HomeMy WebLinkAbout1989-09-26; City Council; 10278; SUBSTANTIAL CONFORMANCE DETERMINATION FOR CT 83-04|MARLBOROUGH DEVELOPMENT CORPORATION (APPEAL)| DI 89-04I
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Cl-POF CARLSBAD - AGENWBILL
AB#./a,Ar8 T&: DI 89-4. SIJESTANTJAL. CONFORMANCE DEPT. H
CITY AT
DEPT. PLN (APPEXL) CITY MC
MTG. 9/26/89 DETERMINATION FOR CI' 83-4 -
MARLBOROUGH DEVELOPMENT COW.
RECOMMENDED ACTION:
The Planning Commissio
Resolution No.
and staff are recommending that the City Council adopt -I#, UPHOLDING the decision of the Planning Commission by e APPROVING D 89-4.
ITEM EXPLANATION
This is an appeal by the Windsong Cove/Agua Hedionda Homeowners Association of
a Planning Commission Determination of substantial conformance. The project is 13C
condominium units located at the terminus of Harbor Drive in between the AT&SF
Railway and 1-5 freeway and on the north shore of the Agua Hedionda Lagoon. The
project, (CT 83-4/CP-227) was originally approved by the City Council in November
1983 as a 140 unit condominium project. Since that time, Coastal Commissior
approvals were obtained and working drawings prepared accordingly.
The issue of substantial conformance arose at the time the working drawings wen
submitted for building plan check. The plans submitted reflected changes required b]
the Coastal Commission and therefore do not correspond directly to the 1983 Cib
Council approved site plan. Those changes are shown on the attached plan and art
summarized as follows:
West of Harbor Drive
1. Generally buildings have been pulled closer to the north property line allowing mor1
distance from the bluff edge.
2. A single large building has been broken into two buildings.
3. A smaller building has been moved and reoriented from an east/west axis to
north/south axis.
East of Harbor Drive
1. The basic shape and number of buildings remains the same, however, buildin
locations have been shifted slightly to the west.
2. Landscaping within the subterranean garage has been redistributed to the perimett
of the building. This change was made to create proper ventilation to the parkir
area and create a more viable environment for plant life.
1 I 1 a e
Page 2 of Agenda Bill No. /yA/f
Because of the modifications required by the Coastal Commission, the total number of
units has been reduced from 140 to 130. Several building elements have also been
reduced in height, which has opened up the view corridor at the terminus of Harbor
Drive.
The only issue that the City Council is addressing is whether the changes outlined
approval.
Planning and Engineering staff have reviewed the original plans and made comparisons
with building plan check submittals and determined those plans to be in substantial
conformance with City approvals. At their meeting of September 6, 1989 the Planning
Commission concurred with staff that the changes were minor in nature and that the
project is in substantial conformance.
Regarding issues contained in the appeal form submitted by the appellant, the attached
memorandum to the City Manager contains staff responses.
E”MENTAL IMPACT REVIEW
An Environmental Impact Report was completed and certified in 1983.
FISCAL IMPACT
None.
EXHIBITS
1. City Council Resolution No. T?3f4
above are minor in nature and, therefore, in substantial conformance with the original
fa 22: Memorandum to the City Manager dated September 19, 1989
” “$,X Letter of Appeal dated September 15, 1989/Appeal Form
4. Draft Planning Commission Minutes dated September 6, 1989
5. Planning Commission Staff Report w/attachments dated
6. Windsong Shores Site Plan on file in the City Clerk’s office,
September 6, 1989
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RESOLUTION NO. 89-344
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, DETERMINING SUBSTANTLLU,
CONFORMANCE OF PLANS SUBMITTED FOR THE
DEVELOPMENT,
Dl 89-4 (FOR CT 83-41 - MARLBOROUGH DEV. CORP.
WHEREAS, on September 6, 1989 the Carlsbad Planning Corn
adopted Resolution No. 2910 determining substantial conformance for CT 83-4/
finding that modifications required by the approval of the Coastal Commission wert
in nature and substantially conformed to the plans originally approved by the City
WHEREAS, the City Council of the City of Carlsbad, on September 2
considered an appeal of the Planning Commission determination of sub
conformance for CT 83-24/CP-227; and
WHEREAS, upon considering the request, the City Council conside
factors relating to the substantial conformance issue.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City (
of the City of Carlsbad, California, as follows:
1.
2.
That the above recitations are true and correct.
That the findings of the Planning Commission in Resolution Nc
on file with the City Clerk and incorporated herein by reference constitute the find
the City Council in this matter.
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rn 1)
PASSED, APPROVED AND ADOPTED at a regular meeting of the City C
of the City of Carlsbad, California, on the 26thday of September, 1989 by the fol
vote, to wit:
AYES: Council Members Lewis, Pettine, Mamaux and Larson
NOES: None
ABSENT: Council Member Kulchin
ATTEST:
ALE$MgEfmm
(SEAL)
1
-2-
7
I 0 0
SEPTEMBER 19, 1989
TO: CITY MANAGER
FROM: Planning Director
DI 89-4 SUBSTANTIAL CONFORMANCE DETERMINATION FOR a 83-4 -
MARLBOROUGH DEVELOPMENT CORPORATION - (APPEAL)
The appellants do not agree that the building set of plans conform substantially with City
approvals.
Following is some background information regarding the appellants reasons for appeal:
A. Although the buildings were moved northerly, west of Harbor Drive setbacks range
from five feet to fourteen feet and east of Harbor Drive, from five feet to eighty
feet from the property line. Within those areas are landscaping, hardscape, and low
screen walls. All setbacks meet or exceed todays setback requirements per the
Zoning Ordinance.
Specific square footages were not included in the approved documents from 1983.
However an exhibit to the Environmental Assessment Part I dated February 14,
1983, indicated a unit size range of 1,435 to 1,645 sq.ft., with a total of 150 units.
The current proposal is 130 units ranging from 1,451 to 1,732 sq.ft., in size. The
gross square foot difference is down to 198,939 sq.ft., today from 228,582 in 1983.
An EIR was completed and certified in 1983 which addressed issues of adverse
impact. The major impacts identified were traffic, archaeology, noise, and visual
resources.
Traffic counts have been reduced from 1200 to 1040 average daily trips. The
traffic impact analysis focused on properties outside of the overall Windsong
development and not on Phase V's impact on Phases I-IV. Mitigations were made
a part of the conditions of approval.
An archaeologic recoveq program was required and completed in 1984. That
report is on file with the Planning Department.
A noise study indicated impacts to the project due to proximity to the AT&SF
Railroad and Interstate 5. Insulation and noise barriers were required as mitigation.
The study also indicated an insignificant increase in noise levels as a result of the
project to the adjacent existing Phases I-IV.
B.
C.
e 0
September 19, 1989
City Manager
Page 2
Height and location relative to the bluff edge were identified as visual impacts. The
project was moved northerly and specific units were identified as being one and ~WG
stories.
The buildings do have a different configuration, however the overall design follows
the same basic patterns and floor plans of the original approval.
The approval of the Windsong Shores project in 1983 included a card operated gate
at the parking garage which was indicated in the staff report.
