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HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (42)John C. Levy, 3~ 1825 Aston Avenue *Co i’sbd CaIiTormo; 92008 phone 76Q-931-9009 fox 760-931-9089 August 25, 1998 Mr. Peter Douglas Executive Director California Coastal Commission 45 Fremont Street San Francisco, California. 94 105-22 1 9 RE: California Coastal Commission Appeal (#A-6-98-98) Coastal Development Permit (CDP 97-59) Attachments: 1 ) Chronology of CCC correspondence and meetings. 2) USF&W letter dated 2/13/97 “conditions of development”. 3) Letter dated 8/14/98 Mayor Lewis, City of Carlsbad. 4) Letter dated 8/20/98 Assemblyman Bill Morrow 73‘d District 5) Letter dated 8/21/98 Senator William Craven, 38” District 6) Letter dated 8/25/98 USF@W Elizabeth S. Stevens Deputy Field Officer 7) SitePlan Dear Mr. Douglas, I am writing to you today to express the frustration, lack of professionalism, and irresponsible behavior, I am encountering with the staff of the San Diego District office of the Coastal Commission for the above referenced CDP and subsequent appeal. I have worked diligently for over three years with the respective resource agencies in an attempt to build a home for my family in Carlsbad adjacent to the Buena Vista Lagoon. Upon receiving a CDP 97-59 from the City of Carlsbad on July 1, 1998, local coastal staff elected to appeal my permit on the last day of the appeal period. To my astonishment all of the issues raised in the appeal had been addressed and resolved prior to the issuance of the CDP. Local CCC staff made no comments during the 30 day mitigated negative declaration review period, nor during any of the six months of the processing of the mitigated negative declaration prior to the issuance of the CDP. Their behavior is infuriating me and my family with minute details that should be resolved at the staff level not through a “substantial issue” appeal and subsequent a “de novo” hearing. I have addressed each of their initial appeal issues, although there seems to be a never ending cauldron of new ones. This leads me to the conclusion that the highest levels of staff of your San Diego district office are abusing their authority and I need your help in bringing an end to this injustice. I have attached a three year chronology of meetings, and correspondence, with local staff for your review. I have done this because once the appeal process began it became quite obvious to us that staff has lost their entire file on this project. We have provided them with every document they have requested since the appeal was made, and hand carried the entire City of Carlsbad file to help resolve these issues. Our information answered all of staffs concerns but they have elected to continue with the appeal and “substantial issues”. Although the story is long I have attempted to consolidate the issues as they apply to this appeal. 1. 2. 3. 4. 5. 1-22-97 2-1 3-97 1-27-97 2-6-97 1 1-4-97 After many meetings, preliminary studies, surveys, telephone and fax correspondence with USF&W, CCC, and CF&G over a two year period on January 22, 1997 we finally came to an agreement on environmental building setbacks, wildlife habitat, and public coastal access. This document is what all the resource agencies agreed to be the conditions for development. Because we were required to give 100’ setbacks on two of the three sides of our property it was necessary for me to make a lot line boundary adjustment to comply with resource agency conditions. Coastal staff was an active participant in all of these meetings, and kept abreast of every issue. I have attached a letter dated February 13, 1997 from USF&W outlining the agreement for development of the site. Bill Ponder of the coastal staff was in attendance, as he was in all of the other resource meetings . On 1/27/97 we sent the CCC a revised site plan for review. No comment was made. On 2/6/97 the CCC was sent a memo which included the boundary adjustment plat map for the two lots of the subject property. No comment was made. 11/4/97 A certificate of compliance (COC) and boundary adjustments were recorded and sent to the CCC. No comment was made. 2 6. 12-20-97 On December 20, 1997 I submitted all plans to the Carlsbad Planning Department for CDP-97-59. 7. 4-98 A mitigated negative declaration was issued and sent to all of the respective resource agencies for comment in April of 1998. No comment was made. 8. 7- 1-98 On July 1, 1998 the Carlsbad Planning Commission unanimously approved our plan and issued CDP 97-59. There was no comment received from any of the resource agencies during the entire process, nor a single comment from the neighbors. No comment was made. 9. 