HomeMy WebLinkAbout1998-07-28; City Council; 14790; Nessim Variance Appealco a \ co c\I
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CITY OF CARLSBAD -A&A BILL
AB# TITLE:
MTG. 7/28/98 NESSIM VARIANCE APPEAL
V 98-01
DEPT.
RECOMMENDED ACTION:
That City Council ADOPT Resolution No. W-256, UPHOLDING the Planning Commission’s
decision to DENY the Variance for the Nessim Residence, located on the northwest corner of
Carlsbad Village Drive and Highland Drive.
ITEM EXPLANATION:
On May 6, 1998, the Planning Commission conducted a public hearing and denied, with a 7-O
vote, the Variance request for the Nessim Residence. The project site is located at the
northwest corner of Carlsbad Village Drive and Highland Drive and is zoned R-1-10,000 (Single
Family Residential with 10,000 square foot minimum lot size). The requested variance would
allow conversion of the existing non-conforming three-story garage building into a conforming
habitable home and allow a three-story, Victorian-style expansion to that home. The maximum
number of stories allowed for a single family home in the R-l, Single Family Residential zone is
two. -
The grounds for appealing a variance are contained in Section 21 SO.100 of the Carlsbad
Municipal Code. According to this section, the City Council shall affirm the Planning
Commission’s decision on the variance unless “the appellant shows by a preponderance of the
evidence that the decision of the Planning Commission was in error, inconsistent with State law,
the General Plan, or any applicable zoning ordinance or policy of the City”.
The appellant’s grounds for the appeal are contained in the attached appeal form. He attempts
to address where the Commission erred by referencing the four required findings for a variance.
Staff has reviewed the appellants evidence and cannot agree that the decision of the Planning
Commission was in error. Staffs comments on Mr. Nessim’s statements are contained in the
attached memo to the City Manager.
According to Section 2150.020 of the Zoning Ordinance, “the sole purpose of any variance shall
be to prevent discrimination, and no variance shall be granted which would have the effect of
granting a special privilege not shared by other property in the same vicinity and zone”. Given
that no other property in the area possesses a three story structure, habitable or otherwise,
granting of the variance would allow a special privilege not shared by neighboring properties. In
essence, Mr. Nessim is requesting exactly such a special privilege since he could develop his
property in the same manner as the neighboring properties without need for a variance.
FISCAL IMPACT:
The fiscal impacts to the City are negligible, whether the variance is denied or approved, since
all public facilities necessary to serve either the existing structure or an expanded structure are
already in place. All necessary development fees for an expansion would be collected through
building permit processing.
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PAGE 2 OF AGENDA BILL NO. 14,790
ENVIRONMENTAL REVIEW:
Should the City Council decide to uphold the Planning Commission’s decision to deny the
variance, the action would be exempt from environmental review pursuant to Section 15270 of
the State CEQA Guidelines. Should the City Council desire to approve the variance, a CEQA
document would need to be processed and approved prior to the variance approval. In addition,
the project does not satisfy the mitigation measures of the Master Environmental Impact Report
for the 1994 General Plan Update. This lack of conformance would need to be addressed in the
environmental review necessary to approve the project.
EXHIBITS:
1. City Council Resolution No. 98-256
2. Memorandum to City Manager from Planning Department, dated June 11, 1998
3. Location Map
4. Planning Commission Resolution No. 4286
5. Planning Commission Staff Report, dated May 6, 1998
6. Excerpt of Planning Commission Minutes, dated May 6, 1998
7. Appeal Form, dated May 15, 1998.
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RESOLUTION NO. 98-256
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, DENYING THE APPELLANTS
APPEAL AND UPHOLDING THE PLANNING COMMIS
DENIAL OF A BUILDING HEIGHT VARIANCE ON PRO
GENERALLY LOCATED AT THE NORTHWEST C
CARLSBAD VILLAGE DRIVE AND HIGHLAND DR
NORTHWEST QUADRANT.
