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HomeMy WebLinkAbout2011-09-27; City Council; Resolution 2011-229EXHIBIT 2 1 RESOLUTION NO. 2011-229 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE ISSUANCE OF 3 A WRITTEN REPORT AS REQUIRED BY GOVERNMENT CODE SECTION 65858(d) TO DESCRIBE THE MEASURES TAKEN BY 4 THE CITY TO ALLEVIATE THE CONDITION WHICH LED TO THE ADOPTION OF URGENCY ORDINANCE NO. CS-067. 5 WHEREAS, at its regular meeting on October 20, 2009, the City Council adopted 6 Urgency Ordinance CS-067, prohibiting any new or expanded thermal electric power generation 7 facilities in Carlsbad's Coastal Zone pending studies and changes in the General Plan and 8 Zoning Ordinances and other land use regulations; and declaring the ordinance to be an 9 emergency ordinance adopted as an urgency measure to protect the public health, safety and 10 welfare and based on the facts stated in the ordinance that represent a current and immediate 11 threat to the public health, safety, or welfare; and WHEREAS, as authorized by Government Code Section 65858, Urgency Ordinance CS-067 was extended by urgency ordinances CS-070 and CS-110, the latter 14 adopted October 12, 2010, and set to expire October 20, 2011; and WHEREAS, Government Code Section 65858(d) requires, ten days prior to the16 expiration of an urgency ordinance extension, the legislative body to issue a written report describing the measures taken to alleviate the condition which led to the adoption of the 1 o ordinance. WHEREAS, the written report is attached hereto as Exhibit A and dated September 23, 2011. 22 NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City 23 of Carlsbad as follows: 24 1. That the above recitations are true and correct. 25 2. That pursuant to Government Code Section 65858(d), the City Council of the City of Carlsbad authorizes the issuance of a written report describing the measures taken 26 by the City to alleviate the condition that led to the adoption of Urgency Ordinance CS-067. 2' 3. This action is final the date this resolution is adopted by the City Council. The Provisions of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial 2° Review," shall apply: 1 "NOTICE TO INTERESTED PARTIES" 2 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 3 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 4 the appropriate court not later than the nineteenth day following the date on which this decision becomes final; however, if within ten days after the 5 decision becomes final a request for the record of the deposit in an amount sufficient to cover the estimated cost or preparation of such 6 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 7 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 8 record of the proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA. 92008." 9 PASSED AND ADOPTED at a Joint Special Meeting of the City Council and 10 Housing and Redevelopment Commission of the City of Carlsbad on the 27th day of September 201 1 , by the following vote, to wit:12 AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard. NOES: None.14 ABSENT: None. 16 17 18 19 20 21 ATTEST/ 22 M. WOOD, Cify Clerk -2- A CITY OF Exhibit A ^CARLSBAD Memorandum September 23, 2011 To: Lisa Hildabrand, City Manager From: Scott Donnell, Senior Planner ^/2 Via: Gary Barberio, Community and Economic Development Director^—' Don Neu, City Planner $/f Re: Expiration of Urgency Ordinance CS-067 - Third Required Written Report PURPOSE AND BACKGROUND In 2009, the City Council adopted Urgency Ordinance CS-067, prohibiting the expansion or location of thermal electric power generation facilities in the Coastal Zone pending studies and changes in various land use regulations. Extensions of the ordinance in December 2009 and October 2010 continued the moratorium. Urgency Ordinance CS-067 expires October 20, 2011; by law, it cannot be extended again. Government Code Section 65858(d) requires the legislative body to issue a written report ten days prior to the extension or expiration of an urgency ordinance. The report's purpose is to describe the measures taken to alleviate the urgency ordinance condition. This memorandum fulfills this purpose and is in addition to the written reports already issued for each of the two extensions of Ordinance CS-067. Since Ordinance CS-067 cannot be extended again, the memorandum is the last of the written reports. MEASURES TAKEN TO ALLEVIATE THE URGENCY ORDINANCE CONDITION The City of Carlsbad Planning Commission, Housing and Redevelopment Commission, and City Council, as well as city staff, have addressed and continue to address the concerns and conditions that led to the adoption of the urgency ordinance. This memorandum focuses on the measures Carlsbad has taken from October 2010, when the last ordinance extension was approved, to the present. The attachment to this report chronicles the city's efforts in the prior year, from October 2009 through October 2010. On October 12, 2010, the City Council adopted Ordinance CS-110, extending the urgency ordinance by twelve months, and Resolution 2010-238, declaring the Council's intent to consider land use amendments related to power generation, including land use changes at the Encina Power Station site. Since, the City has taken the following measures: Community & Economic Development 1635 Faraday Ave. I Carlsbad, CA 92008 I 760-602-2710 760-602-8560 fax www.carlsbadca.gov Expiration of Urgency Ordinance CS-067 -Third Required Written Report September 23, 2011 Page 2 1. The city and its Redevelopment Agency continued their active opposition to the proposed Carlsbad Energy Center Project (CECP), an additional 540-megawatt power generating facility at the existing Encina Power Station site. The CECP is subject to the California Energy Commission's jurisdiction and not the city's. Actions taken include the docketing with the California Energy Commission of substantial written information, including comments regarding the Presiding Members Proposed Decision (PMPD) and CECP fire safety issues, and participating in Commission meetings; the CECP remains a pending project. 