The issue of easement maintenance and related costs is not a conformance item,
however could be an issue that needs to be resolved by the developer prior to
building permit issuance.
Public access is available to the lagoon through the easement south off of HarboI
Drive. Access to that easement is made available to Phases I-IV via the 30 foot
access easements onto Harbor Drive along their south property lines.
The 30’ easement along Phases I-IV south property line has always been assumed
to be for emergency access. The issue of its legality is not a conformance issue,
however could be a property ownership and easement rights issue to be determined
prior to building permit issuance.
Resolution No. 2186 requires the applicant to obtain a grading permit prior to any
grading. The resolution does not specify time constraints. Permit issuance and
conditions will be applied according to the Municipal Code Grading Ordinance when
a grading permit is ready to be issued.
D.
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MICHAEL J. HOLZMILLER
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DUKE, GERSTEL, SHEARER 8 BREGANTE
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ATTORNEYS AT LAW
CLIFFORD L. DUKE, JR.’ WELLS FARGO BANK BUILDING
101 WEST BROADWAY BRYAN R GERSTEL’
WILLIAM K SHEARER*
RICHARD 0 EREGANTE SIXTH FLOOR
SAN DIEGO. CALIFORNIA 92101 STEPHEN V. RUPP’
JOHN S HUlSKAMP*
J MICHAEL REED TELEPHONE - (6191 232-0616
DAVID P VARGAS*
ANDREW F. LLOYD TELECOPIER - (6191 232-46f
DAVID T PURSIANO
DANIEL J. PERWICH
JOYCE J. KAPSAL
ALAN R. JOHNSTON
ANN M. McMENOMY September 15, 1989
ANNE M. BRAUDIS
MICHAEL S WOODLOCK
BRYAN R. SNYDER
KATYA L. NEWMARK
DAWN R. BRENNAN
CAROLYN J. BOOKSTAFF
RAYMOND A. PATENAUDE
ROBERT K. GOFF
*A PROFESSIONAL CORPORATION
Ms. Lee Rauntenkranz,
City Clerk
City of Carlsbad
1200 Elm Avenue Carlsbad, California 92008
RE: Appeal of Planning Commission Decision: Marlborough Development Corporation, DI 89-4, Substantial Conformance Determination
Dear Ms. Rauntenkranz :
This firm represents the following Homeowners? Associations in the City of Carlsbad:
Windsong Cove Homeowners Association, Inc.,
David Vinegrad, President,
4016-5 Aguila Street,
Agua Hedionda Homeowners Association
Dean Van Leuven, President
821-A Kalpati Carlsbad, California 92008
On behalf of these Associations, I am filing an appeal of the Substantial Conformance Determination, made by the Planning
Commission in DI 89-4 on September 6, 1989. The completed appeal form accompanies this letter.
of $450, representing the filing fee for the appeal.
Carlsbad, California 92008;
Also, with this letter, you will find a check in the sum
0 0 DUKE, GERSTEL. SHEARER I BREGANTE
Ms. Lee Rauntenkranz, City Clerk Page Two September 15, 1989
Please notify me, at your earliest opportunity, of the
date and time at which the City Council will hear the appeal. Also, please notify me if any further information is required
from the Appellants prior to the hearing date.
Thank you for your attention to this matter.
Sincerely yours,
,yo \D -
’ WILLIAM K. SHEARER b-,
WKS/cmc Encls.
cc: David Vinegrad, President, Dean Van Leuven, President
a MINU% __ y
Page 4 COMMISSIONERS September 6. 1989 PLANNING COWISSION
E rw in
Holmes
McFadden
Schlehuber
Schrm
DISCUSSION ITEMS:
3) DI 89-4 SUBSTANTIAL CONFORMANCE DETERMINATION FOR CT 83-4 - MARLBOROUGH DEVELOPHEX CORFURATION - Review
of plans modified to address Coastal Conmission
conditions for substantial conformance with original
City approvals of the Windsong Shores project.
Gary Wayne, Principal Planner, reviewed the background of the request and stated that DI 89-4 is a request by Marlborough Corporation to determine that their revised site plan for CT
83-4, approved by the California Coastal Commission, is in
substantial conformance to the City's original approval. Planning Commission may only consider those items that were
modified as a result of the Coastal Commission changes.
Using wall graphics, Mr. Wayne showed where the area west of
of Harbor Drive was required to be opened up for greater
public view access. The development was redesigned and
pushed back farther from the bluff so that the number of
units was reduced from 140 to 130. This resulted in a reduction of building mass and building height in selected
areas.
site coverage is 46%.
The
The original site coverage was 47% while the revised
Several units were reduced from two-story to single-story and some three-story units were
eliminated entirely. Staff feels that the project is in
substantial conformance and recomerids approval.
Conmissioner Ervin inquired if the square footage of the
remaining units was increased to offset the number of units which were lost. Mr. Wayne replied that the unit size was
increased slightly because the footprint remeins very similar
to the original project. Staff is unabla to determine exactly how much the unit size changed because definitive
unit plans for the original project were never submitted to
the City.
Commissioner Erwin inquired if any of the two-story units
were increased to three-story. Mr. Wayne replied that some
two-story units were increased to three-story, however many
three-story units from the original plan were eliminated.
Commissioner McFadden inquired who will maintain the public
access trail. Mr. Wayne replied that the public access trail is a condition of the LCP and will be maintained by a homeowner's association.
observation platforms along the blufftop.
would.
Commissioner Schlehuber inquired about the controversy on the emergency access. Mr. Wayne replied that the emergency
access issue has been satisfied by two 30 ft. easements which run east and west off Harbor Drive and which connect with the
existing street structure in the development.
Chairman Hall opened the public testimony and issued the
invitation to speak.
-
She inquired if that included the
He replied that it
e MINU~S y
Paula Madson, The Lightfoot Planning Group, 702 Fourth Street, Oceanside, representing the applicant, addressed the
Commission and reviewed the project history which dates back
to the mid-1970's.
were built in the 1970's. The fifth phase, Windsong Shores,
was approved in 1983 and. before being built, was sold to the
Marlborough Development Corporation who proceeded to apply for the LCP. When a decision was made to begin construction,
the neighbors were very concerned about construction access and, as a result, Marlborough sought and received permission
from the AT&SF Railroad to use the railroad right-of-way for
construction access.
Commissioner Erwin inquired to what degree the overall square
footage has been increased. Ms. Madson used wall graphics to review the changes to the original project. She stated that
the overall square footage has decreased. The actual size of
the units has not changed substantially and they all range in
size from 1,400 to 1,600 sq. ft.. which is the same size as
originally proposed.
Commissioner McFadden inquired about the parking. Ys. Madson
parking spaces for each unit, plus guest parking.
Commissioner McPadden inquired about soil stability of the
areas immediately to the north of the project. Mr. Wayne
replied that to his knowledge the Coastal Commission did not foresee any problems and the soil conditions remain the same
as in 1983.
Barbara Palgoust, 4016-A Layang Layang Circle, Carlsbad, addressed the Commission and stated that she has been a
resident there for three years and her bedroom and living
room overhang the access roads. She is a recovering cancer
patient and has experienced a problem caused by the
pollutants and carcinogens from the vehicles driving beneath
her residence. She is also concerned about noise pollution.
