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Home My WebLink AboutEA 2025-0050; VERO MARLEY BROADBAND PROJECT; Admin Decision Letter Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 VIA EMAIL AND MAIL May 21, 2025 Jess Alden Vero Fiber Networks LLC 1023 Walnut St. Boulder, CO 80302-5225 SUBJECT: EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT Thank you for submitting an early assessment application. The project applicant, Vero Fiber, proposes to extend the existing broadband infrastructure (fiber optic cable) through approximately four miles of trenching and horizontal directional drilling (HDD), which includes boring pits and vault placement mostly in existing street rights of way. Conduits are proposed to be buried underground using both described methods, through which the cable will run. Manholes for future maintenance would be installed approximately every 800 feet. The proposed alignment would begin along Carlsbad Boulevard approximately 500 feet north of Palomar Airport Road, head generally east on Palomar Airport Road and then terminate at an existing telecom facility on Corte de la Pina south of Palomar Airport Road and the McClellan-Palomar Airport. Where Palomar Airport Road crosses over the North County Transit District (NCTD) railroad corridor and I-5 freeway, conduit would not attach to the Palomar Airport Road bridges but would instead divert to an alignment adjacent to the road and buried underneath the railroad and freeway. While much of the work would occur in the paved right of way, some of it would also take place in undeveloped portions of the right of way as well, such as along Carlsbad Boulevard. A portion of the proposed alignment revises and replaces the portion of the original project alignment that would have extended from the project’s west point of beginning north to Cannon Road (instead of south to Palomar Airport Road) and then south along Paseo del Norte before joining the proposed alignment at Paseo Del Norte and Palomar Airport Road. In response to your application, the Planning Division has prepared this comment letter. Please note that the purpose of an early assessment is to provide you with direction and comments on the overall concept of your project. This preliminary review does not represent an in-depth analysis of your project. It is intended to give you feedback on critical issues based upon the information provided in your submittal. This review is based upon the plans policies, and standards in effect as of the date of this review. Please be aware that at the time of a formal application submittal, new plans, policies, and standards may be in effect and additional issues of concern may be raised through a more specific and detailed review. {city of Carlsbad EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 2 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 Planning: General 1. General Plan and zoning designations for the project are as follows: a. Most of the project occurs within the right of way, which does not have a General Plan or zoning designation. b. For the limited project portions that do cross private property, the following identifies the properties and their designations: 1. NCTD railroad corridor: i. General Plan: Transportation Corridor (TC) ii. Zoning: Transportation Corridor (T-C) 2. Interstate 5 corridor: i. General Plan: Transportation Corridor (TC) ii. Zoning: Transportation Corridor (T-C) 2. Coastal Zone information for the project is as follows: a. Beginning approximately 650 feet west of Palomar Oaks Way along Palomar Airport Road, the project from that point westward is entirely in the Coastal Zone, Mello II Segment. b. The Coastal land use designation and zoning are the same as the General Plan and zoning designations above. c. Portions of the project alignment in the Coastal Zone are subject to appeal to the Coastal Commission if a Coastal Development Permit is required. This includes all portions of the project along Carlsbad Boulevard north of Palomar Airport Road and portions of the alignment along Palomar Airport Road between Armada Drive and Palomar Oaks Way. Permitting This evaluation is done based upon the information submitted. Inconsistencies exist in the information submitted and clarifications could change the conclusions or need for discretionary permits. 3. Staff believe the project requires a Coastal Development Permit (CDP) and may require a Habitat Management Plan (HMP) Permit, as explained below. a. CDP: Carlsbad Municipal Code (CMC) Section 21.201.060 B.11 exempts from a CDP “activities of public utilities as specified in the repair, maintenance and utility hookup exclusion adopted by the Coastal Commission, September 5, 1978, and as modified from time to time.” Based on the adopted exclusions in this 1978 document, the project could be exempt per Section B.2.b. (“Transmission and Distribution and Communication Facilities”), Section 3.e. (“Telephone”), and Section 4 (“Others, including water, sewer, food control, city and county public works, cable TV”). However, the 1978 document includes criteria that would be accepted by a utility project from the listed exemptions. The document cites Section 30610 of the Coastal Act: “if the [Coastal] Commission determines that certain extraordinary methods of repair and EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 3 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 maintenance that involve a risk of substantial adverse environmental impact, it shall, by regulation, require that a [coastal development] permit be obtained under this chapter.” “Substantial adverse environmental impacts” include impacts to biological, cultural and paleontological resources. Additionally, CMC