HomeMy WebLinkAbout2025-08-05; Public Access & Open Space Protections near Mountain View Drive (District 1); Murphy, JeffCommunity Services Branch
Community Development Department
1635 Faraday Avenue | Carlsbad, CA 92008 | 442-339-2600 t
Council Memorandum
August 5, 2025
To: Honorable Mayor Blackburn and Members of the City Council
From: Jeff Murphy, Community Development Director
Via:
Re:
Sheila Cobian, Assistant City Manager
Public Access & Open Space Protections near Mountain View Drive (District 1)
The Community Development Department and City Attorney’s Office each received a letter from the
Coastal Commission asserting violations of recorded open space and public access easements and a
1998 coastal development permit involving a single-family home and locked gate at 2401 Mountain
View Drive. City staff do not agree with all the claims being made by the Coastal Commission. This
memorandum summarizes the issues raised by the Coastal Commission and city staff’s response to the
allegations.
Background
The allegations raised in the letters from the Coastal Commission involve two coastal development
permits (CDP): CDP 6-83-051 (The Beach HOA) and CDP 97-59 (Levy Residence).
The Beach HOA
In March 1983 the Coastal Commission issued a CDP for the subdivision of 7.65 acres - located
northwest of Ocean Street and Mountain View
Drive --- into three parcels. Parcel 1 included
the construction of 14 condominium units. As
a condition of the CDP, the rest of the site was
to remain as open space resulting in the
recordation of a public access easement over
parcels 2 and 3 and an open space easement
over parcel 3. The open space area has been
maintained by the city since 2005 when it
accepted and recorded the easements. To
access the beach for public safety and
maintenance purposes, the city enters the
property via a locked gate that takes access off
Mountain View Drive.
Levy Residence
The city issued in July 1998 a CDP to Mr. John Levy for the construction of a 2,713 square-foot single
family residence and a second dwelling unit on a 1.9-acre lot on the south shore of Buena Vista Lagoon.
The property is landlocked (no direct access to a public road) and therefore is accessed via an access
driveway over the eastern boundary of parcel 3 to Mountain View Drive (through the previously
Memo ID# 2025045
To the members of the: CITY COUNCIL Date: 8-5-25 CA CC CM ACM DCM (3)
Council Memo – Public Access & Open Space Protections near Mountain View Drive (District 1)
August 5, 2025
Page 2
mentioned locked gate). The city’s 1998 approval of the CDP was considered by the Coastal
Commission on appeal and upheld, where the commission found no substantial issue with the city’s
approval; meaning that the commission did not change or impose any additional conditions to the CDP.
The city subsequently issued a building permit in October 1998, and final inspection occurred in
December 1999. Mr. Levy continues to own the property.
Discussion
On May 23, 2025, (Attachment A) and June 24, 2025, (Attachment B), the city received correspondence
from the Coastal Commission asserting numerous violations of recorded open space and public access
easements as well as several conditions associated with Mr. Levy’s CDP. The Community Development
Department (Attachment C) and City Attorney’s Office (Attachment D) each responded to the
accusations, respectfully disagreeing with most of the Coastal Commission’s assertions and including
substantial evidence supporting city staff’s position. While there are several topics covered in the
letters, there are three main issues raised by the Coastal Commission that have also been raised during
public comment at recent City Council meetings.
Mountain View Drive Gate
The Mountain View Drive gate is located on property owned by The Beach HOA and pursuant to Coastal
Commission documents, was installed at some point long before the 1983 approval of the 14-unit
condominium project and therefore was allowed to remain as a locked gate. When the city approved
the CDP for the Levy Residence in 1998, plans
were provided indicating that the gate would
continue to have a locking mechanism, through
electronic means. The city did not impose any
conditions addressing the continued use of the
locked gate. Although the continued use of the
gate was an issue in the Coastal Commission
appeal of the city’s CDP --- i.e., Coastal
Commission staff recommended that the gate be
open to the public --- the Coastal Commission’s
final decision on the appeal did not require the
gate to be removed or to be opened for public
use during certain times of day.
Notwithstanding the Coastal Commission’s prior findings and decisions on both CDPs, the Coastal
Commission now asserts that the city’s 2005 acceptance of the access easement and open space
easement on parcels 2 and 3 caused the Mountain View Drive gate to violate the terms of the easements.
The Coastal Commission has not provided any authority for this position, and it is inconsistent with the
Coastal Commissions prior findings and decisions on the matter. It is also inconsistent with the
Council Memo – Public Access & Open Space Protections near Mountain View Drive (District 1)
August 5, 2025
Page 3
language of the easements, which do not require removal or timed opening of the gate upon
acceptance of the easements.
However, since The Beach HOA owns the property this gate is located on, city staff believe the Coastal
Commission, as the permitting authority for this property, is best suited to work out access and any
additional terms and conditions allowable under the existing easement. This would align with previous
action the Coastal Commission took in 2016 when asked to take the lead on Coastal Act violations by
Mr. Levy. City staff are willing to work with the Beach HOA, Mr. Levy and the Coastal Commission to
resolve pedestrian beach access concerns.
Lagoon Public Access Trail
As a condition of the CDP for the Levy Residence, an Irrevocable Offer of Dedication (IOD)1 for a public
trail (Lagoon Public Access Trail) needed to be recorded prior to the city’s issuance of a building permit.
This proposed trail would ultimately transverse the northwestern portion of Mr. Levy’s property,
where it would terminate roughly 3/4 of the way into Mr. Levy’s property. The IOD was recorded, but
the city has not yet accepted the offer to dedicate and has correspondingly not officially included the
short trail segment (i.e., approximately 300’) as part of the citywide trail system.
The Coastal Commission contends that
when the City Council adopted the
Trails Master Plan in 2019 (distinct
from the citywide trail system), it
accepted the IOD and is now obligated
to improve the trail segment to city
standards and make it available to the
public. However, the resolution that
adopted the Trails Master Plan makes
no reference to the IOD in question
nor is that resolution the appropriate
process/vehicle for acceptance of an
IOD under city code. Only the City
Council or City Manager (or designee)
has the authority to accept an IOD. Moreover, to formalize the acceptance of an easement, the city
clerk must record a Certificate of Acceptance. Since neither the City Council nor the City Manager have
accepted the Lagoon Public Access Trail IOD and no such acceptance has been recorded, the IOD
remains as an unaccepted offer. There is no specified date for when the city will accept the IOD, nor
does it have to accept this IOD. The trail segment would provide limited benefit to the public,
1 An irrevocable offer of dedication (IOD) is a formal, recorded promise by a property owner to dedicate land to the public
(e.g., road, easement, or park) that cannot be withdrawn. While the IOD is recorded against the property, it is not enforceable
or useable by the public until the public agency formally accepts the IOD and assumes liability and responsibility of the
easement.
Council Memo – Public Access & Open Space Protections near Mountain View Drive (District 1)
August 5, 2025
Page 4
particularly so long as the lagoon mouth remains heavily impacted by overgrown vegetation, including
tules within the water.
Lagoon Public Access Trail Access Gate
The Coastal Commission contends that Mr. Levy is restricting public access to the Lagoon Public Access
Trail by keeping the access gate consistently locked in violation of his CDP, which requires that the gate
remain open to the public from “dawn to dusk.” However, city staff do not believe this requirement is
effective since the Lagoon Public Access Trail has not yet been accepted by the city and the public
cannot legally access it. If the IOD is accepted and the trail is improved, the gate hours would become
effective and enforceable.
Next Steps
City staff is reaching out to The Beach HOA Board of Directors to see if the Beach HOA is willing to
voluntarily modify the Mountain View Drive entrance gate to address the pedestrian public access
concerns. City staff have also received an email from the Coastal Commission staff acknowledging
receipt of August 1, 2025, letters and the commission’s intention to respond.
Attachments:
A.Coastal Commission letter dated May 23, 2025
B.Coastal Commission letter dated June 24, 2025
C.Community Development Department letter dated August 1, 2025
D.City Attorney’s Office letter dated August 1, 2025
cc: Geoff Patnoe, City Manager
Cindie McMahon, City Attorney
Christie Calderwood, Police Chief
Mike Calderwood, Fire Chief
Dalton Sorich, Assistant City Attorney
Kyle Lancaster, Parks & Recreation Director
Mike Strong, Assistant Director
Marissa Kawecki, Deputy City Attorney
Robbie Hickerson, Code Enforcement Manager
STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR
CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300 SAN FRANCISCO, CA 94105 FAX (415) 904-5400 TDD (415) 597-5885 VIA ELECTRONIC MAIL
May 23, 2025
Eric Lardy City Planner of Carlsbad eric.lardy@carlsbadca.gov
Subject: Violations at 2401 Mountain View Drive (Levyland), Carlsbad
Dear Mr. Lardy,
We write with regards to the Coastal Act and Coastal Development Permit (“CDP”) violations at and around the property at 2401 Mountain View Drive, Carlsbad, also known as ‘Levyland,’ that were discussed during our videoconference with City of
Carlsbad (“City”) staff yesterday. We understand that John C. Levy, Jr., the violator, has met with City staff, and while he has thus far declined to meet with or speak to Coastal Commission (“Commission”) Headquarters Enforcement staff, he has provided Commission staff with his many arguments via letters. Therefore, we also write to correct the record with regards to his arguments, many of which were raised during the
videoconference, and provide you with context regarding this matter. We wish to continue working with the City towards resolution of all of the violations and hope that the information provided in this letter will help us work together.
Importantly, please note that it is also our understanding from our conversation
yesterday that Mr. Levy is requesting that the City provide him with documentation asserting that Mr. Levy is somehow in compliance with CDP 97-59. This is unfortunate, since this would be clearly contrary to the facts and the CDP, as well as contrary to the City’s prior written positions. As you know, CDP 97-59 included conditions requiring both
public access along the lagoon, as well as several layers of protection and restoration for a wetland buffer area surrounding the house, among other requirements. For your information, we have attached four emails from the City’s prior Community Development Director as examples of the City’s prior positions on these violations. We sincerely hope that the City will not now concede to Mr. Levy’s request that the City become a party to
the many violations at issue, since that would create a variety of difficulties and would not help the environment or public access here. We hope that the City will continue to work with Commission staff to finally open the two public access easements that the City has accepted and that Mr. Levy has blocked without any Coastal Act authorization, and in violation of two different CDPs, for many decades. These public access
easements are already advertised on the City’s website and will clearly be an amenity for residents of the City, and we look forward to working with you to help provide public access to them at long last.
Attachment A
Levyland May 23, 2025
2
Mr. Levy’s Recent Attempts to Embroil the City in his Violations
It is our understanding that Mr. Levy has engaged City staff to finally dedicate land, as
was required by Condition 13 of CDP 97-59 nearly three decades ago, to the California Department of Fish and Wildlife (“CDFW”). While this is some progress, we also understand that Mr. Levy has argued that this is one of only two outstanding violations of CDP 97-59 (along with Mr. Levy’s failure to install light shielding fencing to protect the same area, which is a violation of Condition 14). While Commission staff is of course
pleased at any forward movement by Mr. Levy in remedying the many violations at this site, please note that the approved plans for that CDP include 6 foot tall light shielding fencing that is made opaque via vegetation, but Mr. Levy never complied with that permit condition either.
We also note that any construction of the required light shielding fencing in this area will
require Coastal Act authorization from the Commission. As you know, our mapping department has reviewed the information, and has advised that this area is within the Commission’s retained permit jurisdiction, and so any activities that require Coastal Act authorization, including installing fencing and opaque landscaping, would require
Coastal Act authorization from the Commission, including via a CDP, or could be addressed via a Cease and Desist Order.
In addition to the many CDP violations at issue, we understand that Mr. Levy is also attempting to involve the City in one of his more recent violations, the unpermitted
installation of a pickleball court and other pavement. These violations also fall within the
Commission’s retained permit jurisdiction, and therefore must similarly receive Coastal Act authorization from the Commission, via an after-the-fact CDP, or be addressed via a Cease and Desist Order for their removal and a Restoration Order for their restoration.
Mr. Levy’s Failure to Revegetate the Wetland Buffer Area
We also understand that Mr. Levy has argued to City staff, as he has argued to Commission staff for many years, that he complied with the Condition 16 requirement to remove invasive plants from the wetland buffer and vegetate the area with native plants.
We note that Mr. Levy does not dispute the fact that he has since regularly mowed the area and used it as a parking lot, both without any CDP. Moreover, as we noted during our conversation, the Commission’s ecologist visited the site soon after the time Mr. Levy claimed to have performed this work, and observed that in her professional opinion, she saw no evidence of the invasive removal and native vegetation work Mr.
Levy claimed to have performed. In addition, please note that the City has concurred with the Commission’s position in the past, as shown in the attached email dated September 7, 2018.
Moreover, if the wetland buffer had been stripped of invasive plants and vegetated with
native plants, that area of would have risen to the level of environmentally sensitive habitat area (“ESHA”) due to the many native plants and the proximity to wetlands and endangered birds, and any removal of ESHA without a CDP is a violation. In addition,
Levyland May 23, 2025
3
since this particular area was required to be protected by Condition 12, any unpermitted development there would not only be a violation of the Coastal Act, it would also be a violation of Condition 12. We understand that Mr. Levy has argued that he may take an
area that is required to be protected via deed restriction, protected via dedication to CDFW, and vegetated with native plants, none of which Mr. Levy has done, regularly mow it and use it as a parking lot for many years, and that he can now simply belatedly comply with Conditions 12, 13, and 16 without remedying the decades of impacts to the ESHA and wetlands that the buffer is supposed to be protecting. In fact, the area must
be restored to the pre-violation condition and with native plants, and there must be additional mitigation for the decades of lost resources for Mr. Levy to come into compliance with the CDP, as well as the Coastal Act, in addition to monetary penalties. Please note that any removal of invasive plants, remedial grading to correct the changes to topography created by Mr. Levy’s use of this area as a parking lot, and
planting of native plants will require Coastal Act authorization by the Commission, as described above, via a CDP or Restoration Order, in addition to an Administrative Penalty. Unpermitted Locked Gates Restricting Public Access to Accepted Easements
We are also aware that Mr. Levy has made assertions to City staff, as he has to Commission staff, that he is allowed to block the lagoon public access easement because he argues that the City has not accepted it, but this is incorrect. The fact of the matter is that the City has accepted the lagoon public access easement, as the City
itself has noted in the attached email dated June 26, 2018. By the terms of the recorded easement at Document No. 2018-0142309, the easement may be accepted by either resolution of the City Council or as authorized by Municipal Code Chapter 11.04.060. In this case, the City has actually accepted it via both means. This code section addresses the issue that the City of Carlsbad is not responsible for maintaining trails until they are
formally accepted into the Citywide Trails System. Accordingly, shortly after the offer to dedicate was recorded, on August 27, 2019, the City Council formally accepted this trail into the Citywide Trails System via the adoption of the Trails Master Plan, which included the lagoon public access easement trail, via City Council Resolution No. 2019-150. Thus, by the terms of the easement, it is accepted, and it is even viewable as a
public trail on the City’s website. In addition, regardless of whether this public access easement is accepted, which as noted above it clearly is, Condition 17 of the CDP only allows Mr. Levy to restrict public access to this area from dawn to dusk. It thus remains unclear to Commission staff how Mr. Levy could request that the City take the position that he is allowed to restrict public access to an accepted public access easement
permanently, and still be in compliance with Condition 17. Further, although we understand that Mr. Levy has shared the gate code with the City for his unpermitted permanently locked gate placed within the accepted beach public access easement (recorded as Document No. 84-309895), Mr. Levy has thus far
refused to open it to the public as required by CDP 6-83-051. This is the case even though Mr. Levy has not argued that this easement has not been accepted by the City, and has simply found other arguments to justify his refusal to comply with the easement
Levyland May 23, 2025
4
and CDP. Please note that our Notice of Intent dated October 2, 2024, attached, addresses Mr. Levy’s arguments regarding this violation. In addition, Mr. Levy appears to have demanded that the City not open the gate to the public either, because the City
has not done so. This situation is particularly unfortunate given that in the past, the City held the position that the City could remove the gate entirely and the City even planned to do so, as is stated in the attached emails dated July 20, 2018, and September 7, 2018. Please note that as part of our upcoming cease and desist order against Mr. Levy, we will require that Mr. Levy finally open the unpermitted permanently locked gate to
allow for public pedestrian access. In conclusion, we hope to continue working with the City, as the Commission has for many years, towards a resolution of Mr. Levy’s many serious violations and towards ensuring that the two public access easements Mr. Levy is blocking, both of which have
been accepted by the City and are labeled on the City’s website as public trails, finally become actually open to the public for the use and enjoyment that the public is legally entitled to. We look forward to working with you on this matter, and if you have any questions regarding these violations or this letter, please do not hesitate to reach out to me at robert.moddelmog@coastal.ca.gov.
Sincerely,
Rob Moddelmog Headquarters Enforcement Counsel
cc: Lisa Haage, Chief of Enforcement Aaron McLendon, Deputy Chief of Enforcement Marsha Venegas, District Enforcement Officer Alex Helperin, Assistant General Counsel
Karl Schwing, District Director
Diana Lily, District Manager Jennifer Jessers, City of Carlsbad Marissa Kawecki, City of Carlsbad
Attachment: Notice of Intent dated October 2, 2025
Email from City dated September 12, 2016 Email from City dated June 26, 2018 Email from City dated July 20, 2018 Email from City dated September 7, 2018
STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR
CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300 SAN FRANCISCO, CA 94105 FAX (415) 904-5400 TDD (415) 597-5885 VIA ELECTRONIC MAIL
June 24, 2025
Marissa Kawecki City Prosecutor/Deputy City Attorney
City of Carlsbad
Marissa.Kawecki@carlsbadca.gov
Subject: Easements Required By CDP 6-83-051
Dear Ms. Kawecki,
We write to coordinate with you regarding public access and open space easements on property owned by The Beach HOA and designated as Assessor’s Parcel No. 203-010-21 (“the Beach HOA Property”), which easements were required by the California
Coastal Commission (“Commission”), through conditions it included in its approval of Coastal Development Permit (“CDP”) 6-83-051, and accepted by the City of Carlsbad (“the City”). We appreciate that the management of this area has been the subject of a significant amount of controversy that has raised numerous legal issues, and we would like to work with you to resolve these issues.
As you may be aware, the easement offers were accepted by the City on July 11, 2005, via an acceptance document that was recorded as Instrument No. 2005-0579627. The three easements that were created are: (1) a public access easement, for which an Offer to Dedicate (“OTD”) was recorded on August 15, 1984, as Instrument No. 84-
309895 (“the Beach Access Easement”); (2) an open space easement to provide habitat protection and habitat buffer areas, for which an OTD was recorded on August 15, 1984, as Instrument No. 84-309898 (“the Open Space Easement”); and (3) another open space easement to specifically protect the bluff face, for which an OTD was
recorded on August 16, 1984, as Instrument No. 84-309986 (“the Bluff Open Space
Easement”). A map of the easements was recorded as an exhibit to the acceptance, and for your convenience, I have attached a higher resolution version of the same map to the cover email I am using to transmit this letter.
The Beach Access Easement
As you know, we recently became aware that the City possesses the code for the gate installed by John C. Levy, Jr., at the entrance road to, and within, both the Beach Access Easement and the Open Space Easement.1 Both because it is development
that is not consistent with the open space restrictions, and because this gate is now
1 Gate Access Agreement between the City of Carlsbad and John C. Levy, Jr, dated July 17, 2023.
Attachment B
Levyland June 24, 2025
2
permanently locked, thus blocking public pedestrian access, the gate is inconsistent with the easements required by CDP 6-83-051 and therefore is in violation of CDP 6-83-051. We also understand that even though the City has accepted the Beach Access
Easement, the City and Mr. Levy keeps Mr. Levy’s gate permanently closed. As you know, although CDP 97-59 (issued by the City) authorized a gate in this location before the Beach Access Easement and the Open Space Easement were effectuated through the City’s acceptance of the offers, CDP 97-59 did not purport to, nor could it,
amend the requirements of the pre-existing CDP 6-83-051 or the OTDs that the permit required for the Beach Access Easement and the Open Space Easement, both of which had already been recorded when the City approved CDP 97-59. The Commission noted as much in its findings in support of its decision to leave CDP 97-59 in place, stating that the Open Space Easement condition prohibited almost all development in this area,
but that since the offer to dedicate that easement had not yet been accepted, the Commission could allow CDP 97-59 to become final, authorizing the gate for the time being, and leave it to later to address “the ability of the landowners to maintain the fence after the offer of dedication has been accepted.” As the offers have now been accepted, the gate is now in violation of the easements and the permit requirements and must
come out. Indeed, the only way to alter the requirements of the prior CDP would have been through an amendment, but no such amendment is possible, as any amendment that would reduce the restrictions of the prior CDP so as to allow the permanent retention of a gate blocking access to this area would “lessen or avoid the intended effect” of that prior permit, and would therefore have to be rejected pursuant to 14 CCR
§ 13166.
The Ingress/Egress Easement In response to your question about the Commission’s process for dealing with prior liens
and encumbrances during the condition compliance process, the Commission has a Recorded Documents Unit that is dedicated entirely to processing these sorts of requirements. Part of that process involves requesting preliminary title reports before and after any document is recorded in order to ensure that the property interest being created, as required by the Commission, is not in any way undermined by any other
property interests or other encumbrances that may already be recorded against the property. Through that process, our staff learned that Mr. Levy possessed two ingress/egress easements across the Beach HOA Property, the first recorded November 11, 1971, as Instrument No. 262981, and the second recorded August 2, 1984, as Instrument No. 84-294255 (“the Ingress/Egress Easement”), the latter easement
covering the actual location of the road used to reach Levyland today. At the time the Commission approved the recordation of the offers of the Beach Access Easement and the Open Space Easement, the Commission’s Recorded Documents Unit had access to current title reports and was aware of both ingress/egress easements. Notably, the Ingress/Egress Easement was recorded just before the Beach Access Easement and
Open Space easements. However, because both ingress/egress easements are non-exclusive and therefore do
Levyland June 24, 2025
3
not conflict with the Public Access Easement, the Commission was not concerned, and therefore did not require the subordination of the Ingress/Egress Easement to the new OTDs. Subsequently, the non-exclusive nature of the Ingress/Egress Easement was
emphasized by the underlying property owner, the Beach HOA, in a May 1998 letter of authorization for Mr. Levy’s application to install said gate (and also attached to this cover email), which did not grant Mr. Levy exclusive access to the gate, but to the contrary, stated that the Beach HOA’s approval was conditional, and one of the conditions was that “the BHA [the Beach HOA], it’s designees and others legally entitled
thereto shall have access at all times to Lot 3 [the Beach Access Easement area] through the gate by means of the controlling device used i.e. key pad, card, lock, or other controller.” (emphasis added). Once the Beach Access Easement was accepted, the public became legally entitled to use the gate. Thus, the highlighted language refers to the public and requires Mr. Levy to provide the public access through the gate.
Moreover, Mr. Levy does not need a gate on the Beach Access Easement to exercise his right, pursuant to the Ingress/Egress Easement, to obtain ingress or egress to Levyland, and he has no basis for seeking to preclude the public from accessing areas with public rights.
Please note that this combination of protected public access, open space, and ingress/egress easements is not unusual, and in fact is very similar to a recent case in Big Sur that the Commission successfully resolved via an amicable settlement that was approved by the Commission on June 14, 2024.2 In that matter, the violator (Rocky Point Restaurant) had an ingress/egress easement across property owned by another
party, providing the necessary access between its restaurant property and Highway One. After the recordation of that easement, the public still regularly used the area of the ingress/egress easement for public access, and the Commission believed there was strong evidence of prescriptive rights there. Then, long after the violator’s ingress/egress easement was recorded, the County of Monterey bought the land
underlying the ingress/egress easement and recorded an open space easement there. The ingress/egress easement was not subordinated or otherwise disposed of during recordation. The County then gave Rocky Point Restaurant a permit to build a gate within the ingress/egress easement, even though that permit was authorizing the gate in what was by then an open space easement as well. The terms of the open space
easement allowed for any private party to enforce it, and as such, the Commission informed Rocky Point Restaurant that the Commission would be enforcing the open space easement and requiring the removal of the gate, among other permitted items within the open space easement. Rocky Point Restaurant agreed to remove the gate in an amicable resolution that was supported by the County of Monterey. This is just one
example of the common public and private property rights coexisting.
The Open Space Easement
In addition, we are aware that the City has been maintaining and operating within the
Open Space Easement an unmarked series of roads, parking areas, and storage areas
2 The resolution was implemented via a cease and desist order, restoration order, and penalties, designated as CCC-24-CD-02, CCC-24-RO-02, CCC-24-AP-02, & CCC-24-AP3-02, respectively.
Levyland June 24, 2025
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for various city vehicles and city equipment. We also understand that from the Gate Access Agreement between the City and Mr. Levy that the City has also agreed to undertake limited maintenance of Mr. Levy’s paved road within the Open Space
Easement. However, we wanted to note that the Open Space Easement requires that the area be used for habitat protection and prohibits “any alteration of landforms” or “placement or removal of vegetation except as specified herein.” The Open Space Easement then specifies that while it expressly recognizes the “right of access to the weir for maintenance purposes,” it also states that “the erection of some public access
improvements may be allowed, in consultation with the State Department of Fish and Game, and subject to Coastal Commission permit requirements.” The Commission has found no evidence of any CDP being issued to authorize an unmarked series of roads, parking areas, or storage areas for various city vehicles and city equipment. In fact, approximately a quarter of an acre of excellent potential coastal habitat area,
immediately adjacent to both Buena Vista Lagoon, wetlands, and the beach appears to be used for such activities, in addition to the wide unmarked road that leads to this area. This unpermitted development has caused negative impacts, including removal of vegetation there, as well as alteration of landforms, including by repeatedly driving over areas that would otherwise likely become undulating coastal dunes or be otherwise
vegetated.
Easement Holder Obligations
All three easements state that “acceptance of the Offer is subject to a covenant which
runs with the land, providing that any offeree to accept the easement may not abandon
it but must instead offer the easement to other public agencies or private associations acceptable to the Executive Director of the Commission for the duration of the term of the original Offer to Dedicate.” This is a common provision to allow easement holders who do not want to continue to manage the easement in compliance with the terms of
the easement to work to transfer that to another entity. Here, the City’s actions of jointly
operating a permanently locked gate directly within and blocking access to the Beach Access Easement, which is a legal requirement of the Commission CDP (CDP 6-83-051), as well as use of the Open Space Easement for a series of unpermitted and unmarked roads, parking areas, and storage areas for city equipment and vehicles are
both in direct conflict with the terms of those easements. As the easement holder, it
appears that the City has effectively abandoned both easements by not complying with the terms of either easement. We would like to work with you to immediately rectify this situation and finally restore the public access here that was to be provided for the last several decades, as well as come up with a plan to minimize impacts to habitat area.
Thus, the Commission formally requests that the City assist us in resolving the situation and violations of the Commission permit (CDP 6-83-051) and all of the easements, including by opening the gate within the Beach Access Easement, or by simply sharing the gate code with the public via a posted sign. Or, rather than open the gate or post the
gate code itself, the City could offer the easements to other public agencies or private associations acceptable to the Commission’s Executive Director, as is provided for in the original Offers to Dedicate. We would appreciate your responding as to your
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preferences by July 7, 2025, and we are readily available to discuss the options and issues. In addition, Commission staff is prepared to provide you with draft Offers to Dedicate for your review and approval to enact such a transfer and looks forward to
working with you on this matter.