She referred to a letter she had written to City officials
dated September 6, 1989. She feels that the problems being experienced were not foreseen in tho original environmental
impact study and uould like to see the proposed project
stopped in its entirety.
Ron Ball, Assistant City Attorney, commented that it is too
Notice is given to residents at the time of an original
environmental impact study but this notice cannot be given to future unknown residents. If there is neu evidence that - project changes will have environmental impacts, it could
trigger a supplamental EIR; however, if a problem was
considered once it cannot be reconsidered.
Dean Van Leuven, 821-A Kalpati Circle, Carlsbad, addressed the Conmission and stated that he lives in the first phase of
the developmt and has lived there for three years.
feels that if units uere eliminated from the project, then the overall square footage should be less. He is concerned
that this project does not comply with density, height, and parking restrictions recently adopted by the voters.
conrmented that the existing streets will only accomodate one
vehicle at a time and he is especially concerned about the
emergency access. He does not want prospective buyers to add
to the existing traffic problem.
is presently inoperable and the homeovner's association does not want to spend money to have it repaired until it is
Four phases of the five phase project
replied that the parking is all underground and there are two
late to attack the original enviromntal impact report*
He
He
The gate to their project
e MINUS~S
September 6, 1989 PUWING COKMISSION
I
determined if Harlborough vi11 share the costs for construction vehicles or new residents who will travel through the existing area.
Chairman Hall asked Hr. Van Leuven if he was ever told abcut
additional phases to be built. He replied that he was told
about future development but was given no details.
Robert Crabtree, 4070 Harbor Dr.ve, Carlsbad, addressed the
Commission and stated that he has lived in his home for 30
years. During the public hearing for the original project,
residents of Harbor Drive were told that they would not be
impacted by traffic. He sympathizes with residents who have
only lived in the area for 3-4 years. He is in favor of the
the project via Harbor Drive.
prospective buyers who will traverse by foot along Harbor
Drive during the sales campaign.
Douglas Croskell, 4012-E Aguila. Carlsbad. addressed the Commission and stated that he lives in Phase 3 and has lived
in his home since 1986.
very poorly planned and cited the excessive traffic along
Chinquapin. He does not want to see construction traffic traverse Chinquapin to the railroad right-of-way; he would
like to see the construction vehicles use the railroad access
from Tamarack. He feels the population is already too dense
for the existing roads and services.
Chairman Hall inquired if he was ever told about additional
phases to be built. Mr. Croskell replied that a minor
reference was made to additional units but he was never told
how many units would be added.
Allan Cohen, 801-A Kalpati Circle, Carlsbad, addressed the
Commission and stated that he has lived in his residence for
six months and would like to know the actual height of the
project and his only objection would be vehicles which access He has no objection to
He thinks the proposed project is
proposed units what will be above ground and he would like to
knov where the entrance is to the underground parking. He
believes the entrance is adjacent to his bedroom window.
would like to know the working hours of the construction crew
and who will pay to repair the roads that the construction
vehicles ruin.
Chairman Hall inquired if he was ever told about future
construction. Mr. Cohen replied that he was told there would be an additional phase built within five years but was not
told how many units or that his bedroom would face the
underground parking entrance.
Virgil Zink, 4007-D Canario Street, Carlsbad, addressed the
Commission and stated that it is impossible for two vehicles
abreast to use the existing street within the development. He is concerned that the road surfaces are thin and will not
support heavy construction vehicles, especially since
plumbing and sewer lines are under the streets.
concerned about the poor access and the heavy traffic on
Chinquapin.
Tamarack to access the railroad easement.
Chairman Hall inquired if he was ever told about future units
to be built. anything about a future project.
David Vinegrad, 4016-5 Aguila Street, Carlsbad, addressed the
Commission and stated that he has lived in his home for three
He
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He is also
He would like to see construction vehicles use
Mr. Zink replied that he was never told
years and is astounded that Marlborough cannot quote the square footage of the project. fie is concerned about the
narrow roads in the existing development and that the Fire
Department has only determined that fire access is available
but not about the legalities. He referred to Government Code
845 which requires a cost sharing agreement to use private
roads. Mr. Vinegrad is concerned because he feels there vi11 be an additional 1,500 UT'S, He requested a delay on the
approval until numerous issues can be resolved.
Chairman Hall inquired if he was ever told about future units
to be built. Mr. Vinegrad replied that there was never any
discussion about a future project and that the easement never even hit his title search.
Richard Niec, 28751 Rancho California Road. Rancho
California, VPJDivision Manager of Marlborough Corporation,
addressed the Commission and stated that he had heard many
valid concerns and that over the past year Marlborough has
attempted to address many of concerns voiced at a City
Council meeting held over a year ago right after they
purchased the property from Sears.
photograph, he reviewed the changes being made to the project
as a result of the Coastal Conmission review.
In response to questions by Chairman Hall, Mr. Niec replied:
* That underground parking, with stairs and an elevator,
Using an aerial
would he used for the sales activity.
* That Haalborough plans to work out a cost sharing
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0 MINU~S y OA "c
September 6, 1989 PUNNING COMMISSION
had no objection to a separate association so they proceeded
to plan for that.
In response to questions by other Commissioners, Mr. Niec
reviewed: - The gated access for residents of the new project which
will contain a call box.
The guest parking area where guests can pull off the
main thoroughfare to telephone for access, with stacking
for four vehicles.
That there are two separate parking garages which do not
interconnect.
That one garage will accommodate 85 units and the other
will accommodate 45 units, or 850 and 450 ADT's per day
respectively.
That the area will be watered down during construction
to keep the dust down.
That construction workers will be asked to park along
the railroad right-of-way or the construction site.
That the overall square footage of the proposed project
has been slightly reduced from the original plan.
Chairman Hall requested staff to respond regarding the EIR.
Ron Ball. Assistant City Attorney, replied that the Planning
Commission has not been empowered to redesign the project and
that the only issue under consideration is whether the
project substantially conforms to the prior approval.
only environmental impacts which can be considered would be
those that relate to the proposed changes to the project.
has not heard anything that would merit a supplemental EIR.
In response to questions by Comissioners, various staff
members stated: -
*
*
-
*
-
*
The
He
That the original project was designed with overhanging
units.
That the haul routes for the proposed project have been *
established and approved which will allow minor service
vehicles only (no heavy construction vehicles) to
circulate within the existing development.
L That the size of the streets in the current development
vary; that some may be as wide as 30 ft. and could be
less than 24 ft. (our current street width standards)
because the project was approved in the 1970's and the
standard has changed since that time.
That staff or the Planning Conmission is not empowered
to add conditions since the proposed project is past the
approval stage.
That fire access is a 20 ft. paved lane which exits
Harbor Drive; traveling east it connects with Layang Layang Circle;
Street and Maya Drive;
exit.
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*
traveling west it intersects Canario
and is gated at the Harbor Drive
a MlNU#!S b
September 6, 1989 PLANNING COMMISSION
* That building permits will not be issued without valid
legal access and the Fire Marshal can work with the City
Attorney's office to determine that valid legal access
does in fact exist.