7-27-98 On July 27, 1998 at 5:OOPM we received a notice of appeal from the CCC signed by Commissioner Kehoe. We were astounded! We had not heard one word from Coastal staff during the resource agency mitigated negative declaration review period. This was a text book example of a homeowner working with the resource agencies in the development of a site. The stated reasons for the CCC appeal were as follows: 1. Legal site access. 2. The requirement for an additional CDP for a boundary adjustment. 3. Public viewing from the coast highway 4. Public access to the lagoon On July 31, 1998 I met with Bill Ponder and Lee McEachern from coastal staff, and Craig Adams from Ms. Kehoe’s staff in an attempt to resolve their issues. In the meeting it was as though staff had never heard of our project. In fact it appears they have lost or misplaced every piece of documentation that we have sent them over the last three years! In an attempt to resolve the issues I presented evidence that refuted each element of the appeal : 1. We have legal access. 2. A boundary adjustment per the City of Carlsbad Municipal Codes Section 21.201.030, 21.04.107 and section 66410 of the Subdivision Map Act and subsection 66412(d) if the California Government Code specifies that “the Subdivision Map Act shall be inapplicable to a lot line adjustment between two or more existing adjacent parcels, where the land taken from one parcel is added to an adjacent parcel, and where a greater number of parcels than originally existed is not hereby created”. 3. Pictures illustrate that we do not restrict any coastal view sheds, and the building is within all required setbacks and zoning regulations. 3 4. We had provided a 25’ public path along the southern shore to provide public access to the lagoon per the LCP. All of these issues had been conditioned prior to the issuance of the CDP in the 2/17/97 letter from USF&W. Ironically, none of these issues raised in the original appeal are what staff will claim as “substantial issues” in their staff report to the Commissioners in their staff report. Coastal staff argued erroneously that an Attorney General ruling had determined that a CDP was required for a boundary adjustment. We found that the cited case had to deal with a property where the owner had increased the density of a coastal bluff from one building lot to two resulting from the boundary adjustment. The cited ruling centered solely around increased density issues resulting from a boundary adjustment. This ruling is irrelevant to our site because we have always had two legal lots, and in our case we made the boundary adjustment to comply with resource agency setback requirements. We did not increase density. Rather than increase the intensity of our site in fact we have reduced the intensity of the development from 1.9 acres to .43 acres by our boundary adjustment. Consequently the AG ruling would have no validity to staffs substantial issue. On August 11, Ms. Kehoe asked Coastal staff to withdraw the appeal. After her review of the facts she stated to Mayor Lewis that “the appeal was misrepresented to her by Coastal staff ’, and should be withdrawn. She attempted to do so by having Mr. Nava sign the withdrawal at the Huntington Beach meeting in August. Although I have telephoned Mr. Nava no less than on ten occasions and faxed him a complete site history with the resource agencies he has not responded to my calls and offer to meet with him. Mr. Ponder our coastal analyst has stated to me that he is in full agreement with us that we have complied with all terms of the LCP. Also in agreement are the City of Carlsbad, Commissioner Kehoe, and Mayor Lewis amongst others. Today is Tuesday August 25‘h and I still do not have the staff report indicating staffs substantial issues. I did receive a call from Mr. Ponder at 5:OOPM on Friday verbally out lining the substantial issues although he did indicate they could change. To date they are: 1 ) A complete redesign and engineering of the residence. To include lowering the roof line @om 32 ’ to 25 ’feet. Eliminate the block exterior, and the curved cooper roo$ 4 0 I have met all zoning and building requirements by the City of Carlsbad. Upon further review I could not find any setback or height restrictions per the LCP that were more stringent than the City of Carlsbad’s. I have spent over a year designing this residence with Melvin McGee and LD Richards, one of San Diego’s finest architectural teams. In fact Commissioner Kehoe is a big fan of Mr. McGees work. Ironically we have been contacted by many architectural magazines in anticipation of it’s completion. 0 The materials we chose are some of the most classic in composition that provide longevity and integrity in a harsh environment. 