HomeMy WebLinkAboutDI 94-01; Kaffka Residence; Discussion Item (DI) (5)P
February 16, 1995
Honorable Bud Lewis Mayor City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Hillside Ordinance - Requested Amendment
Dear Mayor Lewis:
Aviara Land Associates was recently involved in an issue on behalf of one of our custom lot purchasers at Aviara. This purchaser spent a substantial amount of time,
effort and money designing a beautiful custom home for our Aviara Point neighborhood.
He believed he diligently incorporated the development rules and regulations of Aviara and the City of Carlsbad into his design, (including setbacks, roof heights, open spaces,
habitat preserve, view preservation, and other regulations). However, during plan
review, a determination was made by the Planning Director that the proposed home
violated requirements of the Hillside Ordinance, and that the applicant proposed
encroachment on an "undevelopable slope". Our lot purchaser appealed the Director's
denial to the Planning Commission, which ratified the Director's decision, denying the
applicant's site plan. No appeal of the Planning Commission's decision to the City
Council was allowed. The only appeal available is to a court of law.
The intent of this letter is not to further argue the merits of our lot purchaser's position (with which we concur) on this matter. However, we do believe that the
ordinance sections that were referenced in denial of the site plan need clarification, in order that future landowners not be subject to similar ordinance interpretations that are not apparent to the professionals involved in the sale of real estate and the development design. Indeed, our office has been intimately involved with Carlsbad development
standards for some 10 years, and were astounded by the interpretation made by the
Planning Director and ratified by the Planning Commission in this case. We request that if such broad interpretations are to be made, they be fully and clearly incorporated
into the ordinances, so as to avoid design errors which unnecessarily waste time, effort
and money and may lead to legal entanglements.
proposed home was not approvable because a portion of the home encroached upon a side lot manufactured slope in excess of that typically allowed by the Planning
The Planning Director's position on this particular subject matter was that the
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/ Honorable Bud Lewis February 16, 1995
Page 2
Department. The reasons for denial were a) a hillside permit is required to build on this slope (a permit staff advised they would not approve); b) the subject slope is
"undevelopable" per section 21.53.230; and c) nonconformaqce with the Aviara Master
Plan and Local Coastal Plan.
All of these reasons for denial are predicated on the interpretation that
manufactured slopes, even those within lawfully approved graded areas, are subject to
the same slope regulations as are natural slopes. As much as the Planning Director
chose to avoid this discussion, this opinion is strictly an interpretation. We have not
been able to locate in any adopted policies or ordinance, documents venfylng this interpretation. We believe that since such a large body of evidence exists to contradict
this interpretation, that the City Council should consider amending the ordinance to
provide clarification in order to avoid wasted time and money and to ensure proper disclosures to other property owners in the future.
Let me share with you the aspects of this issue that led our lot purchaser and
ourselves to apparently misinterpret ordinance regulations, and down this expensive and
non-productive path:
0 The interpretation that lawfully approved and constructed 2:l manufactured slopes are "undevelopable" is not stated in any ordinance. Reference is given
to the intent to maintain the "natural appearance" of natural slopes. No
reference is given to manufactured slopes.
The referenced section of violation 2153.230 requires that "no residential development shall occur...on slopes greater than 40% ... unless (the City Council finds that) the prohibition against development would constitute an
unconstitutional deprivation of property". Yet the Planning Staff was
prepared to allow, and evidently routinely allows development of up to 12 foot encroachment into these "undevelopable" slopes. If manufactured slopes are included in tht "undevelopable" prohibition, as stated by the Planning Director, bv what authority does staff allow such intrusion to 12 foot
disturbance? Our experience is that manufactured slopes greater than 40%
in height have been allowed for development disturbance literally hundreds of
times. No City Council finding of deprivation of property has ever been
made. For Planning Staff to routinely allow distrubance of such slopes, and then deny disturbance of this singular slope per 21.53.230, continues to puzzle
us today.
0 The Aviara Master Plan does not Drohibit the development of manufactured
slopes. Although no specifics were given, the Planning Director argued that
the proposed home musf violate the Master Plan because it was concluded that it violates the General Plan. The General Plan prohibits development of
"undevelopable" slopes. A violation of the General Plan only occurs if one
Horiorable Bud Lewis
February 16, 1995
Page 3
intermet5 "undevelopable" slopes as inclusive of all 2:l manufactured slopes.
Again, numerous examples of such approved encroachments exist all over the
city. Again, our lot owner could never have expected such a round-about
decision that his home design violated the Aviara Master Plan.
0 The Planning Director argued that per the LCP, it was "never the intent to
allow development on Aviara's steep slopes". This point ignores documented
LCP history on Aviara In 1988, the Coastal Commission unanimously ruled
to allow Aviara development rights over some 50 steep slopes acres. And the
Planning Staff even argued on Aviara's behalf at the 1988 hearing. In exchange for the ability to develop these 50 acres, some 130 flat
(developable) acres were required for preservation. The subject
mandarned slope area is fully internal to an urbanized nieghborhood and
was designated in this coastal policy agreement as "developable".
0 Aviara Phase I, including the subject lot had already been the recipient of a hillside permit. No reference was made in this pennit or any other pennit that the manufactured slopes are undevelopable.
The proposed home design more closely complied with the City identified
acceptable hillside architecture .than would an alternative proposal that moves the home farther away from the manufactured slope, as required by the
Planning Director.
0 The hillside ordinance requires submittal of a Gomtraints map for all
development proposing disturbance of "slopes in excess of 40%". City
application requirements for planned development permits (and other planning permits) indicate that "Constraints map information is not required
for previously graded sites...". The subject lot is a previously graded site.
Again, this indicated to the lot owner that manufactured slopes on graded
lots were not applicable to the hillside ordinance.
As you can see, ample evidence exists that lawfully approved manufactured slopes
within urbanized areas were never intended to be protected from development as are steeply sloping natural lands. Since the interpretation has now been made to include these graded slopes within the context of the natural "undevelopable" slopes, we urge
that changes be made to the applicable ordinances to reflect this new interpretation.
We also urge that specific "findings" be provided for the Planning Director to allow
some degree of encroachment into these newly-defined "undevelopable" slopes.
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Honorable Bud Lewis February 16, 1995
Page 4
Our office is very conscientious in staying abreast of the lengthy list of Carlsbad development regulations and the interpretations involved in development. When such a
broad interpretation is made however, on a selective basis, with no history whatsoever
that the interpretation conforms with the original intent, code clarification within the body of the ordinance is needed.
Since we have been notified by the Planning Director and the City Attorney's
office that appeal of the Planning Commission decision in this matter is not an available
option, I am compelled to share this information through this letter. We regret that so
much time, effort and money, on everybody's part, was expended on this matter. We
conclude, however, that assuming this new interpretation, clanfymg revisions to the
ordinances must be made.
It is anticipated that through the amendment process, staff/development community/citizen workshops will be held and considerable discussion will be heard
before Council makes their amendment decision.
Thank you for your consideration and cooperation in assigning the amendment task to staff.
Sincerely,
D. Lany'clemens
Vice President/General Manager
DLC/er
cc: Mayor Pro Tern Julie Nygaard Councilmember Ann Kulchin
Councilmember Ramona FinniIa Councilmember Matt Hall
Ray Patchett
Ron Ball Mike Holzmiller Marty Orenyak
Coravr\slopes.alz