CASE NAME: NESSIM RESIDENCE APPEA
WHEREAS, the Planning Commission did ay 6, 1998, hold a duly noticed
public hearing as prescribed by law to consider said
WHEREAS, on May 6, 1998, t
hearing and considering all evidence and esiring to be heard, adopt
Resolution 4286, denying a Variance (
Council of the C
consider said appe
mely filed on May 15, 1998; and
, 1998, the City
bad, held a duly noticed public hearing as prescribed by law to
ion decision; and
request, the City Council considered all factors
WHEREAS, upon consideri e evidence, testimony, and arguments of
ons present and desiring to be heard, the City denies the appeal and upholds the
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City
Carlsbad, California, as follows:
That the above recitations are true and correct.
2. That the findings of the Planning Commission in Resolution No. 4286, on
file with the City Clerk, and incorporated herein by reference, constitute the findings of the City
Council in this matter.
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3. That the Planning Commission’s denial of V 98-01 is h
and the appeal of that decision is denied based upon the facts set out
Department Staff Report, dated May 6, 1998, the evidence before the Planni
the evidence as set forth in City Council Agenda Bill No. 14,790
before the City Council, all of which are incorporated herein by reference.
occurred.
4. That the appeal is denied without prejudice sine procedural error
5. This action is final the date this resolution is
The provision of Chapter 1 .I6 of the Carlsbad Municipal Code, “Tim
shall apply:
d by the City Council.
s for Judicial Review”
“NOTICE TO APPLICANT”
“The time within which judicial review of this decisi ust be sought is governed
by the Code of Civil Procedures, Section 1094.6 h has been made applicable
in the City of Carlsbad by Carlsbad Municipal C Chapter 1.16. Any petition or
other paper seeking judicial review must be file the appropriate court no later
than the ninetieth day following the date o ich this decision becomes final;
however, if within ten days after the decision es final a request for the record
of the proceedings accompanied by the re deposit in an amount sufficient to
cover the estimated cost of preparation of record, the time within which such
petition may be filed in court is ex not later than the thirtieth day following
the date on which the record is eit nally delivered or mailed to the party, or
his attorney of record, if he has one ritten request for the preparation of the
record of the proceedings shall be ith the City Clerk, City of Carlsbad, 1200
Carlsbad Village Drive, Carlsbad,
PASSED AND ADOPTE
Carlsbad on the
-day Of+
1998, by the following vote, to wit:
AYES:
NOES:
ABSENT:
CLAUDE A. LEWIS,
Al-TEST:
ALETHA L. RAUTE RANZ, City Clerk
(SEAL)
-2-
C
June11,1998
EXHIBIT 2
TO: CITY MANAGER
FROM: Planning Department
NESSIM VARIANCE APPEAL - V 98-01
This memorandum is intended as a supplement to the City Council Agenda Bill
regarding the appeal of the Planning Commission’s decision on the Nessim
Building Height Variance (V 98-01). Detailed below are staffs comments on Mr.
Nessim’s reasons for appeal, as contained in the Appeal Form, dated May 15,
1998. According to Section 21.50.100 of the Zoning Ordinance, Mr. Nessim
must show, with a preponderance of evidence, that the decision of the Planning
Commission was in error or inconsistent with State law, the General Plan or any
applicable zoning ordinance or policy of the City. As discussed below, Mr.
Nessim does not show, with a preponderance of evidence, that the Planning
Commission’s decision was in error. Therefore staff is recommending that the
City Council uphold the Planning Commission’s decision and deny the Variance
appeal.
REQUIRED FINDING NO. 1:
There are exceptional or extraordinary circumstances applicable to the
property that do not apply generally to other property in the same vicinity
and zone.
In order to show that there are exceptional or extraordinary circumstances on the
subject property, Mr. Nessim would need to demonstrate that his lot is
significantly different than the surrounding properties. He would also need to
show this difference encumbers his lot such that a three-story home is the only
way for him to develop his property in similar intensity as the surrounding
properties.
Mr. Nessim states that the condemnation of the property for Carlsbad Village
Drive in the 1960’s constrained the lot by reducing it’s size and elevation, thus
creating a “more difficult to deal with lot configuration”. He also states that the 10
foot wide slope easement along Carlsbad Village Drive further constrains the
developable portion of the lot.
