appealable (Coastal Development Permit) precludes subsequent Coastal Commission jurisdiction,” the complaint reads.
“They’re basically saying it was the California Coastal Commission’s job to designate the environmentally sensitive habitat areas,” Silver said. “It’s the city’s job to designate it, not somebody else’s. The courts have determined that when a city has an LCP (Local Coastal Program) under the Coastal Act, it needs to identify ESHA. They are really just circumventing the process.”
A spokesperson for the city declined a request to comment.
The Endangered Habitats League and biologists from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service recommended alternatives to create a smaller footprint at Piraeus to provide housing while staying true to the city’s general plan.
In response, city planners repeatedly stated that if the development is altered or scaled back, Piraeus Point will fail to provide the affordable housing units promised to the state.
“The city has multiple responsibilities — providing housing, preserving and protecting the environment — they coexist,” Silver said. “And when you read the housing element, it’s understood that there may be Coastal Act considerations. This is the nature of planning. It’s not one thing. That’s why you need skilled planning and creative site design to achieve multiple objectives. Maybe it’s not perfect, but you do a good job.
“(Endangered Habitats League) is not against growth and development; we are interested in smart growth. We want to meet the housing supply and provide it for all income levels in an environmentally sensitive manner. We are mostly concerned about the footprint of the project, and we welcome an opportunity to sit down with the city and applicant to search for win-win solutions.”
Special concern
The entire Piraeus site is approximately 11.83 acres and consists of two geographically linked parcels bordered by Interstate 5 to the west, residential development to the south and east, and Batiquitos Lagoon to the north.
Situated less than a mile from the coastline, the plot is within the Coastal Zone and the city’s La Costa Softline Focused Planning Area, consisting of lands conserved and managed for biological resources that subject development to greater scrutiny. Additionally, any new construction in this area requires a coastal development permit to ensure compliance with the state’s Coastal Act.
The project is expected to impact 2.37 acres of coastal sage scrub, the gnatcatcher’s primary habitat, and 1.13 acres of southern maritime chaparral. Cal Fire has also designated the area as a very high fire hazard severity zone, requiring clearing brush, shrubs and trees to establish an 80-foot-wide fire management zone.
All residential buildings at Piraeus will be confined to the southern parcel. Due to the environmentally sensitive area, the entire northern lot will be “a preserve area…in perpetuity… to mitigate for biological impacts resulting from the development of the project site,” according to the city’s final Environmental Impact Report.
The report further states that the preserve will almost completely offset the negative developmental impacts on biological resources present throughout the property, including several fragile native habitats and animal species, namely the coastal California gnatcatcher.
The California gnatcatcher, a small non-migratory songbird, is designated as federally threatened and a “species of special concern” by the state of California. According to SANDAG, over 60% of the gnatcatcher’s coastal sage scrub habitat in California was lost by 1991, with an estimated loss in San Diego County of up to 246,000 acres (or the size of the city of San Diego).
Several biological surveys identified at least four individual gnatcatchers, possibly more, living on the southern portion of the Piraeus site. The presence of the California gnatcatcher requires Lennar Homes to obtain a federal permit to justify taking its habitat. If a federal permit is not granted, the project, as approved by the City Council, likely can’t be built.
In the weeds
Vince Scheidt, a biologist and consultant who performed independent reviews of the Piraeus site over the last decade, documented his primary areas of concern in a preliminary report.
During a 2017 site inspection, Scheidt identified two California gnatcatchers, coastal sage scrub, and sensitive native plants on the southern property. Scheidt believed that the impacts of homes built on this section of the property could be mitigated by preserving other high-value areas elsewhere on-site.
According to Scheidt, the northern end of the south parcel bordering the preserve area — consisting of slopes, linkage to lagoon habitats, and very high-value southern maritime chaparral — gets much more difficult and expensive to develop.
Scheidt said he emphasized to his clients, both prospective developers of the Piraeus site, that a residential project was possible on the south property, but they needed to avoid the buffer area since mitigating the loss of southern maritime chaparral has “major implications” for development.
“Everybody in this community recognizes southern maritime chaparral is a valuable resource and needs to be avoided by any means possible,” Scheidt told The Coast News.
Maritime or Mixed?