0 There are many examples of nearby block construction and or copper roofs, including the Carlsbad Train Station, new Wal Mart shopping center at the eastern portion of the lagoon, and the fish hatchery on the Agua Hedionda lagoon. All adjacent structures are 30’-35’ tall and I am not blocking any coastal view sheds or corridors. I have complete engineered plans that are ready to pull a building permit from the city. I am appalled that staff would cite these as substantial issues with so many nearby examples of this style of recently approved architecture incorporating these same exact building materials! 2) Create a public foot path along the 100’ eastern habitat setback. This is clearly one of the most sensitive wildlfe habitats in the entire Buena Vista Lagoon Watershed! The most stringent condition from USF&W and CF&G was to designate the 100’ eastern boundary of the site as a habitat setback. This is due to the marsh wetland and breeding ground for the Light Footed Clapper Rail. Conditions from USF&W required us to: 1. Eliminate non native vegetation and the restoration of native plant material. 2. Install a 6’ fenced area that was accessible exclusively to CF&G staff. 3. Provide an irrevocable offer to dedicate to the habitat setback area to CF&G. 4. These conditions for the setbacks were made at the recommendation of the Pacific Southwest Biological Services report page 15, paragraph 3). In it states: “A Habitat Protection Fence is proposed along the eastern 100’ buffer to insure foot trafic and pets are excludedjom the bufer area. ” As an active member in the Buena Vista Lagoon Foundation I find it irresponsible that staff would recommend public access to this extremely sensitive wildlife habitat. 3) Provide a pedestrian gate at Mountain View. Ingress and egress to the site is provided over an easement along lot #3 that I share with utility and city crews for maintenance to the beach and 5 weir. Currently there is a locked chain link gate to prevent unauthorized vehicular trafic fiom entering the open space area. 0 Mr. Ponder told me “If you want an electric gate then you will have to get an agreement for a pedestrian gate from the homeowners association”. The only reason the homeowners association has entertained an electric gate (at my cost), is to allow easy access to CPD to patrol the open space because of the rampant crime problems. I can not be conditioned to a property I do not own! Although I have proposed this to the property owners they have consistently denied every request I have asked. In my latest correspondence I asked them to sign a standard Carlsbad Municipal Water District utility easement which they declined to do. If a pedestrian gate is desired, staff will have to approach The Beach Homeowners Association and make the request from them. 4) Eliminate 100’ of fencing from the southern property line to allow public access. 0 I have been conditioned by USF&W to provide a 6’ fence along the east and southern property lines to keep animals out of the lagoon and marsh areas. The 100’ northern setback is a 42” fence which is very easy to jump over. 0 Per the condition of the 2/17/97 USF&W letter I was to dedicate a 25’ path along the southern shore of the Buena Vista Lagoon for public access. 0 In the approved site map we indicate a “dawn to dusk” gate for security reasons. I am conditioned per paragraph 5 of the USF&W letter “to prevent lighting of the marsh and lagoon environments the project shall include a combination of shields and low level lights on all outdoor lighting fixtures”. Consequently, I can not have security lighting to warn me of an intruder. Because of the sites remoteness, marshes, migrant camps and proximity to the rail road tracks, it has been a virtual no mans land for years. Robberies, tagging, drugs, alcohol, and muggings have occurred here. It is essential that I be offered the safety of fencing to my family during night time hours. All adjoining properties enjoy this safety measure during the evening hours. I am joined by the Carlsbad Police Department, Mayors office, Sheriffs Department, San Malo Homeowners Association, The Beach Homeowners Association, and the owners of the adjacent southern apartment buildings in approval of a “dusk to dawn” security gate. 5) Lot B to be conditioned as to Lot A. This is capricious and unfounded! At such time that a single family residence is to be built on this lot it will be necessary to apply for a CDP for it’s approval. 6 At that time your staff can review the application and confirm that the proposed residence meets the LCP, setbacks, and height limitations administered by City of Carlsbad. Placing conditions on this lot is irrelevant because it is not a part of the approval of CDP 97-59. Mr. Douglas, I would like to ask why none of these supposed new “substantial issues” were brought up by coastal staff during the following time periods? 