Please note that the Commission wants to resolve this matter in a manner that would assist the City, and in no way seeks to harm the City’s interests in continuing to use the Open Space Easement for vehicular access as the City has done for many years. On
the contrary, the Commission anticipates that the Commission’s action involving Mr. Levy may well result in litigation, and as the current easement holder, the Commission expects that the City may become a party to the litigation. To prevent this, the Commission would be happy to work with the City to offer the three easements to other entities and thus assist the City in avoiding likely litigation.
We believe that in this matter, the City’s interests and the public’s interests are one and the same, and we look forward to working with you. Please do not hesitate to reach out to me at robert.moddelmog@coastal.ca.gov with any questions. We hope to hear from you soon.
Sincerely,
Rob Moddelmog
Headquarters Enforcement Counsel
cc: Lisa Haage, Chief of Enforcement Aaron McLendon, Deputy Chief of Enforcement Marsha Venegas, San Diego District Enforcement
Alex Helperin, Assistant General Counsel
Karla Galvez, Senior Staff Counsel, Recorded Documents Unit Karl Schwing, District Director Diana Lily, District Manager Eric Lardy, City Planner of Carlsbad
Attachment: Map of Native Sun Easements Letter from the Beach HOA from May of 1998
Attachment C
Mr. Moddelmog
August 1, 2025
Page 6
may violate the Coastal Act and require review and approval of a separate coastal development
permit to address. We appreciate the opportunity to continue collaborating with the Coastal
Commission on this matter. At this time, however, we defer to the Coastal Commission's retained
jurisdiction to contemplate, analyze, and approve future development proposals and/or conduct
enforcement proceedings for any Coastal Act violations associated with the development of 2401
Mountain View Drive since this area is within the original permitting jurisdiction of the California
Coastal Commission.
As noted in the companion City Attorney's Office letter dated Aug. 4, 2025, the city will contact
The Beach HOA in support of a Coastal Commission request that the HOA modify the Mountain
View Drive gate entrance to resolve the pedestrian public access issue the gate presents. Please do
not hesitate to contact me as needed to further discuss our recent correspondence.
JEFF MURPHY, Director
Community Development Department
Attachments
1.Coastal Commission letter dated May 23, 2025
2.Conditions of approval for CDP 97-59
3.Doose Landscape invoice
4.Draft conservation easement to CDFG
5.City Council Resolution No. 2019-150
6.Email dated June 26, 2018
7.Instrument number 2018-0142309
8.City Attorney's Office letter to CCC dated Aug. 1, 2025
cc: Geoff Patnoe, City Manager
Sheila Cobian, Assistant City Manager
Marissa Kawecki, Deputy City Attorney
Dalton Sorich, Assistant City Attorney
Kyle Lancaster, Director of Parks & Recreation
Mike Strong, Assistant Director
Eric Lardy, City Planner
Robbie Hickerson, Code Enforcement Manager
Lisa Haage, Chief of Enforcement
Alex Helperin, Assistant General Counsel
STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR
CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300 SAN FRANCISCO, CA 94105 FAX (415) 904-5400 TDD (415) 597-5885 VIA ELECTRONIC MAIL
May 23, 2025
Eric Lardy City Planner of Carlsbad eric.lardy@carlsbadca.gov
Subject: Violations at 2401 Mountain View Drive (Levyland), Carlsbad
Dear Mr. Lardy,
We write with regards to the Coastal Act and Coastal Development Permit (“CDP”) violations at and around the property at 2401 Mountain View Drive, Carlsbad, also known as ‘Levyland,’ that were discussed during our videoconference with City of
Carlsbad (“City”) staff yesterday. We understand that John C. Levy, Jr., the violator, has met with City staff, and while he has thus far declined to meet with or speak to Coastal Commission (“Commission”) Headquarters Enforcement staff, he has provided Commission staff with his many arguments via letters. Therefore, we also write to correct the record with regards to his arguments, many of which were raised during the
videoconference, and provide you with context regarding this matter. We wish to continue working with the City towards resolution of all of the violations and hope that the information provided in this letter will help us work together.
Importantly, please note that it is also our understanding from our conversation
yesterday that Mr. Levy is requesting that the City provide him with documentation asserting that Mr. Levy is somehow in compliance with CDP 97-59. This is unfortunate, since this would be clearly contrary to the facts and the CDP, as well as contrary to the City’s prior written positions. As you know, CDP 97-59 included conditions requiring both
public access along the lagoon, as well as several layers of protection and restoration for a wetland buffer area surrounding the house, among other requirements. For your information, we have attached four emails from the City’s prior Community Development Director as examples of the City’s prior positions on these violations. We sincerely hope that the City will not now concede to Mr. Levy’s request that the City become a party to
the many violations at issue, since that would create a variety of difficulties and would not help the environment or public access here. We hope that the City will continue to work with Commission staff to finally open the two public access easements that the City has accepted and that Mr. Levy has blocked without any Coastal Act authorization, and in violation of two different CDPs, for many decades. These public access
easements are already advertised on the City’s website and will clearly be an amenity for residents of the City, and we look forward to working with you to help provide public access to them at long last.
Exhibit 1
Levyland May 23, 2025
2
Mr. Levy’s Recent Attempts to Embroil the City in his Violations
It is our understanding that Mr. Levy has engaged City staff to finally dedicate land, as
was required by Condition 13 of CDP 97-59 nearly three decades ago, to the California Department of Fish and Wildlife (“CDFW”). While this is some progress, we also understand that Mr. Levy has argued that this is one of only two outstanding violations of CDP 97-59 (along with Mr. Levy’s failure to install light shielding fencing to protect the same area, which is a violation of Condition 14). While Commission staff is of course
pleased at any forward movement by Mr. Levy in remedying the many violations at this site, please note that the approved plans for that CDP include 6 foot tall light shielding fencing that is made opaque via vegetation, but Mr. Levy never complied with that permit condition either.
We also note that any construction of the required light shielding fencing in this area will require Coastal Act authorization from the Commission. As you know, our mapping department has reviewed the information, and has advised that this area is within the Commission’s retained permit jurisdiction, and so any activities that require Coastal Act authorization, including installing fencing and opaque landscaping, would require
Coastal Act authorization from the Commission, including via a CDP, or could be addressed via a Cease and Desist Order. In addition to the many CDP violations at issue, we understand that Mr. Levy is also attempting to involve the City in one of his more recent violations, the unpermitted
installation of a pickleball court and other pavement. These violations also fall within the Commission’s retained permit jurisdiction, and therefore must similarly receive Coastal Act authorization from the Commission, via an after-the-fact CDP, or be addressed via a Cease and Desist Order for their removal and a Restoration Order for their restoration.
Mr. Levy’s Failure to Revegetate the Wetland Buffer Area
We also understand that Mr. Levy has argued to City staff, as he has argued to Commission staff for many years, that he complied with the Condition 16 requirement to remove invasive plants from the wetland buffer and vegetate the area with native plants.
We note that Mr. Levy does not dispute the fact that he has since regularly mowed the area and used it as a parking lot, both without any CDP. Moreover, as we noted during our conversation, the Commission’s ecologist visited the site soon after the time Mr. Levy claimed to have performed this work, and observed that in her professional opinion, she saw no evidence of the invasive removal and native vegetation work Mr.
Levy claimed to have performed. In addition, please note that the City has concurred with the Commission’s position in the past, as shown in the attached email dated September 7, 2018. Moreover, if the wetland buffer had been stripped of invasive plants and vegetated with
native plants, that area of would have risen to the level of environmentally sensitive habitat area (“ESHA”) due to the many native plants and the proximity to wetlands and endangered birds, and any removal of ESHA without a CDP is a violation. In addition,
Levyland May 23, 2025
3
since this particular area was required to be protected by Condition 12, any unpermitted development there would not only be a violation of the Coastal Act, it would also be a violation of Condition 12. We understand that Mr. Levy has argued that he may take an
area that is required to be protected via deed restriction, protected via dedication to CDFW, and vegetated with native plants, none of which Mr. Levy has done, regularly mow it and use it as a parking lot for many years, and that he can now simply belatedly comply with Conditions 12, 13, and 16 without remedying the decades of impacts to the ESHA and wetlands that the buffer is supposed to be protecting. In fact, the area must
be restored to the pre-violation condition and with native plants, and there must be additional mitigation for the decades of lost resources for Mr. Levy to come into compliance with the CDP, as well as the Coastal Act, in addition to monetary penalties. Please note that any removal of invasive plants, remedial grading to correct the changes to topography created by Mr. Levy’s use of this area as a parking lot, and
planting of native plants will require Coastal Act authorization by the Commission, as described above, via a CDP or Restoration Order, in addition to an Administrative Penalty. Unpermitted Locked Gates Restricting Public Access to Accepted Easements
We are also aware that Mr. Levy has made assertions to City staff, as he has to Commission staff, that he is allowed to block the lagoon public access easement because he argues that the City has not accepted it, but this is incorrect. The fact of the matter is that the City has accepted the lagoon public access easement, as the City
itself has noted in the attached email dated June 26, 2018. By the terms of the recorded easement at Document No. 2018-0142309, the easement may be accepted by either resolution of the City Council or as authorized by Municipal Code Chapter 11.04.060. In this case, the City has actually accepted it via both means. This code section addresses the issue that the City of Carlsbad is not responsible for maintaining trails until they are
formally accepted into the Citywide Trails System. Accordingly, shortly after the offer to dedicate was recorded, on August 27, 2019, the City Council formally accepted this trail into the Citywide Trails System via the adoption of the Trails Master Plan, which included the lagoon public access easement trail, via City Council Resolution No. 2019-150. Thus, by the terms of the easement, it is accepted, and it is even viewable as a
public trail on the City’s website. In addition, regardless of whether this public access easement is accepted, which as noted above it clearly is, Condition 17 of the CDP only allows Mr. Levy to restrict public access to this area from dawn to dusk. It thus remains unclear to Commission staff how Mr. Levy could request that the City take the position that he is allowed to restrict public access to an accepted public access easement
permanently, and still be in compliance with Condition 17. Further, although we understand that Mr. Levy has shared the gate code with the City for his unpermitted permanently locked gate placed within the accepted beach public access easement (recorded as Document No. 84-309895), Mr. Levy has thus far
refused to open it to the public as required by CDP 6-83-051. This is the case even though Mr. Levy has not argued that this easement has not been accepted by the City, and has simply found other arguments to justify his refusal to comply with the easement
Levyland May 23, 2025
4
and CDP. Please note that our Notice of Intent dated October 2, 2024, attached, addresses Mr. Levy’s arguments regarding this violation. In addition, Mr. Levy appears to have demanded that the City not open the gate to the public either, because the City
has not done so. This situation is particularly unfortunate given that in the past, the City held the position that the City could remove the gate entirely and the City even planned to do so, as is stated in the attached emails dated July 20, 2018, and September 7, 2018. Please note that as part of our upcoming cease and desist order against Mr. Levy, we will require that Mr. Levy finally open the unpermitted permanently locked gate to
allow for public pedestrian access. In conclusion, we hope to continue working with the City, as the Commission has for many years, towards a resolution of Mr. Levy’s many serious violations and towards ensuring that the two public access easements Mr. Levy is blocking, both of which have
been accepted by the City and are labeled on the City’s website as public trails, finally become actually open to the public for the use and enjoyment that the public is legally entitled to. We look forward to working with you on this matter, and if you have any questions regarding these violations or this letter, please do not hesitate to reach out to me at robert.moddelmog@coastal.ca.gov.
Sincerely,
Rob Moddelmog Headquarters Enforcement Counsel
cc: Lisa Haage, Chief of Enforcement Aaron McLendon, Deputy Chief of Enforcement Marsha Venegas, District Enforcement Officer Alex Helperin, Assistant General Counsel
Karl Schwing, District Director
Diana Lily, District Manager Jennifer Jessers, City of Carlsbad Marissa Kawecki, City of Carlsbad
Attachment: Notice of Intent dated October 2, 2025
Email from City dated September 12, 2016 Email from City dated June 26, 2018 Email from City dated July 20, 2018 Email from City dated September 7, 2018
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PLANNING COMMISSION RESOLUTION NO. 4332
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A
ALLOW FOR THE CONSTRUCTION OF A SINGLE FAMILY
RESIDENCE AND SECOND DWELLING UNIT OVER A
DETACHED GARAGE ON PROPERTY GENERALLY
LOCATED ALONG THE SOUTH SHORE OF BUENA VISTA
LAGOON, WEST OF THE AT&SF RAILROAD, NORTH OF
MOUNTAIN VIEW DRIVE IN LOCAL FACILITIES
MANAGEMENT ZONE 1.
CASE NAME: LEVY RESIDENCE
CASE NO.: CDP 97-59
WHEREAS, John C. Levy, “Developer”, has filed a verified application
COASTAL DEVELOPMENT PERMIT NO. CDP 97-59 TO
City of Carlsbad regarding property owned by John C. Levy, “Owner”, described as
Parcel “A” of City of Carlsbad Adjustment Plat #471.
(“the Property”); and
WHEREAS, said verified application constitutes a request for a
Development Permit as shown on Exhibits “A” - “G” dated July 1, 1998,on file in the E
Department, LEVY RESIDENCE, CDP 97-59 as provided by Chapter 21.201.04C
Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did, on the 1st day of July 1998
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all te
and arguments, if any, of all persons desiring to be heard, said Commission considered all
relating to the CDP.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the I:
Commission of the City of Carlsbad as follows:
~
A) That the foregoing recitations are true and correct.
Exhibit 2
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B) That based on the evidence presented at the public hearing, the Corr
APPROVES LEVY RESIDENCE, CDP 97-59, based on the following
and subject to the following conditions:
FindinEs:
1. That the proposed development is in conformance with the Mello I1 segmen
Certified Local Coastal Program and all applicable policies in that the site is des
for single family residential development, second dwelling units are
pursuant to Mello I1 Affordable Housing Policy 1-1, and no agricultural acti7
geologic instability exists on site.
2. The project is consistent with the provisions of the Coastal Resource Protection
Zone (Chapter 21.03 of the Zoning Ordinance) in that the project will adherl
City’s Master Drainage and Storm Water Quality Management Plan and C
Ordinance to avoid increased runoff and soil erosion, no steep slopes or
vegetation is located on the subject property and the site is not located in :
prone to landslides, or susceptible to accelerated erosion, floods or liquefactic
adjacent Buena Vista Lagoon wetlands have been delineated and the proj
been designed to include a minimum 100’ setback between the wetlands
structures. The developer has been conditioned to record an open spa4
restriction over the entire wetland buffer setback area and to make an irre
offer of dedication of the wetlands buffer to the California Department of F
Game.
3. The project is consistent with the provisions of the Coastal Shoreline Devel
Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the proposed
will require minimal grading (75 cubic yards of cut and 75 cubic yards of f
project has been designed to avoid increased runoff and soil erosion, and the
applicant has been conditioned to make an irrevocable offer of dedication
City of Carlsbad for a 25’ wide public access trail easement over an existing !
trail which is located along the western perimeter of the project site.
4. The Planning Commission of the City of Carlsbad has reviewed, analyzed and con
Mitigated Negative Declaration CDP 97-59, the environmental impacts therein id1
for this project and said comments thereon, and the Mitigation Monitoril
Reporting Program, on file in the Planning Department, prior to APPROVII
project. Based on the EIA Part I1 and comments thereon, the Planning Coml
finds that there is no substantial evidence the project will have a significant effec
environment and hereby APPROVES the Mitigated Negative Declaration.
5. The Planning Commission does hereby find that the Mitigated Negative Dec
CDP 97-59 and Mitigation Monitoring and Reporting Program have been p
in accordance with requirements of the California Environmental Quality Act, tk
Guidelines and the Environmental Protection Procedures of the City of Carlsbad.
PC RES0 NO. 4332 -2-
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6. The Planning Commission finds that the Mitigated Negative Declaration CD
reflects the independent judgment of the Planning Commission of the City of Ci
7. All necessary public improvements have been provided or will be required as cc
of approval.
8. The Developer has agreed and is required by the inclusion of an appropriate conc
pay a public facilities fee. Performance of that contract and payment of the
enable this body to find that public facilities will be available concurrent with
required by the General Plan.
9. The project has been conditioned to pay any increase in public facility fee,
construction tax, or development fees, and has agreed to abide by any a(
requirements established by a Local Facilities Management Plan prepared pur
Chapter 21.90 of the Carlsbad Municipal Code. This will ensure continued availa
public facilities and will mitigate any cumulative impacts created by the project.
10. The project has been conditioned to ensure the building permits will not be issue(
project unless the District Engineer determines that sewer service is availal
building cannot occur within the project unless sewer service remains available,
District Engineer is satisfied that the requirements of the Public Facilities Elemel
General Plan have been met insofar as they apply to sewer service for this project.
1 I. Statutory School fees will be paid to ensure the availability of school facilitie
Carlsbad Unified School District.
Conditions:
1. Staff is authorized and directed to make, or require Developer to make, all cor
and modifications to the CDP 97-59 document(s) as necessary to make them ir
consistent and in conformity with final action on the project. Development sha
substantially as shown in the approved Exhibits. Any proposed development (
from this approval, shall require an amendment to this approval.
2. The applicant shall apply for and be issued building permits for this pro
within two (2) years of approval or this coastal development permit will ex]
unless extended per Section 21.201.210 of the Zoning Ordinance.
3. The Developer shall comply with all applicable provisions of federal, state, ar
ordinances in effect at the time of building permit issuance.
4. Building permits will not be issued for development of the subject property un.
District Engineer determines that sewer facilities are available at the time of app
for such sewer permits and will continue to be available until time of occupancy.
5. The Developer shall pay the public facilities fee adopted by the City Council on i
1987, (amended July 2, 1991) and as amended from time to time, and any devel
PC RES0 NO. 4332 -3 -
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fees established by the City Council pursuant to Chapter 21.90 of the Carlsbad M
Code or other ordinance adopted to implement a growth management system or I
and Improvement Plan and to fulfill the subdivider’s agreement to pay thl
facilities fee dated May 26, 1998, a copy of which is on file with the City Cler
incorporated by this reference. If the fees are not paid, this application wil,
consistent with the General Plan and approval for this project will be void.
6. The Developer shall provide proof of payment of statutory school fees to
conditions of overcrowding as part of the building permit application. The an
these fees shall be determined by the fee schedule in effect at the time of buildin;
application.
7. If any condition for construction of any public improvements or facilities, or the 1
of any fees in-lieu thereof, imposed by this approval or imposed by law on this re
housing project are challenged this approval shall be suspended as prov
Government Code Section 66020. If any such condition is determined to be inv,
approval shall be invalid unless the City Council determines that the project wit!
condition complies with all requirements of law.
8. Consistent with subsection 21.203.040(4)(e) of the Carlsbad Municipal C
grading shall be allowed during the winter season (October 1 - April 1).
9. This project shall comply with all conditions and mitigation measures which are
as part of the approved Mitigated Negative Declaration, as contained in P
Commission Resolution No. 4331.
10. Prior to the issuance of the building permit, Developer shall submit to the City 2
of Restriction to be filed in the office of the County Recorder, subject to the sati
of the Planning Director, notifying all interested parties and successors in interest
City of Carlsbad has issued a Coastal Development Permit by Resolution No. ‘
the real property owned by the Developer. Said Notice of Restriction shall I
property description, location of the file containing complete project details
conditions of approval as well as any conditions or restrictions specified for inch
the Notice of Restriction. The Planning Director has the authority to execute and
an amendment to the notice which modifies or terminates said notice upon a sho?
good cause by the Developer or successor in interest.
11. The Developer shall implement, or cause the implementation of, the CDP 97-59
Mitigation Monitoring and Reporting Program.
12. Prior to the issuance of a building permit or grading permit (whichever occu:
the applicant shall record a deed restriction over the entire wetland buffer b
area to restrict the property for open space/wildlife uses only, except for a
public access trail as shown on the site plan for CDP 97-59.
1 PC RES0 NO. 4332 -4-
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13. Prior to the issuance of a building permit or grading permit (whicheve
first), the property owner shall submit evidence satisfactory to the 1
Director that an irrevocable offer of dedication of the wetland buffer area 1
made to the California Department of Fish and Game.
14. Prior to the issuance of building permits, an exterior lighting plan
submitted to the Planning Director for review. All exterior lighting shall i,
combination of low-level lights and shields to minimize the amount of light
the adjacent wetlands and wetland buffer area.
15. Due to the potential presence of the light-footed clapper rail within the I
adjacent to the project site, project construction shall be prohibited du
breeding season, (March 1 to August l), unless a focused survey for the clal
is conducted immediately prior to project construction and determines
clapper rails were observed during the survey.
16. Prior to the issuance of a certificate of occupancy, non-native plant species
removed from the wetland buffer area and the wetland buffer area sha,
vegetated with a hydro-mulched coastal scrub grass seed mix.
17. Prior to the issuance of a building permit or grading permit (whichever oca
the applicant shall irrevocably offer to dedicate in perpetuity to the City of C
a minimum 25 foot wide public access trail easement over the public acc
which is shown on the site plan for CDP 97-59.
18. Prior to the issuance of a building permit or grading permit (whichever OCCI
the wetlands buffer area shall be staked and flagged in the field by a
surveyor. A minimum of three notices shall be posted within this area tc
that this area is off-limits to construction activity.
19. If any of the foregoing conditions fail to occur; or if they are, by their tern
implemented and maintained over time, if any of such conditions fail tc
implemented and maintained according to their terms, the City shall have the
revoke or modify all approvals herein granted; deny or further condition issuan
future building permits; deny, revoke or further condition all certificates of oc
issued under the authority of approvals herein granted; institute and prosecute liti
compel their compliance with said conditions or seek damages for their violat
vested rights are gained by Developer or a successor in interest by the City’s apl
this Coastal Development Permit.
NOTICE
Please take NOTICE that approval of your project includes the “imposition”
dedications, reservations, or other exactions hereafter collectively referred to for conver
“fees/exactions.”
~ PC RES0 NO. 4332 -5-
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You have 90 days from July 1, 1998 to protest imposition of these feedexactions. If yc
them, you must follow the protest procedure set forth in Government Code Section 6602
file the protest and any other required information with the City Manager for proc
accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely fo.
procedure will bar any subsequent legal action to attack, review, set aside, void, or ar
imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/<
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor I
zoning, grading or other similar application processing or service fees in connection
project; NOR DOES IT APPLY to any feedexactions of which you have previously be
a NOTICE similar to this, or as to which the statute of limitations has previously c
expired.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
Commission of the City of Carlsbad, California, held on the 1st day of July 1995
following vote, to wit:
AYES: Chairperson Noble, Commissioners Compas, Heineman, rV
Nielsen, Savary, and Welshons
NOES:
ABSENT:
ABSTAIN:
&.
4% y%, & g &? -
@w4J*fi ,$ 4 ,&e- yt't.iE -.&f Ft L-
BAILEY NO@, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
U MICHAEL J. HOLZMILMR
Planning Director
PC RES0 NO. 4332 -6-
Exhibit 3
1825 Aston Avenue &arkbad, CA 92008
Phone (760) 937-9009 X-705 +Fax (760) 937-9089
March 23, 1998
From: John C. Levy Jr.
To: Juliet Virtue
RE: Conservation Easement Form- Buena Vista Lagoon
Good Morning Julie,
Pursuant to your letter I have attached the conservation agreement that was forwarded
to me by your office.
As requested I have signed and notarized the document per your instructions.
If you have any questions I can be reached a (760) 931-9009 extension 105.
CC: Mr. Chris DeCerbo
Planning Department
City of Carlsbad
Exhibit 4
=!.; Sea ·Bright--s;_.,company
4322 Sea Bright Place •-Carlsbad, CA 92008 • Telephone/FAX 760-720-0098
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MESSAG E
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---------------------SIGNED---------------
INSTRUCTIONS TO SENDER: I.KEEP WHITE CO"Y. 2. SEND YELLOW ANO PINK COPIES INTACT.
INSTRUCTIONS TO RECEIVER; I.WRITE REPLY. 2. KEEP PINK COPY. RETURN COPY TO SENDER.
August 27, 2019 Item #8 Page 7 of 351
RESOLUTION NO. 2019-150
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, 1) ADOPTING A MITIGATED NEGATIVE DECLARATION AND A
MITIGATION MONITORING AND REPORTING PROGRAM; 2) APPROVING A
GENERAL PLAN AMENDMENT FOR THE TRAILS MASTER PLAN; AND 3)
ADOPTING THE TRAILS MASTER PLAN.
WHEREAS, the Trails Master Plan is a comprehensive planning document intended to guide the
future development and maintenance of the city's trail system; and
WHEREAS, the Trails Master Plan furthers the community's vision to have a fully connected trail
system to provide more opportunities for active living, and to create new, non-vehicular connections
to destinations through appropriate standards and design guidelines; and
WHEREAS, the City Council of the City of Carlsbad, California has determined that the Parks and
Recreation Commission did, on June 17, 2019, hold a duly noticed public hearing as prescribed by law
recommending to the City Council adoption of the Trails Master Plan; and
WHEREAS, the City Council of the City of Carlsbad, California has determined that the Planning
Commission did, on July 17, 2019, hold a duly noticed public hearing as prescribed by law to
recommend to the City Council adoption of the Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program, and approving an amendment to the Open Space, Conservation,
and Recreation Element ofthe Carlsbad General Plan to achieve consistency between the Trails Master
Plan and the General Plan; and
WHEREAS, the City Council of the City of Carlsbad, held a duly noticed public hearing to consider
said Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, General Plan
Amendment, and Trails Master Plan; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, the City Council considered all factors relating to the Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program, General Plan Amendment,
and Trails Master Plan.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
Exhibit 5
August 27, 2019 Item #8 Page 8 of 351
2. That the recommendation of the Parks and Recreation Commission for the adoption of
the Trails Master Plan is adopted.
3. That the recommendation of the Planning Commission for the adoption of a Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program; and approval of General Plan
Amendment GPA 2017-0001, are adopted and approved, and that the findings and conditions of the
Planning Commission contained in Planning Commission Resolution Nos. 7279 and 7280 on file with
the City Clerk and incorporated herein by reference, are the findings and conditions of the City Council.
4. This action is final the date this resolution is adopted by the City Council. The provisions
of Chapter 1.16 ofthe Carlsbad Municipal Code, "Time Limits for Judicial Review" shall apply:
"NOTICE"
The time within which judicial review of this decision must be sought is governed by Code of Civil
Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad
Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the
appropriate court not later than the ninetieth day following the date on which this decision becomes
final; however, if within ten days after the decision becomes final a request for the record is filed with
a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time
within which such petition may be filed in court is extended to not later than the thirtieth day following
the date on which the record is either personally delivered or mailed to the party, or his attorney of
record, if he has one. A written request for the preparation of the record of the proceedings shall be
filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008.
August 27, 2019 Item #8 Page 9 of 351
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 27th day of August 2019, by the following vote, to wit:
AYES: Hall, Bhat-Patel, Blackburn, Schumacher, Hamilton.
