Density bonus project receives approval, likely headed to court

ENCINITAS — Encinitas officials approved a nine-home density bonus project in Leucadia that has been the subject of years of contentious debate, but the project is likely destined to be contested in court.

The City Council voted 4-1 to deny an appeal filed by neighbors contesting the Planning Commission’s approval of the proposed nine-lot Hymettus Estates, located on a lush lot off of Fulvia Street just south of Leucadia Boulevard.

Density bonus projects — governed by a state code that allows developers to build denser-than-usual projects in exchange for providing at least one affordable housing unit — have been a source of contention in Encinitas, as neighbors have felt that the projects have created super-dense subdivisions that often clash with the character of the existing community.

In this project, however, the residents did not focus on the density bonus aspect of the project, but took aim at its environmental impact report, which they said contained several significant flaws in measuring the size of the lots as well as addressing how storm water would be dealt with in the flood prone area.

The report also discounted the historical significance of a farmhouse on the site, they said.

These mistakes, the neighbors argued, called into question the city’s environmental findings and warranted the city deny the project and require the report be redone.

“When an EIR tries to dazzle us with fairy dust, it should not be approved,” said Katrin Fleschig one of more than a dozen speakers who railed against the project Wednesday night.

Hymettus Estates was one of several projects that were part of the city’s settlement of a lawsuit filed by the Building Industry Association (BIA) over the council’s 2014 vote to change how it interpreted state density bonus law. The lawsuit requires the city to expeditiously process the projects that were already in the pipeline, including Hymettus.

But neighbors said that the lawsuit did not mean that the council could turn a blind eye to tangible errors in the project.

“It is not the city’s job to ignore a flawed EIR to keep the developer and the BIA happy,” Susan Turney said.

City staff provided explanations about the perceived errors in the environmental report, which they said did not change the ultimate findings.

The City Council ultimately sided with staff, but included a condition of approval that required the developer, San Diego-based CityMark Communities LLC, to return to the planning commission to review its covenants, conditions and restrictions.

The project has ignited the surrounding neighborhood, which originally attacked the aesthetic appeal of the project as well as the potential to exacerbate flooding in an already water-logged neighborhood.

CityMark officials have changed the project significantly since its first iteration in 2013, and city officials said the community’s activism has resulted in a far better project than originally proposed.

“In my view, approving the current project does not mean that the neighbors fought in vain,” Councilwoman Lisa Shaffer said.  “The final project is significantly better than it would have been without public input.”

Neighbors were joined by local attorney Felix Tinkov, who had been retained by the community. Tinkov said during the meeting that he was authorized to litigate the issue if the council approved the project.

Councilman Mark Muir voted in favor of the neighbors’ appeal, briefly explaining that he sided with their concerns about the character of the project.

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