1. During the three years of resource agency negotiations. 2. The mitigated negative declaration resource agency review period prior to the issuance of 3. During the Carlsbad Planning Commission hearing 4. The original Appeal CCC #A-6-98-98 dated 7/27/97. CDP 97-59. Furthermore I find it quite disturbing and unprofessional that these newly found “substantial issues” are being raised two days prior to the date I must respond to the Commissioners for the September gth hearing. This is the first time I have thm een apprised of them! As you know it essential that the Commissioners have the applicants response, corresponding information, and exhibits, available a minimum of two weeks prior to the hearing for their review. This gives me one day to assemble my response! Quite honestly Mr. Douglas if your staff is to be empowered in representing the Coastal Commission in negotiations with property owners and resource agencies, then they should abide by their agreements. I have retained, biological, environmental, wildlife habitat, architectural, land use, hydrologists, soils, structural and civil engineering, title 24, landscaping, and flora professionals to address all of the issues of this site. I am well aware of the need to balance competing interests. Although we have kept coastal staff apprised of every issue henceforth, they have never responded to a single correspondence until they appealed CDP 97-59 on 7/27/98. The 2/17/97 letter from USF&W outlining the conditions to development was that balance agreed upon by your agency. For your agency to appeal a CDP by misrepresenting facts to a commissioner, substantial issues that were not raised in the appeal, nor previous negotiations is unconscionable. then recommending Furthermore to recommend additional conditions that conflict with the lead resource agencies, and independent biologists findings is irresponsible to the process and unfair to the applicant. Mr. Douglas the bottom line is this: 1. I have two legal lots that have been confirmed by a recorded COC from the City of Carlsbad. 2. 3. 4. 5. 6. 7. 8. 9. I have been issued a notice of exemption from the City of Carlsbad pursuant to section 21.201.030 of the (CMC). A CDP is not required if it did not result in the creation of a greater number of parcels or greater intensity than existed prior to the lot line adjustment. I have legal site access that was established in 1971 and again in 1984 before the open space restriction. I have worked diligently with all of the resource agencies, and have met every one of their demands on coastal access, environmental, and wildlife criteria. The local Coastal staff has been “part and parcel” to every meeting and correspondence to this CDP. They agreed to the “conditions of development” in the 2/13/97 letter from USF&W. The. did not comment during the resource agency review period four months prior to this appeal. I have been issued a CDP from the City of Carlsbad, and a letter of support from Mayor Lewis asking Chris Kehoe to withdraw her appeal. Commissioner Kehoe has asked staff to withdraw her appeal. I am not blocking any coastal view sheds or corridors. This is one house that sits behind all adjacent structures and is surrounded by seven acres! There have been no comments received from the other resource agencies as to the CDP or mitigated negative declaration. 10. CCC coastal analyst Bill Ponder, Commissioner Kehoe, City of Carlsbad, and Mayor Lewis have stated that I have met all of the terns of the LCP. 1 1. All of the neighbors want this project to go forward! 12. I have sold my current home as I anticipated breaking ground August 1 5th. 13. I have complete building plans and I am ready to pull a permit. 14. I have a construction loan commitment. 15. I have hired a construction superintendent that begins next week, and retained a general building contractor. 16. I must build the house from 8-1 through 3-1 due to the breeding season of the light footed If this appeal is not immediately withdrawn I will be unable to meet this time clapper rail. frame. 8 Mr. Douglas, I would appreciate your help in assisting me by addressing why senior staff has acted in the manner that they have. I urge you to take the appropriate steps to have this appeal withdrawn immediately! I would like the opportunity to meet with you personally, hopefully prior to the Eureka meeting to resolve this matter. I can be reached at (800) 992-6972 ext. 105. Sincerely, John Levy cc: All California Coastal Commissioners and Alternates Mayor Claude “Bud” Lewis, City of Carlsbad Senator William Craven 38* District Senator Howard J. Kaloogian, 74th District Assemblyman Bill Morrow, 73rd District Supervisor Bill Horn Governor Pete Wilson 9