NAYS: None.
ABSENT: None.
~~ 1-/eetor 6o"1tz, (( .
1(/ BARBARA ENGLESON, City Clerk Dtpv C/1~
{SEAL) C /eoC
PLANNING COMMISSION RESOLUTION NO. 7279
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, RECOMMENDING ADOPTION OF A MITIGATED
NEGATIVE DECLARATION AND MITIGATION MONITORING AND
REPORTING PROGRAM FOR THE CITY OF CARLSBAD TRAILS MASTER PLAN
CASE NAME:
CASE NO.:
CITY OF CARLSBAD TRAILS MASTER PLAN
GPA 2017-0001 (PUB17Y-0008)
EXHIBIT 4
WHEREAS, the City of Carlsbad, "Applicant," has filed a verified application with the City
of Carlsbad to adopt a citywide Trails Master Plan; and
WHEREAS, a Mitigated Negative.Declaration and Mitigation Monitoring and Reporting
Program was prepared in conjunction with said project in compliance with the California Environmental
Quality Act (CEQA); and
WHEREAS, during the public review period staff received 25 comment letters; and
WHEREAS, sections of the Initial Study (IS)/Mitigated Negative Declaration (MND) were
revised based upon the comments received; and
WHEREAS, no new information has been presented in the Final IS/MND that would
require recirculation of the Draft IS/MND pursuant to CEQA Guidelines Section 15073.S(c); and
WHEREAS, the trail segments added to the IS/MND (2C, 6A, 121, and 12J) would result
in potentially significant biological and/or cultural resources impacts; however, these impacts are
similar' to impacts for other trail segments and would be covered under the Draft IS/MND mitigation
measures; and
WHEREAS, these mitigation measures would reduce the potentially significant impacts
to less than significant; and
WHEREAS, other revisions to the Final IS/MND are new information to clarify, amplify,
or to make insignificant modifications to the Draft IS/MND that does not require recirculation; and
August 27, 2019 Item #8 Page 17 of 351
WHEREAS, the Final IS/MND has not been changed in such a way that deprives the
public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the
Trails Master Plan or a feasible way to mitigate or avoid a substantial environmental effect, and
WHEREAS, the Planning Commission did on July 17, 2019, hold a duly noticed public
hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, examining the Final IS/MND, analyzing the information submitted by staff, and considering
any written comments received, the Planning Commission considered all factors relating to the Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of
Carlsbad as follows:
A) That the foregoing recitations are true and correct.
B) That based on the evidence presented at the public hearing, the Planning Commission
hereby RECOMMENDS ADOPTION of the Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program, attached hereto and made a part hereof as
Attachment 1A, based on the following findings:
Findings:
1. The Planning Commission of the City of Carlsbad does hereby find:
a. it. has reviewed, analyzed, and considered the Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program for GPA 2017-0001 -City of Carlsbad
Trails Master Plan the environmental impacts therein identified for this project and any
comments thereon prior to RECOMMENDING APPROVAL of the project; and
b. the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program
have been prepared in accordance with requirements of the California Environmental
Quality Act, the State Guidelines and the Environmental Protection Procedures of the City
of Carlsbad; and
c. it reflects the independent judgment of the Planning Commission of the City of Carlsbad;
and
PC RESO NO. 7279 -2-August 27, 2019 Item #8 Page 18 of 351
From: Debbie Fountain <Debbie.Fountain@carlsbadca.gov>
Sent: Tuesday, June 26, 2018 11:15 AM
To: Venegas, Marsha@Coastal <Marsha.Venegas@coastal.ca.gov>
Subject: RE: Procedural question regarding City's acceptance of Levy IOD
Hi Marsha. Our City Attorney’s Office has already provided legal opinion to the Parks Department
indicating that the Carlsbad Municipal Code authorizes the City Manager or designee to accept trail
easements into the the Citywide Public Trails system. City Council has designated the City Manager as
the authorizing official to accept trails easements. Chandra’s example is not related to a trail. Kyle can
answer her other question on the Trails Master Plan.
Debbie Fountain
Community & Economic Development Director
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, Ca. 92008
Debbie.fountain@carlsbadca.gov
(760) 434-2935 – office
(760) 720-2037 – fax
www.carlsbadca.gov
From: Chandra Slaven [mailto:cslaven@joncornlaw.com]
Sent: Tuesday, June 26, 2018 10:59 AM
To: Venegas, Marsha@Coastal <Marsha.Venegas@coastal.ca.gov>
Cc: Debbie Fountain <Debbie.Fountain@carlsbadca.gov>
Subject: Re: Procedural question regarding City's acceptance of Levy IOD
Hi Marsha,
Thank you for your email. I just left you a voicemail. I have a meeting with Jon Corn and the client to
discuss next steps based on our meeting last week. As states in my voicemail, I need to have two
questions answered between now and then:
1. Where in the Trails Master Plan is our trail called out? Maybe Kyle can assist with this?
2. It appears that all IODs must be adopted by resolution at the City Council level and not staff level.
Please confirm this. You might have to check with the City Attorney on this.
Anyhow, please give me a call at your earliest convenience so that I can have these questions resolved
prior to my meeting on Thursday afternoon. Thanks so much!
Chandra Slaven, AICP
Permit Specialist
619-316-7645
cslaven@joncornlaw.com
On Tue, Jun 26, 2018 at 9:38 AM Venegas, Marsha@Coastal <Marsha.Venegas@coastal.ca.gov> wrote:
Good Morning Chandra,
Exhibit 6
As Debbie mentioned to you at the meeting, any communications directly related to the Levy property
needs to be directed to me and not City staff. I am your point of contact for the City for this matter. I
agreed to provide you Kyle’s information because you stated you had general questions regarding parks
and rec procedures but your question below is specifically related to Levy. As you know, I do not
communicate via email regarding any potential enforcement matters. If you would like to discuss, please
feel free to call me. We did answer this question last week but there was a lot going on so I am happy to
discuss it again with you.
Sincerely,
Marsha Venegas
San Diego District Enforcement Analyst
California Coastal Commission
From: Chandra Slaven [mailto:cslaven@joncornlaw.com] Sent: Sunday, June 24, 2018 4:53 PM To: kyle.lancaster@carlsbadca.gov Cc: Venegas, Marsha@Coastal Subject: Procedural question regarding City's acceptance of Levy IOD
Good evening Kyle,
As a follow up to our meeting on Thursday, I have been researching previous City Council agendas and it
appears that acceptance of IODs are in fact heard by the City Council, if nothing else at least on consent
agenda. Case in point, a recent example, "AB #21,573 - Adoption of Resolution No. 2014-071, entitled, "A
Resolution of the City Council of the City of Carlsbad, California, accepting a portion of a previously
rejected Irrevocable Offer of Dedication for Lemon Leaf Drive, PR 11-41, generally located at the west
end of Lemon Leaf Drive.."
Therefore, I am confused as to why our IOD would not go in front of City Council for review and
approval. Would you be so kind as to provide clarification? I would greatly appreciate it. Thank you as
always for your time in this matter.
Best regards,
Chandra Slaven, AICP
Permit Specialist
619-316-7645
cslaven@joncornlaw.com
RECORDING REQUESTED BY City of Carlsbad
AND WHEN RECORDED MAIL TO:
City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008
The undersigned grantor(s) declare(s):
Documentary transfer tax is $�
DOC# 2018-0142309 111111111111 lllll 111111111111111 lllll lllll 1111111111111111111111111111
Apr 10, 2018 04:18 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00)
PAGES: 5
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Assessor's Parcel No. 155-101-67,155-101-68, 155-190-15, 155-190-16
Project ID: CDP 97-59 ( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and
---------Re I ate d Project ID: PR 2.3.154 ---------Re I ate d Project ID: ---------encumbrances remaining at time of sale. Project Name: _L_e_v..._y_R_e_s_id_e_nc_e ___ _ ( ) Unincorporated area: (x) City of Carlsbad, and
IRREVOCABLE OFFER TO DEDICATE AN EASEMENT
FOR PUBLIC TRAIL ACCESS
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Jim Kelly,
Trustee of the John C. Levy, Jr. Revocable Trust, hereinafter designated Granter, represents that he is the legal representative of the owner of the hereinafter described real property in the City of Carlsbad, County of San Diego, State of California, and for a valuable consideration, hereby makes an Irrevocable Offer of Dedication to the City of Carlsbad, a Municipal Corporation hereinafter designated Grantee, its successors and assigns, a public trail access easement upon, through, under, over and across the hereinafter described real property for the
following purpose:
AN EASEMENT FOR PUBLIC TRAILACCESS
The real property referred to above is situated in the City of Carlsbad, County of San Diego, State of California and is described in Exhibit "A" attached hereto and made a part hereof.
Exhibit "B" is attached for clarity only.
The Granter, for himself, his successors and assigns, hereby waives any claim for any and all damages to Grantor's remaining property contiguous to the public trail access easement hereby conveyed by reason of the location, construction, landscaping or maintenance of said trail.
This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of California and may be accepted by resolution of the City Council of the City of Carlsbad or as
authorized by Carlsbad Municipal Code Chapter 11.04.060.
This Offer of Dedication may be terminated and the right to accept the offer may be abandoned in accordance with the summary vacation procedures in Section 8300 et seq. of the Streets and
Highways Code of the State of California. The termination and abandonment may be made by the City Council of the City of Carlsbad.
C:\Usersldfoun\AppData\Local\Microsoft\Windows\Temporary Internet Flles\Content.Outlook\ROPG2SDE\Levy lrreY Offer to Ded Easemenl.doc REVD1125/13 lf 1
Exhibit 7
City Attorney
1200 Carlsbad Village Drive ï Carlsbad, CA 92008 ï 760-434-2891 ï 760-434-8367 fax
www.carlsbadca.gov
VIA REGULAR MAIL AND
EMAIL TO: robert.moddelmog@coastal.ca.gov
6city
August 1, 2025
Mr. Rob Moddelmog
Headquarters Enforcement Counsel
California Coastal Commission
495 Market Street, Suite 300
San Francisco, CA 94105
Re: Easements Required by CDP 6-83-051
Dear Mr. Moddelmog:
Thank you for your assistance to date in providing various documents and laying out the history of Coastal
Development Permit, or CDP, 6-83-051 and CDP 97-59. This letter is in response to your letter dated June
24, 2025, regarding three easements you refer to as the Beach Access Easement, the Open Space
Easement, and the Bluff Open Space Easement. Offers to dedicate the easements were made in 1984 by
the then property owner as a condition of approval for CDP 6-83-051. The city accepted the offers of
dedication in 2005.
Use of Property and Mountain View Drive Gate
Coastal Commission documents indicate a fenced and locked gate at or near the present-day location of
the Mountain View Drive gate was installed at some point long before the approval of the 14-unit
subdivision under CDP 6-83-051. Both the previous and existing gate at Mountain View Drive were or are
within the Beach Access Easement and the Open Space Easement. The Coastal Commission did not require
the gate’s removal as a condition of CDP 6-83-051. Rather, the Findings and Declarations in the
corresponding staff report concluded that the 14-unit subdivision was “consistent with all applicable LCP
and Coastal Act policies since adequate vertical access already exists and the project will provide lateral
access opportunities.” (Exhibit 1, page 13.) Additionally, CDP 6-83-51 required the Beach Access Easement
to be “free of prior encumbrances which the Executive Director determines may affect the interest being
conveyed.” (Exhibit 1, page 4.) By not requiring removal of the existing gate, the Executive Director
implicitly determined the gate would not interfere with the public's right to lateral access to the sea or
affect the Beach Access Easement.
When the City of Carlsbad’s Planning Commission later approved CDP 97-59 for the Levy Residence, the city
did not impose any conditions addressing the continued use of the gate. (Exhibit 2.) Although the continued
use of the gate was an issue in the Coastal Commission appeal of CDP 97-59, the Coastal Commission’s
decision on the appeal did not require the gate to be removed or to remain open during certain times of
Exhibit 8
Page 2
day. Rather, the Coastal Commission’s revised findings discuss a long history of a “fenced and locked gate.”
The Coastal Commission ultimately decided to allow the existing gate to be replaced with an electric vehicle
gate, finding the gate consistent with the public access and recreation policies of Carlsbad’s certified Local
Coastal Program and Chapter 3 of the Coastal Act. Specifically, the Coastal Commission found in its Revised
Findings on appeal for CDP 97-59 (Exhibit 3, page 7):
The proposed project simply replaces the existing manual gate with an electric gate and
therefore, it does not change the existing access. In addition, adequate pedestrian access
opportunities exist in the area (as a vertical accessway from Ocean Street to the ocean is
located about 500 feet to the north) and the public will still be able to access the beach as
they have in the past. Therefore, the Commission finds the development as approved by the
City does not raise a substantial issue with regard to consistency with the public access and
recreation policies of the certified LCP and Chapter 3 of the Coastal Act.
The Coastal Commission’s Revised Findings are consistent with California Public Resources Code Section
30212(a)(2), which provides public access from the nearest public roadway to the shoreline and along the
coast is not required in new development projects when adequate access exists nearby.
Notwithstanding the Coastal Commission’s prior findings and decisions, the Coastal Commission now
asserts the city’s acceptance of the Beach Access Easement and Open Space Easement caused the
existence of the gate to violate the easements. The Coastal Commission has not provided any authority for
this position, and it is inconsistent with the Coastal Commissions prior findings and decisions. It is also
inconsistent with the language of the easements, which do not require removal or timed opening of the
gate upon acceptance.
The Beach Access Easement appears to allow for the recording of additional reasonable terms, conditions,
and limitations prior to the opening of the Beach Access Easement. Specifically, Paragraph 3 of the Beach
Access Easement (Exhibit 4, page 4) provides:
ADDITIONAL TERMS, CONDITIONS, AND LIMITATIONS. Prior to the opening of the
accessway, the Grantee, in consultation with the Grantor, may record additional reasonable
terms, conditions, and limitations on the use of the subject property in order to assure that
this Offer for public access is effectuated.
However, The Beach Homeowners Association, the current owner of the property where the gate is located
and the successor to the original Grantor, must first be consulted. The Coastal Commission, as the permit
authority for The Beach HOA project and the representative of the Grantee People of the State of
California,1 is best suited to determine the appropriate terms, conditions, and limitations regarding the
gate and initiate the consultation with The Beach HOA. City staff are available to meet with Coastal
Commission representatives to discuss options for the additional terms, conditions, and limitations and to
support the consultation process.
1 The Beach Access Easement does not expressly define “Grantee.” However, the discussion in
paragraph 6 the easement indicates the People of the State of California are the intended Grantee.
Page 3
Use and Condition of the Open Space Easement
Your letter also asserts the city has been inappropriately using the Open Space Easement, resulting in harm
to the open space. As acknowledged in the Coastal Commission’s Staff Report and Recommendation on
Appeal for CDP 97-59, the city uses the Open Space Easement for fire and maintenance vehicular access: “It
is the only beach vehicle access in northern Carlsbad and has been used by lifeguard personnel and city
maintenance crews to maintain the lagoon weir which regulates the water level in Buena Vista Lagoon.”
(Exhibit 5, page 9; see also Exhibit 3, page 7.) The city also uses this easement to maintain the city trail
within the easement. The easement allows for this type of vehicle access. (Exhibit 1, page 3; Exhibit 3, page
7.) The city’s gate access agreement balances the need for the city’s emergency and maintenance access
with the existence of the gate, which, as noted above, is allowed by the Coastal Commission’s past findings
and decisions.
During select fall and winter months over the recent few years, city staff temporarily placed three small
lifeguard towers in an already disturbed area of the Open Space Easement without a full understanding of
the potential conflict with existing habitat. City staff subsequently removed the lifeguard towers from the
Open Space Easement and does not intend to return them to the already disturbed area. Further, aerial
photographs showing the easement area in 2003 (two years before the city’s acceptance of the easement)
and recently in 2024) demonstrate the condition of the Open Space Easement has noticeably improved,
not worsened, with substantially increased vegetation and reduced disturbed areas. (Exhibit 6.)
For the reasons stated, the city does not believe that it is in violation of any CDP or easement connected
with 2401 Mountain View Drive or The Beach HOA parcels. The city wishes to continue collaborating with
the Coastal Commission to protect public access, recreation, habitats, and views of the coast and scenic
coastal areas, consistent with the terms of all applicable permits and instruments. The city will continue to
ensure that lateral beach access is protected and enhanced to the maximum degree feasible; and vertical
accessways, where applicable, are required in new development consistent with California Public
Resources Code Section 30212. Additionally, the city will contact The Beach HOA in support of a Coastal
Commission request that the HOA modify the Mountain View Drive gate entrance to resolve the
pedestrian public access issue the gate presents. Please do not hesitate to contact me as needed to further
discuss our recent correspondence.
Sincerely,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Page 4
1.Staff Report and Preliminary Recommendation for CDP 6-83-051
2.Planning Commission Resolution 4332 for CDP 97-59
3.Revised Findings for CDP 97-59
4. Beach Access Easement (associated with CDP 6-83-051)
5.Staff Report and Recommendation on Appeal for CDP 97-59
6.Aerial photograph of Open Space Easement in 2003 and 2024
cc: Geoff Patnoe, City Manager
Sheila Cobian, Assistant City Manager
Cindie McMahon, City Attorney
Kyle Lancaster, Parks & Recreation Director
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Eric Lardy, City Planner
Robbie Hickerson, Code Enforcement Manager
Lisa Haage, Coastal Commission Chief of Enforcement
Alex Helperin, Coastal Commission Assistant General Counsel
Exhibits:
City Attorney
1200 Carlsbad Village Drive ï Carlsbad, CA 92008 ï 760-434-2891 ï 760-434-8367 fax
www.carlsbadca.gov
VIA REGULAR MAIL AND
EMAIL TO: robert.moddelmog@coastal.ca.gov
6city
August 1, 2025
Mr. Rob Moddelmog
Headquarters Enforcement Counsel
California Coastal Commission
495 Market Street, Suite 300
San Francisco, CA 94105
Re: Easements Required by CDP 6-83-051
Dear Mr. Moddelmog:
Thank you for your assistance to date in providing various documents and laying out the history of Coastal
Development Permit, or CDP, 6-83-051 and CDP 97-59. This letter is in response to your letter dated June
24, 2025, regarding three easements you refer to as the Beach Access Easement, the Open Space
Easement, and the Bluff Open Space Easement. Offers to dedicate the easements were made in 1984 by
the then property owner as a condition of approval for CDP 6-83-051. The city accepted the offers of
dedication in 2005.
Use of Property and Mountain View Drive Gate
Coastal Commission documents indicate a fenced and locked gate at or near the present-day location of
the Mountain View Drive gate was installed at some point long before the approval of the 14-unit
subdivision under CDP 6-83-051. Both the previous and existing gate at Mountain View Drive were or are
within the Beach Access Easement and the Open Space Easement. The Coastal Commission did not require
the gate’s removal as a condition of CDP 6-83-051. Rather, the Findings and Declarations in the
corresponding staff report concluded that the 14-unit subdivision was “consistent with all applicable LCP
and Coastal Act policies since adequate vertical access already exists and the project will provide lateral
access opportunities.” (Exhibit 1, page 13.) Additionally, CDP 6-83-51 required the Beach Access Easement
to be “free of prior encumbrances which the Executive Director determines may affect the interest being
conveyed.” (Exhibit 1, page 4.) By not requiring removal of the existing gate, the Executive Director
implicitly determined the gate would not interfere with the public's right to lateral access to the sea or
affect the Beach Access Easement.
When the City of Carlsbad’s Planning Commission later approved CDP 97-59 for the Levy Residence, the city
did not impose any conditions addressing the continued use of the gate. (Exhibit 2.) Although the continued
use of the gate was an issue in the Coastal Commission appeal of CDP 97-59, the Coastal Commission’s
decision on the appeal did not require the gate to be removed or to remain open during certain times of
Attachment D
Rob Moddelmog
August 1, 2025
Page 2
day. Rather, the Coastal Commission’s revised findings discuss a long history of a “fenced and locked gate.”
The Coastal Commission ultimately decided to allow the existing gate to be replaced with an electric vehicle
gate, finding the gate consistent with the public access and recreation policies of Carlsbad’s certified Local
Coastal Program and Chapter 3 of the Coastal Act. Specifically, the Coastal Commission found in its Revised
Findings on appeal for CDP 97-59 (Exhibit 3, page 7):
The proposed project simply replaces the existing manual gate with an electric gate and
therefore, it does not change the existing access. In addition, adequate pedestrian access
opportunities exist in the area (as a vertical accessway from Ocean Street to the ocean is
located about 500 feet to the north) and the public will still be able to access the beach as
they have in the past. Therefore, the Commission finds the development as approved by the
City does not raise a substantial issue with regard to consistency with the public access and
recreation policies of the certified LCP and Chapter 3 of the Coastal Act.
The Coastal Commission’s Revised Findings are consistent with California Public Resources Code Section
30212(a)(2), which provides public access from the nearest public roadway to the shoreline and along the
coast is not required in new development projects when adequate access exists nearby.
Notwithstanding the Coastal Commission’s prior findings and decisions, the Coastal Commission now
asserts the city’s acceptance of the Beach Access Easement and Open Space Easement caused the
existence of the gate to violate the easements. The Coastal Commission has not provided any authority for
this position, and it is inconsistent with the Coastal Commissions prior findings and decisions. It is also
inconsistent with the language of the easements, which do not require removal or timed opening of the
gate upon acceptance.
The Beach Access Easement appears to allow for the recording of additional reasonable terms, conditions,
and limitations prior to the opening of the Beach Access Easement. Specifically, Paragraph 3 of the Beach
Access Easement (Exhibit 4, page 4) provides:
ADDITIONAL TERMS, CONDITIONS, AND LIMITATIONS. Prior to the opening of the
accessway, the Grantee, in consultation with the Grantor, may record additional reasonable
terms, conditions, and limitations on the use of the subject property in order to assure that
this Offer for public access is effectuated.
However, The Beach Homeowners Association, the current owner of the property where the gate is located
and the successor to the original Grantor, must first be consulted. The Coastal Commission, as the permit
authority for The Beach HOA project and the representative of the Grantee People of the State of
California,1 is best suited to determine the appropriate terms, conditions, and limitations regarding the
gate and initiate the consultation with The Beach HOA. City staff are available to meet with Coastal
Commission representatives to discuss options for the additional terms, conditions, and limitations and to
support the consultation process.
1 The Beach Access Easement does not expressly define “Grantee.” However, the discussion in
paragraph of 6 the easement indicates the People of the State of California are the intended Grantee.
Rob Moddelmog
August 1, 2025
Page 3
Use and Condition of the Open Space Easement
Your letter also asserts the city has been inappropriately using the Open Space Easement, resulting in harm
to the open space. As acknowledged in the Coastal Commission’s Staff Report and Recommendation on
Appeal for CDP 97-59, the city uses the Open Space Easement for fire and maintenance vehicular access: “It
is the only beach vehicle access in northern Carlsbad and has been used by lifeguard personnel and city
maintenance crews to maintain the lagoon weir which regulates the water level in Buena Vista Lagoon.”
(Exhibit 5, page 9; see also Exhibit 3, page 7.) The city also uses this easement to maintain the city trail
within the easement. The easement allows for this type of vehicle access. (Exhibit 1, page 3; Exhibit 3, page
7.) The city’s gate access agreement balances the need for the city’s emergency and maintenance access
with the existence of the gate, which, as noted above, is allowed by the Coastal Commission’s past findings
and decisions.
During select fall and winter months over the recent few years, city staff temporarily placed three small
lifeguard towers in an already disturbed area of the Open Space Easement without a full understanding of
the potential conflict with existing habitat. City staff subsequently removed the lifeguard towers from the
Open Space Easement and does not intend to return them to the already disturbed area. Further, aerial
photographs showing the easement area in 2003 (two years before the city’s acceptance of the easement)
and recently in 2024) demonstrate the condition of the Open Space Easement has noticeably improved, not
worsened, with substantially increased vegetation and reduced disturbed areas. (Exhibit 6.)
For the reasons stated, the city does not believe that it is in violation of any CDP or easement connected
with 2401 Mountain View Drive or The Beach HOA parcels. The city wishes to continue collaborating with
the Coastal Commission to protect public access, recreation, habitats, and views of the coast and scenic
coastal areas, consistent with the terms of all applicable permits and instruments. The city will continue to
ensure that lateral beach access is protected and enhanced to the maximum degree feasible; and vertical
accessways, where applicable, are required in new development consistent with California Public Resources
Code Section 30212. Additionally, the city will contact The Beach HOA in support of a Coastal Commission
request that the HOA modify the Mountain View Drive gate entrance to resolve the pedestrian public
access issue the gate presents. Please do not hesitate to contact me as needed to further discuss our recent
correspondence.
Sincerely,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Rob Moddelmog
August 1, 2025
Page 4
Exhibits:
1.Staff Report and Preliminary Recommendation for CDP 6-83-051
2.Planning Commission Resolution 4332 for CDP 97-59
3.Revised Findings for CDP 97-59
4.Beach Access Easement (associated with CDP 6-83-051)
5.Staff Report and Recommendation on Appeal for CDP 97-59
6.Aerial photograph of Open Space Easement in 2003 and 2024
cc: Geoff Patnoe, City Manager
Sheila Cobian, Assistant City Manager
Cindie McMahon, City Attorney
Kyle Lancaster, Parks & Recreation Director
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Eric Lardy, City Planner
Robbie Hickerson, Code Enforcement Manager
Lisa Haage, Coastal Commission Chief of Enforcement
Alex Helperin, Coastal Commission Assistant General Counsel
~,.. <ii:•.
.... -
f
• Calif omia Coastal Commisiicn
SAN DIEGO CO...ST OISlRICT
~ 154 M:5s,oo Corge Koad,Suite ~20
San D•P.Go, C.\ 92120 •
(114) W(H,992
534 rlLED,
49th DAY:
ls.10th DJ\Y:
S'?Al'l!':
STAFI' RZPCR'J':
DATE:
REGULAR CALIWDAR
January 31, 1983
Wai~ed·
July 30, 1983
ONL:lro
Mn~ch 22-25, 1993
March 11, 1983
STAFF ~PORT ANO PRI:;LIMINARY R£t:.<!._-IHENDATION
Application No,, 6-83-Sl e:~H\131, W ,, E ,,
Applicaut1 Native Sun Inve:st.Jnent Group Agcnt1 Mike Mahoney/Robert O. Sukcp
Deocription: Minor 1oubdiviE.io;1 of 7.1!>5 •lCrt? paz:cel into throo lots: Lot l -
2.2 acres, 1/.>t 2 -2.2 ocr~~ a~d Let 3 -3.1~ ~cres. Also,
construction of 14 condomin 111"'~ m:d swimming p~,ol on Lot L
Site:
Lot area
J,ot 1;
Building cov~!rage
Paveiacut '.:OVC:rago
t.andsca1~0 coveL·age
Parking spaces
Zoning
Plan designation
Project dennity
Ht: abv fin grade
95,8J2 sq.ft.
30,956 $1,ft.(32~}
32,967 sq.ft.(35\)
Jl,909 sq.ft.(33\)
J5 .