That the total height of the proposed project does not exceed 33 ft. at the roof midpoint which meets the
height ordinance.
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* That the working hours permitted for construction are
generally 7:OO a.m. to sunset per the noise ordinance but in residential areas working hours would normally be
8:OO a.m. to sunset; these hours will be specified in
the grading permit.
That the preferred access for construction would be
Chinquapin to the railroad access due to the heavy
traffic on Tamarack and other reasons which were stated.
That traffic impacts of the proposed development do not
create a substantial change to the approved project;
since the number of units has decreased the traffic
impacts should be less.
That fees are triggered by the issuance of building
permits and the applicant will be required to remit public facility fees in the current amounts per grovth
management.
That fees will be put into the general fund and spent as
part of the capital improvement program.
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* That traffic safety issues relating to "public" streets should be brought to the attention of the Robert
Johnson, Traffic Engineer, at 2075 Las Palmas Drive. - That in the event of a disaster or need to evacuate, the
emergency access gates could be opened; however, a fire
disaster is not anticipated since all buildings are
entirely sprinklered.
There being no other persons desirins to address the Comission on this topic, Chairman Hall declared the public
testimony closed and opened the item for discussion among the Coranission members.
Commissioner Schlehuber stated that substantial conformance
is a very narrow issue and nothing has been shown or stated
to indicate there is not substantial conformance to the original plan. The project is smaller, designed better. and vi11 have less traffic.
recomaendat ion.
Commissioner Harcus agrees with Commissioner Schlehuber and
feels that the project is in substantial conformance.
Regarding Harbor Drive, Commissioner Erwin conmentad that too often government entities make agreaments with residents to
not allow additional traffic. He feels that the use of tha
railroad easement will take care of this problem. He added
that, in his opinion. the project is in substantial conformance to the approval but that if it were a new
project, it would require changes.
Commissioners HcPadden, Schramm, Holmes and Chairman Hall all
agree that the project is in substantial conformance.
He can support the staff
m MINURS 1
Page 10 COMMISSIONERS September 6, 1989 PLANNING COWISSION
I
Motion was duly made, seconded, and carried to adopt
Planning Commission Resolution No. 2910 acknowledging substantial conformance of the plans submitted by
Marlborough Development Company for the construction of
Windsong Shores, CT 83-4.
I Chairman Hall advised the gallery that the Planning
Commission decision is final and their only recourse would be
an appeal, that additional details on the appeals process can
ning Comission recessed at 8:42 p.m. and reconvened
i
I
opetty located on the south acent and west of the future
College Boulevard a1 Negative Declaration was
issued for controlle nd included a condition that
the applicant could ss dirt from the nearby
Palomar Airport Road . The stockpile permit
never went to Counci was inadvertently approved
as a grading permit. ths ago it became apparent
to staff and the appli
amount of fill availab omar Airport Road. At that
here was only a limited
itional dirt from other
the Encina Treatment Plant
expansion. He was told t gative Declaration for the
At that time it became
permitting major site changes prior to discr
Mr. Grim acknowledged that staff did made I
errors in revieving the original permit and
fairness to the applicant, we should accept
which have already been made. Staff feels t
fill changes should be done in conjunction w
David Hauser, Assistant City Engineer, gave a thorough
various questions made by Comuissioners.
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1200 ELM AVENUE
CARLSBAD, CALIFORNIA 92008
Office of the City Clerk
APPEAL FOW
I (We) appeal the following decision of the Planning CmniSSiOn
to the City Council:
Project Name and Number (or subject of appeal): Marlhorough Developat
Project/Windsong Shores Phase V -- DI 893 Substantial Conformance Jktermina+iOn
Date of Decision: Sept- 6, 1989
Reason for ~~~~~l: '?he modified plans are not in substantial conformance with
oriainal citv amrovals in that:
(a) The proposed condaninim units were mved back frcm the bluff approximately
~~ ~~~
10 feet and will abut the existing Windsong border leaving only about 30 feet
betwen existing buildings and proposed buildings and eliminating a
DUKE, GET, BY: 93 *!\a
Name (Please Print Attorneys for: WTNdSONG CDVE*€Imi ASSOCIATION, INC. and AGuA HEDIONDA HCWXWvERS ASSOCIATION
"
Address 101 West Broadway, Sixth Floor San Diego, California 92101
(619) 232-0816
Telephone Number
, .,
I .,
Page Two Appeal Form
""""""
Reason for Appeal (Continued):
Marlborough did not provide the Planning Commission
with the square footage of the proposed condominiums,
and the density of units may be greater than that
approved by the City;
The Environmental Impact Report and Traffic Study for
the project may no longer be valid because of the proposed changes in the development, and because significant environmental issues were not addressed by
the E.I.R.;
The bu
in the
ildings will now be configured differently than
original proposed development;
The original development [including Windsong Cove,
Agua Hedionda, and the proposed Marlborough project] were supposed to be a single gated community. This is
development will unreasonably burden the easements no longer to be the case, and the Marlborough
through Windsong Cove without assurance of payment by the Marlborough project for its share of upkeep of the
easement streets;
The Marlborough project will cut off access to the
lagoon enjoyed by appellant associations and their
members, which access would not be interrupted if the
original development scheme had been followed;
The issue of whether or not the easement is to be burdened by emergency vehicular traffic remains
unresolved;
Marlborough now intends to conduct grading operations
during the rainy season, contrary to the requirements
of Planning Commission Resolution 2186, imposing
conditions on the project.
DATE : SEPTEMBER 6, 1989
TO : PLANNING COMMISSION
FROM: PLANNING DEPARTMENT
SUBJECT:
Marl borouah Develooment Co DO addressons for substantial conformance ration - Review of plans modified to EWINATION FOR CT 83-4 -
with original City approvals.
The Windsong Shores project was approved by the Planning Commission on September
28, 1983. City Council approval came on November 1, 1983. Because the site is located within the Coastal Zone an approval was then required by the Coastal . Commission. Revisions were made by the Coastal Comnission during their review.
At issue is the substantial conformance determination of the plans which have
been submitted for plan check with the Coastal Commission approval and the City
of Carl sbad approval.
The applicant, Marlborough Development Company, has submitted the Coastal
Commission approval plan as the site plan for their proposed development. There
are discrepancies between that plan and the City’s approved plan.
The most apparent differences appear west of Harbor Drive.
West of Harbor Drive
1. Generally buildings have been pulled closer to the north property line allowing more distance from the bluff edge.
2. The single la_rge building has been broken into two buildings.
3. A satellite building has been moved and reoriented from an east/west axis to a north/south axis.
East of Harbor Drive
1. The basic shape and number of buildings remains the same, however, building
locations appear to have been shifted to the west. The result is a single two-story element situated relatively close to Harbor Drive.
"
' . , 01 89-4 - MARLBOROU, *SEPTEMBER 6, 1989 PAGE 2
Landscaping with the subterranean garage has been redistributed to the perimeter
of the building. This change was made to create proper ventilation to the parking area and create a more viable environment for plant life.