These statements do not demonstrate that there are exceptional circumstances
applicable to his property that are not applicable to the surrounding properties.
The existing lot currently meets or exceeds all minimum size and dimension
requirements of the underlying R-1-10,000 zoning, including lot width, frontage
and area. In the same vicinity and zone (that being along Highland Drive), there
are a number of lots with the same or smaller configuration and lot area as Mr.
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NESSIM VARIANCE APPEAL - V 98-01
June 11, 1998
Page 2
Nessim’s lot. In addition, the ten-foot-wide easement along Carlsbad Village
Drive is coincident with the standard ten-foot-wide street side yard setback. This
area is undevelopable on all street side yards, regardless of the existence of a
slope easement. Therefore, the appellant has not shown. that there are no
exceptional or extraordinary circumstances applicable to the subject property’s
that do not generally apply to other properties in the same vicinity or zone.
REQUIRED FINDING NO. 2:
The variance is necessary for the preservation of a substantial property
right possessed by other property in the same vicinity and zone.
In order to show that the variance is necessary for the preservation of a
substantial property right, Mr. Nessim would need to demonstrate that other
properties in the area possess three-story structures. He would also need to
show that, without his three-story structure being converted to a habitable home,
he could not develop his property with the same amount of internal living space
as possessed by his neighbors.
Mr. Nessim statements do not indicate why the three-story structure is necessary
for the preservation of a property right possessed by other properties in the area.
No other properties in the area enjoy the substantial property right of a three-
story home, nor do they enjoy the allowance to construct one at this time. All lots
in the same vicinity and zone as the subject property were the subject of the
1994 Building Height Revisions, which limited single family homes in the R-l
zone to a maximum of two stories.
As mentioned above, the subject property has the same or larger size and
dimensions as other lots with an R-1-15,000 zoning. Since Mr. Nessim’s
buildable area is comparable to other lots in the area, he has the ability to
capture comparable internal living area without the need for three stories.
In addition to the above, Section 2150.020 of the Zoning Ordinance states that
“no variance shall be granted which would have the effect of granting a special
privilege not shared by other property in the same vicinity and zone”. Since no
other properties in the area enjoy a three-story structure of any type, making the
building a legal, conforming structure and allowing its expansion would constitute
granting Mr. Nessim a special privilege that is not shared by other properties in
the area.
Given the above, the appellant does not show that the variance is necessary for
the preservation of a substantial property right possessed by other property in
the same vicinity or zone.
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NESSIM VARIANCk APPEAL - V 98-01
June 11, 1998
Pane 3
REQUIRED FINDING NO. 3:
The granting of the variance is not materially detrimental to the public
welfare or injurious to property or improvements in the same vicinity and
zone.
In order to show that the granting of the variance would not be materially
detrimental or injurious to property or improvements, Mr. Nessim would need to
demonstrate that the granting of the variance would not create negative
aesthetic impacts to the neighborhood and would not set a precedent for
allowing three-story homes in the R-l zone.
Mr. Nessim does not show that the variance would not cause material detriment
and does not address the issue of setting a precedent. He does state that the
surrounding neighbors consider the proposal to be beneficial and that the
proposed structure would be more aesthetically pleasing than the existing
structure. As detailed in the attached Planning Commission minutes, there were
five surrounding property owners who responded to the public notice for the
variance. Four of these neighbors were opposed to the variance, objecting that
the proposed three-story structure would not be aesthetically pleasing and it
could set a precedent to allow additional three-story buildings in the R-l zone.
Therefore, the appellant does not show, with a preponderance of evidence, that
the granting of the variance would not be materially detrimental to the public
welfare or injurious to property or improvements in the same vicinity or zone.
REQUIRED FINDING NO. 4:
The granting of the variance will not adversely affect the General Plan.
To show that the variance would not adversely affect the General Plan, Mr.
Nessim would need to demonstrate that all policies of the General Plan and all
mitigation measures of the Master Environmental Impact Report for the 1994
General Plan Update (MEIR 93-01) can be met, even after granting the variance.