R•J
o-4 dua '(ne:t w/density credit)
2, 5 (net)
35 tt. max:lmum
Parcel located no.cthwest of Ocean St./1-tountain View Or. J.nt~r-
e~ction, Carlsbad, San uie90 c.:ounty, APN 203-0l0-i4
Substantive File I>ocum~nts: °City of Carlsbad LCP
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•statewide lnterpretive Guidalin~s
°CCC/t6-81-249-Nativ~ Sun
tlt.afl-~~ ~~g •P-~QVal. wi tl\ ~P'l-ditions ~~seing .~v_iH,41 .,~t.e ploi,s /
publ.lc liability, open space easic111enls over the bluff hcc, runoff and grading
controls, open space cas-,m(?ncs ovt.tr scnsiti•1e habitat/buffer areas, land-
scaping, lateral access and public access in1provcmonts "I'!" -:''Y':'hc!t:!:.bgic.ll
n:i tlgation (see pages 2 .. 'I ) for Lha spl')cfol conditfon!>. Ha:t-ol:, i _SSl.fP.•. f
~~lpde ~e ?)nt:Cllltf-Ot_i~n o.t.,.4evolQlffllont on µpbnd #l~eas, lcvalc,pmerit of
ailtt"8t'\?9·,,-,n&fst\1nt with ·the eertifiucl 'LCP, tho retention ()f natural buffr.:r
area~ and preccdential effects on th'-' LCE' implcincutatiou.
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EXHIBIT 1
t
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STAFF RECOMMENDATION:
The staff reccmaends the Commisdion adopt the following resolution.
l. A~roval with Conditions.
The Coll\llliesion J;lf#.:•ieby g·onts a pemi~ for the proposed development, subject
to the condi~ions bal.ov, on the grounds tha~, as conditioped, the developmGnt
will be in conformity with the provisions of"Chapter l 9f the Cc\lifornia
Coastal Act of 1976, will not prejudice the ability of,~a local government
having jurisdiction over the area to prppare a Loca~9astal Program confomtng
to the provisions of Chapter 3 of t.hc Coastal Act,..-ahcl will not have any sig-
nificant adverse impacts on the environment within the meaning of the
californi~ EnviroJ11110ntal Quality Act. / /
II. Stand~rd Conditions.
See page 16.
III. Special Conditions.
The pormi.t is subject to the following conditions,
1. Revised Site Plan. Prior to transmittal of the permit, the applicant
shall submit a revised site plan, ·any associated floor or grading plans which
eliminate any alteration of the bluff fa,tl. by re-siting the units generally
behind the 30 ft. contour line on thG northwesterly and westerly slopas_1 :(or as specifically shown on Exhibit C), relocating ,$,he proposed swialmig
~&«ec$8 i-~ oi--i;he blU:f:;up ~-~l~~-l~h~l~~ting the
propo1::1E:.:. ~~~e-a'e1\'"tta'inra1• ~owards t3uild1ngs D and E in the vicinity
of the eroded dir.t r~ad. Said plans shall be submitted to, reviewed and
accepted in writing ·~y the Executive Director.
2. O~en Space Easement/Bluff Face. Prior.to the transmittal of a pormit,
the. applicant shall record an irrevocable offer to dedicate to a public
.i\~,~~1,_or ~o a private association acc~ptable to the EXocutive. Director,
'&n .. ~,••e=-1mat~<!l!,~. ~~ bl~~ ~~acf as shown in Exhibit o. Said
open space easelllOnt shall prohibit any .. alieration o! landforms, plocomont
or re110val of vegetation, or er~ction of structures of any type, unless
approved by the California Coastal Com:nission or its successor in interest.
The offer shall be h:revocab!.e for a period of 21 y~ars, shall run in fa'lor
of lhe People of the State of California, binding successors and assiqna
.,f the applicant and/or landowners, and shall be recorded prio~ to all
ot~ -~r liens and encutllhr11ncos except tax liens. The offor. to dedicate shall
be .:.n a for.m and of I!· ,ntont acceptable to tho Executive Director and the
,1.;,--.. lfent shall incl :.Irle legal deacr ,tpeiona of both tho applicant• s entiro
pe.1 c-'ll and the ea::ielft&;nt area.
3. Waivor of Public Liability. Prior. tu transmittal of the coastal
development pemit, t.ha applicant shall submit to the Executiv~,D1roetor
a deod re~triction for recording free of ~rior lions e~cept for tox liens,
that binds tha applicant and uny successoro in i~terest. Tbe tom-and
content of the dead rcstdction sh<lll bo submitted to tho review ,md
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I'age 3
ap~roval of the Executive Director. The deed restriction shalt provide (a)
that the applir;ants understand that the site m,•Y be subject to extraordinary
hazar~ from c:Ioaion and frOlll landslides ane1 th~ applicants assume t.he
liability fro@ thonc h~r..irdsr (L) the applic:ant:s unconditionally wdvu
any claim of liab.Uity on the part of the ComMission or ~ny other rogulatQ?}'
agency for any dAl!lclge from such hazQrds, and (c) the applicants understand
that construction in th~ face of these known hazards may lrlake thein ineli,;Jible
for public diaster funds or loans for repair, replacement, or rehabilitation
of the property in the event of storms.
4. Runoff Coritrol. Prior t" the transmittal of the parrnit, the appll~nt
sh.all submit a runoff control plan prepared by a licensed engineer qualified
in hydrology and hy~raulics which would assure that there will be no increase
in pea.Jc runoff rate from the developed site over the greatest discharge
expected from the existing undeveloped site as a result of a 10-year
frequency stona. Runoff control shall bo accompli$hed by a variety of
Dleasures, including, but not limited to, on-si tc catchment basiats, detention
basins, siltation traps, and energy dissipators, and shnll not be conc~ntrated
in one area. Sub-drainage syotems, if necessary, to remove groundwater frO!II
the bluffs shall also be incorporated. Said plans including suppoi:ting
calculations shall be submi tt.ed t:o, reviewed "'nd accepted in writing by the
Executive Piroctor. Tho applicant shall ah.o submit, for his review and
acceptance in writing, dctail~d 1naintc-nance arrangements for providing tha
ongoing repair and mainte:nancc for all a.pprovod and erosion-control facilities.
5. Gradin<J Jtest.1:idions.
,a .. , , __ -~~-~.,,fi~~ shall l.;!c prohibi tad during the rainy soaaon trom
'!1iBr Mrt'CS'i\l2-' . l' __ Tit m: ea~~.
b) All gra~ed are3s shall be l3nascapod prior to OctoLer 1st of each
year with oither temporary ot' permanent landscaping materials, to reduc..:e
erosion potential. Such landscaping £hall be maintained and replanted if
not we.11-ostablJ.shed by Ducclllber ) st followi1;g the iilitial planti-ng.
c) All pel""lrulnent ero.-don control devices shall ha d~v.elored rlnd
installed concurrent with or prior to any on··site grading activities.
d) Sandba!Js, gravclbags .:.nd temporary drainage basins shall ba
inst~lled along all !ill slop~s and along the shoreline of Buena ViGta
La9O0n d11ring grading and ccnstruction op"!r«tions.
6. OE,cn Space Easc:ml•r.t!.i/llabit..1t Prot~cti~n and Ruffl"lr Areas. Prior to
~ansmi Unl of ca 1>crn111·, the applicant shall record ~ it:;:r,o~ocable of far to~ J
R AA-~-4~-J~:F.-v-i~m9y, or to a private assaeiatiotr·l(~le•to t.ts~f bl:Jl~ ·1n ·ogen apace casol!IOnt over ~t·l,cif'the·proposcd sub-
on ilS shown on" ~xhrn1t·~.i. .. 1-'S'a11d o~cn ·~r11'co ·•~a~cnt sh.111 prohibit.
any altcr.ition of landforms, th<? pla.:.-em~nt o.t· removal of vegetation ~xcept
as spoclficd heroin. Thtl irrt:voc.11..>lt? offer to t1ccUcc1tc an open epttcc easa:ment
shall include condiliom1 px-ohibitir.•J any futun• l«nd divisions, commercial or
residential development but t.!Xprc!lsly ro~oCJnizin9 the r i ght of access to the
weir for mc1intenclnct: l'Urposas. It shall a loo rccogniz.o the right of the
accepting c1qcncy to conduct act:ivi t.ic•!i within thu oprm spaco arNl whieh
,1c.,uld cnh,tncc tltu l.:1gocm hJbi L,1l hy <h:"!.!ll<J.in•J c,r <.>lh<.:i-wi~..: removing fill,
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6•83-51
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The offer shall recoqni~e tha~ tha erection of soma public access iU1provements
may be allgwed, in consultation with the State Dcpa~tJllont of Fish and Game,
and aubjaet to Coastal CQ!mlission permit requiTements.
The offer sh4l.l be irrevocable fer a period of 21 years, shall run in favor
of the People of the State of California, binding successors in assigns
of the applicant and/or landowners, and· shall be recorded prior to all other
liens and encumbrances except tax liens. The offer. to dedicate shall be in
6 fona and of content a~ceptable to the Exocutive Director and the document
shall include legal des~riptions of both the applicant's entire pQrC~l and
eaaement arus.
7. Landscaping. Prior to transmittal of a coastal develop,nent permit for
the subject project, a detdiled landscape plan indicating the type, aize,
extent and location of plant materials, the proposed irrigation ayatem, &nd
other l&ndacape feat~es shall be submitted to, 'rcviowoa, and ~ctermined
adequate in writing by the Executive Director. Drought tolerant and
salt-tolerant plant materials shall he 11tilized to the maximum extent
feasible.
e. Latei:ul Access. Prior to transmittal of the permit, the Executive
Director shall cextify in writing that the followin9 condition has been
&atis£ied. The applicant :h~ll c:::~ut~ ~.d =~cQ~d a dac~nt, in~ fQr•
and content approved by the Executive Director of the Corn111ission irrevocably
offering to dedicate to a public agency or private association approved by
the ~~utJ.va . D:,rect.or, ff e~!em~t for public accean. and .,I:'-~~~-~¥-.J!Wl \we::~119.na~'ll , st} Y,z31'ho clocumeh"·"shatt also · restrfct tho applicant
lt~fu-rni.er\Yring with prcser.t use by t.he Puljli~ of the a~eas $u.l,ject to the
eaawnon~ pric,r to .icccptance ur Lh•-· offer. 1~ ea1•--m~:.,l:'li~!! J:t .J.rrt.!-'d/ .... w~~~ .lP~. 2 ~~-,Lat { of the proposti~ s'llbdlvision, as shown
on Exhibit~cnctea8f!lllent"sha11 be recorded fra::-.-.f prior liens e>tcept
tax liens and free of prior enc.umbrancas which tht:-• ·•:Gc:utive 1.'irector
determines maY-affect the interest being conveyed. The offer shall run
.... with the la_nd ·1n favor of the People of the State of California, binding
successors and assigns of the applicant or landowner. The offer of dedi-
c~tion shall be irrevocable for a period of 21 yaar~, :u::h period r,..1.n.n!.!!'J
from the date of recordi;-;9. Th~ document !iha.ll include le9al descriptions
of both the applicant's entire fldrcel and the easement area.
9. Archaeological Resources. The applicant shall comply with the
adopted mitigation measures on cultural resources in the certified E.I.R.
for the project.
IV. Findings and Declarations.
The Commission finds and doclarcs as follows:
l. Project History. The appllcclnt has previou:lly applied for a coastal
development parmit (16-01-249) for the same proj,~ct on the site lasl: yoar.
In June 1982, the Commission conditionally lpprov~d the projoct with two
alternatives for the construction of either 14 or 10 condominiwns on the
upland portion, dopcndent oo the incorporation of an adjacent par~ol
(corn111only rcf~rrcd t, us th,• "Tcn.a•Jlin" property) with thr. projC'!ct. situ,
consistent with th\! ccrtifiud Carlu~ad t-CP. With the excr.ption of the
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~U: . .1:fV,!.,1tiona«5.9. .F.Q~Wtl,~~$P-\)fft.iea, ~ho -,.•ta4at :~n C 1-tloae-,ct,.,J a■ 11M tr 7:±f~~ pN>pOJ,,ed h~mint . .
.Tho prcvi~usly approved condition:.; to. resiui~~ PF~perty c_on.so~i~~-uauat/i
·J_!.C!Li;be, qst~ ~ls~ La .~lic}:~s and "' ~~~~~!',. ~~ra!U'-dispute -,ma-T!Hgal~~tween-·~h~ applic~nt, ~ltle Insurance and Tru3t· Company and
the State Lands Commission. l\s backgrqund, Native Sun ,~ri9inc1lly took out
ti.tle insurance on th~ adjoining Tcnagli.a site ,.I\PN's 155-190-06, 1!;~-101-62/aee
Exhihit G) and intended to collllllit it to opan space ~s a t~adeoff for developing the
lowlands area, CQm~ri9ed in tha proposed Lot 3, in their firse local govern•
merit submittal. However. dnring th~ original propo2al' s r1.:•1iew by the City
of Carlsb~d, the applicant stopped mo1·tga9e payment.a on the "Tenaglia parc~l"
after the State Lands Commission ass~rted public trust cl.iims. After Native
Sun stopp$d payments, Title Insurance stepped bc1d; in and purchased the
Tenaglia ptoperty and it holds the actual grant deed while Nativa sun
possesses title. As a result ~f these circuMstanccs, Native Sun is in
litigation against both the title compauy and State Lc'.lnds with Title
Insurance representing them against th'l Lands Commission. Although th~
original coastal devel~ment permit application (#6-81-249) did not includ~
tho adjoining pa1:c:el, ~! .. fr~~se": i-0.1:_)J'~! __ sh~ ~1 "~•~!1 for future J ~~~;r' ...... ,Sh .... ;'< u • ,.4 !' • •' • • • • •••••• :. • . r' • r
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Whilo the applic~~t finally Ayteed to the open space easement over Lot 3,
they contended that commiLting to an open spac~ easement over thn adjoining
2.65 parcel ("Tenaglia property")· would damage their position with Title
Insurance and Trust Company. specifically, the applicant is litigating
that it 1id not r«:~cive f ee title to an Wh::ncumbcred parcel of property and
the property should not therefore have been insured. Once the applicant
learned of thE: potential public: rights over the property, they stopped
payments and the original own~r. began foreclosure proceedinqs. However,
~s pr;eviously noted,_ Title Ins urance stc:ppcd in, paid off the origit\fl.
seller and now huldH the nott:! and security on the parcel. ·~'l'herefore•,
t11thOUib.,.tba.~9.U~ ))ol4i no titla to the adjoirµ.nq pa:-cel and indicate~
'::~iA1:-~~,t~t.a,1~0 o~q space, .. tJl.,Y .f?~d ~~r ,~~U~G_,_~¥, !~"f;t
~>:~' -~~t~-~ o{. 'l;~~:;Jlpa~tn<:a_ ae a th!:td ~ti•'/
Under t~o:3e circumst.r,mccs, tiAl;4m>1!can~.))Etiicves any agrecaent to cc,mmi t
the adjoining parcel to op~n space would damage their lawsuit, since Title
Insurance and Trust Coroi,,,ny could ass('rt that its commi tmcnt is only part
of the developraen~ prlce for th~ permitted condondniums, rather than any
title defects on the p.ropcrty. f'urtilcr, the applicant continues to contend
that Title Insurance, as holder of the note and secur.ity, will only co-sign
on the open space cas cmunl vffer if tho applicant scttl~s thair la~Auit,
possibly losing a substantial investment. Tlu.is,J l.iwsttits aro st ill pending
and th~ i~t1uea. remain unn.solvr-d. ~ Given the applicant's d~clarationa of ,1
\heiJ ~1.edJ:flbi.:.ity to e~cc:;t1ta . ~h,t:pe_c;~sr--ary Pta;eementf!. bocaus_e of th~
. JrisoJnst,M~ , • ~l\~i~ ~eaif~ to 9ain opproval for the or,igidl/ ~!! .,,.~-~~Jl~!'.~f~~flitqd ~~ ~cc~8~}1.1~,r:2~a,1:,: IM''.:, I
li-iigi~ , . , -~$1\I,. f:'IIV~, . . •· a ,-
2. Detailod Projn-:L Doscriplion/Loc.,t ion. The applk.:uat is rr.t(Juesting
approval of a 111inor subdivisio11 of a 7 .65 acre parcel into throo lotu. Tho
lots wodd bo divjde<.l as follows, Lot 1 -2.2 acres1 Lot 2 -2.2 acr,ni and
Lot 3 -3.25 acrci. The ilpplk.inl then propo:;c·s to c:011:;truf.t 14 i.;ontlcw;lnium
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\11\its on Lot l. Th~ subjr.ct property is topographically dist~ngQi&hed b~ two
areas. An upper bluff extend~ out from Oc:ean Street and fronts along the
.beach. The second ar~a, app~oximately 10-15 ft. below the bluff, consists
of sandy/rocky beach areas terminating at the wood weir on tho inouth of
Buena Vista I.agQon and then extends eastward to some lowlands abutting the
lagoon behind some adjoining aparcmcnt9. I.ot 1 generally co~prioes the
upper bluff area and the proposed condatniniums would be developed priu,arily
on its level mesa. The applicant proposes to dedicate tot 2, comprised
inainly of boac:h area. land t.ho lagoon mouth, to the public for open epclce. a-o;J.giA&l.ly 8Ubmitted, the applicant proposed to reserve the remainfng
~. ~$ ·-•~•' • ·Qf {~,.a. 9,1; .,•~· for poaeible· t'uttn"d •\favelopment ~:SJ, ..... lit)ll:--~~.fo# ~Ql,J.lo·--Wo.~opa;...-· . ses.
The proposed 14 condominiwn units will be comprised in seven townhouses (or
~common-wall") structures. Ten of the proposed units will have two bedrooms
and living area between 2500-2600 sq.ft. The remaining four units will havo
three bedrooms and approximately 2,850 sq. ft. living area. All of the unite
have two-car gnra9cs and 6even open guest parking spaces are provided on the
site. There is a single access point for the project from Ocean Street. The
proposed condom.lni\llDS are mainly comprised in two living floor areas with some
spilt-level entrances and garages. However, because of the Tudor architectural
dusigr., the structures' roof peak$ will reach ft maximum height of 35 teet
above grade.
The submitted site plan delineates the construction of ten unite along and
over the bluff top (refer to sections) a~d the remaining four units are
located along the southeastern property line. As Gubmittcd, a retaining
wall of varying height will be constructed along the bluff face. There will
be minimal grading perfotmed on the property r~sul~in9 in a bal~nced 4,000
cu. yds. of c:ut ana 1..1..U, An -4V-.:ra9e v,. two feet of cut and fill will be
done and most of t~e fill will be deposited along the southeastern cornP.r
to elevate Building~ F and G. As subtnittad, the sito plan incorporates
a conunon .pool/deck area situated within tha ocean bluff face and private
beach access itairu which trav~rse down the bluff to the shore~ine . .
For background purposes, the applicant had previously submlttcd a 40 Wlit
condominium projec:t on tho subject site to the City of Carlt;bad and for
draft consultation with Coastal Commission staff. .l\t that tim~, the project
dte included not only the subject 7 .65 acre parcel, but an additional 2.65
acre property (sec Exhibit G) located adjacent to the lowlands area of the
proposed Lot 3. ~lhile the. acreage is Gtill owned by the applicant, it was
not included in the current application. The originally proposed 40 ut1its
were sited on both the upper and lower portions of the property. Due to
exprossed concerns by tho City of carl9bad, Cosnmi~~ion staff and interested
parties relating to beach erosion, public lands determinations and visual
iD1PDcts, among others, tho applicnnt subsequently vithdr'1a' the project
from the City. The original 40 unit project was never f~rrnally submitted
to the Coastal commission.
The Pointe San Halo project is located within th!! City of Carlsbad on the
south sido of Buena Vista lagoon and adjacent to thn ocean (sec Exhibit A).
Tho par~el ia located northwest of the Ocean Street/Mountain Viow Drive
intersection. on tho wcat, tho site fronts t'n the ocean shoreline:, and on
tho north, it faces tho lagoon, an "ecological rcscr"c", oppot.ito tho
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exinting SJn Malo rosi~ential area in South Ocannsido lying on the north sido
of the lagoon. A public teach accessway abuts tha southern property line.
Multi-famUy residontial dovelopmont is located to the east with the lagoon
·and railroad tracks nituatnd Curt.hex-to t.he northeast.. 'l'h&r'! aro single-
family residences situ.atQd to the south and ~cross O<.·oan Strc~t to the
southeast.
l. Geolggic StabilitX• As previously stated, the Gubject site can
generally be divided into two topo9raphic areas. Tho upper level, a coastal
bench, i& actually part of a larger b~nch which terminata~ at this site. The
top of the bt:I\Ch aloros graduc1lly northward with slope gradients r<loging from
25-45 pe1cent along the ocean. The sccontl lopographic area .is the lowor lcvc~l
consh,ting of the ocean, beach and lowlandn fronting the laqoon. The beach
•rea cwn be best charactari~eJ as A p~bbly ono with only a limit~d a,rour.t , f
eondy area. Tho project site i9 overlai.n Ly throe dlffere:tt soil sories -
Marina Loamy coarse Sand, 'l\nrc1c<: t:scarpmonts and Coaotal Beaches. Mot.t of
the project area is covered by Muina Loamy coarse Sand which is found on the
gently sloping upper b<'nch and has a rnoder.ito oror.ion hazard. Thu Terra'-c
Escarpment soil is found near the western boundary and is characterized by
staep to very steep slopes in th~ southwest corner occurring on t~rrace
fronts 01· alluvial fans; it exhibits a scvc;c erosion hazard. The third
soil type, Coaatal Beach~sf found along th~ lo~cr !ev~l is cc~po~ed of ;r~~cl
or sand and is susceptible to tidal inundation from the ocean, it alno ~xhibits
severe erosion characteristics.
Th~ certified carlebad LCP specifies the.nead for new development projects t~
subll1it a site-spe~ific 9colo9ic investigation, to limit ahoreline structures,
and to ~xecute ltaivers of puh.iic Hak>ili l:Y. Adch uonauy ~ 1-'0 I 111y 4-4 sp~-::1 ft!:S
"no development shall be permitted on any sand or rock beach or on the face
of ~ny ocean bluff, with the exception of accessways to providt'l public beach
access and of limitod public recreation facilities." In reference to this
specific site, Policy 7-8 sp~cifically states "residential dP.velopment shall
be clustered on the highland area and the bluff face shall not be ~ltered
[and) t-.hern s'1all t-"" ~ppr()p!'!i!t~• bluff top S!:tbac:l-..!.ba~cd en g!'o!ogic reportf:
taking into account the prominent location, shoreline instabil.i.ty and signi-
ficant habitat adjacent to thl? lagoon." Additionally, Policies 3-1 and 4-7a
specifically state the development of slop<!s greater than 25\ incline shall
be prohibited and such slopes be left undisturbed. These .LCI? policies
rcpre!;cnted the incorporation of the Act's policies (Sections 30235 and
30253) into the general plan.
As detailed in the JJroject "dcscriplion, ten of the proposed condominiuni:1 aru
sited directly on or over the ocean bluff top and face with a retaining wall
constructed Uong tho ocean frcnt!lg<-'. 'l'hc proposed retaining wall was
primarily designed tQ .:llo.; some backfilling to crccltc a4ditional yard
a~ca for the future condominiums on the hluf! top. Uowovor, as submitted,
tho proposed development woul<l th11rcforc bo inconsist,mt with the certified
LCP policies, sinco it would involve alteration of erodible and stacp slope~
particularly located ·a.long the property• s wci.turly bluff face and could
therefore precipitatu coa8tal erosion. Special Condition 11 requires the
applicant to redesign tho site plan and construct th<J proposed units behind
th~ bluff top, relocate tho swill'IJ!ing pool/du~k away from tho bluff face and
rr.locato tno private beach acccssway. G~n~rally, the Commission dor.s not
and tho certified LCP doou 11vt cnJorsu ll1,i c.:~nstru~t-ion rJf priv<1tc acccs s .. m1:;.
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located about lOO feet cast of the weir. Portions of the adjoining property
~o the ocU;t also d-cain into the lagoon via this oxistin<J pipe. Buer.a Vista
Lagoon is considered thn northernmost lagOC\n in San Dlego County, and in some
wayo is not typical of most other lagoomi in the county. ThQ lagoon is
composed of fresl\ and brackish 1-1atcrs, is not open to the sea, and it.s nonMl
surface level is approximately six fe~t abov<:! HSL. At the mouth of t.ho lagoon
iu a sand beach barrier which was natur::.ally formed by wave and littoral cutrcnt
action. A wooden weir is located within a manmade channgl at the n1outh ~f
t.he lagoon which permanently cmpounds watuE in the lagoon c1.nd controls th3
wat.~r lc"el. A land area of approximately 22 squar~ miles drains into t.he
la9oon through Buena Vista Creek. The main Murce of water in the lagoon iz
land dr~inage, agricultural runoff and rising g~ounewatcr.
Buena Vista Lagoon has been designated an "Ecological Res'et"vc" by the State
o~partment of Fish and Game. It is both a valuable biol~gical resource and an
aesthetic open space element. As is the cas~ with all of the lagoons in San
Oie90 County7 Buena. Vista tago~n has been adversely affected by increased
deposition of sediment resulting from agricultural and suburban developll'ent
in its watershed. Primary effects of this development include the infilling
of the lagoon and a reduction of its total volume and the introduction of
various nut%ients or pollutants which contribute to periodic algal bl~pms.
The primary off~ct! of th~ pTnpnsod development would be the alter4tion of
local drainage patterns, increased runoff due to th~. ·~resonce of impervious
surfaces, tha exposure of soils to increased erosion and the introduction of
incroas-ed levels of urban runoff.pollutants irito the lagoon • .
The certified LCP for the City of Carlflbad contains several policies relating.
t.o grading requirements, drain11ge and coastal erosion. Polic}· 3-2, in
reference i:o develo~ii\°ants located along the first row of lots borderin<; the
lagoon, incl1,1din9 the subject parc,~l at the motJth, states "storrn drain
alignments ... which '-lould bf:! carried through or empty int.o Buona Vinta Lagoon
shall not be permit:t.ed; ... " Policy 3-4 prohibits any gz:4ding act.i vily during
the rainy season and requires the inunedi~tc revegotation of graded arr.an to
zcducc erosion potonti<1l. Lastly, Policy 4-7 also states that no development
shall be 1~.mitted w.i Lhuut $11LmlLt. .. l of ac.::~f,table ru,ivff co,,trvl pl.;;;;;,
maintenance ag~eeMents ~nd certain specifications f~r the installation and
operation of runoff control devices. The tcP policies ware derived from the
resource protection and water qualit.y standards (Sections. 30231 and 30240 (,1} {b}}
of the Act.