A certain percentage of the discrepancies can be attributed to scale and map accuracy. Recognizing that margin of error and a "Big Picture" analysis of the
conformance with the original City approval. two plans, the submitted plans are not identical but are in substantial
RECOHFIENDATION:
Staff recommends adoption of Planning Comnission Resolution No. '2910
acknowledging substantial conformance of the plans submitted by Marlborough
Development Company for the construction of Windsong Shores, CT 83-4.
ATTACHMENT
1. Planning Commission Resolution No. 2910
2. Location Map 3. Letter from Paula Madson
CW:af
August 15, 1989
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PLANNING COMMISSION RESOLUTION NO. 2910
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING A DISCUSSION ITEM DETERMINING SUBSTANTIAL CONFORMANCE OF PLANS SUBMITTED FOR THE DEVELOPMENT OF 130 CONDOMINIUM UNITS GENERALLY
AT&SF RAILROAD.
LOCATED AT THE TERMINUS OF HARBOR DRIVE EAST OF THE
APPLICANT: MARLBOROUGH DEVELOPMENT
CASE NO.: DI 89-4
WHEREAS, a request has been submitted to the City of Carlsbad and
referred to the Planning Commission; and
WHEREAS, the Planning Commission did, on the 6th day of September,
1989, discuss the request on property described as CT 83-4/CP-227; and
WHEREAS, upon considering the request, said Commission considered
all factors relating to the substantial conformance determination.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as
follows:
A) That the above recitations are true and correct.
B) That based on the evidence provided by staff, the Commission APPROVES the
determination of substantial conformance, based on the following findings:
Findinas:
1. An EIR was completed on the site and resulting mitigations as required by City Council Resolution No. 7384 will not be altered and will continue to
be effective.
2. The proposed modifications are consistent with the provisions of the City of Carlsbad Zoning Ordinance.
3. The modified plan brings it into conformance with California Coastal
Comnission requirements.
4. The modified plan is consistent with the general intent and character of
-
the original approval.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on the 6th day of
September, 1989, by the following vote, to wit:
AYES : Chairman Hall, Commissioners: Schramm, Marcus,
Holmes, McFadden, Schlehuber E Erwin. NOES : None.
ABSENT: None.
ABSTAIN: None. - MATTH W HALL. Chairman CARLSBAD PLANNING COMMISSION :- \
MICHAEL J. i?&!MILL#
PLANNING DIRECTOR
PC RES0 NO. 2910 -2-
'1 AOUA HEDlONDA LAGOON Y
4
. MARLBOROUGH I Dl 89-4 I
Planning Commission
City of Carlsbad
1200 Elm Avenue Carlsbad, CA 92008
RE: Windsong Shores Substantial Conformance Review (CT
83-4/CP-227)
Dear Chairman and Commissioners:
On behalf of Marlborough Development Corporation, we are requesting a Substantial Conformance determination for a
modifications to the garage landscape plan on the Windsong reduction in units and building footprint area, plus minor
Windsong Shores is the last phase of a five phase
Shores condominium site development plan (CT 83-4/CP-227).
condominium project begun in 1974, located south of Chinquapin Avenue, at the terminus of Harbor Drive.
The Windsong Shores Tentative Tract Map and Site Plan were approved in 1983 for 140 units. Later that year, the
Coastal Commission approved the project with certain conditions. Condition lb required that the public view
corridor, at the terminus of Harbor Drive, be widened and
Condition IC required that certain buildings be reduced to
a maximum of two stories or 25 feet in height in order to reduce the visual impact of the project.
To comply with these conditions, the site plan was revised
and the buildings reconfigured. This resulted in the
number of units being decreased from 140 to 130 and the overall building area on the site was similarly decreased.
These modi-fications to the site plan were reviewed and approved by the Coastal Commission on November 23, 1986 and a signed copy is on file with the Planning Department.
,/- ..
Planning commission
August 18, 1989 Page 2
The other minor modification involves redesigning the
areas were relocated and reconfigured to ensure there was landscaped areas in the subterranean garage. The landscape
need for the overhead circular air shafts.
sufficient sunlight and proper drainage and eliminated the
We believe the modifications to the site plan are upgrades since they reduce the density of the project and the garage
the property last summer and has been working diligently landscape areas have been enhanced. Marlborough purchased
with the City staff, City officials and the Coastal Commission in hopes to begin grading in September of this
groups informed as to the status of the project.
year. They have also continued to keep the neighborhood
Your favorable consideration is respectfully requested.
Sincerely,
Senior Planner
PBM/db
cc: Leonard Bedolla, Marlborough Development Corporation Richard Niec, Marlborough Development Corporation
173.07/55
Honorable Mayor and Councilmembers
City of Carlsbad
1200 Elm Street
Carlsbad, CA 92008
RE: Windsong Shores Substantial Conformance Determination
Dear Honorable Mayor and Councilmembers:
On behalf of Marlborough Development Corporation, we would
background information regarding the Windsong Shores like to take this opportunity to provide you with some
chronology of events from the original inception of the
substantial conformance request. We have also included a
Coastal Commission approval for improvements in the five-phase condominium project in 1974 to the unanimous
railroad right-of-way allowing temporary access for construction vehicles, on September 12, 1989.
unanimously approved by the Planning Commission on The substantial conformance determination, which was
September 6, involves a reduction in units, building
footprint area and building mass. These modifications occurred as a result of the Coastal Commission’s Conditions of Approval for the Windsong Shore project in 1983. The conditions required the public view corridor, at the terminus of Harbor Drive, be widened, that the buildings be
reduced in height and the total number of units be reduced.
set back further from the bluff edge, certain buildings be
To comply with these conditions, the site plan was revised
and the buildings reconfigured. This resulted in the number of units being decreased from 140 to 130 and the
overall building footprint and mass was similarly
decreased. These modifications to the site plan were
reviewed and approved by the Coastal Commission staff in
December 1986 and a signed copy is on file with the
Planning Department.
A .. , 1
September 20, 1989 Page 2
redesigning of the landscaped areas in the subterranean In addition, another minor modification involved the
garage. The landscape areas were relocated and
proper drainage for the plants.
reconfigured to ensure there was sufficient sunlight and
project, we thought it would be helpful to provide you with
Considering the rather lengthy history associated with this
a chronology of events. We have separated the project
Marlborough purchased the property (Exhibit I) and the
history into two chronologies. The history before
history after (Exhibit 11).
Since acquiring the project, Marlborough has worked diligently with the City staff, Coastal Commission, AT&SF Railway and the neighborhood to resolve issues, find an alternative access route for construction vehicles and obtain all necessary approvals and permits for this project.
As previously mentioned, the Planning Commission
unanimously approved this substantial conformity request.
Your concurrence with their decision is respectfully
requested.
Sincerely,
Paula B. Madson
Senior Planner
PBM/ sc
Enclosures
cc: Ray Pachett, City Manager (w/Enclosures)
Michael Holtzmiller, Planning Director (w/Enclosures)
Marty Orenyak, Community Dev. Dir. (w/Enclosures)
Lloyd Hubbs, City Engineer (w/Enclosures) vince Biondg, city Attorney Richard Niec, Marlborough Development (w/Enclosures)
173.07/69
EXHIBIT I
WINDSONG SHORES CHRONOLOGY
1974 Windsong Shores was planned as the final phase of a f ive-phase condominium project. Approval of this phase was withheld until the Auga Hedionda LCP was established.
