Encinitas sues developers of controversial apartment housing project

The city of Encinitas is suing a developer over a plan city leaders previously approved to build apartments along a narrow road that has raised fire and traffic safety concerns. 

The lawsuit, which the city filed earlier this month against developers WNG HHF Encinitas Apartments, challenges the company’s plan to build nearly 200 apartment units on a property off of Clark Avenue near Interstate 5. 

The lawsuit alleges that narrow roads and a lack of room for a turnaround cause significant fire risks. It also asks that the court declare the project violates the fire code and allow the city to withhold future permits until the project is revised to address the code violations. 

Attorney Marco Gonzalez, who represents the developer, told inewsource Wednesday that his client did not have a comment. 

The community near the project is made up of mostly single-family homes and narrow roads. Neighboring residents have pushed back on the project since its inception, most recently in an August demand letter urging the city to halt permits to the project. The developers have begun preparing the roughly 6-acre property for construction, but the project hasn’t been issued a building permit yet. 

The City Council approved the project in 2022, after the developer successfully appealed the city planning commission’s initial denial. At the time, then-Encinitas Mayor Catherine Blakespear said the project was included in the city’s court-ordered Housing Element, which creates opportunities for development, and therefore couldn’t be rejected as long as it followed city standards. 

Current city leaders, four out of five of whom took office after the project’s approval, have criticized the City Council’s prior approval of the project, saying leaders could have challenged it. They argue that the project did not meet city standards.

One of those new councilmembers, Jim O’Hara, asked fellow officials in August to take action against the project, which he accused of violating fire code. 

“This is not about not building. We’re not going to not build this project. We just want to make sure that this project is safe and it’s legal,” O’Hara said at an Aug. 27 council meeting.

At that meeting, Gonzalez spoke on behalf of the developers, saying the project met the codes that were in place at the time, and that it is too late to deny it. He also said the City Council discussion was a due process violation as the City Council did not give the developer notice.  

“We’re not here to cost the city hundreds of thousands of dollars of litigation,” he said. 

Shortly after, Mayor Bruce Ehlers recommended that councilmembers end the discussion and seek legal guidance given he felt he was under “significant threat of litigation.” 

After a closed session meeting last week, Ehlers announced in the open meeting that the city filed a lawsuit against the developers. 

“There’s a spirited debate in our community as to what the fire code requires for 199-unit apartment building served by narrow streets, and we think it is best to ask the judge to clarify the law for the benefit of the community we serve, and for the developer and for the city,” Ehlers said

The lawsuit says that the access roads on Clark and Union Street do not meet the 24-foot width required by fire code or an adequate turnaround for fire vehicles, and city officials did not sign off on any exemptions to those requirements. 

However, at the August council meeting, Encinitas Fire Chief Josh Gordon told councilmembers that the project had other features that could allow for exemptions from the road-width rule. The project includes more fire-resistant walls, fixed piping systems as well as stronger and more sprinkler systems throughout, Gordon said.

Those improvements allow the firefighters to access the building, Gordon said, adding, “The fire apparatus doesn’t have to be exactly on the fire access road, but they can still operationally do everything they need to do.” His comments were part of a debate over whether the city followed the right process when it reviewed and approved the project three years ago.

Cynthia Sheya Palmer, who lives in the neighborhood next to the apartments, has been one of the leading voices of opposition to the project since 2017, when she first got notes in the mail about it. 

She told councilmembers that so many housing units built at the project site wouldn’t be safe, and she  thanked them for revisiting it. 

She said the community opposition was not a fight between the citizens and the developer.

“This is not an attempt to block housing,” she added. “We know something’s going to go in there, but it’s got to be reasonable and it’s got to be safe.”