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HomeMy WebLinkAbout1986-10-14; City Council; 8785; Growth Management Plan Exemption Pacific RimCIT.i-dF CARLSBAD - AGENDI- -‘JILL AB# f?flc TITLE: REQUEST FOR RECONSIDERATION RE: DEPT. HDb MTG lQ/l4/86 GROWTH MANAGEMENT PLAN EXEMPTION . CITY ATTY\)& DEPT. CA FOR PACIFIC RIM MASTER PLAN MP4~ CITY MGR.- RECOMMENDED ACTION: That the City Council hear the request from HP1 and take action as the Council deems appropriate. ITEM EXPLANATXON On September 17, 1986 HP1 Development Company, in a letter to Mayor Casler, renewed their request that the City immediately commence processing of the Pacific Rim Master Plan. HP1 asserted that the City Council's previous decision that HP1 did not satisfy the requirements of Carlsbad Municipal Code Section 21.90.030(h)(2)(iv) for an exception from the growth control ordinance was an invalid, unlawful and improper interpretation of the ordinance. The letter is, in effect, a request that the City Council reconsider its previous action based on HPI's statement that they have reached agreement with the State Lands Commission for dedication of the Hunt's portion of the Batiquitos Lagoon. A copy of their letter is attached. Also attached is a copy of the applicable section of the Council's growth control ordinance. If a majority of the City Council, as a matter of policy, determines that it is in the public interest to exempt the Pacific Rim project from the growth control ordinance and that such an exception could be justified, amendments to the ordinance could be made to so provide. However, under the City's existing code three matters remain outstanding which, in our opinion, must be satisfied before the HP1 project can qualify for an exemption. They are as follows: 1. 2. PFF Agreement: To date, HP1 has not submitted a properly executed agreement to pay the 2.5% public facilities fee. Council has previously received our correspondence with HP1 on that matter. City regulations require such an agreement before a development application may be accepted, processed or approved. The right-of-way necessary for the widening of La Costa Avenue at its intersection with El Camino Real: Although a somewhat encouraging letter dated October 3, 1986 indicates that HPI may be attempting to satisfy the City's requirements in this regard, to date, we have not received the necessary documents. Council action to approve certain agreements and accept the deeds is necessary before this requirement can be met. Even if the documents come in next week we probably will not have time to review and process them for Council by the 14th. Council has received copies of our correspondence with the developer regarding La Costa Avenue. - Page 2 Agenda Bill # 3-7 rsl’ 3. Easement necessary for the Lagoon restoration: The State Lands Commission director, in a letter dated September 19, 1986, discusses the conceptual agreement which HP1 has offered in regard to the Lagoon. The letter concludes that since the triggering events for the dedication of the Lagoon might never occur that "... no tidelands trust monies can be expended on the land." A copy of the letter is attached. As of October 3, 1986 the agreement has not been approved by the staff of the State Lands Commission nor has it been approved by the Commission. HP1 represents that a special meeting of the State Lands Commission will be called for October 7, 1986 to consider an agreement in regard to the Lagoon. We will attempt to provide additional information at your meeting of October 14, 1986. To date, our best information from the Attorney General's office, Port of Los Angeles and Pacific Texas Pipeline Company is that the Lagoon project cannot proceed on the basis of the proposed Hunt-State Lands agreement and that the transfer of the necessary interests in the Lagoon would not occur in time to meet the requirements for the Lagoon restoration project or in time to prevent the loss of the project's funding. Representatives of the State Lands Commission, Port of Los Angeles and Pacific Texas Pipeline Company may be present at the City Council meeting to speak to the matter. On October 6, 1986 we received a copy of a letter from HP1 to Mayor Casler dated October 3, 1986. A copy is attached. Apparently, there is no agreement with State Lands and HP1 now is asking for an amendment to the growth control ordinance or other similar Council action to allow an "immediate recommendation of processing" based on "enlightened self-interest of the City and its citizens." EXHIBITS Letter to Mayor from HP1 Development Co. dated September 17, 1986 Letter to Mayor from State Lands Commission dated September 19, 1986 Copy of Section 21.90.030(h) of the Carlsbad Municipal Code Letter to Mayor from HP1 Development Co. dated October 3, 1986 4 HPI DEVELOPMENT co. i&m SE? i ;386 September 17, 1986 The Honorable Mary Casler Mayor CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 Re: Pacific Rim Master Plan/Laqoon Easement Dear Mayor Casler: On September 2, 1986 the City Council of Carlsbad, by majority vote, took the position that the lagoon easement tendered by HP1 did not satisfy the requirement of Carlsbad Municipal Code Section 21.90.030(h)(2)(iv). As a part of the same