As previously stated, although the applicant will be performing a minimal
amount of grading over the site, the construction activity occurring along the
bluff face and top, will present a significant erosion hazard. The con-
struction activity and 9rad.i.r.q operations will thus establish ahort-t~rm
iMpacts. Along with the required site plan redesign dn~opcn space e~sement
<.Wet the bluf.f face, Special Conditions 4 and 5 rl?quh:u the submittal of a
runoff control plan and establish. r~strictions to detail the time and
method for the grading activity. With these ~onditions, app~opriatc
erosion controls will bo established to mi ti9ate the short-t.e~ impacts of
grading and prevent further &iltc1tion of the lagoon. With regard to drainage
and runoff, tho project, as submitted, inc;Jrpot·ates roof down-prain systems
connected to the stonn dratn nnd a requirement that a drainage outfall shall
bo ~csigncd to discharqo at a point w~st of the lngoon weir. Sinco the dis-
charq~ voint. is wctit of the wdr, the 1,ou•11li..1l for ,rny lr.,ng-tl?t1TI imp..ic:ts to
the closed lagoon will L>u offectivdy miligi.lll!d. 'l,,a sul>mittal of a runoff
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control plan wil-1 serve to document the effectiveness and oporation of the
4esigned drainage s1stem. Thorafore, given the rP.quired runoff and gradir.9
controls, along with the submit~ed drain~ge system, the Conu:nisnion finds
the proposed development, as c:onditionad, consistent with all applicable
LCP and Coastal Act policies. Fur.ther, the Commission thus determines that
the project approval, as conditioned, should protect the bialogicAl product.-
iv.Hy and ql.l4U.ty of the lagoon and other adjacent environntcntally sensiti..,.,1
habitat values ~y controlling runoff and effectively mitigAting cff-sita
impacts.
5. ~iolosi,isal Reso_llrces. Although the existing vegelation on the site •
consists primarily of non-native grasses and weeds, two regionally significant
habitats, a coastal lagoon and coastal strand community, do occur on the
subject property. Only a sma.11 port.ion of the lagoon habitat, however,
actu.illy lies within the property bound,:ir·1, but activities on the
• property could affect the quality of the entire habitat. This seemingly small
l~goon located in and around the subject property, i9 actually a portion of
the larger Buena Vista Lagoon, which has been di:. tlssod as essential habitat
for the Califo~nia Least Torn. The lagoon also provides nesting and foraging
habitat for other avian species although the quality of this habitat is
decreasing due to continuous d~velopment along the edge of the lagoon. The
Pointe San Malo property is one of the la~t vacant areas along this portion
of the Buena Vista Lagoon. Additionally, the coastal strand habitat is a
plant community which has beco~e rare in San Diego Coundy due to development
along the coast. The community consists of plant specias which are tolerant
of salt air and sandy soil conditions. ii:his habitat is located on the sandy
soils near the base of the west-facing slope. Although the coastal strand
habitat on the property has been disturbed by hwnan activity, it still
c:ontaims zieverai oi the plant speciel'I charac~E:riscic of 1:hc coas~al stranci
community.
In reviewing the po!icies of the certified V.::P, Policy 3-2 specifies foe devel-
opments located along the first row of lots bordering Buena Vista Lagoon,
including the subject site, as follows:
~--------------
Development shall be clustered to preser~e open space for
habitat protection. Minimum setbacks of at least 100 feet
frolll the wetlands shall be rcquirf.'d in all development, in
order to buffer sensitive habitat ftreas from intrustion.
Such buffor a~eas, as well as other open space areas
required in permitted development to pres~rve habitat
areas, shall be permanently preserved for habitat uses
through provision of an open space easement as a condition
of project approval.
'l'he density of any permitted development shall be based upon
the net developablc araa of tho parcel, nxcludin41 any portion
of aparcel which is in wetlands. As describ~d in Policy 3-l,
a density crodit rnay bo p~ovided for any portion of a parc~l
which is in steep slopes ....
Land, divleions sh~ll only be pcmittcd on par~els bordering
the Lagoon pursuant to a ::;inglc plannccj urtit dovolopm~nt pr.rmit
.!2E., tho t:ntiro odgin.'.ll 1,c1rcd. (cmphr,.Gi~ ~dllcd)
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In addition to thitJ site spttcific: policy, Policies l-1 and 4 77a ag<lin
prohibit grading of steep slopes and Policy 4-4 prohibits developmont or.
th~ face of any ocean bluff. These LCP palicies were derived from Sections
·302Jl, 30240(a) and 30240(b} of the Act which require th~ p~eservation of
habitat values by maintaining natural vegetation buffer areas and prcven~ing
off-site impacts to environ.mnntally sensitive areas.
As submitted, the project would involva elimination of the eoast~l strand
vegetation on the west-facing ~lopmi and rescrvfl the lowl,,nds area, comprisin9
Lot 3 of the proposed subdivision, for future dcvclcpment:.. The project would
therefore bo inconsit.tcnt with the crrtificd LCP policies and resource pro··
taction policies of the Act. Howcvert with the attached speci~l condition
to preserve thll bluff faco a$ open space, the coastal strand community will
J:·e minimally impacted. As ccndi tioncd, the Col!1111ission has also requirEld
Let 3, consi&tcnt with the sitc-sp..:cific, certified LCP policy, to be
committed to open space for habitat protection and natural buffer area.
With re9ard to tho inclusioa of lhe adjoining parcel, along with ~ropoaed
Lot 3, and their commitment to open space, their consolidation would fulfill
and implement the certified Carlsbad LCP. However, given the a1:.plicant•s
limited ability to properly commit the adjoining property to open spa~e duo to
the existing legal constraints and the Commission 1 s previous approval which
offered two alternatives. on~ without the lot consolidation, the submitted
project, in and cf itself, ~~y ba few.ad ccn=i;tQnt with Chapter J policies.
With the open Spfce restrictions on Lot 3, the project will incorporate
adequate natural veget.ai.iVt: buffer areas necessary to mit.,igate. the impacts
of construction and increased human activity near the lagoon and penanently
preserve cr:i ti cal ,:ip-2n ~p;i,·•e r:or.ridors. 1'hcrcfore, as conditioned, 1.he
Commission finds project approval consi.atent with applicable Chapter 3
,iiV1.l~ieo.
6. Visual Impt1cts. The proposed condominiums arc situated on a prominent
e..icean bluff and also located within the Buena Vista Lagoon vicwshed. Although
the proposed units arc generally clu~tercd on an upper bench level, the
prQj~ct, as 9~tted~ ~ill elter =nd cn~~c~;h ontc thn bluff face. ~s
previo~sly stated, the certified LCP for Carlsbad specifically requires
that development of thi$ $itc bo clustered to preserve open space and retain
the natural landforn1s of the ocean bluffs (Policies l-2 and 4-4). These
policies wore partially derived from Sect.ion l02Sl of the Act which mandates
the protection cf public views, the preservation cf scenic amonitics in
coastal areas and the retention of natural landforms.
As conditioned above, the project will be raquired to setback from the ocean
on its blufftop, preserve the nceiln hluff face in its natural state and retain
the on-site lowlands ~s open space. These conditions will largely miti~atc
the project' a visual impact by clustering tha units away. from thQ uluff line,
thus rninimizing it8 intrusie;n &long the shorn line or within the lagoon view~
shed, and by retaining the natural vcg~tation of tho area to serve as visual
b\lffors. The applicaat contends that the submitted site plan conforms tc
t~e existing atring1ine of development along tho shoroline. Whila the
adjacent residences to the south and ~he existing San Malo residential
comm1:111lty to the north in Oc~nsidc across tho mouth of ttcc laguon do extend
furthQr scnward than the proposod development, the subject sito does not
rcpl'csunt an infill area. but, rnthcr, it is vfowcd aa on cxtcnninn of
dovclopmcnt northward at .:i critical lnl1..:rf,1cc ln:twucn th,.: oc,1J11 i.11111 t.hll
la,goon. Therefore, not only !or hauitat and resourco prote:ction }-iUrposos,
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Sections 30210, 30211 and 30212 of the Act all require tho1t public: acccso to the
shoreline and along the coaJ;t bQ maximize~ ,mti ptovided in al.i new dov.:il~pft+Gnt.i;.
Although the propos~d drn•eloprr.cr.t will not obstruct use of the existing public
acccus casement alonq it:; southern boundary, the d.cvclopment will certainly
inhibit. lat.cr;il acc<?ss along the ocean shor~line or lagoon either indirectly
by proximity or directly through private attempts to rt>strict public beach
access. Therufore, in order to be consistent with the ccrtifiod LCP, to
maintain public bl!a~h access, r~cogniz~ and protect the informal use of th~
site, spllcial conditJ.cm. havcbc~rn attached to 1<>q11ire thQ provisi<.m ot
lateral accessways along th~ shoreline: and lagcon lowlands. r'urthc1·, tc
enhance opportunities for public uccess and recreation, it is recom . .-ncnded
lhut, along w:tt the provision ot lateral access, an access trail or other
r.ccessary public access improvements ba developed on the aouthc.i:ly side of
Du.ana Vista Lagoon, consistent with resourcf! protcction policies and in
consultation with the State Department of l'i!;h and Game. Therefore, as
conditioned, the Commission find:; the proros(:d dcvP.lopmcnt con.-;istcnt with
applicable LCP and Coastal Act policies since adequate vertical acct'!ss alread1,·
exists and the project will provide lntcral acccs~ opportunities. Further,
as specifically required by Section J0604 (cl of the Act, the Commission fi11ds
the proposed development confor.n~ with all the public access and recreation
policies of the Act.
e. P.cu~ing. The proposed d•.:velo1,munt provides for tho construction of
fourtE'an condorniniums on a vacant parcel. under previous Coastal Act polici cs
and the adopted Statewide Interp1 . .-€?tive Guidelines, the queslion of affordable
housing protection c<>uld have ll,'!c•n raise~. Howc1-·cr, recent legi sl.:ition has
tr.:.nsferred this responsibility to local gov~rnments consistent with Section
65590 of the revised Government Codo. Further, pursuant to Section 30519.l
of tha A.:t, thGaw ::-~ulatc,,y tc-::vl:.ions w~r~ itlso applied to the certified
Carl:;bad local coastal program and any previously approvc-d .i.ffordablc housing
LCP policies deleted. Therefore, the houlling issue is no longer a matter o~
coastal policy revfcw. •
9. Arch~ological P.escurcc::. As " result. u1: ~omu p"eliminary re!learcn
and s i tc inspections by qualified archaeologists, one: archaeological site was
locat,:d. Thi$ site, SDi-626, was originally recorded by William J. Wallace
iri 1958, and is located in the upper a.rca of the projc-ct at the western and
southern e~-tent of th~ property. Surface 111(1tcrials included flake ston~
arti far.ts, bona and shell, and there is a pot;:r,tial fot· a depth in r?Xcess
of 50 centimeters. Th<? surf ace area of th•~ suLjc.;ct parcel is obscured in
places by a thick m.it of grass, and the ground vi~ability in tho «roa of the
site wan limited. Bc::.::1use of thi:3, tho acJ:ual extent of the: site and the
degree to which it lt.\3 been impacted c;.mn-:_,t. l.;I! determined without somu limi tnll
subsurf'1CEI testing and clearinq of the grassf:s. It i!. impossible th<lt the
si9nificant portion o! the site haa been r.cmoV!.!d, and th~t only lirn.i.tcB,
dlsturbc>d ntateriah; ren;ain. Dclinc<1tion of this disturbanct', howl!ver,
rnquirc~ additional investigation. Special Condition 9 requires that, in
order to appropri.dtcly study ancl d,Jt1.:rminc the f,i(Jnificanco of t1i,~ site,
a~l the adopted mi ligiltion measures of the E. I. R. be met. With its provisions
to complete a limil'cd suhsurf..lco sample and any Curth~r information rctrleval,
the Colill-nission find!. the sito I r; archaeological. rcsourcc:s will LE: appropriately
t,,rot~cted against adve-4ac impacts.
10. Local Coa~:t.ll l'launin!J_, Section JOti\14 (<1) of tho 1\ct provid,:s Lhat a
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adjacent lagoon, provide ade<\uat.e landscaping .~11d design revidons to enhance
and prcsci:ve the sceriic a,nenit,ies of tha ar.ca, provid~ ad~quate parking ru1d
.fo'111alhe public ac:cess op!,iortunities. Ther')forc, the Cotn!llission tinds
project approv~l, as conditioned should not seriously prejudice the
implementation of the Carlsbad LCP.
With the ~Kclusion of the "T~naglia Prdperty" from the proposed developmont,
the Commission is presented with the possibility for socno development propoaal
to be submitted on the (•nvironmentally sensitive "Tenaglia Proporty" far
review at a later date. Hhile the Commission wi 11 not and cannot evaluate
the permissabtlity of any use on tho "Tenaglia" site, not p.;esently within
wetlands, the Commission does want to 1,1rovide direction to future applicants
ahout its position on the property in qu~stion. Although a density crodit
of l <lua for each net devclopable acre ur.dcr the certified LCP was previously
assigned to the "Tenaglia ~it~" t,!hen it was proposed for transfer to the
blufftop as a density bonus for l:he lot consolidation and implementation
of the certified LCP, the actu.ll project impacts of any physical development
on the site are much more critical. Thercf<lrP., only very low intensity uses,
~ch as possibly a single-family resid,.mco, educational-science research
activities or nature study, are appropriace for the uniquely-situated and
constrained property. Given its 1:Jhy::.ica! dclinP.ations, a single residence
c<lu\.d evcm reprosont inappropriate overdevclopment. Further, any proposal
must address and adequately mitigate the id~ntified issues herein and merit
independent approval based on sitP.•specific Commission review.
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e 0
PLANNING COMMISSION RESOLUTION NO. 4332
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A
ALLOW FOR THE CONSTRUCTION OF A SINGLE FAMILY
RESIDENCE AND SECOND DWELLING UNIT OVER A
DETACHED GARAGE ON PROPERTY GENERALLY
LOCATED ALONG THE SOUTH SHORE OF BUENA VISTA
LAGOON, WEST OF THE AT&SF RAILROAD, NORTH OF
MOUNTAIN VIEW DRIVE IN LOCAL FACILITIES
MANAGEMENT ZONE 1.
CASE NAME: LEVY RESIDENCE
CASE NO.: CDP 97-59
WHEREAS, John C. Levy, “Developer”, has filed a verified application
COASTAL DEVELOPMENT PERMIT NO. CDP 97-59 TO
City of Carlsbad regarding property owned by John C. Levy, “Owner”, described as
Parcel “A” of City of Carlsbad Adjustment Plat #471.
(“the Property”); and
WHEREAS, said verified application constitutes a request for a
Development Permit as shown on Exhibits “A” - “G” dated July 1, 1998,on file in the E
Department, LEVY RESIDENCE, CDP 97-59 as provided by Chapter 21.201.04C
Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did, on the 1st day of July 1998
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all te
and arguments, if any, of all persons desiring to be heard, said Commission considered all
relating to the CDP.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the I:
Commission of the City of Carlsbad as follows:
~
A) That the foregoing recitations are true and correct.
EXHIBIT 2
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B) That based on the evidence presented at the public hearing, the Corr
APPROVES LEVY RESIDENCE, CDP 97-59, based on the following
and subject to the following conditions:
FindinEs:
1. That the proposed development is in conformance with the Mello I1 segmen
Certified Local Coastal Program and all applicable policies in that the site is des
for single family residential development, second dwelling units are
pursuant to Mello I1 Affordable Housing Policy 1-1, and no agricultural acti7
geologic instability exists on site.
2. The project is consistent with the provisions of the Coastal Resource Protection
Zone (Chapter 21.03 of the Zoning Ordinance) in that the project will adherl
City’s Master Drainage and Storm Water Quality Management Plan and C
Ordinance to avoid increased runoff and soil erosion, no steep slopes or
vegetation is located on the subject property and the site is not located in :
prone to landslides, or susceptible to accelerated erosion, floods or liquefactic
adjacent Buena Vista Lagoon wetlands have been delineated and the proj
been designed to include a minimum 100’ setback between the wetlands
structures. The developer has been conditioned to record an open spa4
restriction over the entire wetland buffer setback area and to make an irre
offer of dedication of the wetlands buffer to the California Department of F
Game.
3. The project is consistent with the provisions of the Coastal Shoreline Devel
Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the proposed
will require minimal grading (75 cubic yards of cut and 75 cubic yards of f
project has been designed to avoid increased runoff and soil erosion, and the
applicant has been conditioned to make an irrevocable offer of dedication
City of Carlsbad for a 25’ wide public access trail easement over an existing !
trail which is located along the western perimeter of the project site.
4. The Planning Commission of the City of Carlsbad has reviewed, analyzed and con
Mitigated Negative Declaration CDP 97-59, the environmental impacts therein id1
for this project and said comments thereon, and the Mitigation Monitoril
Reporting Program, on file in the Planning Department, prior to APPROVII
project. Based on the EIA Part I1 and comments thereon, the Planning Coml
finds that there is no substantial evidence the project will have a significant effec
environment and hereby APPROVES the Mitigated Negative Declaration.
5. The Planning Commission does hereby find that the Mitigated Negative Dec
CDP 97-59 and Mitigation Monitoring and Reporting Program have been p
in accordance with requirements of the California Environmental Quality Act, tk
Guidelines and the Environmental Protection Procedures of the City of Carlsbad.
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6. The Planning Commission finds that the Mitigated Negative Declaration CD
reflects the independent judgment of the Planning Commission of the City of Ci
7. All necessary public improvements have been provided or will be required as cc
of approval.
8. The Developer has agreed and is required by the inclusion of an appropriate conc
pay a public facilities fee. Performance of that contract and payment of the
enable this body to find that public facilities will be available concurrent with
required by the General Plan.
9. The project has been conditioned to pay any increase in public facility fee,
construction tax, or development fees, and has agreed to abide by any a(
requirements established by a Local Facilities Management Plan prepared pur
Chapter 21.90 of the Carlsbad Municipal Code. This will ensure continued availa
public facilities and will mitigate any cumulative impacts created by the project.
10. The project has been conditioned to ensure the building permits will not be issue(
project unless the District Engineer determines that sewer service is availal
building cannot occur within the project unless sewer service remains available,
District Engineer is satisfied that the requirements of the Public Facilities Elemel
General Plan have been met insofar as they apply to sewer service for this project.
1 I. Statutory School fees will be paid to ensure the availability of school facilitie
Carlsbad Unified School District.
Conditions:
1. Staff is authorized and directed to make, or require Developer to make, all cor
and modifications to the CDP 97-59 document(s) as necessary to make them ir
consistent and in conformity with final action on the project. Development sha
substantially as shown in the approved Exhibits. Any proposed development (
from this approval, shall require an amendment to this approval.
2. The applicant shall apply for and be issued building permits for this pro
within two (2) years of approval or this coastal development permit will ex]
unless extended per Section 21.201.210 of the Zoning Ordinance.
3. The Developer shall comply with all applicable provisions of federal, state, ar
ordinances in effect at the time of building permit issuance.
4. Building permits will not be issued for development of the subject property un.
District Engineer determines that sewer facilities are available at the time of app
for such sewer permits and will continue to be available until time of occupancy.
5. The Developer shall pay the public facilities fee adopted by the City Council on i
1987, (amended July 2, 1991) and as amended from time to time, and any devel
PC RES0 NO. 4332 -3 -
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fees established by the City Council pursuant to Chapter 21.90 of the Carlsbad M
Code or other ordinance adopted to implement a growth management system or I
and Improvement Plan and to fulfill the subdivider’s agreement to pay thl
facilities fee dated May 26, 1998, a copy of which is on file with the City Cler
incorporated by this reference. If the fees are not paid, this application wil,
consistent with the General Plan and approval for this project will be void.
6. The Developer shall provide proof of payment of statutory school fees to
conditions of overcrowding as part of the building permit application. The an
these fees shall be determined by the fee schedule in effect at the time of buildin;
application.
7. If any condition for construction of any public improvements or facilities, or the 1
of any fees in-lieu thereof, imposed by this approval or imposed by law on this re
housing project are challenged this approval shall be suspended as prov
Government Code Section 66020. If any such condition is determined to be inv,
approval shall be invalid unless the City Council determines that the project wit!
condition complies with all requirements of law.
8. Consistent with subsection 21.203.040(4)(e) of the Carlsbad Municipal C
grading shall be allowed during the winter season (October 1 - April 1).
9. This project shall comply with all conditions and mitigation measures which are
as part of the approved Mitigated Negative Declaration, as contained in P
Commission Resolution No. 4331.
10. Prior to the issuance of the building permit, Developer shall submit to the City 2
of Restriction to be filed in the office of the County Recorder, subject to the sati
of the Planning Director, notifying all interested parties and successors in interest
City of Carlsbad has issued a Coastal Development Permit by Resolution No. ‘
the real property owned by the Developer. Said Notice of Restriction shall I
property description, location of the file containing complete project details
conditions of approval as well as any conditions or restrictions specified for inch
the Notice of Restriction. The Planning Director has the authority to execute and
an amendment to the notice which modifies or terminates said notice upon a sho?
good cause by the Developer or successor in interest.
11. The Developer shall implement, or cause the implementation of, the CDP 97-59
Mitigation Monitoring and Reporting Program.
12. Prior to the issuance of a building permit or grading permit (whichever occu:
the applicant shall record a deed restriction over the entire wetland buffer b
area to restrict the property for open space/wildlife uses only, except for a
public access trail as shown on the site plan for CDP 97-59.
1 PC RES0 NO. 4332 -4-
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13. Prior to the issuance of a building permit or grading permit (whicheve
first), the property owner shall submit evidence satisfactory to the 1
Director that an irrevocable offer of dedication of the wetland buffer area 1
made to the California Department of Fish and Game.
14. Prior to the issuance of building permits, an exterior lighting plan
submitted to the Planning Director for review. All exterior lighting shall i,
combination of low-level lights and shields to minimize the amount of light
the adjacent wetlands and wetland buffer area.
15. Due to the potential presence of the light-footed clapper rail within the I
adjacent to the project site, project construction shall be prohibited du
breeding season, (March 1 to August l), unless a focused survey for the clal
is conducted immediately prior to project construction and determines
clapper rails were observed during the survey.
16. Prior to the issuance of a certificate of occupancy, non-native plant species
removed from the wetland buffer area and the wetland buffer area sha,
vegetated with a hydro-mulched coastal scrub grass seed mix.
17. Prior to the issuance of a building permit or grading permit (whichever oca
the applicant shall irrevocably offer to dedicate in perpetuity to the City of C
a minimum 25 foot wide public access trail easement over the public acc
which is shown on the site plan for CDP 97-59.
18. Prior to the issuance of a building permit or grading permit (whichever OCCI
the wetlands buffer area shall be staked and flagged in the field by a
surveyor. A minimum of three notices shall be posted within this area tc
that this area is off-limits to construction activity.
19. If any of the foregoing conditions fail to occur; or if they are, by their tern
implemented and maintained over time, if any of such conditions fail tc
implemented and maintained according to their terms, the City shall have the
revoke or modify all approvals herein granted; deny or further condition issuan
future building permits; deny, revoke or further condition all certificates of oc
issued under the authority of approvals herein granted; institute and prosecute liti
compel their compliance with said conditions or seek damages for their violat
vested rights are gained by Developer or a successor in interest by the City’s apl
this Coastal Development Permit.
NOTICE
Please take NOTICE that approval of your project includes the “imposition”
dedications, reservations, or other exactions hereafter collectively referred to for conver
“fees/exactions.”
~ PC RES0 NO. 4332 -5-
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You have 90 days from July 1, 1998 to protest imposition of these feedexactions. If yc
them, you must follow the protest procedure set forth in Government Code Section 6602
file the protest and any other required information with the City Manager for proc
accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely fo.
procedure will bar any subsequent legal action to attack, review, set aside, void, or ar
imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/<
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor I
zoning, grading or other similar application processing or service fees in connection
project; NOR DOES IT APPLY to any feedexactions of which you have previously be
a NOTICE similar to this, or as to which the statute of limitations has previously c
expired.
PASSED, APPROVED AND ADOPTED at a regular meeting of the
Commission of the City of Carlsbad, California, held on the 1st day of July 1995
following vote, to wit:
AYES: Chairperson Noble, Commissioners Compas, Heineman, rV
Nielsen, Savary, and Welshons
NOES:
ABSENT:
ABSTAIN:
&.
4% y%, & g &? -
@w4J*fi ,$ 4 ,&e- yt't.iE -.&f Ft L-
BAILEY NO@, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
U MICHAEL J. HOLZMILMR
Planning Director
PC RES0 NO. 4332 -6-
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STATE OF CAUFORNIA-THE RESOURCES AGENCY PETE WILSON, Governor
CALIFORNIA COASTAL COMMISSION
SAN DIEGO AREA
3111 CAMINO DEL RIO NORTH, SUITE 200
SAN DIEGO, CA 92108·1725 1. "'"'C~P" n~D PACKE \ .. ,, ' .9) 521-8036
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Staff: WNP-SD
StaffReport: 1115/98
Hearing Date: 12/8-11/98
REVISED FINDINGS
APPLICATION NO.: A-6-CII-98-98 1/JIDh
LOCAL GOVERNMENT: City of Carlsbad
DECISION: Approved With Conditions
APPLICANT: John Levy Agent: Bob Sukup
DESCRIPTION: Construction of a 30-foot high, 2, 713 sq. ft. single-family residence and
a 35-foot high, 1,633 sq. ft. detached garage with a 577 sq. ft. second unit above
on a 1.9 acre lot of a 2.6 acre site. Estimated grading quantities include 75 cubic
yards of cut and 75 cubic yards of fill to be balanced on-site. Also proposed is
off-site private access improvements, the replacement of a gate and fencing on the
site .
PROJECT LOCATION: The south shore of Buena Vista Lagoon, west of the AT&SF
Railroad and north of Mountain View Drive, Carlsbad, San Diego County. APN
155-190-13, APN 155-101-65
APPELLANTS: California Coastal Commissioners Christine Kehoe and Pedro Nava
DATE OF COMMISSION ACTION: September 11, 1998
COMMISSIONERS ON PREY AILING SIDE: Herron, Flemming, Johnson, Potter,
Reilly, and Chairman At"eias
SUMMARY OF COMMISSION ACTION:
Staff recommends that the Commission adopt the following revised findings in support of
the Commission's action on September 11, 1998 finding no substantial issue exists with
respect to the grounds on which the appeal was filed.
SUBSTANTIVE FILE DOCUMENTS: Certified City of Carlsbad Local Coastal
Program Mello II segment; City of Carlsbad CDP 97-59, CDP #6-83-51
EXHIBIT 3
NO SUBSTANTIAL ISSUE-RESOLUTION
A -6-Cll -98-98/Revised Findings
Page2
The Commission adopted the following resolution and findings following the public
hearing:
_\. .tl-ts .'tr;:by detennines that NO SUBSTANTIAL ISSUE exists with respect n~J;dD:ch the appeal was filed, pursuant to Section 30603.
Findings and Declarations.
The Commission finds and declares as follows: ·
1. Project Description. Proposed is the construction of a 30-foot high, 2,713 sq.
ft. single-family residence and a 35-foot high, 1,633 sq. ft. detached garage with a 577
sq. ft. second-unit above on one lot of a 2.6 acre site. Estimated grading quantities
include 75 cubic yards of cut and 75 cubic yards of fill to be balanced on-site. Also
proposed is off-site private access improvements, fencing of the site and replacement of
an existing gate. The 2.6 acre project site is comprised of two lots located along the
south shore of Buena Vista Lagoon, west of the AT &SF Railroad and north of Mountain
View Drive in northern Carlsbad. The project site is vacant and is covered with disturbed
shrub habitat. There are no steep slopes or native vegetation on the project site. Fresh
water marsh occurs on the northwest and eastern boundaries of the site below the riprap
line. An existing unimproved lagoon trail is located around the outer edge of the property
running from its western edge and continuing to circle the site like a loop. The AT &SF
railroad right-of-way lies to the east of the site, and multi-family housing is located to the
south of the project site. The site is designated Residential Low (RL, 0-1.5 dulac) and
zoned R-1-30,000 in the certified Mello II LCP.