September 28, 1983 Planning Commission recommends approval of Tentative Map CT-83-4 for 140 du and Condominium Permit CP-227 with Resolution 2186.
November 1, 1983 City Council approves CT-83-4 & CP-227 with Resolution 7384.
December 13, 1983 Coastal Commission intent to issue Permit No. 6-83-613, issued with certain condition.
December 1985 Coastal's intent to issue permit extended for one year.
January 28, 1986 and recorded thereafter. Final Map 11484 accepted by the City Council
September 1986 begins. Construction of Harbor Drive improvements
November 23, 1986 Site plan revised to reconfigure buildings per Coastal Conditions. Resulted is a reduction of units from 140 to 130.
December 9, 1986 Savings Bank for a 50-foot wide public
Coastal Commission recorded IOD from Sears
access easement from Harbor Drive to bluff
top and a 10-foot wide lateral strip of land
along the entire bluff top.
December 12, 1986 Coastal Development Permit issued reflecting Coastal approval of revised site plan.
June 1988 Marlborough Development Corporation
purchases property
173.07/68
CURRENT CHRONOLOGY
EXHIBIT I1
May - June 1988 Several neighborhood meetings held regarding project and alternative access routes.
June 1988 Marlborough purchases property.
July 1988 Building and grading plans submitted for plan check.
July 25, 1988 Meeting with Mayor, Mayor Pro Tem, senior City staff, and Harbor Drive representatives concerning construction access alternatives.
September 1988 Marlborough contacts AT&SF Railroad regarding temporary access.
January 1989 Building Plans resubmitted for second plan check, included foundation, grading and off-site improvement plans.
April 1989
May 1989
May 19, 1989
May 2, 1989
July 1989
August 1989
Building plan resubmitted for third plan
check.
Landscape and irrigation plan submitted for
plan check.
Foundation, grading and improvement plans resubmitted for a separate plan check at
City's request.
Parking and garage plans submitted to the
Planning Department for a separate plan
check.
City staff decides a substantial conformity
determination is required to compare the original 1983 site plan with the 1986 site plan approved by the Coastal Commission.
AT&SF executes contract with Marlborough for permission to use the railroad right-of-way
for construction access, and to grade and do
certain improvements.
August 16, 1989 Coastal commission unanimously approves amendment to the Windsong Shore Coastal
Permit (6-83-613-A2) for use of the railroad
right-of-way and construction of an access ramp from the site to the right-of-way.
.-. I
August 24, 1989 Marlborough initiated meeting held with the
Hedionda) Homeowners' Association.
Board of Directors of the Papagayo (Auga
September 2, 1989 Marlborough organized neighborhood meeting
held with the Windsong Cove homeowners.
September 6, 1989 Planning Commission unanimously approves
substantial conformance request.
September 11, 1989 Site grading permit technical and financial
requirements met: permit issuance is pending City Council concurrence with Planning
Commission determination of site plan
substantial conformance.
September 12, 1989 Coastal Commission unanimously approves
the railroad right-of-way. Also approves Coastal Permit for grading improvements in
extending grading period for these improvements until November 15, 1989.
173.07/68
1200 ELM AVENUE
CARLSBAD. CALIFORNIA 92008
Office of fhe Cify Clerk
October 4, 1989
Marlborough Development Corporation
Rancho California, CA 92390
28751 Rancho Califoanria Road, #208
.Enclosed for your records, please find a copy of the
following Resolution 89-344 , adopted
by the Carlsbad City Council on September 24, 1989
4g- EE RAUTENKRANZ
City Clerk u
TELEPHONE:
(619) 434-2808
LR: lw
Enclosures (l)
I . ,, A
1200 ELM AVENUE
CARLSBAD, CALIFORNIA 92008
Office of Ihe Cify Clerk
(619) 434-2808 TELEPHONE
THE ABOVE ITEM HAS BEEN APPEALED TO THE CITY COUNCIL.
According to the Municipal Code, appeals must be heard by the City Council
within 30 days of the date that the appeal was filed. (REMINDER: The item
will not be noticed in the newspaper until the agenda bill is signed off by
- all parties.)
Please process this item in accordance with the procedures contained in the
Agenda Bill Preparation Manual. If you have any questions, please call.
The appeal of the above matter should be scheduled for the City Council
Meeting of
Signature Date
' .. ...
September 15, 1989
Ms. Lee Rauntenkranz, City Clerk City of Carlsbad
Carlsbad, California 92008 1200 Elm Avenue
RE: Appeal of Planning Commission Decision: Marlborough Development Corporation, DI 89-4, Substantial Conformance Determination
Dear Ms. Rauntenkranz:
This firm represents the following Homeowners' Associa.tions in the City of Carlsbad:
Windsong Cove Homeowners Association, Inc., David Vinegrad, President, 4016-5 Aguila Street, Carlsbad, California 92008;
Agua Hedionda Homeowners Association Dean Van Leuven, President
Carlsbad, California 92008 821-A Kalpati
On behalf of these Associations, I am filing an appeal of
Commission in DI 89-4 on September 6, 1989. The completed the Substantial Conformance Determination, made by the Planning
appeal form accompanies this letter.
Also, with this letter, you will find a check in the sum of $450, representing the filing fee for the appeal.
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,..DUKE. CERSTEL. SHEARER 6 BRECANTE ' . *.l
Ms. Lee Rauntenkranz, City Clerk Page Two September 15, 1989
Please notify me, at your earliest opportunity, of the date and time at which the City Council will hear the appeal. Also, please notify me if any further information is required from the Appellants prior to the hearing date.
Thank you for your attention to this matter.
Sincerely Xours,
WKS/cmc Encls.
cc: David Vinegrad, President, Dean Van Leuven, President
\
,, i
1200 ELM AVENUE
CARLSBAD, CALIFORNIA 92008
Office of the City Clerk
RECEIVEL CITY CLERK'S OFMWPHONE
09SEP 15 PH12: 10 (619) 434-2808
APPEAL FORn
I (We) appeal the following decision of the Planning C-ssion
to the City Council:
Project Name and Number (or subject of appeal): Marlborough Developent
Project/Windsong Shores Phase V -- DI 89-4 Substantial Conformance Determination
Date of Decision: Septemker 6, 1989
Reason for ~~~~~l: me modified plans are not in substantial conformance with
original city approvals in that:
(a) The proposed condorninim units were mved back frcm the bluff approximtely
10 feet and will abut the existing Windsong brder leaving only abut 30 feet
between existing buildings and proposed buildings and eliminating a
10 foot green belt; (SEE ATPACHED)
September 15, 1989 i. Ji., ,I
Date Signature
, ".. * ,.-> . "? i . :
Address 101 West Broadway, Sixth Floor san Diego, California 92101
(619) 232-0816
Telephone Number
,. : I . ~,
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Appeal Form
Page Two
""""""
Reason for Appeal (Continued):
Marlborough did not provide the Planning Commission
with the square footage of the proposed condominiums,
and the density of units may be greater than that
approved by the City;
The Environmental Impact Report and Traffic Study for
the project may no longer be valid because of the proposed changes in the development, and because significant environmental issues were not addressed by
the E.I.R.;
The buildings will now be configured differently than
in the original proposed development;
Agua Hedionda, and the proposed Marlborough project1
The original development [including Windsong Cove,
were supposed to be a single gated community. This is no longer to be the case, and the Marlborough
development will unreasonably burden the easements through Windsong Cove without assurance of payment by
the Marlborough project for its share of upkeep of the
easement streets;
The Marlborough project will cut off access to the
members, which access would not be interrupted if the
lagoon enjoyed by appellant associations and their
original development scheme had been followed;
The issue of whether or not the easement is to be
burdened by emergency vehicular traffic remains
unresolved;
Marlborough now intends to conduct grading operations
during the rainy season, contrary to the requirements
of Planning Commission Resolution 2186, imposing
conditions on the project.