Mr. Nessim’s comments do not address any General Plan policies or MEIR
mitigation measures. In fact, Mr. Nessim’s proposal is in direct conflict with one
of the mitigation measures of the MEIR. In order to implement the General Plan
without incurring potentially significant aesthetic impacts, the MEIR states that all
development must conform to the revised height regulations, which include both
actual building height and the number of stories. Since Mr. Nessim’s proposal
involves a three-story structure in the R-1-10,000 zone, he is not in conformance
with the revised height regulations and could create a potentially significant
aesthetic impact. The appellant does not demonstrate that the granting of the
variance will not adversely affect the General Plan.
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NESSIM VARIANCk APPEAL - V 98-01
June 11, 1998
Paqe 4
In light of the above, staff cannot agree that Mr. Nessim has provided information
that adequately challenges the Planning Commission’s findings for denial of the
variance. He has not shown, with a preponderance of evidence, that the
Planning Commission has erred or was inconsistent with State law, the General
Plan, or other applicable zoning ordinances and policies of the City. Therefore,
staff recommends that the City Council affirm the Planning Commission’s
decision to deny the Nessim building height variance by denying the appeal.
EXHIBIT 3
NESSIM RESIDENCE
V 98-01
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EXHIBIT 4
PLANNING COMMISSION RESOLUTION NO. 4286
s
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, DENYING A
BUILDING HEIGHT VARIANCE ON PROPERTY
GENERALLY LOCATED AT THE NORTHWEST CORNER OF
CARLSBAD VILLAGE DRIVE AND HIGHLAND DRIVE IN
LOCAL FACILITIES MANAGEMENT ZONE 1.
CASE NAME: NESSIM RESIDENCE
CASE NO: V 98-01
WHEREAS, Gary Nessim, “Developer”, has filed a verified application with the
City of Carlsbad regarding property owned by Gary Nessim, “Owner”, described as
Parcel 2 of Parcel Map 9739, City of Carlsbad, filed in the
Office of the County Recorder February 28, 1980, County of
San Diego, State of California
(“the Property”); and
WHEREAS, said verified application constitutes a request for a Variance as
shown on Exhibits “A“ - “C”, dated May 6, 1998, on file in the Carlsbad Planning Department,
NESSIM RESIDENCE - V 98-01, as provided by Chapter 21.50 of the Carlsbad Municipal
Code; and
WHEREAS, the Planning Commission did on the 6th day of May, 1998, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all factors
relating to the Variance.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission o> the City of Carlsbad as follows:
4
W
That the above recitations are true and correct.
That based on the evidence presented at the public hearing, the Planning
Commission DENIES NESSIM RESIDENCE - V 98-01 based on the following
findings: lb
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~ Findings:
1. That there are not exceptional or extraordinary circumstances or conditions applicable to
the property or to the intended use that do not apply generally to the other property or
class of use in the same vicinity and zone, in that the subject property is approximately
the same size as the surrounding residential properties; possesses a similar slope to
the adjacent properties; is subject to the same front, street side, internal side and
rear setbacks and building height as other corner lots in the vicinity and zone,
thereby allowing similar development intensity for the subject property and
surrounding residential properties.
~ 2. That the requested variance is not necessary for the preservation and enjoyment of a
substantial property right possessed by other property in the same vicinity and zone but
which is denied to the property in question, in that there are no other three story homes
within the vicinity and an equivalent of internal square footage can be obtained
without need for a building height variance; and expansion of an existing, non-
conforming structure does not qualify as a substantial property right possessed by
others in the same vicinity or zone.
3. That the granting of this variance may be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity and zone in which the property
is located, in that the goal of the 1994 Building Height Revisions was to reduce the
number of stories and overall building height in the single family neighborhoods
and deviation from this goal may cause materially detrimental aesthetic impacts.
4. That the granting of this variance will adversely affect the General Plan, in that,
according to the Master Environmental Impact Report for the 1994 General Plan
Update (MEIR 93-Ol), in order to implement the General Plan without incurring
potentially significant aesthetic impacts, development must conform to the building
height zoning regulations.
