Encinitas will hold closed-door session to explore Clark Avenue Apartment legal issues

A majority of Encinitas City Council members said Wednesday they could support immediately pausing permit processing for the controversial Clark Avenue Apartment project, requiring a full-scale environmental report and hiring an outside attorney to fight any resulting legal issues.

However, they’re first going to seek advice from the city’s current housing issues attorney. That closed-to-the-public, legal advice session will take place next week, and they’ll reach a decision on what to do next during a public meeting in early September, they decided.

The 199-unit project is proposed to go on a 6.22-acre site on Union Street, just east of Interstate 5 in an area of aging, narrow roadways and single-family homes. It hasn’t yet been issued a grading permit, but it received city project approval three years ago and gained a one-year permit extension late last year.

Councilmembers Jim O’Hara, Luke Shaffer and Marco San Antonio all indicated that they were ready to take immediate action to pause the project’s permitting process.

“We just want to make sure this project is safe and it is legal,” O’Hara said as he explained his reasons for supporting an immediate permit pause, a new environmental assessment and various documentation requests. He repeatedly stressed that he viewed his proposals as responsible governance and not punitive actions.

O’Hara placed the issue on the agenda after the city received a letter from project opponents urging city officials to take action. Signed by a dozen residents, that Aug. 11 letter declares the project fails to meet city fire codes, and thus fails to adhere to the requirements of a special state housing law that allowed it to gain permit approval three years ago. The letter writers asked the city to withhold permit approvals and release documents regarding the project’s city review process.

O’Hara, Shaffer and San Antonio are all new council members — O’Hara and Shaffer were elected in November, and San Antonio was appointed to his post in January — so they didn’t vote on the project when it first went before the council in 2022, or last November when the permit extension was approved.

Mayor Bruce Ehlers, who voted on the permit extension when he was a council member, is a former city planning commissioner who years ago opposed putting the project site on the city’s list of places where high-density housing would be allowed. On Wednesday, he said the project opponents had raised valid fire safety concerns worth investigating, but said he wanted legal advice before he could agree to pausing the city’s permitting process.

“I’d like to know how good of a case we might have,” he said, calling this the proper and prudent way to proceed.

His proposal to seek legal counsel before pausing the permit process was ultimately approved in a 4-1 vote, with Councilmember Joy Lyndes opposed. Lyndes, who has previously voted in favor of allowing the project to proceed, said Encinitas officials had “robust” conversations about fire issues during the original approval process and added, “I don’t see the merit yet in what’s being brought forward (now).”

Marco Gonzalez, an attorney representing the developers Western National Properties, told the council that the opponents’ Aug. 11 letter contained “legal nonsense,” and said the proposal to immediately stop the permitting process would set an “extremely dangerous due process violation.” State law doesn’t allow cities to backtrack on prior approvals when opponents come up with arguments years later against a proposed development, he added.

At issue is a city fire department determination that the project meets city fire code standards. Neighbors said at Wednesday’s meeting that fire city officials had made a “discretionary decision” during the project approval process, giving the 39-foot-tall project permission to proceed, with some extra fire safety enhancements, instead of enforcing the department’s “objective” standards regarding city roadway widths. Because of this, they contend the project is not actually eligible for its previously granted exemption from a full-scale environment impact assessment.

Gonzalez said he believes there are multiple issues with the opponents’ claims. Among other things, he argued, the fire safety standard they were referring to — a 26-foot roadway width for buildings taller than 30 feet — was enacted after the project was approved and thus doesn’t apply. He added that the city has roadway easements that would allow it to widen the narrow street, but that would require taking out many property owners’ front yards, and so the city has chosen not to pursue this.

City Fire Chief Josh Gordon, who was appointed to his current post in December 2022 after the apartment project was approved, said Wednesday that there has been some confusion about the roadway width standard. Showing a simple sketch of a fire truck and building, he said that the 26-foot,roadway width requirement comes into play when reviewing tall building projects. However, he said, the 30-foot building height that triggers the roadway width requirement isn’t measured from the ground level — it’s from above the proposed building’s first floor. That’s because the standard is for special ladder trucks used in particularly high structures, he said.