resolution the City Council also stated that, in its view, HP1 would not comply with that section of the ordinance with respect to the lagoon until HP1 "settled its differences" with the California State Lands Commission. As you know, HP1 has asserted and continues to-assert that this decision and resolution by the City Council was invalid and contrary to law, and specifically an improper interpretation of the ordinance section in question. HP1 has asserted and continues to assert that the action of the City to cancel the hearing on the HP1 Master Plan, then scheduled for September 3, 1986, as well as any related activities or processing of the HP1 Master Plan, in reliance upon the action by City Council of September 2, 1986, is equally invalid and improper. Without waiving or detracting in any way from its legal objections to these actions on the part of the City, HP1 has nonetheless met with the California State Lands Commission. At a meeting in their offices last week in Sacramento, an agreement in concept was reached between HP1 and the State Lands Commission as to the time and circumstances for dedication of the fee ownership of the Hunt portion of the lagoon to the California State Lands Commission. That agreement in concept is to be the subject of a written agreement, which the attorneys for HP1 are in the process of preparing and which will be sent to the State Lands Commission attorneys as well as the office of the Attorney General very soon. 7707 fl Camino Real l Carl&ad, California 92008 l 619/436-0907 l Telecopier 619/436-6839 The Honorable Mary Casler Mayor CITY OF CARLSBAD September 16, 1986 Page Two We believe that the Carlsbad City Manager has been advised of this agreement in concept by the executive director of the State Lands Commission. On the basis of this agreement in concept which is subject only to the State Lands Commission approval, HP1 re- tenders to the City the lagoon easement as well as the right- of-way easements and agreement, previously tendered by prior correspondence including but not limited to the letter from HP1 to the Mayor dated August 28, 1986. On the basis of the foregoing, HP1 requests that the City immediately take such steps as shall be necessary to commence immediate processing of the Pacific Rim Master Plan, Phase I Tentative Map, Site Development Plan, Local Coastal Program Amendments, and Related Documents, including but not limited to scheduling and holding a hearing on all such matters before the Planning Commission of the City of Carlsbad on the first possible date. Sincerely, HP1 DVELOPMENT COMPANY D. L. Clemens Vice President DLC/pro xc: Members of the City Council Franklin D. Aleshire, City Manager Vincent F. Biondo, Jr., City Attorney/ Marty Orenyak, Community Planning Director Mr. Thomas J. Curnes Mr. Al Allred Mark A. Brunger, Esq. Christopher B. Neils, Esq. I STATE OF CALIFORNIA I. GEORGE DEUKMEJIAN, Governor STATE LANDS COMMISSION KENNETH CORY, Controller LEO T. MCCARTHY, Lieutenant Governor JESSE R. HUFF, Director of Finance : , *: ‘.’ . . .z .I’ September 19, 1986 EXECUTIVE OFFICE 1807 - 13th Street Sacramento, California 95814 CLAIRE 1. DEDRICK Executive Officer Honorable Mary Casler Mayor, City of Carlsbad and Members of the City Council City Hall 1200 Elm Avenue San Diego, CA 92008 Re: Status of Property Interests in Batiquitos Lagoon Dear Mayor and Councilmembers: The intent of this letter is to clarify for you the position of the State Lands Commission in regard to both the proposed Port of Los Angeles mitigation project in Batiquitos Lagoon and the offer of dedication the State Lands Commission has received from the Hunts. This letter constitutes a follow up to the phone call I made on September 10, 1986 to City Manager Frank Aleshire, City. Attor'ney Vincent Biondo and Councilwoman Ann Kulchin. The Port of Los Angeles proposes to expend tideland trust fund monies to restore wildlife habitat in Batiquitos Lagoon as mitigation for landfill involved in the proposed Pac- Tex Pipeline terminal project to be built in the Port. State law prohibits the expenditure of tideland trust monies outside the tideland grant boundaries without legislative authorization. Such authorization subject to oversight by the State Lands Commission was granted by the legislature pursuant to SB 2059 (Dills) which was approved and sent to the Governor's office August 28, 1986. 5- C Page 2 Since the construction, operation and maintenance of the Batiquitos Lagoon Enchancement Plan, as presently proposed, will involve the expenditure of tidelands trust revenues and the use of state personnel, the State must be satisfied that before construction begins, it will hold a property interest in Batiquitos Lagoon sufficient to allow public funds to be expended and public entities to take part in the project. Merely acquiring a temporary right to go on the property to make the improvements called for under the Enhancement Plan will not suffice. Under the State’s Constitution, the making of a gift of any public money or thing of value to any individual or corporation, such as the improvement of private property owned by the Hunts, is strictly prohibited. Thus, what is needed is certainty that prior to the commencement of construction