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HomeMy WebLinkAbout1989-09-26; City Council; 10278; SUBSTANTIAL CONFORMANCE DETERMINATION FOR CT 83-04|MARLBOROUGH DEVELOPMENT CORPORATION (APPEAL)| DI 89-04I a, c u -4 2 -u 4 0 c 2 :E L aaJ GO CdG rd 3 9 a) MU a0 dl+ urd *rl GG .rl a h4J dm as -33 ew mo cnM 00G OG z -4 %I a0 p: *rl m am e (II I .a -4 COG 2 -g 00 M dG -rl *d OG GG 1Cd 04 ZU UPI cn 00 \ Q hl \ cn .. z 0 E a G z 4 s 0 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 ” “$,X Letter of Appeal dated September 15, 1989/Appeal Form 4. Draft Planning Commission Minutes dated September 6, 1989 5. Planning Commission Staff Report w/attachments dated 6. Windsong Shores Site Plan on file in the City Clerk’s office, September 6, 1989 II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W RESOLUTION NO. 89-344 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DETERMINING SUBSTANTLLU, CONFORMANCE OF PLANS SUBMITTED FOR THE DEVELOPMENT, Dl 89-4 (FOR CT 83-41 - MARLBOROUGH DEV. CORP. WHEREAS, on September 6, 1989 the Carlsbad Planning Corn adopted Resolution No. 2910 determining substantial conformance for CT 83-4/ finding that modifications required by the approval of the Coastal Commission wert in nature and substantially conformed to the plans originally approved by the City WHEREAS, the City Council of the City of Carlsbad, on September 2 considered an appeal of the Planning Commission determination of sub conformance for CT 83-24/CP-227; and WHEREAS, upon considering the request, the City Council conside factors relating to the substantial conformance issue. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City ( of the City of Carlsbad, California, as follows: 1. 2. That the above recitations are true and correct. That the findings of the Planning Commission in Resolution Nc on file with the City Clerk and incorporated herein by reference constitute the find the City Council in this matter. ... ... ... ... A, 1 2 3 4 5 6 7 8 9 10 11 I.2 13 14 I.5 16 17 18 19 20 21 22 23 24 25 26 27 28 rn 1) PASSED, APPROVED AND ADOPTED at a regular meeting of the City C of the City of Carlsbad, California, on the 26thday of September, 1989 by the fol vote, to wit: AYES: Council Members Lewis, Pettine, Mamaux and Larson NOES: None ABSENT: Council Member Kulchin ATTEST: ALE$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. E. F. G. H. r , ..d MICHAEL J. HOLZMILLER arb 0 0 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 - 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 - 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. - * 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. - * 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. - - . - - * 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. A. I T * L r. - ! I - fl0NPA c-. 5 u . / VQGINrn @AtP - CITY' c?#= CARLSAr) NoScaLE *- - *= ~ L -_ -- - , ._ ^. x - .= .' J, I. 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 .. 1 2 3 4 5 6 7 E S 1c 11 12 1: 14 1: 1f 17 1E 1s 2c 21 22 2: 24 2E 26 21 2E 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. //// //// //// //// .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. - ,..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 . ~, I, ,. .- 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 ' .. 2 I . 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