Encinitas City Council rejects Cardiff Starbucks proposal

Firms sought appeal of Planning Commission denial


Encinitas City Hall. (NCC file photo)

Roman S. Koenig

Is the issue corporate coffee, the grandfathered use of a building, or traffic?

Depending on the impressions of the interested parties, that could have been argued either way ahead of the Encinitas City Council’s unanimous vote Feb. 9 to block the potential addition of a drive-thru Starbucks in downtown Cardiff.

The Encinitas Planning Commission voted 4-1 in November against the conversion of a nearly 53-year-old Jack in the Box into a Starbucks based on its assessment of whether the coffee chain’s use would be an “intensification” of a nonconforming use — a drive-thru — which is not allowed under the Cardiff-by-the-Sea Specific Plan. The Jack in the Box, which opened in 1969, was built before Encinitas became a city in 1986, making the drive-thru a pre-existing exception to Cardiff’s business district.

Jack in the Box and CalBay Development & Investments, which seeks to buy the property from the fast-food chain, appealed the Planning Commission’s decision to the City Council on the grounds that the city’s zoning regulations regarding intensification of nonconforming uses did not apply to potential traffic issues.

The Jack in Box at the corner of San Elijo Avenue and Birmingham Drive in the Encinitas community Cardiff is shown in November 2020. (Google Earth photo)
The Jack in Box at the corner of San Elijo Avenue and Birmingham Drive in the Encinitas community Cardiff is shown in November 2020. (Google Earth photo)

Their representatives argued Feb. 9 that while the current drive-thru is an accepted nonconforming use, the Starbucks version with a property facelift would not meet an alteration to the extent that it would have a greater, or intensified, impact and therefore would not be in violation of city codes.

“Jack in the Box has been at this site since the late 1960s. They’ve operated as a legal nonconforming use for a very long time. And no one is disputing that Jack in the Box has a nonconforming-use right to continue that drive-thru operation forever,” said attorney Jennifer Chavez of Sheppard Mullen, representing the restaurant chain. “A drive-thru use, a legal nonconforming use, is a property right. It runs with the land. And so whoever picks up the property next gets the legal nonconforming use right as well.”

Jack in the Box and CalBay have been in negotiations over the property since 2020, Chavez said, “and this drive-thru interpretation has been holding up the sale.”

The building is located 1967 San Elijo Ave. Its drive-thru adds significantly to the property value, Chavez noted, “worth seven figures, I’m told, in the context of a purchase and sale transaction.”

CalBay’s Starbucks proposal would close the property’s Birmingham Drive entrance, with drive-thru traffic circulating through the two entrances on San Elijo Avenue.

Cardiff business representatives and residents said the potential for serious intensification of traffic from a Starbucks at the small but busy intersection of San Elijo and Birmingham fell within the definitions of city zoning laws and the Cardiff Specific Plan, elements of which supersede general city zoning.

“According to the Cardiff-by-the-Sea Specific Plan, all other projects with a drive-thru are unlawful on this site,” Alison Wielechowski, president of the Cardiff 101 Main Street Association, told the City Council. “Any effort to change or intensify this space should not be permitted to continue based on the language of the Cardiff-by-the-Sea Specific Plan. Also, the Cardiff downtown area is considered a pedestrian zone, and the Cardiff-by-the-Sea Specific Plan, which supersedes the Encinitas municipal code, indicates that there are no drive-thrus allowed in this downtown area.”

Is traffic the issue?

The core argument of intensification has centered on traffic.

Over the past several weeks, critics of the proposed Starbucks remodel have cited traffic bottlenecks at Starbucks drive-thrus on Orpheus Avenue in Leucadia and El Camino Real in New Encinitas as proof that the new Cardiff spot would severely increase traffic congestion on Birmingham Drive and San Elijo Avenue at peak travel hours.

“I know we are not directly off (Interstate) 5, but we are the main thoroughfare off the 5 coming down Birmingham (Drive) to get to the campgrounds,” Austin Davis, Cardiff Seaside Market general manager, told the council. “It is a very major intersection and already gets a lot of backed up traffic in the morning and the evening, especially during weekends and holidays.”