Section 21.201.070 B.3 requires a CDP for work located in “an environmentally sensitive habitat area, or any sand area, within fifty feet of the edge of a coastal bluff or environmentally sensitive habitat area, or within twenty feet of coastal waters or streams that include: a. The placement or removal, whether temporary or permanent, of rip-rap, rocks, sand or other beach materials or any other forms of solid materials; b. The presence, whether temporary or permanent, of mechanized equipment or construction materials.” Furthermore, the city’s Local Coastal Program, in Mello Segment Policy 3-1.2 states, “Pursuant to Section 30240 of the California Coastal Act, environmentally sensitive habitat areas, as defined in Section 30107.5 of the Coastal Act, shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas.” The submitted studies or information for biological, cultural, and paleontological resources indicate a potential for the project to have significant environmental impacts and include “mitigation measures”. The studies also contain unclear and incomplete information (the latter for biological resources in particular), as detailed in further comments below.1 If the project is exempt from a CDP and therefore ministerial according to CEQA, the city has no ability to apply mitigation measures. More information about CEQA is included in the “Environmental” section below. A CDP with a valuation of $60,000 or more requires Planning Commission approval per CMC Section 21.201.080 C. Projects below that valuation require a minor CDP approved by the City Planner. b. HMP Permit: Project features are in both paved and unpaved, undeveloped areas and border hardline (habitat) preserve areas. If the project impacts native vegetation, a HMP permit is required pursuant to CMC Section 21.210.070. However, the information submitted with the application is insufficient to determine if this permit is required. Please see comments below, particularly in the Public Works (Habitat Management Plan Division) section, for the additional details necessary for the city to adequately evaluate potential biological impacts. 1 The city has received a March 2025 Biological Report and Memorandum (Addendum), a February 25, 2025, Cultural Resources Assessment Report Addendum, and an August 29, 2024, Paleontological Records Search, an undated “Applicant Proposed Measure GEO-1: Paleontological Monitoring” and an undated paleontological map. The biological report and cultural resources assessment reflect the proposed alignment. The paleontological records search, measure GEO-1, and the map do not. EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 4 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 An HMP permit would be processed concurrently to a CDP and the approval authority would be as required for the CDP. As noted, the CDP would be subject to appeal by Coastal Commission. All necessary application forms, submittal requirements, and fee information are available at the Planning counter located in the Faraday Building at 1635 Faraday Avenue or online at https://www.carlsbadca.gov/departments/community-development/planning. You may also access the General Plan Land Use Element and the Zoning Ordinance online at the website address shown. Please review all information carefully before submitting. Environmental: CEQA 4. Any discretionary action is required to have a finding under the California Environmental Quality Act. This would include if a CDP or HMP or required, and for a right-of-way permit. Below is analysis based on the information provided. 5. The California Environmental Quality Act notice of exemption by the California Public Utilities Commission (CPUC) was posted by the State Clearinghouse on February 4, 20252. This exemption applies to a different alignment than is now proposed and appears to be based upon agreements approved in 2019. As such, the city, as a responsible agency, cannot rely on that exemption. Pursuant to Public Resources Code Section 21069, a “responsible agency means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” Further, CEQA Guidelines Section 15041(b) states, “the responsible agency may require changes in a project to lessen or avoid only the effects, either direct or indirect, of that part of the project which the agency will be called on to carry out or approve.” 6. An exemption can only be approved for a project if it meets one of the categorial or statutory exemptions in the CEQA Guidelines. Additionally, if a categorical exemption is used, there must be substantial evidence that one of the exceptions to the exemptions (CEQA Guidelines 15300.2) and those under Carlsbad Municipal Code, Title 19 don’t apply. Due to the identification of mitigation measures to reduce the potential for significant impacts, an exemption as proposed may not be the appropriate CEQA finding. The city must have substantial evidence prior to utilizing an exemption from another agency or issuing an exemption; therefore, staff recommend preparing a new environmental study that considers the currently proposed alignment, is consistent with supporting documentation, adequately discloses impacts and any mitigation measures, and sufficiently supports the CEQA finding proposed. If a categorical exemption remains the appropriate finding, supportive evidence should include a demonstration of compliance with CMC Section 19.04.070. 