PC PESO NO. 4286 -2- //
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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 May 1998, by the
following vote; to wit:
AYES: Chairperson Noble, Commissioners Compas, Heineman, Monroy,
Nielsen, Savary, and Welshons
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Planning Director
PC RESO NO. 4286 -3-
.- EXHIBIT 5
‘me City of CARLSBAJI Planning Department w A REPORT TO THE PLANNING COMMISSION
Application complete date:
P.C. AGENDA OF: May 6,1998
Project Engineer: Clyde Wickham
SUBJECT: V 98-01 - NESSIM RESIDENCE- Request for a Variance to the R-l, One-
Family Residential building height regulations to legalize an existing, non-
conforming three-story structure and allow a three-story expansion of that
structure, located at the northwest corner of Carlsbad Village Drive and Highland
Drive, in Local Facilities Management Zone 1.
I. RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 4286 DENYING
Variance V 98-01, based upon the findings contained therein.
II. INTRODUCTION
The proposal involves a request for a variance to the R-l, One-Family Residential building
height regulations. The variance has two components. The first component involves legalizing
an existing, non-conforming three-story structure and the second component involves allowing a
three-story expansion of that structure on the northwest corner of Carlsbad Village Drive and
Highland Drive. While the City is not taking any abatement actions on the existing three-story
structure, any expansion of that structure must comply with the zoning codes applicable at the
time of building permit issuance. Staff cannot support the variance because the required findings
cannot be made. In addition, a Conditional Use Permit would have to be approved by the
Planning Commission for any expansion of the non-conforming existing structure.
III. PROJECT DESCRIPTION AND BACKGROUND
The applicant is requesting a variance to the R-l, Single Family Residential building height
maximums for the existing three-story structure located on the northwest corner of Carlsbad
Village Drive and Highland Drive. The existing, non-conforming building shares the lot with a
small, one-story dwelling unit. No garages or other structures exist on the property. The
property slopes gently from east to west and there is a small side slope along the Carlsbad
Village Drive street frontage. West of the property is the City Library parking lot, while the rest
of the surrounding neighborhood is characterized by mostly one-story single family homes.
The proposed expansion of the existing three-story structure is shown on Exhibits “A” - “C”,
dated May 6, 1998. The proposed architectural style would be Queen Anne Victorian, involving
such components as steeply pitched roof shapes, a stair tower, covered decks and multiple wall
V 98-01 - NESSIM RESIDErWE
May 6,1998
Page 2
surfacing, including textured shingles and timbering. The building would be expanded in the
front by adding an entry area, with wine storage below. In the rear is proposed a three-story
portion, including covered decks and open stairways, with a four car garage below.
The pertinent history of the proposed Victorian house dates back to 1990, when the applicant
applied for and received, a building permit for a three story expansion similar to that shown in
the attached exhibits. Since the R-l building height maximum was 35 feet and three stories, the
Planning Department approved the building permit and the permit was issued. Over the next
nine months, no progress was made on the construction of the building and no Building
Department inspections were requested or performed. After receiving a 180 day extension, the
building permit expired in February of 1993 due to inactivity. Mr. Nessim reapplied for a
building permit in September of 1993, but the R-l building height maximums had been revised
to 30 feet and two stories and the permit was denied.
In April of 1996, the applicant applied for a building permit to construct a stair tower. Since the
Victorian architectural style was not an issue in and of itself, and the proposed stair tower met the
current R-l building height regulations, the permit was approved and issued in July of 1996. The
stair tower is now constructed and its relationship to the ultimate development scheme is shown
on Exhibits “A” - “C”, dated May 6, 1998. Nevertheless, this building permit appears to have
been issued in error, as a Conditional Use Permit was a necessary antecedent because the house
was a legal, but nonconforming structure. The CUP was not processed. (See “Analysis, Section
D” for more information).
Variances have been issued for other proposals exceeding building height limits, however the
circumstances involved with these cases are completely different from the current proposal. Two
of the more recent variances included the Sea Bisquit (SDP 96-16/V 96-01) and St. Tropez (CT
90-07/V 90-02) projects, both located on the west side of Ocean Street. Since these properties
have a steeply sloping topography on the western two-thirds of their sites, it is difficult to meet
the building height restrictions and still design livable levels within the structure, without
requiring a large amount of fill on the coastal bluff. The building height variances were justified
by the extreme topography, and the fact that the street access is located at the top of the lot. The
slightly sloping topography of the Nessim property does not mimic that of a coastal bluff.