For regional chaparral experts, a red flag in the project’s final environmental impact report was the failure to identify southern maritime chaparral at the Piraeus site.
Southern maritime chaparral is a rare shrub habitat consisting of several unique plant species native to the coastal area, particularly Encinitas, and is considered threatened after decades of coastal development. Over the years, independent and government-funded biological surveys have documented southern maritime chaparral in that area.
In 2022, the city hired ECORP Consulting, a San Diego-based environmental firm, to complete a biological survey and report at Piraeus. Contrary to years of reports, ECORP did not identify southern maritime chaparral on-site. Instead, the firm reported the presence of southern mixed chaparral, a much more common shrub habitat found on nearly every hillside in San Diego County.
The city defended the findings of mixed chaparral, claiming that a type of shrub, wart-stemmed ceanothus, “typically dominates” southern maritime chaparral, and since only two specimens were observed during ECORP field surveys, “they could not lend dominance… to the vegetation community.”
“Southern mixed chaparral is a much more accurate description of the vegetation community on the project site,” the city wrote.
For developers, mixed chaparral is also far easier and cheaper to mitigate. Off-site mitigation, which requires builders to balance ecological losses at one project site by purchasing land or “credits” at another location, can be costly and difficult to obtain, especially for southern maritime chaparral in the Coastal Zone.
According to Joanne Rodriguez, owner of Mitigation Land Specialists, there are hardly any maritime credits left.
“Maritime chaparral is difficult to mitigate because there’s not a lot of it available. We lack coastal mitigation opportunities,” Rodriguez said. “I don’t currently know of any maritime chaparral (mitigation) bank credits. There’ve been opportunities in the past, but they’ve been used up.”
On the other hand, Rodriguez said credits to mitigate mixed chaparral are pretty cheap and readily available.
“You can get an acre of mixed chaparral for $15,000,” Rodriguez said.
Out on a limb
However, biologists and ecologists familiar with the local flora at the Piraeus site say ECORP’s findings were “deeply unscientific” and show a lack of understanding of the local native coastal environment.
David Hogan of the Chaparral Lands Conservancy said southern maritime chaparral is found in the immediate and surrounding areas of the Piraeus project, including a large patch still carpeting the bluffs along La Costa Avenue, just a stone’s throw away from Piraeus.
The special chaparral is also found in Indian Head Canyon, adjacent to Quail Gardens Drive and Encinitas Ranch Golf Course, and up and down the El Camino Real corridor, Hogan said.
Hogan and other biologists also have reason to believe the southern maritime chaparral at the Piraeus site was part of a much larger patch before coastal development. In 1948, the U.S. Geological Survey’s topographical map of Encinitas depicts dense vegetation — southern maritime chaparral — carpeting the Batiquitos Lagoon areas, including the Piraeus site.
To get around bad facts that could make a project significantly more expensive and time-consuming, Hogan said there is a cottage industry of consulting firms ready to report “findings” based on what a developer or city wants to hear rather than what is living at the site.
“It’s a very common tactic by developers and others who want to build things to claim that a particular sensitive native habitat type doesn’t occur on their property because that endangered habitat wasn’t found on the day of surveys or on the exact location of their property,” Hogan said. “I’m not saying that’s the case here, but it’s been a common problem in the past.”
For longtime ecologist and author Rick Halsey, director of the California Chaparral Institute in Escondido, the classification of southern maritime chaparral as a common shrub community is beyond the pale.
“For the city to reclassify it as mixed chaparral is really absurd and very suspect,” Halsey said. “What that tells me is they don’t understand ecology, and they really have no concept of the system they’re describing.”
According to Halsey, wart-stemmed ceanothus isn’t always immediately visible or visually dominant in the landscape.
“It’s like going to a school that’s out for the summer and saying, ‘Well, there are no children there, so we’re going to classify it as a junkyard,'” Halsey said. “You can’t make that statement and understand the chaparral habitat. It doesn’t make sense.”
Halsey simplified how ecologists and casual observers can quickly determine whether southern maritime chaparral is in a particular area.
“If you’re standing and you can see the ocean, it’s maritime chaparral,” Halsey said.
For this story, The Coast News attempted to contact biologists at the California Department of Fish and Wildlife, U.S. Fish and Wildlife Service, and ECORP Consulting, none of whom responded to multiple requests for comment.