., CITY OF CARLSBAD .
1200 ELk. AVENUE CARLSBAD, CALIFdNIA 92008
438-5621
.: ..r.&i, ,./Id( 89 b%*+tF QlLc
REC’D FROM b’ TgUd C9VE NJ6 . DATE 9-/5-, s9
ACCOUNT NO. DESCRIPTION .. AMOUNT
..
1 .,
MARLBOROUGH OEVELOPMENT CORPORATION
September 15, 1989
Mr. Marty Orenyak Community Development Director
City of Carlsbad
2075 Las Palmas
Carlsbad, CA 92009-4859
RE: DI 89-4 - Planning Commission Resolution No. 2910
Dear Marty:
I would like to take this opportunity to confirm our recent
conversation and understanding that the Carlsbad City
Council Agenda for the September 26, 1989 meeting will not
be finalized until Wednesday, September 20, 1989.
Therefore, in the event an appeal is properly filed with the City Clerk for Planning Commission Resolution No. 2910
appeal will be included on the September 26, 1989 City ("Resolution") before 5:OO p.m. on September 18, 1989, said
Council Agenda. In addition, in accordance with Staff's presentation and the Planning Commission's discussion at
the September 6, 1989 hearing, if the Resolution is not
appealed, it is our understanding that the Planning
Commission decision and the Resolution will become final
and will not be heard or discussed by the City Council.
If any portion of this letter is inconsistent with
proceedings related to the Resolution, please contact me representations you have made or your understanding of the
immediately so we can proceed accordingly.
Sincerely,
Leonard Bedolla
cc: Michael Holtzmiller, Planning Director my Pachett, City Manager Vincent Biondo, City Attorney
SOUTHEASTERN DIVISION - 28751 RANCHO CALIFORNIA RD. 7208 * RANCHO CALIFORNIA - CALIFORNIA 92390. 714 6764292
9/ 14/89
TO: Attorney sheerer
FROM: Barbara Falgoust, 434-2632
P. 0. Box 1660
RE: Windsong Shores/Marlborough
v
INADEQUACIES OF EIR
It does neither properly evaluates, mitigates, and/or disqualifies the
Marlborough project on the basis of health and safety hazards caused by
building design flaws in phases I-IV and narrow, winding accesses
See: 9/6/89 memo to Carlsbad City Council, et al for description of design
flaws.
!
EIR does not
1. evaluate air pollution projected into dwellings and exterior patios due to
close proximity of streets
2. properly evaluate noise pollution due to close proximity.
Basis of noise analysis is faulty - incorporates railroad and interstate and
establishes noise contour lines on proposed project. But these do not at all
deal with most severe problem - traffic on streets directly adjacent to and
below us.
3. eva1uat.e or mitigate safety hazards due to narrow, winding streets even
though the nature of the streets and their proximity to the buildings and
overflow parking are acknowledged in the report.
4. consider overburdening. Phases I-IV are 18 dwellings/acre. This is high
density according to present standards (15-23 du/ac). The proposed phase
is Zdu/ac. This exceeds high density. Some representations of density
have been misleading. The whole parcel Marlborough purchased is 10.15
acres. But only 5 acres is suitable and approved for development. So 130
units s' 5 = 26. This distinction is particularly significant because of the
extremely close proximity of the proposed buildings to the existing phases.
SEPARATE ISSUE:
1. Did Marlborough fulfill item 9 of city resolution 2186: "establish a
homeowner's association and corresponding covenants, conditions .... Said
CC&R's shall be submitted to and approved by the Land Use Planning Manger
,of%# to final map approval.' (italics added for emphasis)
The city council will make a decision at the meeting onTuesday, September
26 that will reveals just what this city council stands for. Is it a
government of the people, by the people, and for all the people or is it a
government for some residents and big business? Is there justice and
representation for all or just some, especially big money? Do longstanding
citizens have more rights to representation than newcomers? Does it do
what is safe and humane, or does it interpret the technicalities of due
process to cover up mistakes? Does it create more mistakes in order to
save face: The issue is whether the city council allows Marlborough
Development Corporation to develop a 130 unit condominium project on 5
acres of developable land on the north shore of Ague Hedionda Lagoon
despite serious problems.
The issue has a long history. There was once a tranquil, sparsely populated
area north of the Lagoon, south of Chinquapin, west of 1-5, end east of the
Santa Fe Railroad. A developer proposed to build a 5-phase condominium
project. The project was shaped like a horseshoe that would encompass the
eastern, southern, and western parameters of the neighborhood. According
to current population standards, the 21 1 units in the first four phases are
high density units with 18 dwellings per acre. The people of the tranquil
neighborhood vehemently objected. Nonetheless, the builder began to
construct the first four phases to their east and west. The builder sold out
to another in the early stages of construction.
Gaining approval for the fifth phase was more difficult. The last phase was
planned to extend 130 more units along the northern shore of the lagoon.
The 18 homeowners of Harbor Drive defied the city council to allow the
traffic of phase V to use their street for access. The city promised these
residents immunity and required the builder to relinquish rights to access.
A 62% increase in traffic would be forced through phases I-IV.
These actions were a arg mlstake. The promlse bolls down do nothing else
but a political favor to convenience a few longstanding residents to the
detriment of numerous incoming residents. It is appalling to realize that
duration of citizenship gives one more rights in this city. The promise
effected a compromise between the developer and the existing community -
at the expense of the future residents. We were not there to represent
ourselves and no one protected our interests. The city did not reckon with
grave problems that make the existing projected environmentally unworthy
to bear the traffic of 21 1 existing units and 130 more. Nonetheless, e final
map was approved in 1986 after a long process of proving to the city and
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. t California Coastal Commission that 5 out of a delicate 10.15 acres could be
developed. The second builder gave up. Many incoming residents were either
never provided adequate information regarding the prospect of phase V or
told the project would never be built due to too many unmitigated factors.
Marlborough bought the property in May 1989. One hurdle it leaped was
gaining temporary access rights for construction via the Santa Fe railroad
easement that extends from Chinquapin to the YMCA Aquatic Park on the
Lagoon. To do this it had to prove to the city and Coastal commission that
the streets of phases 1-1'4 are too narrow and unstable and close to
dwellings to bear construction traffic. The remaining technicality for
Marlborough is to gain city council approval that the project it proposes is
in substantial conformance with the final plans approved in 1986.