2. To effectively respond to the City Council determinations and direction expressed in Ordinance CS-067, its extensions, and related resolutions, staff identified completion of the following five tasks: a. Change the Encina Power Station's (EPS) land use designation and zoning; b. Amend the Local Facilities Management Plan(s) for the EPS to recognize the new land use designation(s) and zoning; c. Prohibit the expansion or location of thermal electric power generation facilities in the Coastal Zone with the possible exception of small incidental power facilities such as at the Encina Wastewater Pollution Control facility; d. Revise the Public Utility Zone regarding generation and transmission of electrical energy consistent with the limitations described in task 2c. above; and e. Consider identifying zones outside the Coastal Zone and in the city's industrial corridor for the development of limited, small power generation facilities, such as peaker plants. (Note: As listed in the summary section below, this task has been further refined to permit electric generation as a primary use of any size outside the Coastal Zone, but only by certain conductors and only if determined by the City Council to be a "primary function.") Consistent with Council direction, analysis of amending the EPS's Public Utilities land use designation and zoning, the first task listed, is occurring already as part of the city's General Plan Update. This analysis is presently occurring in a very conceptual form only. It is appropriate to consider changes to the power plant site as part of the update process rather than separate from it because of the property's prominent location and potential for redevelopment and the likely significant public interest in any changes to its land use. To elaborate, deliberating land use changes at the EPS apart from the General Plan Update would duplicate effort and expense and may create confusion if consideration of two major review efforts happened simultaneously but separately. EPS land use changes can be folded into the update's environmental impact report and established public participation process and be considered comprehensively with other contemplated changes. The update process is expected to conclude in 2013. Further, as any land use changes contemplated are refined, implementation of the second task, amendment to Local Facilities Management Plan(s), can follow. Expiration of Urgency Ordinance CS-067 -Third Required Written Report September 23, 2011 PageS Implementation of the last three tasks is presently taking place through proposed amendments to several land use documents, including the General Plan and Zoning Ordinance. As discussed in the following item, consideration of the amendments has already begun through review before the Planning Commission. 3. On September 7, 2011, the Planning Commission at a public hearing adopted resolutions recommending the City Council approve the following land use amendments: a. A General Plan Amendment to modify the description of the Public Utilities (U) land use designation and clarify "generation of electrical energy" may be a primary function of the U designation if it is located outside the Coastal Zone but only if it is conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission (Planning Commission Resolution 6803); b. A Zone Code Amendment to the Public Utility (P-U) Zone to clarify (a) generation of electrical energy must be by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission, is permitted as a primary use outside the Coastal Zone only, and is permitted as an accessory use in or outside the Coastal Zone only if it is limited to a generating capacity of fewer than 50 megawatts; (b) generation of 50 megawatts or more is prohibited in the Coastal Zone; and (c) transmission of electrical energy is a permitted use if conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission (Resolution 6804); c. A Local Coastal Program Amendment to the Agua Hedionda Land Use Plan to eliminate a requirement for a report that would address whether preservation of land east of Interstate 5 is needed for power plant expansion (Resolution 6805); d. An amendment to the Encina Power Station Precise Development Plan as necessary to be consistent with the General Plan and Zoning Ordinance amendments proposed and to make housekeeping changes (Resolution 6806); and e. An amendment to the Encina Specific Plan as necessary to achieve consistency with the proposed amendments, delete standards regarding future power plants, and make housekeeping changes (Resolution 6807). 4. On September 27, 2011, it is anticipated the City Council will consider the following actions: a. Approval of the Planning Commission's recommendations on the above stated amendments to the General Plan, Zoning Ordinance, Local Coastal Program, Encina Power Station Precise Development Plan, and Encina Specific Plan; b. Authorize the issuance of this required written report that describes the measures taken by the city to alleviate the conditions that led to the adoption of Urgency Ordinance CS- 067. On this date, it is also anticipated the city's Housing and Redevelopment Commission will consider concurring with the City Council's issuance of the written report. Expiration of Urgency Ordinance CS-067 - Third Required Written Report September 23, 2011 Page 4 SUMMARY The land use amendments recommended by the Planning Commission and pending City Council review are measures Carlsbad has taken to specifically address the condition that led to the adoption of Urgency Ordinance CS-067 and its extensions. In summary, the amendments would accomplish the following: 1. Permit generation of electrical energy outside the Coastal Zone but restrict it in the Coastal Zone to only facilities of fewer than 50 megawatts that are accessory to another use. 2. Prohibit the generation of 50 megawatts or more of electricity in the Coastal Zone. 3. Restrict generation of electrical energy inside or outside the Coastal Zone to only facilities by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission. 