2 The posted notice of exemption cites CEQA Guidelines Section 15303(d), new construction or conversion of small structures; Section 15304(f), minor alterations to the land; and Section 15332, infill development projects. EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 5 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 7. Under Public Resources Code § 21159.27 and the CEQA Guidelines, projects cannot be divided in order to qualify for a CEQA Exemption. The record must include that this project is of separate utility and use than any other projects undergoing discretionary and environmental review within the city. Cultural Resources 8. February 26, 2025, Cultural Resources Assessment Report Addendum a. The addendum, prepared to reflect the revised alignment, identifies “applicant proposed measures for cultural resources monitoring and inadvertent discovery protocols for archaeological resources, as well as a regulatory compliance measure for the inadvertent discovery of human remains.” It is unclear if these measures are mitigation measures as that term is used in CEQA and how these measures would be legally enforceable. Further, there is no mitigation monitoring and reporting program. b. July 26, 2024, Cultural Resources Assessment (provided along with the addendum): i. On page 8, previously recorded cultural resources include those identified as being within or immediately adjacent to the project site, including one immediately adjacent resource with human remains (P-37-006134/013008). This would seem to indicate there is more likelihood than “inadvertent” discovery of more. That would seem to have a potentially significant impact on Cultural Resources and Tribal Cultural Resources. The report should address this concern and if appropriate provide an explanation as to why it is not a potentially significant impact. ii. On page 8, there are reference errors. Please correct such errors with any subsequent submittal. iii. On page 12, under the heading of “Sacred Lands File Search,” it states the NAHC recommended contacting the La Jolla Band of Luiseno Indians and the San Luis Rey Band of Mission Indians for additional information. Has that been done? If so, did the information impact the assessment’s analysis or findings? Paleontological Resources 9. Similarly, the paleontological assessment letter, which needs revision to reflect the new alignment, indicates the proposed project may impact paleontological resources. The report notes that “any proposed excavation activities that extend deep enough to encounter previously undisturbed deposits…could have the potential to impact the paleontological resources preserved therein. If such excavation is required…implementation of a complete paleontological resource mitigation program during ground-disturbing activities is recommended.” The revised biological report and memorandum suggests in the project description under the “horizontal directional drilling” heading that conduit could be installed at a four to eight foot depth and potentially “deeper to avoid known resources and/or existing utilities.” EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 6 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 In addition, provided with but separate from the assessment letter, is an “applicant proposed measure GEO-1: Paleontological Monitoring” A component of this measure assumes the project alignment is underlain by disturbed and fill sediments to a depth of four feet, though this estimate could deeper or shallower. As project excavation would extend to depths below four feet and into undisturbed soil, it would appear there is the potential for resource disturbance and therefore a need for mitigation. Though the assessment letter doesn’t reference measure GEO-1, the city received notice via an April 10, 2025, email that GEO-1 is meant to be the mitigation program the letter identifies. Additionally, as the assessment letter was prepared for the former alignment and the city has not received a revision or addendum to the letter to support the new alignment, it is unclear what different impacts may relate to the new alignment. Please clarify and correct as necessary and as appropriate and explain how GEO-1 would be enforced. Biological Resources 10. In addition to the comments of the city’s Habitat Management Division below, staff finds the project Biological Report and Memorandum (Addendum) do not address potential environmental impacts associated with equipment accessing and constructing features outside the roadway, particularly the 15-foot by 3-foot bore pit proposed in open area to the west of the railroad tracks and approximately 50-feet from the south edge of Palomar Airport Road. The Addendum, prepared by Rincon Consultants to reflect the revised alignment, was received via email on April 10, 2025. 11. Further, the Categorical Exemption Report states “the project site has no value as habitat for endangered, rare, or threatened species.” This appears contrary to the biological report and memorandum (addendum) which identify avoidance and minimization measures to reduce potential impacts to special status plant and wildlife species to less than significant. Please ensure that all documentation is consistent. 12. Please identify whether nighttime work is proposed. If it is, demonstrate compliance with HMP Adjacency Standards in areas adjacent to HMP hardline areas. Land Development Engineering: 13. Work in the right-of-way (ROW) will require a ROW permit from Land Development Engineering (LDE), including submittal of a Traffic Control Plan to accommodate vehicular, bicycle, and pedestrian circulation during construction. The Traffic Control Plan may also limit permitted construction hours to reduce impacts on traffic. A ROW permit will not be issued until processing of any required discretionary permits (e.g., the CDP and HMP permit) is complete. Please coordinate with LDE during final design. 