2. Protection of Visual Resources. The project site is located at the confluence of the
mouth of Buena Vista Lagoon and the Pacific Ocean at the boundary between the cities
of Carlsbad and Oceanside. Although there is existing development in the area, because
of the site's unique setting adjacent to the lagoon, it is like no other site in Carlsbad.
Open waters of Buena Vista Lagoon are on the west side of the site with some riprap on
the banks; fresh water marsh associated with lagoon environs occurs on the northwest
and eastern boundaries of the site below the riprap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and circles the site like
a loop.
The following policies and goals of the certified Mello II LCP address protection of
public views and are applicable to the proposed development:
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Policy 8-1
A-6-CII-98-98/Revised Findings
Page3
The Scenic Preservation Overlay Zone should be applied where necessary throughout
the Carlsbad Coastal Zone to assure maintenance of existing views and panoramas.
Sites considered for development should undergo individual review to determine if
the proposed development will obstruct views or otherwise damage the visual beauty
of the area. The Planning Commission should enforce appropriate-height limitations
and see-through construction, as well as minimize any alterations to topography.
Policy 3-2 of the Mello II LCP also requires that development be clustered to preserve
open space for habitat protection, which also serves to minimize the visual impacts of
new development.
In addition, Section 21.40.135 of the City's certified LCP Implementation Plan is
applicable to the proposed development and states, in part:
Within the coastal zone, existing public views and panorama shall be maintained.
Through the individualized review process, sites considered for development shall be
conditioned so as to not obstruct or otherwise damage the visual beauty of the coastal
zone. In addition to the above, height limitations and see-through construction
techniques should be employed. Shoreline development shall be built in clusters to
leave open areas around them to permit more frequent views of the shoreline. Vista
points shall be incorporated as a part of larger projects.
Additionally, Section 21.204.100 (B & C) of the Coastal Shoreline Development Overlay
Zone of the City's certified LCP is applicable and states:
B. Appearance -Buildings and structures will be so located on the site as to create a
generally attractive appearance and be agreeably related to surrounding
development and the natural environment.
C. Ocean Views-Buildings, structures, and landscaping will be so located as to
preserve the degree feasible any ocean views as may be visible from the nearest
public street.
The proposed 2,713 sq. ft. residence is over 30 feet tall, consists of two-stories, and
features a copper-colored metal roof and concrete block walls. Also proposed is a 1,633
sq. ft. detached garage with a 577 sq. ft. second-unit above that will be 35 feet in height.
Second dwelling units are addressed in the City's LCP. As approved in the LCP, such
units are allowed by right subject to restrictions on size (650 sq. ft. maximum),
affordability, etc. Second units must also meet all the requirements of the local coastal
program, with the exception ofbase density .
The subject site is visible from the beach, the railroad and portions of Old Highway 101
(Carlsbad Boulevard), which is designated as a Scenic Road in the LCP. Old Highway
1 0 1 is heavily used by beachgoers to get to the beaches of northern Carlsbad. Existing
A-6-CII-98-98/Revised Findings
Page4
cattails and the elevated railroad berm are high enough to block views to the west from •
the portion of Old Highway 101 that is along side the site. The site is however, visible
both from the highway as it descends south from the City of Oceanside into Carlsbad and
at a point close to the Buena Vista Lagoon pump station going north on the highway. As
noted above, the approximately 2.6 acres under the applicant's ownership constitutes a
unique, low-lying area immediately adjacent to the lagoon where no development has
occurred. As such, the proposed project, consisting of two large structures located
directly adjacent to the lagoon, has the potential to adversely impact public views in this
scenic area by presenting a significant structure in an otherwise natural setting.
Policy 8-1 of the City's LCP provides that the Scenic Preservation Overlay Zone should
be applied where necessary to assure the maintenance of existing views and panoramas
and that sites be evaluated for potential public views that should be preserved and
enhanced. Its purpose is to provide regulations in areas which possess outstanding scenic
qualities or would create buffers between incompatible land uses which enhance the
appearance of the environment and contribute to community pride and community
prestige. The subject site does not represent an infill area but rather should be viewed as
an extension of development northward at a critical scenic interface between the ocean
and the lagoon, which is visible from Highway 101. The City has indicated that the
Scenic Protection Overlay Zone is only applied to properties and projects that are visible
from El Camino Real. The subject site is not visible from El Camino Real. Therefore,
the City did not apply the requirements of the Overlay Zone to the project. The •
Commission does not agree that application of the overlay zone within the City's Coastal
Zone depends on a site's visibility from El Camino Real. However, the proposed project
has been designed to mitigate adverse impacts on views.
The mitigation includes a I 00-ft. setback of structures from the lagoon and landscape
screening of the proposed structures. In addition, the height of the proposed structures is
consistent with both the height limits contained in the certified LCP and the height of
other structures in the area. Therefore, the Commission finds that even though the City
failed to apply the requirements of the Scenic Preservation Overlay Zone, the intent of
these requirements has been satisfied and therefore, the project, as approved by the City,
does not raise a substantial issue with regard to consistency with the visual resource
policies of the certified LCP. The Commission notes however, that Commission staff
and City staff need to work together to assure the Scenic Preservation Overlay Zone is
implemented consistent with its certification in the City's LCP.
3. Public Access/Recreation. The Coastal Act contains policies that call for
protecting public access to the coast. The following Coastal Act policies are applicable
to the proposed development.
Section 30210.
In carrying out the requirement of Section 4 of Article X of the California •
Constitution, maximum access, which shall be conspicuously posted, and recreational
opportunities shall be provided for all the people consistent with public safety needs
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A -6-CII -98-98/Revised Findings
Page 5
and the need to protect public rights, rights of private property owners, and natural
resource areas from overuse.
Section 30211.
Development shall not interfere with the public's right of access to the sea where
acquired through use or legislative authorization, including, but not limited to, the use
of dry sand and rocky coastal beaches to the first line of terrestrial vegetation.
Section 30212.
(a) Public access from the nearest public roadway to the shoreline and along the
coast shall be provided in new development projects except where:
(1) it is inconsistent with public safety, military security needs, or the protection
of fragile coastal resources,
(2) adequate access exists nearby, or,
(3) agriculture would be adversely affected. Dedicated accessway shall not be
required to be opened to public use until a public agency or private association
agrees to accept responsibility for maintenance and liability of the accessway .
In addition, several policies of the Mello II LCP apply to the project site.
Policy 7-3 -ACCESS ALONG SHORELINE
The City will cooperate with the state to ensure that lateral beach access is protected
and enhanced to the maximum degree feasible, and will continue to formalize
shoreline prescriptive rights. Irrevocable offers of dedication for lateral accessways
between the mean high tide line and the base of the coastal bluffs, and vertical
accessways where applicable, shall be required in new development consistent with
Section 30212 of the California Coastal Act of 1976. There is evidence of historic
public use adjacent to Buena Vista Lagoon. Paths criss-cross the area near the
railroad tracks to the ocean shoreline. Development shall provide access and protect
existing access consistent with the needs to protect the habitat.
Policy 7-6-BUENA VISTA LAGOON
An access trail shall be provided along the southern shoreline of Buena Vista Lagoon
(exhibit 4.10, page 63) to facilitate public awareness of the natural habitat resources
of the Lagoon. To protect sensitive resources of this area, access development shall
be limited and designed in consultation with the State Department ofFish and Game.
In permitted development of properties adjacent to the Lagoon, offers of dedication of
lateral accessways, irrevocable for a term of 21 years, shall be required to be provided
to the City of Carlsbad, State Coastal Conservancy, or other appropriate public
A-6-CII-98-98/Revised Findings
Page6
agencies. Such access dedications shall be of at least 25 feet in width upland from •
environmentally sensitive areas and any required buffers thereto. In addition, the City
of Carlsbad, State Coastal Conservancy and Wildlife Conservation Board shall seek
to obtain lateral accessways across developed lands.
The subject site is located between the first public roadway and the sea. The beach area
to the west of the project site can be reached via a public access stairway on Ocean Street.
To reach the lagoon area immediately adjacent to the subject site, it is apparent that
visitors to this area use a well worn path near Mountain View Drive which leads behind
tennis courts on the adjacent lot and then down to the lowland area that comprises the
subject property. The beach and lagoon areas are currently used by walkers, fishermen
and naturalists. As noted above, the Mello II LCP envisions an areawide pathway along
the south shoreline of the lagoon. The City of Oceanside is planning pathways on the
northern side of the lagoon along with a bird sanctuary. The Department ofFish and
Game owns properties on the south side of the lagoon, east of the subject site and on the
north side. Because of its location, the project site is at a crucial point in any potential
trail linkage between public beach areas and the public lagoon areas.
There is evidence of historic public use of this site. This evidence is the existence of a
well-worn path around the perimeter of the site. The path is evident in numerous aerial
photographs of the site taken as early as 1972. In recognition of the existing trail on the
south side of the lagoon, the City has required that the applicant record an offer to •
dedicate a public access easement along the south shore of Buena Vista Lagoon, along
the western edge of the site consistent with Policy 7-6 ofthe"Mello II LUP. The City's
approval also required that the development maintain a 1 00-foot setback from the
lagoon's edge, consistent with input provided by the resource agencies and LCP
requirements. This 1 00-foot setback would then function as a wetland buffer. The
existing worn path where the City's required access easement is to be located is within
the 100-foot wetland buffer. However, the resource agencies found that the trail was·a
permitted use within the buffer. However, to provide protection of the adjacent
biological resources, the resource agencies also required that the applicant construct a
fence at the inland edge of the buffer. The fence will serve to help keep domestic pets
out of the buffer area to protect wildlife that occurs near the water's edge.
The City's approval also authorized the installation of a fence along the southern property
boundary and a gate across the southern lagoon trail (that is the subject of an offer to
dedicate a public access easement). The gate is proposed within a fence on Parcel B, the
other lot under the applicant's ownership, which is not proposed for residential
development at this time. As approved, the gate would be open from dawn to dusk. The
Commission found in a recent permit decision, (Ref. CDP # 6-96-159/Cade ), that limiting
the hours of public access along the shoreline of Agua Hedionda Lagoon through a time
lock gate was inappropriate. In that case, there was substantial evidence of a prescriptive
right of access along the shoreline, and there was no evidence of a need for the
limitations on hours of access. However, in this case, the subject site and surrounding •
area suffers from a number of nuisances (vandalism, transients) which warrant that access
be closed at dusk to assure privacy and security. Further, access along the south shore is
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A -6-CII -98-98/Revised Findings
Page7
being dedicated by the applicant consistent with the LCP provisions through a 25-foot
wide easement and construction of a 10-foot wide path within the easement. Thus, in this
case, the Commission fmds that the time-lock gate as approved by the City raises no
substantial issue as to conformity with the certified LCP or the public access policies of
the Coastal Act.
As stated, the City's approval included replacement of an existing manually operated gate
with an electric gate near Mountain View Drive for access for the proposed residence,
fire and maintenance vehicular access. The existing fenced and locked gate is located
just off Mountain View Drive on property that is not owned by the applicant. However,
the applicant has a private access easement over the property. The installation date of the
existing gate is unknown. The fence/gate appears on a 1981 tentative map for a
neighboring project. In addition, representatives of the City have verbally stated that it
has been in place since the 1960s. The gate/fence limits public access from Mountain
View Drive to the applicant's site. This gate is where the applicant will take access to the
subject site via an existing private access easement. According to the City, this gated
access is the only beach vehicle access in northern Carlsbad and has been used by
lifeguard personnel and city maintenance crews to maintain the lagoon weir which
regulates the water level in Buena Vista Lagoon.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums. In its approval of CDP #6-
83-51, the Commission required Lot 3, the lot over which the applicant must take access
to get to the project site, to be reserved as open space thro¥gh an offer to dedicate an
open space easement. In its open space easement condition, the Commission prohibited
all development except for development needed to allow for vehicle access across Lot 3
to the lagoon weir and for public projects that were planned on this low-lying area,
including wetland restoration and possibly as a depository site for beach replenishment
projects. The condition did not recognize any private vehicular access across Lot 3,
which is needed for the applicant to get to the project site. However, the applicant asserts
that he has a right of private vehicular access across Lot 3 to the project site through an
easement that was initially granted in 1971 and then re-recorded in a slightly different
location in 1984. The offer of dedication has not yet been accepted. The Commission
finds that at this time, it need not address the legality of the fence or the ability of the
landowners to maintain the fence after the offer of dedication has been accepted. The
proposed project simply replaces the existing manual gate with an electric gate and
therefore, it does not change the existing access. In addition, adequate pedestrian access
opportunities exist in the area (as a vertical accessway from Ocean Street to the ocean is
located about 500 feet to the north) and the public will still be able to access the beach as
they have in the past. Therefore, the Commission finds the development as approved by
the City does not raise a substantial issue with regard to consistency with the public
access and recreation policies of the certified LCP and Chapter 3 of the Coastal Act.
4. Environmentally Sensitive Habitat Areas.
A-6-Cll-98-98/Revised Findings
PageS
Policy 3-2 of the certified Mello ll LUP addresses the protection of this environmentally
sensitive area and provides the following:
Policy 3-2 -Buena Vista Lagoon
Developments located along the first row of lots bordering Buena Vista Lagoon,
including the parcel at the mouth of the Lagoon (see Exhibit 4.5, Page 61), shall be
designated for residential development at a density of up to 4 dwelling units per acre.
Proposed development in this area shall be required to submit topographic and
vegetation mapping and analysis, as well as soils reports, as part of the coastal
development permit application. Such information shall be provided as a part of or in
addition to any required Environmental Impact Report, and shall be prepared by
qualified professionals and in sufficient detail to enable the City to locate the
boundary of wetland and upland areas and areas of slopes in excess of 25%.
Topographic maps shall be submitted at a scale sufficient to determine the appropriate
developable areas, generally not less than a scale of 1" - 1 00' with a topographic
contour interval of 5 feet, and shall include an overlay delineating the location of the
proposed project Criteria used to identify wetlands existing on the site shall be those
of Section 30121 of the Coastal Act and based upon the standards of the Local
Coastal Program Mapping Regulations, and shall be applied in consultation with the
State Department ofFish and Game.
Development shall be clustered to preserve open space for habitat protection.
Minimum setbacks of at least 100 feet from wetlands shall be required in all
development, in order to buffer such sensitive habitat areas from intrusion. Such
buffer areas, as well as other open space areas required in permitted development to
preserve habitat areas, shall be permanently preserved for habitat uses through
provision of an open space easement as a condition of project approval. In the event
that a wetland area is bordered by steep slopes (in excess of25%) which will act as a
natural buffer to the habitat area, a buffer setback of less than 100 feet in width may
be permitted.
The density of any permitted development shall be based upon the net developable
area of the parcel, excluding any portion of a parcel, which is not within wetlands.
Storm drain alignments as proposed in the Carlsbad Master Drainage Plan which
would be carried through or empty in to Buena Vista Lagoon shall not be permitted,
unless such improvements comply with the requirements of Sections 30230, 30231,
30233, and 30235 of the Coastal Act by maintaining or enhancing the functional
capacity of the lagoon in a manner acceptable to the State Department ofFish and
Game.
Land divisions shall only be permitted on parcels bordering the lagoon pursuant to a
single planned unit development permit for the entire original parcel.
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Additionally, the Coastal Resource Protection Overlay Zone, an implementing ordinance
of the City of Carlsbad LCP, contains identical language to Policy 3-2 above with respect
to Buena Vista Lagoon.
Numerous other policies of the LCP provide that new development not contribute to
erosion and sedimentation of sensitive resources, including Buena Vista Lagoon. Policy
4-3 and Policy 4-6 address this issue.
Policy 4-3-ACCELERATED SOIL EROSION
(A) Areas West ofi-5 and the existing Paseo del Norte and Along El Camino Real
Upstream of Existing Storm Drains
For areas west of the existing Paseo del Norte, west ofi-and along El Camino Real
immediately upstream of the existing storm drains, the following policy shall apply:
A site specific report prepared by a qualified professional shall be required for all
proposed development, identifying mitigation measures needed to avoid increased
runoff and soil erosion. The report shall be subject to the requirements of the model
erosion control ordinance contained in the appendix to the Carlsbad Master Drainage
Plan (June, 1980), and to the additional requirements contained herein. Such
mitigation shall become an element of the project, and shall be installed prior to
initial grading. At a minimum, such mitigation shall require construction of all
improvements shown in the Master Drainage Plan for the area between the project
site and the lagoon (including a debris basin), as well as restriction of grading
activities to the months of April through September of each year; revegetation of
graded areas immediately after grading; and a mechanism for permanent maintenance
if the City declines to accept the responsibility. Construction of drainage
improvements may be through formation of an assessment district, or through any
similar arrangement that allots costs among the various landowners in an equitable
manner.
Policy 4-6 -SEDIMENT CONTROL PRACTICES
Apply sediment control practices as a perimeter protection to prevent off-site
drainage. Preventing sediment from leaving the site should be accomplished by such
methods as diversion ditches, sediment traps, vegetative filters, and sediment basins.
Preventing erosion is of course the most efficient way to control sediment runoff.
The 2.6-acre project site consists of two lots located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The project site is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the riprap line.
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APPUCA TION NO·
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EXHIBIT 4
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STATE OF CALIFORNIA -THE RESOURCES AGE! PETE WILSON, Governor
C A L I FO R N I A CO ASTA L C 0 M M I S S I 0 N
SAN DIEGO AREA
3111 CAMINO DEL RIO NORTH, SUITE 200
SAN DIEGO, CA 92108-1725
(61 9) 521 -8036
Filed: July 27, 1998
49th Day: September 14, 1998
180th Day: January 23, 1998
Staff: WNP-SD
StafFReport: August 18, 1998
Hearing Date: September 8-1 1, 1998
STAFF REPORT AND RECOMMENDATION ON APPEAL
LOCAL GOVERNMENT: City of Carlsbad
DECISION: Approved With Conditions
APPEAL NO. : A-6-CII-98-98
APPLICANT: John Levy
PROJECT DESCRPTION: Construction of a 30-foot high, 2,713 .sq.ft. single family
residence and a 35-foot high, 1,633 sq.ft., detached garage with a 577 sq.ft.
second unit above on 1.9 acre lot of a 2.6 acre site. Estimated grading quantities
include 75 cubic yards of cut and 75 cubic yards of fill to be balanced on-site.
Also proposed is off-site private access improvements, the replacement of a gate
and fencing on the site.
PROJECT LOCATION: The south shore of Buena Vista Lagoon, west of the AT&SF
Railroad and north of Mountain View Drive, Carlsbad, San Diego County. APN
155-190-13, APN 155-101-65
APPELLANTS: California Coastal Commissioners Chnstine Kehoe and Pedro Nava
SUBSTANTNE FILE DOCUMENTS: Certified City of Carlsbad Local Coastal
Program Mello I1 segment; City of Carlsbad CDP 97-59, CDP #6-83-5 1
STAFF NOTES:
SUMMARY OF STAFF RECOMMENDATION:
The staff recommends that the Commission, after public hearing, determine that
substantial issue exists with respect to the grounds on which the appeal has been filed.
Staff also recommends that the Commission approve the de novo permit with special
EXHIBIT 5
Ad-CII-98-98
Page 2
conditions that require 100-foot habitat setbacks on the east and west sides of the site to
be secured through an open space condition, a public access easement on the south side of
Buena Vista Lagoon, revised plans that indicate the proposed residential development will
be redesigned to be subordinate to its lagoon setting to be no higher than 25 feet in height
and that building materials and colors be earth-tone colors, that fencing and gating plans
be revised to not adversely affect public access, that grading, drainage and runoff control
plans be submitted to ensure that downstream resources will not be indirectly affected
from proposed development and that a clapper rail protection plan be implemented which
ensures this endangered avian will not be adversely affected from residential development
in this scenic and sensitive area.
I. Appellant Contends That:
The City's decision is inconsistent with the certified LCP and the Coastal Act relative to
public access and visual resource protection.
II. Local Government Action
The coastal development permit was approved by the City of Carlsbad on July 1, 1998,
and the Notice of Final Action was received on July 13, 1998. Several special conditions
were attached pertaining to the protection of public access and environmental resources.
111. Appeal Procedures.
After certification of a Local Coastal Program (LCP), the Coastal Act provides for limited
appeals to the Coastal Commission of certain local government actions on coastal
development permits. Projects within cities and counties may be appealed if they are
located within mapped appealable areas. The grounds for appeal are limited to the
assertion that "development does not conform to the certified local coastal program."
Where the project is located between the first public road and the sea or within 300 A. of
the mean high tide line, the grounds of appeal are limited to those contained in Section
30603(b) of the Coastal Act. Those grounds are that the development does not conform
to the standards set forth in the certified local coastal program or the access policies set
forth in the Coastal Act.
Section 30625(b) of the Coastal Act requires the Commission to hear an appeal unless it
determines that no substantial issue is raised by the appeal. If the staffrecommends
"substantial issue" and no Commissioner objects, the Commission will proceed directly to
a de novo hearing on the merits of the project.
A-6-CII-98-98
Page 3
If the staff recommends "no substantial issue" or the Commission decides to hear
arguments and vote on the substantial issue question, proponents and opponents will have
3 minutes per side to address whether the appeal raises a substantial issue. It takes a
majority of Commissioners present to find that no substantial issue is raised. If substantial
issue is found, the Commission will proceed to a full public hearing on the merits of the
project. If the Commission conducts a de novo hearing on the permit application, the
applicable test for the Commission to consider is whether the proposed development is in
conformity with the certified Local Coastal Program.
In addition, for projects located between the sea and the first public road paralleling the
sea, Sec. 30604(c) of the Act requires that a finding must be made by the approving
agency, whether the local government or the Coastal Commission on appeal, that the
development is in conformity with the public access and public recreation policies of
Chapter 3. In other words, in regard to public access questions, the Commission is
required to consider not only the certified LCP, but also Chapter 3 policies when
reviewing a project on appeal.
The only persons qualified to testifl before the Commission at the "substantial issue" stage
of the appeal process are the applicant, persons who opposed the application before the
local government (or their representatives), and the local government. Testimony from
other persons must be submitted in writing. At the time of the de novo hearing, any
person may testifl.
IV. Staff Recommendation On Substantial Issue.
The staff recommends the Commission adopt the following resolution:
Staff recommends that the Commission determine that SUBSTANTIAL ISSUE exists
with respect to the grounds on which the appeal was filed, pursuant to PRC Section
30603.
MOTION
Staff recommends a vote on the following motion:
I move the Commission determine that Appeal No. A-6-CII-98-98 raises no substantial
issue with respect to the grounds on which the appeal has been filed.
A majority of the Commissioners present is required to pass the motion.
Ad-CII-98-98
Page 4
V. FINDINGS ON SUBSTANTIAL ISSUE
1. Project Description. Construction of a 30-foot high , 2,713 sq.ft. single family
residence and a 35- foot high, 1,633 sq.ft., detached garage with a 577 sq.ft. second unit
above on one lot of a 2.6 acre site. Estimated grading quantities include 75 cubic yards of
cut and 75 cubic yards of fill to be balanced on-site. Also proposed is off-site private
access improvements, the replacement of a gate and fencing on the site. The 2.6 acre
project site is comprised of 2 lots located along the south shore of Buena Vista Lagoon,
west of the AT&SF Railroad and north of Mountain View Drive in northern Carlsbad.
The project site is vacant and is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line. An existing unimproved lagoon
trail is located around the outer edge of the property running from its western edge and
continuing to circle the site like a loop. The AT&SF railroad right-of-way lies to the east
of the site, and multi-family housing is located to the south of the project site. The site is
designated Residential Low (RL, 0-1.5 ddac) and zoned R-1-30,000 in the certified Mello
I1 LCP.
2. Protection of Visual Resources. The project site is located at the confluence of the
mouth of Buena Vista Lagoon and the Pacific Ocean at the boundary between the cities of
Carlsbad and Oceanside. Although there is existing development in the area, because of
the site’s unique setting adjacent to the lagoon, it is like no other site in Carlsbad. Open
waters of Buena Vista Lagoon are on the west side to the site with some rip-rap on the
banks; fresh water marsh associated with lagoon environs occurs on the northwest and
eastern boundaries of the site below the rip-rap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and circles the site like a
loop.
The following policies and goals of the certified Mello II LCP address protection of public
views and are applicable to the proposed development:
Policy 8-1
The Scenic Preservation Overlay Zone should be applied where necessary throughout
the Carlsbad Coastal Zone to assure maintenance of existing views and panoramas.
Sites considered for development should undergo individual review to determine if the
proposed development will obstruct views or otherwise damage the visual beauty of
the area. The Plannins Commission should enforce appropriate height limitations and
see-through construction, as well as minimize any alterations to topography.
A-6-CII-98-98
Page 5
Policy 3-2 of the Mello I1 LCP also requires that development be clustered to preserve
open space for habitat protection which also serves to minimize the visual impacts of new
development.
The proposed 2,713 sq.ft. residence is over 30 feet tall, consists of two-stories, and
features a copper-colored metal roof and concrete block walls. Also proposed is a 1,633
sq.ft., with a 577 sq.fi. second unit above that will be 35 feet in height . Second dwelling
units are addressed in the City’s LCP. As approved in the LCP, such units are allowed by
right subject to restrictions on size (650 sq.fi. maximum), Bordability, etc. Second units
must also meet all the requirements of the local coastal program, with the exception of
base density.
The subject site is visible from the beach, the railroad and portions of Old Highway 101
(Carlsbad Boulevard), which is designated as a Scenic Road in the LCP. Old Highway
101 is heavily used by beachgoers to get to the beaches of northern Carlsbad. Existing
cattails and the elevated railroad berm are high enough to block views to the west from
the portion of Old Highway 101 that is along side the site. The site is however, visible
both from the highway as it descends south from the City of Oceanside into Carlsbad and
at a point close to the Buena Vista Lagoon pump station going north on the highway. As
noted above, the approximately 2.6 acres under the applicant’s ownership constitutes a
unique, low-lying area immediately adjacent to the lagoon where no development has
occurred. As such, the proposed project, consisting of two large structures located
directly adjacent to the lagoon, has the potential to adversely impact public views in this
scenic area by presenting a significant structure in an otherwise natural setting.
policy /- 8-1 .Qf_the City’s LCP p~~des that -_ the I___ Scenic Preservation - Overlay Zone- sho~ld
be applied where necessary to assure the maintenance of existing views and panoramas,
‘which requires that sites be evaluated for potential public views that should be preserved
and enhanced. Its purpose is to provide regulations in areas which possess outstanding
scenic qualities or would create buffers between incompatible land uses which enhance the
appearance of the environment and contribute to community pride and community
prestige. The subject site does not represent an infill area but rather should be viewed as
an extension of development northward at a critical scenic interface between the ocean
and the lagoon which is visible from Highway 101. Therefore, the site is located in a
highly scenic area that meets the criteria for application of the Scenic Preservation Overlay
Zone.