/
One reason this project is not in substantial conformance is that the five
phases were onginally planned to have one homeowners association.
Marlborough now proposes a separate association for its project. This
entails the issues of cost sharing and liability. Under CA Code §845.
Marlborough must share the cost of maintaining traffic safety signs,
streets, gates, etc. The issue of liability is most serious. A very real
possibility is that someone driving through our private streets to the
Marlborough complex will hit a child riding a bicycle It is unfair of the city
of Carlsbad or Marlborough to expose us to the risk of such a liability. None
of these issues has been resolved.
But the issue of conformity begs the real issues. There are two design
flaws in the existing complex that render it environmentally unworthy to
bear a 62% increase in access. The first is that the narrow, winding streets
directly adjoin the sides of the dwellings They do not even meet the
minimum standard of 20 feet in crucial places. Enclosed garages prevent
vision when someone is backing out a car. Cars on the other side of the
street cannot see either as they back out from head-in stalls. The problem
is compounded by the fact that these accesses serve double duty as
driveways. In other words, there is no leeway. Cars must blindly back out
directly onto the access. Marlborough is actually proposing to use one of the
streets that does not even meet the 20' minimum as the entrance to a garage
for the vehicles of over 80 units.! One mal fact is that the traffic of 130
additional units cmnoi safely be added to these private streets. The
second design flaw is that second floor living areas directly overhang the
streets. Some first floor living areas are within feet of these streets. The
real issues here are noise and air pollution. The streets and living spaces
are in such close proximity that it sounds like a car is driving through your
room when a car passes. Carcinogenic and chemical exhaust pollutants are
i
PtXIj8Cted directly into our dwellings in high concentrations because there
is scant room for dissipation. Because these design features are
irreparable, adverse consequences an? unavoidable in the event of further
construction.
On September 6, the Carlsbad City Planning Commission attempted to wash
its hands of the project. It claimed that procedures have been followed and
hearings had long since been held. Issue at hand was strictly whether the
final map conformed with the one approved in 1986. Never mind that the
1986 plans ignored grave problems. The Planning Commission seemed
satisfied to wash its hands of the problems on the basis that our streets are
private. Never mind that the Commission approved the building of these
streets and the ill-matched design of the dwellings. The attitude of the
Commission seemed to be that it will have no further jurisdiction or
liability once phase V is completed. A city planner testified that a limited
environmental impact report that was completed in 1983 was adequate.
Never mind that the report did not even address the impact of air pollution
upon existing units. Never mind that the noise analysis missed the boat. It
concluded that the 2.2 decibels of ambient noise within the new phase would
hardly impact the existing community in an adverse manner. What about a
car or UPS truck that sounds like it is driving through your bedroom?. Never
mind that the report did not address unsafe traffic conditions due to
overburdening. Never mind that the report did not acknowledge that a
project which in effect exceeds current standards for high density will be
positioned scantily 21 feet from existing residences that overhang the
street. The current ceiling in the high density category is 23 dwellings.
This complex is 26 dwellings per acre when based on the land actually being
developed. Never mind that the traffic volume of the existing phases was
underestimated due to the miscalulation of the number of existing units.
Because these issues were not addressed, no mitigations were offered. This
is not what I, a voting and taxpaying citizen of Carlsbad, deem to be equal
representation and due process.
The City Council has the power to reckon with these problems. It was a
mistake to approve the existing phases with such design flaws. It was a
second mistake to promise Harbor Drive sacrosanctity in light of the
inadequacy of phases I-IV to bear the additional burden. It would be a third
mistake to allow this project to proceed. At this point the City Council is
the only agent that CUO rectify the problems. The reality of these problems
must be acknowledged as the basis for sound decision-making.
The Quanday is that it represents three different groucts of property
owners. Marlborough has certain rights even though it will never live in
. "..I .- "- .- __ ""L"<... . ,
f
it imposes upon the
residents of 21 1 condominiums. But builders are interested primarily in
building as many units for as much money as they can get, selling the units,
and leaving the problems behind. The Council also represents the residents
of 21 1 condominiums who have been inadequately represented. It also
represents the residents of 18 homes on Harbor Drive who were given an ill-
founded promise. If the Council does not deal in good faith with all of these
parties it could face court to defend itself against charges of breach of
promise or undue overburdening. Marlborough has the most money to sue.
Will the Council take the path of least resistance and leave the residents of
21 1 condominiums holding the bag of worms which it forced upon us? Or
will it participate in seeking a reputable resolution?
The best solution would be for the city of Carlsbad to purchase this land and
develop it as a park that would connect the YMCA park and the aquatic center
on the east side of 1-5. This would cost much money. The Marlborough
purchase price was in the vicinity of 4 million dollars. The next best
solution would be to open Harbor Drive for access. I do feel sympathy for
their position. The promise was perhaps made on this basis. But certain
circumstances must warrant breaking promises and overriding sympathy.
Phase 5 must be redesigned to accommodate permanent ingress and egress
to share the overburdening. This would alleviate at least 1/3 of the
additional burden. In any event, an updated environmental impact report
should required and mitigating measures should be completed in regard to
the adverse impacts upon the existing complex before Marlborough breaks
ground.
If the City Council allows this project to proceed in spite of its awareness
of grave adversities, it will not be able to escape legal liability because it
will have knowingly forced unhealthy and unsafe conditions upon us.. I also
hope that. any council member who votes in favor of this project without
ensunng safe and equitable mitigation will face liability at the voting
poles. Three years ago the voters of Carlsbad were provided with two
choices in regard to growth management. Due to a confusing campaign many
voters, including me, did not understand what each proposal stood for. A
legal battle after the election over the legitimacy of the election due to the
confusion. The proposal favored by the mayor and city council prevailed.
They issued reconciliatory remarks that growth would be in good hands with
t-he city council. Now is the time to prove it.
Barbara Falgoust, Carlsbad 434-2632, or New York City (212) 749-5359
October 6, 1989
TO :
Att: Walter Brown Engineering Department
FROM : City Attorney
WINDSONG SHORES, MARLBOROUGH DEVELOPMENT CORPORATION (PE 2.89-44, CT 83-4)
I have approved the grading and erosion control cash security
agreement as to form for the above referenced project. I have not
approved the grading and erosion control bond issued by Golden
Eagle Insurance Company since it is not rated in Best's Key Ratinq
Guide (mid-year results 1989). Golden Eagle Insurance Company was
given an NA-3 rating which is a ratings "not assigned" classification because of insufficient experience. According to
the terms of City Council Resolution No. 8108 adopted July 16, 1985
be rated by Best's Rating Guide as "A" and Class XI or better. (copy attached), insurance or surety companies issuing bonds must
Please advise the developer of this requirement and verify that insurance or surety companies meet these requirements prior to
forwarding them to this office for approval.
hesitate to contact me. Should you have any questions regarding the above, please do not
RONALD R. BALL
Assistant City Attorney
rmh
c: Finance Director