pursuant to the Enhancement Plan, the State will hold either clear fee title to or a permanent easement in Batiquitos Lagoon. Representatives of the Hunts have recently requested that the State Lands Commission consider an offer of dedication for their interests in Batiquitos Lagoon independent of the need for resolution of the property issue for implementation of the Batiquitos Lagoon Enhancement Plan. The Hunts have offered to dedicate the Lagoon to the State, acting by and through the State Lands Commission, if and when they receive their local development approvals and state coastal development permit for, a portion of their proposed adjacent upland development project. I have asked that an offer be put in writing and have agreed that it will be considered on its own merits. (The written offer was received by this office today and has not yet been reviewed. ) Since the offer as orally presented is prospective and conditional, it does not furnish the certainty of title required for this agency to allow public trust revenues to be expended on the Batiquitos Lagoon Enhancement Plan at this time. Under the Hunt offer, the State may very well receive clear fee title to the Lagoon long before the start of construction pursuant to the Enhancement Plan. On the other hand, the triggering events for the dedication of the Lagoon by the Hunts might never occur. Until such time as the title to the Batiquitos Lagoon passes to the State, no tidelands trust monies can be expended on the land. . Page 3 We would be pleased to provide you with any additional information regarding this agreement that you may require. Sincerely, Original Sj ,-.-- . . Claire z2 1 . . . . . . .:; CLAIRE T. DEDRICK Executive Officer 9' . cc: Honorable.William A. Craven Honorable Robert C. Frazee Honroable Bill Bradley Frank D. Aleshire, City Manager ' ncent F. Biondo, City Attorney Christopher B. Neils _.. 7 CARLSBAD MUNICIPAL CODE Section 21.90.030 (h) After making the findings in paragraph 1 the City Council may authorize the processing of and decision making on master plans subject to the requirements of .paragraph 2. After the grant.of the easement required by subparagraph (h).(iv) the tentative map for Phase I of the project, the site plan for the commercial development and the local coastal plan amendment may also be processed and approved. If such approvals are granted and, subject to all other provisions of this code, grading and building permits for construction of the golf course and first phase of the commercial portions of the project may be processed and approved. The pr&essing and approval of all other developments and building permits within the master plan shall not occur unti after the citywide facilities plan and the local.facilities management plan have been adopted by the City Council. (l)(i) That the master plan will provide all necessary public facilities for the project and will cure any facilities deficits in the area affected by the project. (ii) That the approval will not prejudice the preparation of the citywide facilities plan and will improve the level of public facilities and services in the area. (iii) That by the dedication of land and the construction of public improvements the project will make a significant contribution to the public facilities needs of the city and provide for the preservation or enhancement of significant environmental resources. (2)(i) The master plan shall include all of the information required by and implementing the provisions of Sections 21.90.090 and 21.90.110 for the area covered by the master plan. (ii) The applicant shall agree in writing that al facilities and improvement requirements, including but not limited to the payment of fees established by the citywide facilities and improvement plan and the applicable local facilities management plan shall be applicable to development within the master plan area and that the master plan develoxr shall comply with those requirements. (iii) The master plan applicant shall agree to participate in the restoration of a significant lagoon and wetland resource area. (iv) Prior to any processing on the master plan the applicant shall grant an easement over the property necessary for the lagoon restoration and the right-of-way necessary for the widening of La Costa Avenue and its intersection with El Camino Real. I h SHEPPARD, MULLIN, RICHTER & HAMPTON A l .“TwIm,*,. ,NCLYDlNG l “O~~ssION*L COI)LO”.ItO*, ATTORNEYS AT LAW LOS ANGELES OfFl’= FORTY-E,GWtH FLOOR 333 SOUTH HOPL STREET LOS ANGELES. CAUFORNIA 90071 (213l 620-1780 SUITE 2355 701 B STREET NEWPORT BEACH OCCICE SUITE 500 4000 MACARTYUR BOULLVARD SAN DIEGO; CALIFORNIA 92lOl NEWPORT BEACH. CALIFORNIA 92660 I7141 752-6400 TELEPHONE (6191 239-3669 SAN FRANCISCO OFFICE SLVLNTECNT” FLOOR TELECOPIER (019) 2343815 FOUR EMEARCAOLRO CLNTLR SAN FRANCISCO, CALIFORNIA 94111 LOS ANGELES OiClCL CA6i.t SNEPLAW TELEX IQ-U24 ,416,4344914 OUR FILE NUM6ER WH5-28336 October 3, 1986 The Honorable Mary Casler Mayor City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Re: HPI/Pacific Rim Project Dear Mayor Casler: Late this afternoon we received something of a surprise from State Lands Commission. Notwithstanding the very helpful meetings we have had with