Based on the above, the Commission finds that there is a substantial issue as to the
proposed project, as approved by the City and conformity with Policy 8-1 of the LCP. As
approved by the City, the proposed structures are 30 - 35 feet high which will represent a
project that is out of character with the setting of the surrounding lagoon environment.
The LCP requires that appropriate height limitations be enforced. While the proposed
A-6-CII-98-98
Page 6
development is within the current required height limit, by allowing the project to extend
to the maximum height limit allowed by zoning, the City failed to recognize the unique
setting where the residence is to be sited. Additionally, the California Department of Fish
and Game has indicated that structures this high at this location could discourage shore
and migrating birds from visiting the area, or act as “predator perches” affecting sensitive
avian species in the area. Moreover, the proposed exterior treatment includes copper-
colored metal roofs and concrete block walls. These design features will degrade the
natural beauty of this area. That is, the project will “stand out” rather than blend in or be
subordinate to the surrounding natural environment. Therefore, the Commission finds the
project as approved by the City raises a substantial issue with regard to consistency with
the visual resource policies of the certified LCP.
3. Public AccessRecreation. The Coastal Act contains policies that call for protecting
public access to the coast. The following Coastal Act policies are applicable to the
proposed development.
Section 30210.
In carrying out the requirement of Section 4 of Article X of the California
Constitution, maximum access, which shall be conspicuously posted, and recreational
opportunities shall be provided for all the people consistent with public safety needs
and the need to protect public rights, rights of private property owners, and natural
resource areas from overuse.
Section 302 1 1.
Development shall not interfere with the public’s right of access to the sea where
acquired through use or legislative authorization, including, but not limited to, the use
of dry sand and rocky coastal beaches to the first line of terrestrial vegetation,
Section 30212.
(a) Public access from the nearest public roadway to the shoreline and along the coast
shall be provided in new development projects except where:
(1) it is inconsistent with public safety, military security needs, or the protection of
fragile coastal resources,
(2) adequate access exists nearby, or,
(3) agriculture would be adversely affected. Dedicated accessway shall not be
required to be opened to public use until a public agency or private association
A-6-CII-98-98
Page 7
agrees to accept responsibility for maintenance and liability of the accessway.
In addition, several policies of the Mello I1 LCP apply to the project site.
Policy 7-3 - ACCESS ALONG SHORELINE
The City will cooperate with the state to ensure that lateral beach access is protected
and enhanced to the maximum degree feasible, and will continue to formalize shoreline
prescriptive rights. Irrevocable offers of dedication for lateral accessways between the
mean high tide line and the base of the coastal bluffs, and vertical accessways where
applicable, shall be required in new development consistent with Section 30212 of the
California Coastal Act of 1976. There is evidence of historic public use adjacent to
Buena Vista Lagoon. Paths criss-cross the area near the railroad tracks to the ocean
shoreline. Development shall provide access and protect existing access consistent
with the needs to protect the habitat.
Policy 7-6 - BUENA VISTA LAGOON
An access trail shall be provided along the southern shoreline of Buena Vista Lagoon
(ehbit 4.10, page 63) to facilitate public awareness of the natural habitat resources of
the Lagoon. To protect sensitive resources of this area, access development shall be
limited and designed in consultation with the State Department of Fish and Game. In
permitted development of properties adjacent to the Lagoon, offers of dedication of
lateral accessways, irrevocable for a term of 2 1 years, shall be required to be provided
to the City of Carlsbad, State Coastal Conservancy, or other appropriate public
agencies. Such access dedications shall be of at least 25 feet in width upland from
environmentally sensitive areas and any required buffers thereto. In addition, the City
of Carlsbad, State Coastal Conservancy and Wildlife Conservation Board shall seek to
obtain lateral accessways across developed lands.
The subject site is located between the first public roadway and the sea ( reference Exhibit
#1 attached). The beach area to the west of the project site can be reached via a public
access stairway on Ocean Street. To reach the lagoon area immediately adjacent to the
subject site, due to a well-worn path, it is apparent that visitors to this area use a path near
Mountain View Drive which leads behind tennis courts on the adjacent lot and then down
to the lowland area that comprises the subject property. The beach and lagoon areas are
currently used by walkers, fishermen and naturalists. As noted above, the Mello 11 LCP
envisions an areawide pathway along the south shoreline of the lagoon. The City of
Oceanside is planning pathways on the northern side of the lagoon along with a bird
sanctuary. The Department of Fish and Game owns properties on the south side of the
lagoon, east of the subject site and on the north side. Because of its location, the project
,-
A-6-CII-98-98
Page 8
site is located at a crucial point in any potential linkage between public beach areas and the
public lagoon areas.
There is evidence of historic public use of this site. This evidence is the existence of a
well-worn path around the perimeter of the site. The path is evident in numerous aerial
photographs of the site taken as early as 1972. In recognition of the existing trail on the
south side of the lagoon, the City has required that the applicant record an offer to
dedicate a public access easement along the south shore of Buena Vista Lagoon, along the
western edge of the site consistent with Policy 7-6 of the Mello I1 LUP. The City’s
approval also required that the development maintain a 100 foot setback from the lagoon’s
edge, consistent with input provided by the resource agencies and LCP requirements.
This 100-foot setback would then function as a wetlands buffer. The existing worn path
on the site is located within the 100- foot wetland buffer. However, the agencies found
that the trail was a permitted use within the buffer. In order to further protect the
resources, the resource agencies also required that the applicant construct a fence at the
inland edge of the buffer to keep domestic pets out of the buffer area to protect wildlife
that occurs near the water’s edge. However, the City’s approval does not address other
public access issues raised by the proposed development.
First, the City’s approval authorized a gate across the southern lagoon trail that is the
subject of an offer to dedicate a public access easement. The gate is proposed within a
fence on Parcel B (exhibit #7), the other lot under the applicant’s ownership which is not
proposed for residential development at this time. As approved, the gate would be open
from dawn to dusk. The Commission found in a recent permit decision, (Ref. CDP # 6-
96- 159/Cade), that regulating hours of beach access along property fronting Agua
Hedionda Lagoon through a time lock gate was inappropriate. The Commission finds that
a time-lock gate raises a substantial issue as to conformity with as the certified LCP as
policies 7-3 and 7-6 do not contain a provision which would permit such a device. On the
contrary, both policies recognize public use in the area and provide for a public trail. The
only restrictions the policies make on access is that it should be provided without requiring
habitat impacts. No restrictions on what time of day access should be restricted are
stated. Time lock gates are also inconsistent with the public access policies of the Coastal
Act.
As noted above, Policy 7-3 of the LUP states that ”...There is evidence of historic public
use adjacent to Buena Vista Lagoon. Paths criss-cross the area near the railroad tracks to
the ocean shoreline. Development shall provide access and protect existing access
consistent with the needs to protect the habitat ....” Due to the fact that there is historic
use by the public on this site, the City required that the applicant record an offer to
dedicate for the path on the west. However, the City’s decision did not recognize the
remainder of the perimeter path on the site that appears to be historically used by the
public (as noted previously, a well worn path is evident on the site and is also evident in
Ad-CII-98-98
Page 9
aerial photos dating back to 1972). The City’s approval includes a fence across the 100-
foot buffer with a dawn to dusk gate and a fence fiom the proposed cul-de-sac to the
marsh to the east. As such, the City’s approval will adversely affect continued use of the
on-site trails by the public. These proposed fences are not needed for security as the
entire building area will be fenced. In addition, such fences close to the lagoon and the
marsh may have adverse impacts on birds and wildlife by restricting movement in the
buffer and providing potential perches for birds of prey.
In addition, the City’s permit decision did not recognize the public’s use of an existing trail
from Mountain View Drive to the existing trail on the south shore of the lagoon and the
ocean shoreline to the west. The City’s approval included replacement of an existing
manually operated gate with an electric gate near Mountain View Drive for access for the
proposed residehce, fire and maintenance vehicular access. The existing fenced and
locked gate are located just off Mountain View Drive on property that is not owned by the
applicant. However, the applicant has a private access easement over the property. The
installation date of the gate is unknown. The fencdgate appears on a 198 1 tentative map
for a neighboring project. In addition, representatives of the City have verbally stated that
it has been in place since the 1960s. The gate/fence limits public access from Mountain
View Drive to the applicant’s site. This gate is where the applicant will take access to the
subject site via an existing private access easement. According to the City, it is the only
beach vehicle access in northern Carlsbad and has been used by lifeguard personnel and
city maintenance crews to maintain the lagoon weir which regulates the water level in
Buena Vista Lagoon.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums (ref exhibit #6). In its
approval of CDP #6-83-51, the Commission required Lot 3, the lot over which the
applicant must take access to get to the project site, to be reserved as open space through
an offer to dedicate an open space easement. In its open space easement condition, the
Commission prohibited all development except for development needed to allow for
vehicle access across Lot 3 to the lagoon weir and for public projects that were planned
on this low-lying area, including wetland restoration and possibly as a depository site for
beach replenishment projects. The condition did not recognize any private vehicular
access across Lot 3 which is needed for the applicant to get to the project site. However,
the applicant has demonstrated the right of private vehicular access across Lot 3 to the
project site through an easement that was initially granted in 1971 and then recorded again
n 1984. In its approval of CDP 6-83-51, the Commission also required a public access
easement over the entirety of Lot 3. Neither the offer to dedicate an easement for public
access nor the offer to dedicate an open space easement have been accepted by a public
agency or private association. The City’s decision on this project formalizes lateral access
along the lagoon but does not address how the public will access the trail, lagoon and
A-6-(211-98-98
Page 10
ocean from Mountain View Drive. Section 30212 of the Coastal Act and Policy 7-6 of
the LUP require that vertical access to and along the shoreline be provided where
appropriate. The City’s action failed to provide public vertical access from Mountain
View Drive to the trail on the south shore of the lagoon which is inconsistent with these
provisions. As such, the Commission finds that replacement of the existing manual gate
with a new electric gate will give the impression that this area is private which could
hrther limit access by the public, inconsistent with Coastal Act and LCP policies.
In summary, because the proposed fencing and gating plans would adversely affect public
access, the Commission finds the development as approved by the City raises a substantial
issue with regard to consistency with the public access and recreation policies of the
certified LCP and Chapter 3 of the Coastal Act.
4. Environmentally Sensitive Habitat Areas.
Policy 3-2 of the certified Mello I1 LUP addresses the protection of this environmentally
sensitive area and provides the following:
Policy 3-2 - Buena Vista Lasoon
Developments Iocated along the first row of lots bordering Buena Vista Lagoon,
including the parcel at the mouth of the Lagoon (see Exhibit 4.5, Page 61), shall be
designated for residential development at a density of up to 4 dwelling units per acre.
Proposed development in this area shall be required to submit topographic and
vegetation mapping and analysis, as well as soils reports, as part of the coastal
development permit application. Such information shall be provided as a part of or in
addition to any required Environmental Impact Report, and shall be prepared by
qualified professionals and in sufficient detail to enable the City to locate the boundary
of wetland and upland areas and areas of slopes in excess of 25%. Topographic maps
shall be submitted at a scale sufficient to determine the appropriate developable areas,
generally not less than a scale of 1” - 100’ with a topographic contour interval of 5
feet, and shall include an overlay delineating the location of the proposed project.
Criteria used to identi@ wetlands existing on the site shall be those of Section 30121
of the Coastal Act and based upon the standards of the Local Coastal Program
Mapping Regulations, and shall be applied in consultation with the State Department
of Fish and Game.
Development shall be clustered to preserve open space for habitat protection.
Minimum setbacks of at least 100 feet from wetlands shall be required in all
development, in order to buffer such sensitive habitat areas from intrusion. Such
buffer areas, as well as other open space areas required in permitted development to
preserve habitat areas, shall be permanently preserved for habitat uses through
A-6-(211-98-98
Page 11
provision of an open space easement as a condition of project approval. In the event
that a wetland area is bordered by steep slopes (in excess of 25%) which will act as a
natural buffer to the habitat area, a buffer setback of less than 100 feet in width may be
permitted.
The density of any permitted development shall be based upon the net developable
area of the parcel, excluding any portion of a parcel which is not within wetlands.
Storm drain alignments as proposed in the Carlsbad Master Drainage Plan which
would be carried through or empty in to Buena Vista Lagoon shall not be permitted,
unless such improvements comply with the requirements of Sections 30230, 3023 1,
30233, and 30235 of the Coastal Act by maintaining or enhancing the functional
capacity of the lagoon in a manner acceptable to the State Department of Fish and
Game.
Land divisions shall only be permitted on parcels bordering the lagoon pursuant to a
single planned unit development permit for the entire original parcel.
Additionally, the Coastal Resource Protection Overlay Zone, an implementing ordinance
of the City of Carisbad LCP, contains identical language to Policy 3-2 above with respect
to Buena Vista Lagoon.
Numerous other policies of the LCP provide that new development not contribute to
erosion and sedimentation of sensitive resources, including Buena Vista Lagoon. Policy
4-3 and Policy 4-6 address this issue.
Policv 4-3 - ACCELERATED SOIL EROSION
(A) Areas West of 1-5 and the existing Paseo del Norte and Along El Camino Real
Upstream of Existing Storm Drains
For areas west of the existins Paseo del Norte, west of I-and along El Camino Real
immediately upstream of the existing storm drains, the following policy shall apply:
A site specific report prepared by a qualified professional shall be required for all
proposed development, identifylng mitigation measures needed to avoid increased
runoff and soil erosion. The report shall be subject to the requirements of the model
erosion control ordinance contained in the appendix to the Carlsbad Master Drainage
Plan (June, 1980), and to the additional requirements contained herein. Such
mitigation shall become an element of the project, and shall be installed prior to initial
grading. At a minimum, such mitigation shall require construction of all improvements
shown in the Master Drainase Plan for the area between the project site and the
A-6-CII-98-98
Page 12
lagoon (including a debris basin), as well as : restriction of grading activities to the
months of April through September of each year; revegetation of graded areas
immediately after grading; and a mechanism for permanent maintenance if the City
declines to accept the responsibility. Construction of drainage improvements may be
through formation of an assessment district, or through any similar arrangement that
allots costs among the various landowners in an equitable manner.
Policy 4-6 - SEDIMENT CONTROL PRACTICES
Apply sediment control practices as a perimeter protection to prevent off-site
drainage. Preventing sediment from leaving the site should be accomplished by such
methods as diversion ditches, sediment traps, vegetative filters, and sediment basins.
Preventing erosion is of course the most efficient way to control sediment runoff.
The 2.6 acre project site consists of two lots located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The project site is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line.
In recognition of the sensitive nature of the project area, the City approved the project
with several conditions regarding the protection of coastal resources. The City found that
the project was consistent with the certified Mello I1 Coastal Resource Protection Overlay
Zone (Chapter 21.203 of the zoning ordinance) in that the project would adhere to the
City’s Master Drainage and Storm Water Quality Management Plan and Grading
Ordinance to avoid increased runoff and soil erosion, no steep slopes or native vegetation
is located on the subject property and, the site is not located in an area prone to landslides,
or susceptible to accelerated erosion, floods or liquefaction. The adjacent Buena Vista
Lagoon wetlands have been delineated and the project has been designed to include a
minimum 100 foot setback between the wetlands and all structures. The City’s approval
required the applicant to record an open space deed restriction over the entire wetland
buffer setback area and to make an irrevocable offer of dedication of the wetlands buffer
to the California Department of Fish and Game.
Although the existing vegetation on the site consists primarily of non-native grasses and
weeds, two regionally significant habitats, a coastal lagoon and fieshwater marsh
community, do occur near the subject property. Thus, activities on the property could
affect the quality of these habitats. Buena Vista Lagoon provides nesting and foraging
habitat for the California least tern and other avian species; although the quality of this
habitat is decreasing due to continuous development along the edge of the lagoon. The
City approved a sedimentation catch basin on the southeast corner of the site which will
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Page 13
direct surface runoff to the east of the site within the freshwater marsh which is part of
Buena Vista Lagoon. Policy 3-2 provides that no direct discharges to the lagoon can
occur without approval of the Department of Fish and Game. That permission has not
been obtained from the Department in writing. Urban runoff and pollutants at this
location could endanger plants and animals that reside in the marsh, including the
endangered clapper rails. Therefore, the City's decision cannot be found consistent with
Policy 3-2 of the Mello I1 LCP and substantial issue must be found.
STAFF RECOMMENDATION ON THE COASTAL PERMIT:
The staff recommends the Commission adopt the following resolution:
I. Approval with Conditions.
The Commission hereby grants a permit for the proposed development, subject to the
conditions below, on the grounds that the development will be in conformity with the
provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability
of the local government having jurisdiction over the area to prepare a Local Coastal
Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have
any significant adverse impacts on the environment within the meaning of the California
Environmental Quality Act.
II. Standard Conditions.
See attached page.
III. Special Conditions.
The permit is subject to the following conditions:
1. Final Revised Plans. Prior to the issuance of the coastal development permit, the
applicant shall submit for the review and written approval of the Executive Director, final,
revised site, fencing and building plans approved by the City of Carlsbad which
demonstrates compliance with the following requirements:
a. The proposed residence and garage/second unit shall be redesigned to not
exceed 25 feet in height.
b. No fencing shall be located along the south buffer area as shown on Exhibit 7
(attached). No fencing shall be located along the access drive turnaround on the
east side of the site such that it precludes continued public access in its current
A-6-CII-98-98
Page 14
location. No fencing of the access drive is permitted.
c. The proposed off-site electric gate off Mountain View Drive is not approved.
2. Future Development/Deed Restriction. Prior to the issuance of the coastal
development permit, the applicant shall execute and record a restriction in a form and
content acceptable to the Executive Director against the subject 2.6 acre property. The
deed restriction shall reflect the following: (1) The subject permit is only for the
development described in CDP #A-6-CII-98-98. Pursuant to Title 14 California Code of
Regulations Section 13250(b)(6), the exemptions otherwise provided in Public Resources
Code Section 306 1 O(a) shall not apply to the area governed by this coastal development
permit. (2) This approval limits the height of the residences to no higher than 25 feet. (3)
No copper roof or concrete block materials are permitted. (4) Residential structures and
garagehecond units shall be painted with earth tone colors (deep shades of green brown
and gray with no white or light shades, and no bright tones) to minimize the
development’s contrast with the surrounding scenic area. (5) The south buffer area shall
not be fenced. (6) Fencing along the access drive turnaround on the site shall not
preclude continued public access in its current location, along the eastern side of the site.
The document shall run with the land, binding all successors and assigns, and shall be
recorded free of prior liens that the Executive Director determines may affect the
enforceability of the restriction. This deed restriction shall not be removed or changed
without a Coastal Commission-approved amendment to this coastal development permit
unless the Executive Director determines that no amendment is required.
3. Open Space Deed Restriction. Prior to the issuance of the coastal development
permit, the applicant shall record a restriction against the subject property. The restriction
shall prohibit any alteration of landforms, erection of structures of any type and removal of
vegetation, except as permitted herein, for any purposes in the proposed habitat buffer
areas as shown on the site plan dated 7/17/98 (Exhibit 8) and generalIy described as the
area between the water’s edge of Buena Vista Lagoon and the 42” high chain link fence
on the west side of the project site and the area between the freshwater marsh habitat and
the 72” high chain link fence on the east side of the project site. Native drought-resistant
vegetation required herein, public access and the existing public trail shall be permitted
within the buffer. Construction of the permitted development shall not be used or
construed to interfere with any public prescriptive rights or public trust rights that may
exist on the property. The document shall include legal descriptions of both the applicant’s
entire parcel(s) and the easement area. The document shall run with the land, binding all
successors and assigns, and shall be recorded free of prior liens that the Executive
Director determines may affect the enforceability of the restriction. This deed restriction
shall not be removed or changed without a Coastal Commission-approved amendment to
A-6-CII-98-98
Page 15
this coastal development permit unless the Executive Director determines that no
amendment is required.
4. Lateral Public Access. Prior to the issuance of the coastal development permit, the
applicant shall execute and record a document, in a form and content acceptable to the
Executive Director, irrevocably offering to dedicate to a public agency or private
association approved by the Executive Director an easement for lateral public access and
passive recreational use along the lagoon shoreline. The easement shall be located along
the entire width of the property along the Buena Vista Lagoon shoreline and shall be a
minimum of 25-feet wide over the public access trail shown on the site plan dated 7/17/98
(Exhibit 2)
The document shall provide that the offer of dedication shall not be used or construed to
allow anyone, prior to acceptance of the offer, to interfere with any rights of public access
acquired through use which may exist on the property. It shall be recorded free of prior
liens which the Executive Director determines may affect the interest being conveyed, and
free of any other encumbrances which may affect said interest. The offer shall run with
the land in favor of the People of the State of California, binding all successors and
assignees, and shall be irrevocable for a period of 21 years, such period running from the
date of recording. The recording document shall include legal descriptions of both the
applicant's entire parcel(s) and the easement area.
5. Drainane/RunofVSedimentation Control. Prior to the issuance of the coastal
development permit, the applicant shall submit for the review and written approval of the
Executive Director, final drainage and runoff control plans for the project, approved by
the City of Carlsbad and reviewed in consultation with the Department of Fish and Game
and designed by a licensed engineer qualified in hydrology and hydraulics, which would
assure no increase in peak runoff rate from the developed site over runoff from the natural
site, as a result of a ten-year frequency storm over a six-hour duration (10 year, 6 hour
rainstorm). The plan shall document that runoff from the impervious surfaces of the site
will be collected and discharged at a non-erosive velocity and elevation. Energy
dissipating measures at the terminus of any proposed outflow drains shall be constructed.
Any vegetation removed to install such measures shall be replanted with native
vegetation.. The applicant shall also submit a written commitment indicating that all
devices shall be installed and maintained by the applicant in accordance with the approved
plan.
6. Grading; and Erosion Control. Prior to the issuance of the coastal development
permit, the applicant shall submit, for the review and written approval of the Executive
Director, final grading plans, approved by the City of Carlsbad which shall be subsequently
implemented and conform to the following requirements:
A-6-CII-98-98
Page 16
a) No grading activities shall be allowed during the rainy season (the period from
November 15 to March 3 1st of each year). All disturbed areas will be replanted
immediately following grading and prior to the beginning of the rainy season. The
applicant shall undertake the development in accordance with the approved
grading and erosion control plan. Prior to commencement of any grading activity,
the applicant shall submit a grading schedule to the Executive Director.
b) The installation of temporary and permanent runoff and erosion control devices
shall be developed and installed prior to or concurrent with any on-site grading
activities.
c) All areas disturbed, but not completed, during the construction season, including
graded pads, shall be stabilized in advance of the rainy season. The use of
temporary erosion control measures, such as berms, interceptor ditches,
sandbagging, filtered inlets, debris basins, and silt traps shall be utilized in
conjunction with plantings to minimize soil loss from the construction site.
7. Clapper Rail Protection Plan. Prior to the issuance of the coastal development
permit, the applicant shall submit for the review and written approval of the Executive
Director, a clapper rail protection plan which has been developed in consultation with the
Department of Fish and Game. The plan shall document that no construction activities
shall be allowed during the breeding season of the light-footed clapper rail within the
wetlands adjacent to the project site. Project construction shall be prohibited during the
breeding season, March 1 through August 1, unless a focused survey for the clapper rail is
conducted immediately prior to project construction and determines that no clapper rails
were observed during the study.
The wetlands buffer area shall be staked and flagged in the field by a licensed surveyor and
shall be shown on the submitted clapper rail protection plan. A minimum of three notices
shall be posted within this area to specifl that this area is off-limits to construction
activity.
8. Final LandscaueLightingExterior Treatment Plan. Prior to the issuance of the
coastal development permit, the applicant shall submit for the review and written approval
of the Executive Director, in consultation with the Department of Fish and Game, a
revised landscape/lighting/exterior treatment plan, approved by the City of Carlsbad,
which shall incorporate the following:
a. Building - Materials/Colors. No copper roof or concrete block materials are
permitted. The proposed residence and garage/second unit shall utilize colors and
building materials with earth tone colors (deep shades of green brown and gray
A-6-CII-98-98
Page 17
with no white or light shades, and no bright tones) to minimize the development’s
contrast with the surrounding scenic area.
b. Lighting. An exterior lighting plan shall be submitted, developed in consultation
with the Department of Fish and Game, which indicates all exterior lighting shall
include a combination of low-level lights and shields to minimize the amount of
light entering the adjacent wetlands and wetland buffer area.
c. Revised Landscapinq Plans. The plan shall indicate the type, size, extent and
location of all plant materials, the proposed irrigation system and other landscape
features and be subject to review by the Department of Fish and Game. The
landscaping plan shall consist of native, drought-resistant landscaping acceptable
to the Executive Director in consultation with the Department of Fish and Game.
1. The revised landscape plan shall indicate the placement of a minimum of
one specimen size tree (24-inch box minimum) for every 10 feet of pad area
lagoonward of the proposed building sites and arranged to maximize screening
of the structures from views from Buena Vista Lagoon, its public trail, Old
Highway 101 and the railroad. A minimum of 8-trees shall be provided
lagoonward of the building pad for Parcel A.
2. At maturity the trees shall approximate the height of the roofline of the
residences.
3. The required trees shall be planted within 60 days of completion of
residential construction and be maintained in good growing condition for the
life of the residences. Maintenance requirements to assure no blockage of
public views must be incorporated into the approved plan.
4. The plan must also indicate non-native plant species shall be removed
from the wetland buffer area and the wetland buffer area shall be revegetated
with a hydro-mulched coastal sage scrub seed mix.
The permittee shall undertake development in accordance with the approved final plans.
Any proposed changes to the approved final plans shall be reported to the Executive
Director. Proposed changes to the approved final plans shall not occur without a Coastal
Commission-approved amendment to this coastal development permit unless the
Executive Director determines that no amendment is required.
V. Findings and Declarations.
The Commission finds and declares as follows:
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Page 18
1. Detailed Pro-iect Description. Proposed is the construction of a 2,713 sq.ft.
residence, consisting of two-stories over 30 feet tall, and features a copper-colored metal
roof and concrete block walls. Also proposed is a 1,633 sq.ft., 35-foot high garage with a
577 sq.ft. second unit above. Estimated grading quantities include 75 cubic yards of cut
and 75 cubic yards of fill to be balanced on-site. Also proposed is off-site private access
improvements, the replacement of gate and fencing on the site. The proposed project site
is made up of two lots comprising 2.6 acres located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The project site is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and continues to circle
the site like a loop. The AT&SF railroad right-of-way lies to the east of the site, and
multi-family housing is located to the south of the project site. The site is designated
Residential Low (RL, 0-1.5 ddac) and zoned R-1-30,000 in the certified Mello I1 LCP.
2. Visual Resources. The previously cited visual resource policies of the Mello 11 LUP
provide for the protection of scenic coastal areas and for the compatibility of existing and
new development. The project site is in an area of scenic beauty as it lies at approximately
12 MSL adjacent to the Pacific Ocean, Buena Vista Lagoon and its associated open water
and freshwater marsh habitats. The project site is an approximately 2.6-acre vacant and
flat parcel that sits in the lowlands near the mouth of the south shore of Buena Vista
Lagoon. It is bordered by the lagoon to the north and west and a freshwater marsh to the
east with residential development to the south at higher elevations.