The Nessim Residence variance request is subject to the following regulations:
A. General Plan;
B. R- 1, One-Family Residential Zone (Chapter 2 1.10 of the Zoning Ordinance); and
C. Variance - Conditional Use Permit Ordinance (Chapter 21.50 of the Zoning
Ordinance).
D. Non-Conforming Uses (Chapter 21.48 of the Zoning Ordinance).
V 98-01 - NESSIM RESIDENCE
May 6,1998
Page 3
IV. ANALYSIS
The recommendation for denial of this project was developed by analyzing the project’s
consistency with the applicable policies and regulations listed above. The following analysis
section discusses the lack of compliance with each of these regulations/policies utilizing both
text and tables.
A. General Plan
The proposed Nessim Residence variance request is not consistent with the applicable policies
and programs of the General Plan. Particularly relevant to the non-conforming, single family
addition are the Land Use and the Open Space and Conservation Elements. Table 1 below
indicates how the project does not comply with these particular elements of the General Plan.
TABLE 1 - GENERAL PLAN COMPLIANCE
ELEMENT USE CLASSIFICATION, GOAL, PROPOSED USES AND
OBJECTIVE OR PROGRAM IMPROVEMENTS COMPLIANCE
Land Use To preserve the neighborhood
atmosphere and identity of existing
residential areas.
Proposed three-story
addition would bring
building further out of
character with the
neighboring one- and two-
story single family homes.
No
Open Space To encourage property owners to If existing three-story house
and utilize all available incentives for the is considered historic, then
Conservation preservation of historic resources. no alteration of the original
structure should be allowed. No
If existing house is not
considered historic, then its
non-conformity should not
be expanded.
In addition to the above, the Master Environmental Impact Report for the 1994 General Plan
Update calls for full implementation of the zoning regulations, including building height, to
preclude potentially significant aesthetic impacts.
B. R-l, One Family Residential Zone
The Nessim Residence is zoned R- 1 - 10,000 and is therefore subject to the provisions of the R- 1
zone. The maximum building height allowed in an R-l zone is 30 feet for pitched roofs and 24
feet for flat roofs (less than 3:12 roof pitch). The maximum number of stories is two, regardless
of roof pitch. The Zoning Ordinance defines a story as the space between the surface of any
floor and the surface of the floor next above it. If there is no floor above it, then the space
V 98-01 - NESSIM RESIDENCE
May 6,1998
Page 4
between such floor and the ceiling next above it shall be considered a story. Because of this
definition, roof decks cannot be covered without creating a story.
As shown on Exhibits “A’‘-“C”, dated May 6, 1998, the proposed development would expand the
existing three-story structure, creating a new three-story portion. The three stories include the
lower level den, the main level sitting and dining rooms, and the upper level study and covered
deck. Also proposed below the three story addition is a four-car garage. Since this garage would
be more submerged into the existing topography than emerged, it would qualify as a basement
and not be counted in the total number of stories. The emerged portion would be counted
towards the building height calculations.
By making grade adjustments, not included in this development scheme, the proposed expansion
may be able to meet the 30 foot height maximum. The proposal involves three stories, however,
which is not allowed in the R- 1, One Family Residential Zone. The applicant has alternatively
proposed that the upper level study area be left open to the below dining room. This would
eliminate the third story for a portion of the addition, however the upper level covered deck still
qualifies as a story, thereby constituting a three-story addition.
Since the applicant is requesting a Variance to the R-l development standards, an evaluation into
the intent behind those standards is necessary to evaluate the merit of the variance. When the
1994 Building Height Revisions were being formed, the controlling source of regulation was not
necessarily the actual building height, rather a restriction on the number of stories. Much of the
discussions at the building height workshops with developers, staff and interested parties focused
on how tall a single family or duplex structure needed to be to accommodate two stories. There
were several building heights explored to satisfy the builders’ and architects’ need for creativity
and 30 feet was decided as being more than adequate to accommodate a two-story home. Given
that the building height regulations were focused more on the maximum number of stories, rather
than actual height, staff cannot support the proposed variance for a three-story, single family
home.