4. Enable the City to regulate and thus determine the compatibility of any future power generation in the Coastal Zone as such generation would be limited to fewer than 50 megawatts, which is subject to city, not California Energy Commission, jurisdiction. 5. Reduce the potential for significant environmental impacts, including but not limited to visual, air quality, and land use impacts, associated with construction of a new power generating facility or expansion of an existing facility of 50 megawatts or more. 6. Enhance redevelopment opportunities in the Coastal Zone due to the restrictions the amendments impose on generation of electrical energy in the Coastal Zone. 7. Allow the possibility of small, accessory power generation at Coastal Zone facilities such as the Encina Wastewater Treatment Plant. 8. Make clear to the California Energy Commission, which has jurisdiction over power generating facilities of 50 megawatts or more, the city's land use standards regarding generation of electrical energy. 9. Amend the Public Utilities land use designation and Public Utility Zone, the only designation and zone that permit generation of electrical energy. 10. Eliminate provisions regarding future power generation in the Agua Hedionda Lagoon area through amendments to the Agua Hedionda Land Use Plan and Encina Specific Plan. 11. Clarify the existing Encina Power Station is not consistent with the General Plan or Zoning Ordinance through amendments to the Encina Power Station Precise Development Plan and Encina Specific Plan. Furthermore, revisions to the Encina Power Station land use designation and zoning, contemplated as part of the General Plan update and in a manner consistent with Council direction and these proposed amendments, would also lessen the condition that led to the urgency ordinance adoption. DN:SD:bd Attachment Attachment to Expiration of Urgency Ordinance CS-067 - Third Required Written Report Note: This memo provides a summary only of the city's actions regarding the adoption and extension of Urgency Ordinance CS-067 from October 2009 through October 2010; please refer to the agenda bills, ordinances, and resolutions referenced below for complete information. October 20. 2009 The City Council adopted Urgency Ordinance CS-067 on October 20, 2009, to: 1) declare that the proposed Carlsbad Energy Center Project (CECP), an expansion of the existing Encina Power Station, represents a current and immediate threat to public health, safety and welfare; and 2) adopt a 45 day moratorium to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. Urgency Ordinance CS-067 would expire on December 4, 2009, 45 days after its adoption, unless it was extended. On the same date, the City Council also adopted Council Resolution 2009-263, declaring its intention to study and consider amendments to the General Plan Land Use Element, Zoning Ordinance, and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City. Please refer to Agenda Bill 20,007 for more information. December 1, 2009 On this date, the City Council adopted Ordinance CS-070 to extend Urgency Ordinance CS-067 for 10 months and 15 days (through October 20, 2010). The City Council also adopted Council Resolution 2009-299, directing staff to, among other things: 1) prepare a land use study of the Encina Power Station property and 2) complete a review of alternative sites within the City that may accommodate and are acceptable to the city for the location and operation of thermal electric power generation facilities including public outreach and input through the City's General Plan Update. The first written report describing the measures taken to alleviate the subject urgency ordinance condition is included as part of Agenda Bill 20,054. Octobers. 2010 At a joint meeting of the City Council and Housing and Redevelopment Commission on October 5, 2010, the City Council adopted Resolution 2010-237, authorizing the issuance of the second written report describing the measures taken to date to alleviate the condition which led to the adoption of the urgency ordinance. At the same meeting, the Housing and Redevelopment Commission adopted Resolution 493, concurring with the City Council's issuance of a written report. The second report was issued fifteen days prior to the October 20, 2010, expiration of Ordinance CS-070. It is included as part of Agenda Bill 20,377. Attachment to Expiration of Urgency Ordinance CS-067 - Third Required Written Report Page 2 October 12. 2010 At its October 12, 2010, meeting, the City Council adopted Ordinance CS-110, extending the previously adopted Ordinance CS-070 for 12 months (through October 20, 2011). It also adopted Resolution 2010-238, declaring its intention to consider amendments to the Land Use element of the General Plan, the Zoning Ordinance, and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City of Carlsbad. Contemplated amendments included land use changes at the Encina Power Station site. Agenda Bill 20,380 provides further information.