As soon as one car can’t get off San Elijo, people can’t make righthand turns, and it’s going to start backing up on Birmingham.

— Rich Fuller, Cardiff resident

The Leucadia Starbucks, which is near the Interstate 5 intersection with Leucadia Boulevard, was built about a decade ago and was granted a city permit to run a drive-thru, unlike the Cardiff site, city Development Services Director Roy Sapa’u explained during the council meeting.

Cardiff resident Rich Fuller, who owns property on Birmingham Drive just east of the Jack in the Box, echoed Davis’ concerns at the council meeting.

“I’m very concerned, obviously, about traffic, and I know that Jack in the Box is saying that there’s enough spaces there, but obviously we’ve all seen Leucadia,” Fuller said. “Would I expect it to be as busy as Leucadia? No. But I would expect it to be very busy. As soon as one car can’t get off San Elijo, people can’t make righthand turns, and it’s going to start backing up on Birmingham.”

Wielechowski said she and her husband have been caught in the traffic jams of the shopping center parking lot where the Starbucks drive-thru is located on El Camino Real.

“I’ve had a personal experience in that parking lot in which the increased drive-thru traffic blocked the normal functioning of the parking lot to such a degree that my husband had to get out of the car to help physically direct us through the traffic,” she told the council. “Essentially, the parking lot had ceased to function as designed because the drive-thru line was so long it blocked all the cars in the regular parking spaces ability to leave.”

The El Camino Real Starbucks site, formerly a KFC and a Long John Silver’s before that, was built with a drive-thru not long before Encinitas became a city. When Starbucks got the site, a drive-thru was allowed with a conditional use permit, but the city did not have the kind of vehicle trip-generation data it does now in considering the Cardiff application, Sapa’u explained.

“We are unanimously opposed to this conversion of use,” Cardiff 101 Main Street Association Design Committee member Robert Clark said during the meeting.

Kayman Wong, president of commercial development consultant Kaidence Group, representing CalBay, said the issue came down to what previous case law and city zoning regulations state — that the nonconforming use can carry over to the new owner, and its tenant, so long as the physical structure itself is not modified in that use.

Or is Starbucks the issue?

In his remarks to the City Council, Wong hinted that critics’ concerns might have more to do with placing a Starbucks at the site, not a continuing drive-thru.

“It is my opinion that what is in front of council today and tonight is not about Starbucks specifically — and any specific tenant, to be honest with you, because many tenants can operate in this particular site successfully and operate it within the confines of municipal code and law — the intensification of use is related to structural nonconformities as per your code,” he told the council. “In this particular case, (vehicle) trip generation is irrelevant as it’s not required; it’s not a required measure as per municipal code.”

Jack in the Box’s attorney built on that notion in her rebuttal to public comments.

I just want to remind everyone this is not about Starbucks.

— Jennifer Chavez, attorney representing Jack in the Box

“I just want to remind everyone this is not about Starbucks,” Chavez said. “This is not about any particular tenant. This is about whether or not the drive-thru use can be operated by someone different, someone other than Jack in the Box.”

In City Council comments ahead of the vote, however, Deputy Mayor Joe Mosca noted that Starbucks had been involved throughout the process since early on.

While no official project had been submitted to the city back in November, architectural renderings at the time showed Starbucks designs and signage.

“All throughout the staff report and the conversation, the Planning Commission, Starbucks’ team was there,” Mosca said. “Starbucks is talking about going in there. Starbucks is identified on some of the documents. So is Starbucks the tenant? Or is Starbucks not the tenant?”

Chavez said that as far as Jack in the Box knows, CalBay is negotiating with Starbucks as the planned tenant.

In the end, the City Council did not side with Jack in Box and CalBay in the appeal, citing intensified use of the drive-thru because of the predicted significant increase in traffic.

“The reality is that while the Orpheus Starbucks maybe isn’t nonconforming because it was approved for a drive-thru as part of a project, it is a public safety issue that I hope to be able to address as a City Council someday,” Councilman Tony Kranz noted. “The impacts that queuing like that would have on Birmingham and San Elijo is unacceptable.”

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