While existing apartment and condominium structures located south of the subject site
present an urban backdrop, when looking west from old highway 10 1 across the project
site to the ocean, the unique setting of this area was not considered by the City in its
approval. Although ocean views would not be significantly altered by this project (except
from passenger trains on the adjacent rail line), the City approved residential structures
that are large and as such will “stand out”at this location. The bulk and scale of the
proposed 30 - 35 foot high structures is out of character with this unique, low-lying site
given its proximity to the lagoon and ocean. In addition, the proposed development
includes a copper colored roof and a concrete block wall facade.
Policies 3-2 and 8-1 of the Mello I1 LUP require that new development be visually
subordinate to its setting. The Commission finds that the project, as proposed, is out of
character with its setting and is inconsistent with the policies. It would be visible Erom a
number of public locations (beach, railroad, and Old Highway 101 from City of Oceanside
and near the Carlsbad pump station to the east of the site) and is not appropriate for its
lagoon setting. In that regard, the Commission finds the proposed residence and
A-6-CII-98-98
Page 19
garagelsecond unit must be redesigned to be no higher than 25 feet high. This height is
consistent with the San Malo residential project, located immediately north of the project
site across the lagoon in the City of Oceanside, which is known not only for its French
Normandy architecture but for its modest scale which makes it subordinate to the
oceadlagoon setting. In several other permit decisions in Carlsbad, the Commission has
also required a 25-foot height limit to reduce the visual impacts of new development.
These actions primarily concerned larger residential subdivisions in the Aviara and Sammis
Property projects on Batiquitos Lagoon in southern Carlsbad. While this project is of less
intensity, it nonetheless has a great visual impact on the surrounding environs of Buena
Vista Lagoon. For that reason, the Commission finds the height reduction is warranted,
As such, Special Condition #1 requires revised plans that limit project height to 25 feet
high. Additionally, Special Condition #8 requires building materials/colors to be
subordinate to the lagoon setting by requiring the proposed residence and garagehecond
unit shall be painted with earth tone colors (deep shades of green brown and gray with no
white or light shades, and no bright tones) to minimize the development’s contrast with
the surrounding scenic area. The height reduction and color changes will result in a
smaller, less visually obtrusive project that is compatible with its setting. Special
Condition #2 requires the entirety of the property - which includes the other .72 acre
adjacent lot under the applicant’s ownership - to be subject to the above provisions in the
form of a deed restriction. This restriction is necessary to insure fkture property owners
are aware of condition requirements.
The applicant has submitted a landscaping plan that indicates a number of non-native trees
and shrubs would be planted. These trees and shrubs may be noxious or invasive to the
existing sensitive habitat area surrounding the project site. Special Condition #8 requires
that a landscaping plan be developed in consultation with the Department of Fish and
Game. The Commission hrther finds that landscaping upland of the buffer shall be
designed to mitigate the visual impact of the structures as viewed from the lagoon and
public access trail, while preserving views from the homes. the natural character of the
surrounding environment (i.e., non-invasive or noxious). The revised landscape plan shall
indicate the placement of a minimum of one specimen size tree (24-inch box minimum) for
every 10 feet of pad area lagoonward of the proposed building sites and arranged to
maximize screening of the structures from views from Buena Vista Lagoon and its public
trail and Old Highway 101 and the railroad. A minimum of 8-trees shall be provided
lagoonward of the building pad and be compatible with the existing lagoon environment.
At maturity the trees must approximate the height of the roofline of the residences. The
revised landscape plan must include provisions requiring the trees to be planted within 60
days of completion of residential construction and be maintained in good growing
condition for the life of the residences . Maintenance requirements must also be provided
to assure no blockage of public views.
A-6-C1I-98-98
Page 20
In summary, as required to redesign proposed residential development to be subordinate
to its lagoon setting to be no higher than 25 feet in height and that building materials and
colors be earth-tone colors, and that appropriate screening vegetation is provided to
hrther reduce the visual impact of the proposed project, the Commission finds the
proposed project can be found consistent with the visual resource protection policies of
the certified LCP.
3. Public Access/Recreation. Both the certified LCP and the Coastal Act contain
policies protecting physical access to the beach and ocean. Policies 7-3 and 7-6 of the
LUP and Section 30212 of the Coastal Act require that access to and along the shoreline
be maintained. The subject site is located between the first public roadway and the sea at
the ocean entrance to Buena Vista Lagoon. There is evidence of use of a trail on the site.
There is a system of trails on the applicant’s property which together form a loop around
the subject property. These trails are well-worn footpaths which appear on numerous
aerial photographs dating back to 1972. Presently, based on these existing paths, it
appears that access to this loop trail is fiom the ocean and from an informal path to the
east through the fresh water marsh from Carlsbad Blvd and next to tennis courts on
Mountain View Drive.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums (ref. exhibit #6). In its
approval of CDP #6-83-51, the Commission required Lot 3, the lot over which the
applicant must take access to get to the project site, to be reserved as open space through
an offer to dedicate an open space easement. In its open space easement condition, the
Commission prohibited all development except for development needed to allow for
vehicle access across Lot 3 to the lagoon weir and for public projects that were planned
on this low-lying area, including wetland restoration and possibly as a depository site for
beach replenishment projects. The condition did not recognize any private vehicular
access across Lot 3 which is needed for the applicant to get to the project site. However,
the applicant has demonstrated the right of private vehicular access across Lot 3 to the
project site through an easement that was initially granted in 1971 and then recorded again
n 1984. In its approval of CDP 6-83-51, the Commission also required a public access
easement over the entirety of Lot 3. Neither the offer to dedicate an easement for public
access nor the offer to dedicate an open space easement have been accepted by a public
agency or private association. The City’s decision on this project formalizes lateral access
along the lagoon but does not address how the public will access the trail, lagoon and
ocean from Mountain View Drive. Section 30212 of the Coastal Act and Policy 7-6 of
the LUP require that vertical access to and along the shoreline be provided where
appropriate. The City’s action failed to provide public vertical access fiom Mountain
View Drive to the ocean and the shore of the lagoon which is inconsistent with these
provisions. As such, the Commission finds that replacement of the existing manual gate
A-6-CII-98-98
Page 21
with a new electric gate will give the impression that this area is private which could
hrther limit access by the public, inconsistent with Coastal Act and LCP policies.
As stated the policies of the Coastal Act and the Mello II LCP protect public access both
to and along the shoreline, including the shoreline of Buena Vista Lagoon. Policies 7-3
and 7-6 specifically provide that access shall be provided along and near Buena Vista
Lagoon on the applicant’s property. The City’s approval secured the access path
identified in Policy 7-6 by requiring the applicant to dedicate an easement over the existing
trail near the water’s edge. The Commission’s requirement mirrors that approved by the
City in Special Condition #4 and provides that the easement shall be located along the
entire width of the property along the Buena Vista Lagoon shoreline as shown on the site
plan dated 7/17/98.
In addition, the Commission finds additional steps must be taken to preserve and protect
existing public access opportunities consistent with the above LUP policies. For example,
the applicant is proposing the installation of 42’’ high chain link fencing across the required
100 foot setback (exhibit 7). The applicant is also proposing the installation of a time-lock
gate within this fence which would extend across the existing trail and be open from dawn
to dusk. In two recent decisions by the Commissian in Carlsbad (CDP 6-96-159, Cade/
and LCPA 1-984 Poinsettia Properties Specific Plan), the Commission found that time
lock gates were inappropriate. In its action to prohibit them, the Commission found that
unrestricted public access was warranted for coastal visitors to be able to access coastal
resources. Time lock gates are also subject to mechanical failures and vandalism which
limit their effectiveness. In the former decision, the Commission allowed the applicant
security fencing at the upper limit of a habitat buffer to protect against vandalism. In this
way both public access and private security was maintained. This case is similar in that the
Commission is allowing the applicant to fence the site for security reasons but is not
allowing fencing or gates that would preclude existing public access. Special Condition #1
requires that the gate and fence be deleted so that the public access trail will remain open
at all times along the shoreline of Buena Vista Lagoon.
The applicant is also proposing the installation of 6’ high chain link fencing and vegetation
on the eastern portion of the site around the access turnaround. Again, fencing at this
location could preclude continued movement by the public. Presently, there is a foot path
that provides access along the eastern portion of the project site in the 100-foot habitat
setback. While the Commission recognizes the need for the setback, it also recognizes
that historic public use has occurred along this portion of the trail. Policy 7-3 of the Mello
I1 LUP requires that access be maintained in this area consistent with resource protection.
For this reason the Commission is requiring in Special Condition #1 that the applicant
submit a fence plan which provides fencing such that the public will not be precluded from
using this area as they have in the past. Implementation of this condition will require that
Ad-CII-98-98
Page 22
passage through a portion of the fence be provided so that the trail in the eastern buffer
will remain accessible for public use.
As noted, access to the project site must come over a lot which is not under the
applicant’s ownership (Lot 3). Presently, a gate precludes public access over this lot fi-om
Mountain View Drive. In 1983, the Commission approved a public access easement over
this lot. Thus, the present situation is inconsistent with the Commission’s previous
approval. The applicant desires to replace this gate with an electric gate, but does not
include a provision for public pedestrian access. The Commission finds that replacement
of the existing manual fence with a new electric gate will give the impression that this area
is private and would hrther limit access by the public, inconsistent with the public access
policies of the Coastal Act and the LCP. In summary, as required to revise fencing and
gating plans and record a lateral access easement? the Commission finds the project will
not have adverse public access impacts. Only as conditioned, can the Commission find the
proposed project in conformance with the access policies of the certified Mello I1 LCP and
the Coastal Act.
4. Environmentallv Sensitive Habitat Areas. The project site is an approximately 2.6-
acre vacant and flat parcel that sits in the lowlands near the mouth of the south shore of
Buena Vista Lagoon. It is bordered by the lagoon to the north and west and a fieshwater
marsh to the east. Coastal lagoons offer habitat and a resting place for many sensitive
plants and animals, including the endangered light footed clapper rail which resides in the
freshwater marsh immediately adjacent to the applicant’s site. In recoption of these
resources? the certified LCP establishes development setbacks from the resource and
requires these setbacks to be reserved as open space. Special Condition #3 requires
development setbacks from both the open waters of Buena Vista Lagoon and its
associated fieshwater marsh.
In its findings for approval, the City found that the project was consistent with the
certified Mello I1 Coastal Resource Protection Overlay Zone (Chapter 2 1.203 of the
zoning ordinance) in that the project would adhere to the City’s Master Drainage and
Storm Water Quality Management Plan and Grading Ordinance to avoid increased runoff
and soil erosion, no steep slopes or native vegetation is located on the subject property
and the site is not located in an area prone to landslides, or susceptible to accelerated
erosion, floods or liquefaction. The adjacent Buena Vista Lagoon wetlands have been
delineated and the project has been designed to include a minimum 100 foot setback
between the wetlands and all structures. The developer has been conditioned to record an
open space deed restriction over the entire wetland buffer setback area and to make an
irrevocable offer of dedication of the wetlands buffer to the California Department of Fish
and Game.
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Page 23
The Commission finds that similar provisions are necessary as part of this coastal
development permit. That is, the Commission finds an open space deed restriction over
sensitive areas of the site is warranted. Special Condition #3 requires the restriction shall
prohibit any alteration of landforms, erection of structures of any type and removal of
vegetation, except as permitted herein, for any purposes in the proposed buffer areas as
shown on the site plan dated 7/17/98 (Exhibit 8). Also, removal of the fence within the
buffer is necessary because it could limit wildlife movement and provide a predator perch.
Several policies of the certified LCP also require that project construction not indirectly
adversely impact coastal resources by way of erosion and sedimentation. The Commission
finds in Special Condition #5 that final drainage and runoff control plans must be
submitted to assure no increase in peak runoff rate from the developed site over runoff
from the natural site, as a result of a ten-year frequency storm over a six-hour duration (10
year, 6 hour rainstorm). The plan shall document that runoff from the impervious surfaces
of the site will be collected and discharged at a non-erosive velocity and elevation.
A sedimentation catch basin is proposed on the southeast corner of the site to direct
surface runoff to the east of the site within the freshwater marsh which is part of Buena
Vista Lagoon. Policy 3-2 of the Mello II LUP provides that no direct discharges to the
lagoon can occur without approval of the Department of Fish and Game. Therefore,
Special Condition #5 requires the applicant to consult with the Department of Fish and
Game to ensure drainage in this sensitive area can be found consistent with Policy 3-2 of
the Mello II LCP.
Also, in Special Condition #6 the Commission finds that although there is only minor
grading being proposed @e., 75 cubic yards of balanced grading) based on the location
and the surrounding resources, final grading plans must be submitted which indicate no
grading activities shall be allowed during the rainy season (the period from November 15
to March 3 1st of each year). Typically, the rainy season begins on October 1 of any year;
however, because of wildlife concerns, the rainy season restriction can be extended to
November 15 in this case. Also, all disturbed areas will be replanted immediately
following grading and prior to the beginning of the rainy season. The installation of
temporary and permanent runoff and erosion control devices shall be developed and
installed prior to or concurrent with any on-site grading activities.
Finally, as noted, a nesting pair of clapper rails is known to exist within the freshwater
marsh area located immediately east of the project site. The Commission is requiring that
development be setback 100-feet from this marsh and that this setback be secured
through an open space deed restriction. Additionally, as hrther protection to this
endangered species and as requested by the Department of Fish and Game, the
Commission is requiring in Special Condition #7 that no construction activities be allowed
during the breeding season of the light-footed clapper rail within the wetlands adjacent to
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Page 24
the project site. Thus, project construction shall be prohibited during the breeding season,
March 1 through August 1, unless a focused survey for the clapper rail is conducted
immediately prior to project construction and determines that no clapper rails were
observed during the study. Special Condition #8 requires an exterior lighting plan shall
also be submitted which indicates all exterior lighting will include a combination of low-
level lights and shields to minimize the amount of light entering the adjacent wetlands and
wetland buffer area. Further, the wetlands buffer area shall be staked and flagged in the
field by a licensed surveyor. A minimum of three notices shall be posted within this area
to specifjr that this area is off-limits to construction activity. In summary, as conditioned
to mitigate project related impacts to surrounding resources through the provision of
habitat buffers preserved as open space and an appropriate location for project drainage,
the Commission finds the project consistent with the resource protection policies of the
Coastal Act and the Mello II LCP.
In summary, the Commission finds that with 100-foot habitat setbacks on the east and
west sides of the site to be secured through an open space condition, a public access
easement on the south side of Buena Vista Lagoon, revised plans that indicate the
proposed residential development will be redesigned to be subordinate to its lagoon setting
by being no higher than 25-feet high and that building materials and colors be earth-tone
colors, that existing public trails on the site be preserved so as to not preclude existing
public rights, that fencing and gating plans be revised to not adversely affect public access,
that grading, drainage and runoff control plans be submitted to ensure that downstream
resources will not be indirectly affected from proposed development and that a clapper rail
protection plan be implemented which ensures this endangered avian will not be adversely
affected from residential development in this scenic and sensitive area the project can be
found consistent with all applicable Coastal Act and Mello I1 LCP provisions. Only as
conditioned above is the proposed project consistent with the resource protection policies
of the certified LCP.
5. Local Coastal Planning. Section 30604(a) also requires that a coastal development
permit shall be issued only if the Commission finds that the permitted development will not
prejudice the ability of the local government to prepare a Local Coastal Program (LCP) in
conformity with the provisions of Chapter 3 of the Coastal Act. In this case, only as
conditioned, can such a finding be made.
As noted above, the project as submitted has been found inconsistent with a number of
Coastal Act and LCP policies. As conditioned, the project will establish open space and
public access easements to protect existing coastal resources and public trails, control
runoff to mitigate any potential sedimentation of the adjacent lagoon, and provide
adequate landscaping and design revisions to preserve the scenic amenities of the area.
The proposed project is also consistent with the land use designation and density
Ad-CII-98-98
Page 25
permitted in the LCP. Therefore, the Commission finds project approval, as conditioned,
will not seriously prejudice the implementation of the Carlsbad LCP.
6. Consistency with the California Environmental Ouality Act (CEOA).
Section 13096 of the Commission’s Code of Regulations requires Commission approval of
Coastal Development Permits to be supported by a finding showing the permit, as
conditioned, to be consistent with any applicable requirements of the California
Environmental Quality Act (CEQA). Section 21080.5(d)(Z)(A) of CEQA prohibits a
proposed development from being approved if there are feasible alternatives or feasible
mitigation measures available which would substantially lessen any significant adverse
effect which the activity may have on the environment.
The proposed project has been conditioned in order to be found consistent with the visual
resource, public access and environmentally sensitive habitat policies of the Coastal Act
and the certified LCP. In this case, there are no feasible alternatives available which can
lessen the significant adverse impact the project will have on public views, public access
and the environment. The proposed conditions addressing landscaping, fencing, gating ,
building design and protection of public access and environmentally sensitive habitat, will
minimize all adverse environmental impacts. As conditioned, there are no feasible
alternatives or feasible mitigation measures available which would substantially lessen any
significant adverse impact which the activity may have on the environment. Therefore, the
Commission finds that the proposed project is the least environmentally-damaging feasible
alternative and can be found consistent with the requirements of the Coastal Act to
conform to CEQA.
STANDARD CONDITIONS:
1.
2.
3.
Notice of Receipt and Acknowledgment. The permit is not valid and development
shall not commence until a copy of the permit, signed by the permittee or authorized
agent, acknowledging receipt of the permit and acceptance of the terms and
conditions, is returned to the Commission office.
Expiration. If development has not commenced, the permit will expire two years from
the date on which the Commission voted on the application. Development shall be
pursued in a diligent manner and completed in a reasonable period of time.
Application for extension of the permit must be made prior to the expiration date.
Compliance. All development must occur in strict compliance with the proposal as set
forth below. Any deviation from the approved plans must be reviewed and approved
by the staff and may require Commission approval.
A-6-CII-98-98
Page 26
4. Interpretation. Any questions of intent or interpretation of any condition will be
resolved by the Executive Director or the Commission.
5. Inspections. The Commission staff shall be allowed to inspect the site and the
development during construction, subject to 24-hour advance notice.
6. Assinnment. The permit may be assigned to any qualified person, provided assignee
files with the Commission an affidavit accepting all terms and conditions of the permit.
7. Terms and Conditions Run with the Land. These terms and conditions shall be
perpetual, and it is the intention of the Commission and the permittee to bind all kture
owners and possessors of the subject property to the terms and conditions.
(9898R.doc)
I
. JUL-22-98 WED 14:01 CITY OF CARLSBAD COtlfl DE FAX NO. 4380894 -. -
- APPLICATION NO.
A-6-CI 1-98-98
Location Maps
P. 15 __.
LEVY RESIDENCE
CDP 97-59
STATE OF CALIFORNIA-THE RESOURCES AGENCY PETE WILSON, &=mor
CALIFORNIA COASTAL COMMISSION
SAN DlEGO COAST AREA
3111 CAMINO DEL RIO NORTH, SUITE 200
APPEAL FROM COASTAL PERMIT
DECISION OF LOCAL GOVERNMENT
SAN DIEGO, CA 92108-1725
(619) 521-8036
P1 ease Rev! ew Attached Appeal Informati on Sheet Prior To Compl eti ng
This Form.
SECTION I. ADD^^ 1 ant
Name, mailing address and telephone number of appellant:
Commi ssioner Christine Kehoe Citv of San Dieao 202 "C" s treet. S an Dieuo 9 2101 61 9 236-6633
Zip Area Code Phone No.
SECTION 11. Deci sion Bei nu ADueal ed
1.
2. Brief description of development being appealed: Construction of a
Name of local /port government: Ci tv o f Carlsbad
~ two-s or sa.ft. second dwell ins unit over a detached uaraue won a 1.9 acre lot.
3.
no., cross street.etc.1:
South Shore of Buena Vista Laqoon. west of the AT&SF Railroad. north of Mountain View Drive. Ca rlsbad. San Dieao Cou ntv
Development's location (street address, assessor's parcel
4. Description of decision being appealed:
a. Approval ; no speci a1 condi ti ons :
b. Approval with special conditions: xxx
c. Denial:
decisions by a local government cannot be appealed unless the development is a major energy or public works project. Deni a1 deci si ons by port governments are not appeal ab1 e.
Note: For jurisdictions with a total LCP, denial
TO BE COMPLETED BY COMMISSION:
DATE FILED: 7/27/g%
3
EXHIBITNO. 3
APPLICATION NO.
A-6-C I I -9 8 -98 2 5
Appeal Form 4
Appeal Summary
Page 2
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paae 2)
5. Decision being appealed was made by (check one):
a. -Planning DirectorIZoning c. JPlanning Commission Admi ni strator
b. -City Council/Board of d. Other Supervisors
6. Date of local government's decision: Julv 1. 1998
7. Local government's file number (if any): CDP 97-59
SECTION 111. Identification of Other Interested Persons
Give the names and addresses of the following parties.
(Use additional paper as necessary. 1
a. Name and mailing address of permit applicant:
1825 Aston Ave.
Carlsbad. Ca lifornia 9 2008
b. Names and mailing addresses as available of those who testified (either verbally or in writing) at the ci ty/county/port hearing(s1. Include other parties which you know to be interested and should receive notice of this appeal .
SECTION IV. Reasons SUDDO rtina Thi s ADDeal
Note: Appeals of local government coastal permit decisions are
limited by a variety of factors and requirements of the Coastal
ct. Please review the appeal information sheet for assistance in completing this section, which continues on the next page.
Appeal Summary
Page 3
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paqe 3)
State briefly your reasons for this aooeal.
description of Local Coastal Program, Land Use Plan, or Port Master
Plan policies and requirements in which you believe the project is inconsistent and the reasons the decision warrants a new hearing.
(Use additional paper as necessary.)
Include a summary
The Droiect includes co nstruction of a residence and second dwelling unit on a 1
proiect reauires an access road to the subiect uarcel which extends across a 1 access in a De rmit for subdivision of the adjacent parcels (CDP #6-83-51). That oermit has not vet been amended to allow the access road in the ouen space.
of the road in the least environmentally damaains alianment and public use of
the road within the pub lic access looen soace lot. A second co ncern is the
leaalitv o f the lot on which the Drouosed residence is located. It amears
that redivision of two lots was required to reach the current confiquration of
lots on which the residence was aooroved: however. the City did not Drocess a
rthe time the Commission approved the adiacent subdivision, the number of existins legal
lots on this site and the aourouriate intensity of use on this site was
auestioned due to concerns associated with a develoDment's oroximitv to
wetlands, visual impact and the effects on public access to the laaoon. All
of these issue s should have been addressed at the subdivision staae throush
cdo review bv the Citv. AUDrOVal of a permit for an sfr on this lot which has > bccess road which has not been authorized bv the Commission throuah an 1
Issues which must be addressed in that amendment review include siting
Concerns related to the residential oroiect include the sitina and desisn to greserve existins Dublic views from Carlsbad Blvd.. the railroad and the
the laaoon: and the Droximitv of the develooment to wetlands. Therefore. the B r 0.1 e c t raises auestion reaardina consistency with the uublic access and recreation oolicies of the Coastal Act. and aoulicable LCP eolicies which
include address develooment ad. iacent to Buena Vista lasoon. protect oublic vistas. environmentallv sensitive habitat areas and oublic access.
1
Note: statement of your reasons of appeal; however, there must be
sufficient discussion for staff to determine that the appeal is allowed by law. The appellant, subsequent to filing the appeal, may
submit additional information to the staff and/or Commission to
support the appeal request.
The above description need not be a complete or exhaustive
SECTION V. Certification
The information and facts stated above are correct to the best of my
Appellant or Agent
PETE WILSON, Gommr STATE OF CALIFORNIA-THE RESOURCES AGENCY
CALI FORNl A COASTAL COMMISSION
SAN DIEGO COAST AREA APPEAL FROM COASTAL PERMIT 3111 CAMINO DEL RIO NORTH, SUITE 200 DECISION OF LOCAL GOVERNMENT SAN DIEGO, CA 92108-1725
(619) 521-8036
P1 ease Rev! ew Attached Appeal Information Sheet Prior To Completing This Form.
SECTION I. ADDellant
Name, mai 1 i ng address and telephone number of appel lant:
Commissioner Pedro Nava
Bauer. Harris. McEvov & C 1 i nkenbeard 925 De La Vina Street Santa Barbara, CA 93101 805 965-0043 Zip Area Code Phone No.
SECTION 11. Decision Beina Appealed
1. Name of local/port government: Citv of Carlsbad
2.
two-storv. 33 -feet hish and 2.713 sa .ft. sinsle family residence and 577
sa.ft. seco nd dwellina unit over a detac hed sa raae UDO n a 1.9 acre lot.
Brief description of development being appealed: Co nstruction of 3
3. Development's location (street address, assessor's parcel no., cross street,etc.): Sbf Mountain View Drive. Ca rlsbad. Sa n Dieso Cou ntv
4. Description of decision being appealed:
a. Approval ; no special conditions:
b. Approval wi th speci a1 condi ti ons : xxx
c. Denial:
Note: For jurisdictions with a total LCP, denial decisions by a local government cannot be appealed unless the development is a major energy or public works project.
Denial decisions by port governments are not appeal
TO BE COMPLETED BY COMMISSION:
Bc F0
_.
DATE FILED: 7h
01 STRICT : 5&
Appeal Summary
Page 2
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paae 2)
5. Decision being appealed was made by (check one):
a. -Planning Director/Zoning
b. -City Counci 1 /Board of
c. XPlanning Commission
d. Other
Administrator
Supervisors
6. Date of local government's decision: Julv 1. 1998
7. Local government's file number (if any): CDP 97-59
SECTION 111. Pers n
Give the names and addresses of the following parties.
(Use additional paper as necessary. 1
a. Name and mailing address of permit applicant:
1825 Aston Ave.
Carl sbad. Cal i forni a 92008
b. Names and mailing addresses as available of those who testified
(either verbally or in writing) at the ci ty/county/port hearing(s1.
Include other parties which you know to be interested and should
receive notice of this appeal.
SECTION IV. R/
Note: Appeals of local government coastal permit decis
limited by a variety of factors and requirements of the
ct. Please review the appeal information sheet for ass in completing this section, which continues on the next
ons are
Coastal stance
Page *
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paqe 31
State briefly your reasons for this amea 1. description of Local Coastal Program, Land Use Plan, or Port Master
Plan policies and requirements in which you believe the project is inconsistent and the reasons the decision warrants a new hearing.
(Use additional paper as necessary.)
Include a summary
Note: statement of your reasons of appeal; however, there must be sufficient discussion for staff to determine that the appeal is
a1 lowed by law. The appellant, subsequent to filing the appeal, may
submi t additional information to the staff and/or Commission to
support the appeal request.
The above description need not be a complete or exhaustive
SECTION V. Certification
The information and facts stated above are correct to the best of my
know1 edge.
Signed
Date 1
Aaent Authorization: act as my agent in a1 1 matters pertaining to this appeal.
I designate the above identified person(s1 to
Signed
Appel 1 ant
Date
001 6F
I
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EXHIBIT 6
AERIAL IMAGE: 2003
AERIAL IMAGE: 2024