14. Construction hours are regulated by CMC Chapter 8.48; work after 6 p.m. on any day (except Sunday or a federal holiday, when construction is prohibited) is permitted only by approval of the City Manager or designee upon consideration of various factors outlined in CMC Section EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 7 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 8.48.020 B. Please be aware that permitted construction hours may be reduced from what is permitted by CMC Chapter 8.48 to minimize traffic impacts, as noted in the prior comment. Public Works (Habitat Management Division): 15. Please refer to the City of Carlsbad Guidelines for Biological Studies. 16. The July 2024 biology report, prepared by Rincon Consultants, does not mention the City of Carlsbad Habitat Management Plan (HMP) and Section 4.5 states that the project does not occur within any HCP or NCCP plan areas. This is incorrect. The HMP is a HCP/NCCP Plan. It is a subarea plan under the Multiple Habitats Conservation Plan (MHCP), not the Multiple Species Conservation Plan (MSCP). The HMP needs to be addressed in the text and the HMP hardline boundary needs to be shown on appropriate figures (Existing Hardline, Proposed Hardline, and Standards Areas). 17. Section 4.4 states: “The project does not include any vegetation trimming or tree removal in the scope of work.” If this is true for the entire project area, including all temporary and permanent impacts, then this should be stated up front in the project description. However, see next comment. 18. There are many areas where the vegetation comes all the way up to the sidewalk; it is unclear if there will be permanent or temporary impacts beyond the sidewalk. If so, there will likely be habitat impacts (the report states that there will be no impacts). There was no mention of doing the work under the existing sidewalk. Please re-evaluate impacts. Even if the habitat is in the ROW, it is still protected, and impacts must be mitigated. 19. Vegetation mapping must include 100 feet outside of the project area. 20. A better vegetation classification system is the Vegetation Classification Manual for Western San Diego County (VCM, based on the Manual of California Vegetation). But because HMP mitigation ratios are based on Oberbauer (2008)/Holland (1996), the vegetation tables should include a crosswalk to this classification system. There is a crosswalk included in the VCM. 21. When impacts are evaluated, note that there may be different mitigation ratios in the coastal zone vs. outside of the coastal zone. See HMP coastal zone standards (starting on page D-114), and HMP Table 11 (outside coastal zone). 22. The impact figures in the biology report: a. Need to be zoomed-in much more in areas containing habitat or areas that are adjacent to HMP hardline (zoom-level similar to what is shown in the plans). It is not possible to see the details of potential habitat impacts. b. Must show the location of the access vaults. All temporary and permanent impact areas must be delineated on the figures. EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 8 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 c. Show ROW boundary, aerial basemap, underlying vegetation, sensitive species, and HMP hardline areas (Existing Hardline, Proposed Hardline, and Standards Areas). The city can provide the HMP layer if needed. 23. The biology report must address HMP Adjacency Standards in areas adjacent to HMP hardline areas, although most or all of the standards may not be applicable (report needs to document that the standards were analyzed). 24. Address HMP covered species, as appropriate. For example, one of the photos in Appendix B shows coastal sage scrub right next to the sidewalk. This habitat is likely to support the coastal California gnatcatcher, an HMP covered species. 25. Section 5 is missing significance criterion c. Move Section 5.6 to just after 5.2 Sensitive Natural Communities, and add text for criterion c before the existing paragraph. 26. BIO-1. Note that bullet 2 states that vegetation trimming should be minimized, but bullet 3 states that no tree removal or trimming activities should be conducted. Photograph 5 shows a large tree close to the work area. Perhaps it is best to state that tree trimming or removal will be avoided as much as feasible but describe when tree trimming might need to occur (e.g., allow some flexibility). Also, as mentioned previously, it appears that there might need to be quite a bit of vegetation removal required in some areas. 27. BIO-3. The preconstruction nesting survey should be performed no more than 3 days before initiation of the project. Nest buffers of listed species such as the coastal California gnatcatcher is typically 300-500 feet. 28. BIO-4. This measure mentions staging areas or access routes; if there are any, they should be clearly marked on the impact figure. If you would like to schedule a meeting to discuss this letter with the commenting departments, please contact Scott Donnell at the number below. You may also contact each department individually as follows: • Planning: Scott Donnell, Senior Planner, at (442) 339-2618 • Land Development Engineering: Tim Carroll, Project Engineer, at (442) 339-2737 • Public Works (Habitat Management Division): Rosanne Humphrey, Senior Program Manager, at (442) 339-2729 Sincerely, ERIC LARDY, AICP City Planner EL:SD:mh EA 2025-0050 (PUB 2025-0006) – VERO MARLEY BROADBAND PROJECT May 21, 2025 Page 9 Community Development Department Planning Division 1635 Faraday Avenue  Carlsbad, CA 92008-7314  442-339-2600 c: Tim Carroll, Project Engineer Rosanne Humphrey, Senior Program Manager Mike Strong, Assistant Community Development Director Robert Efird, Principal Planner Laserfiche/File Copy Data Entry