their staff over recent weeks, we were advised this afternoon that, after further discussions.with the Attorney General, SLC is not prepared to go forward with its October 7 hearing-on the proposed Hunt- SLC Agreement. Apparently everything is in a state of flux, at least until the chairman of the Commission (Mr. Cory) returns from a trip. I have enclosed a copy of my correspondence to attorney Curtis Fossum, of even date herewith,- which I believe is largely self-explanatory. As you well know, it has been the position of HP1 all along that the principal reason why the City of Carlsbad should recommence processing with respect to the Master Plan and Related Documents is because it is in the best interest of all concerned including, without limitation, the enlightened self-interest of the City of Carlsbad and its citizens. Many of the reasons which support that position are set forth in the letter of Larry Clemens dated September 29 to a distribution list, on which you and the other members of the City Council were the first named. If (as we suggest) it is in the best public interest to recommence processing, then the question arises as to what 9 . . SHEPPARD, MULLIN, RICHTER The Honorable Mary Mayor city of Carlsbad October 3, 1986 Page 2 & HAMPTON Casler to do about Municipal Code Subsection*21.90.030(h)(2)(iv). As you know, it has been HPI's position that said subsection should not have been construed so as to cancel the processing and hearings in early September. Obviously the opinion of the city Attorney's office and that of at least three council members did not agree with us. However, the City Council has found it within its capabilities to act swiftly in other circumstances in which the need for an ordinance, or a change in an ordinande, was perceived as being necessary for the advancement of the public good. We hardly need to cite examples. This particular code subsection was adopted by ordinance, and has since been "interpretedl@ and l*clarifiedl@ by resolution. Council can change it if it wants to do so. If the wording of the subsection is being construed as the impediment to processing, and if processing is perceived as being in the public good (in that it accelerates the timetable within which, among other things, the lagoon would likely be acquired by the State swiftly and for free), then following its own precedent the City Council could (if it so chooses) take action either to reinterpret or to amend that ordinance. Should it choose to do so, the City Council could probably even find a way to make that sort of'action effective immediately, if the Council believed that the circumstances so warranted. The real question is whether the City Council believes that immediate recommencement of processing is in IQ . SHEPPARD, MULLIN, RICHTER 6 HAMPTON The Honorable Mary CaSler Mayor city of Carlsbad October 3, 1986 Page 3 the best public interest, all things considered. We continue to hope that it will so determine. for SHEPPARD, MULL&, RICHTER & HAMPTON CBN/PP 2CBNO4WL.WH5 cc: Members of the City Council City Manager City Attorney’ Director of Community Development Mr. Thomas J. Curnes Mark A. Brunger, Esq. ,Mr. D.L. Clemens - . . . 14 October 1986 Mr. Tom Crandall South Coast District Director California Coastal Commission South Coast District 1333 Camino de1 Rio South, Suite 125 San Diego, CA. 92108-3520 RE: Amendment Request for Permit Application 5-85-623 Port of Los Angeles and Pacific Texas Pipeline Comr)anv Dear Mr. Crandall: The Port of Los Angeles and Pacific Texas Pipeline Company request approval of the following Amendment to Permit Application 5-85-623, which was approved by the California Coastal Commission on March 12, 1986, as follows: In "III Special Conditions:", Under 2., add a new section as follows: Alternative IrCIV - Payment of Fees: The Commission will issue the Permit upon receipt of a commitment from Pacific Texas to deposit, prior to the start of construction of its approved project, $15 million into an interest bearing account to fund the biological impact mitigation program for Batiquitos Lagoon, in a manner consistent with the Draft Batiguitos Lagoon Enhancement Plan. If such funds are not used for Batiquitos Lagoon within three years of the date of this deposit, then funds shall pass to the State Coastal Conservancy or other designee of the Coastal Commission for the purpose of satisfying such mitigation requirements wherever appropriate. Any funds not expended within seven years to mitigate the Pacific Texas Pipeline project and to provide excess habitat units for the Port of Los Angeles shall be returned to Pacific Texas. _, ..-. . G rl 4 Mr. Tom Crandall October 14, 1986 Page Two We believe the amendment clarifies the intention of the Commission as evidenced at their October 7th hearing. Attached hereto is the $25.00 filing fee and the updated Notification of Owners and Occupants along with a stamped envelope for each. Very truly yours, w -e+wvL- E.L. Gorman, Chief Harbor Engineer For the Board of Harbor Commissioners of the Port of Los Angeles Address: 425 S. Palos Verdes St. San Pedro, CA. 90733 For Pacific Texas Pipeline Company Address: 555 E. Ocean Blvd. Suite 525 Long Beach, CA. 90802 co-r+ 86. Date enclosures