C. Variances - Conditional Use Permits Ordinance
Section 21.50.030 of the Zoning Ordinance lists the findings required to grant a variance.
Detailed below is an analysis of each required finding as it applies to the proposed building
height variance. The applicant’s analysis of these same findings can be found in Attachment No.
4 - Variance Justification Form.
1. That there are exceptional or extraordinary circumstances or conditions
applicable to the property or to the intended use that do not apply generally to
the other property or class of use in the same vicinity and zone.
There are no exceptional or extraordinary circumstances or conditions applicable to
the property. The subject property is approximately the same size as the
surrounding residential properties, measuring over 10,000 square feet in area
(approximately 66.45 feet by 158 feet). The property slopes downward to the west
at roughly a 10 percent slope, similar slope to the adjacent properties along
V 98-01 - NESSIM RESIDENCE
May 6,1998
Page 5
Highland Drive. While the property is subject to a street side setback of 10 feet, it
is still subject to the same front, side, and rear setbacks as other corner lots in the
vicinity and zone. Since the surrounding residential areas are also zoned R-l, One
Family Residential, they are subject to the same building height restrictions. The
existing conditions therefore allow a similar development intensity for the subject
property as with the surrounding residential properties.
There are also no exceptional circumstances associated with the buildings on the
subject property. As mentioned in Section A above, the only potentially
exceptional circumstance would be if the existing three-story house was considered
historic. It that case, however, the building should remain in its historically
accurate state and then no alteration should be allowed. Given that the site and
buildings are not exceptional or extraordinary, this required finding cannot be made.
2. That the requested variance is necessary for the preservation and enjoyment of
a substantial property right possessed by other property in the same vicinity
and zone but which is denied to the property in question.
The requested variance is not necessary for the preservation or enjoyment of a
substantial property right. As discussed in relation to the first finding, the lot does
not possess constraints beyond those incurred by other comer lots in the area. The
neighborhood is characterized by one-story and two-story homes and there are no
other three story homes within the vicinity. The subject property can obtain an
equivalent amount of internal square footage as the neighboring properties without
need for a building height variance. Since the existing structure is non-conforming,
and no other three-story homes exist in the neighborhood, its expansion does not
qualify as a substantial property right possessed by others in the zone. Given the
above, this required finding cannot be made.
3. That the granting of this variance is not materially detrimental to the public
welfare or injurious to the property or improvements in the vicinity and zone
in which the property is located.
The granting of this variance may be materially detrimental in, that it cause, or
create the ability for other properties to cause, aesthetic and privacy impacts. As
mentioned above, the goal of the 1994 Building Height Revisions was to reduce the
number of stories and overall building height in the single family neighborhoods.
Deviation from this goal may cause the materially detrimental aesthetic and privacy
impacts that were being avoided with the lessened number of stories building
height.
4. That the granting of this variance will not adversely affect the comprehensive
General Plan.
The granting of this building height variance may adversely affect the General Plan
because building height is specifically mentioned in the environmental analysis for /7
V 98-01 - NESSIM RESIDENCE
May 6,1998
Page 6
potentially significant aesthetic impacts caused by development. The Master
Environmental Impact Report for the 1994 General Plan Update (MEIR 93-01)
states that, in order to implement the General Plan without incurring potentially
significant aesthetic impacts, development must conform to the building height
zoning regulations. Once again, the granting of the variance may cause, or create
the ability for other properties to cause, potentially significant aesthetic impacts.
D. Non-Conforming Uses - Abatement and Alterations
When the City Council reduced the height limits for the R-l Zones from 35 to 30 feet, Mr.
Nessim’s then-existing house became a legal, but nonconforming use under Chapter 21.28 of the
Municipal Code.
Municipal Code Section 21.48.060 requires that the nonconforming aspects of a non-conforming
building be amortized (brought into conformance with the current code) over a period of time.
For wooden frame residential buildings this amortization must occur within forty years of the
original construction. In addition, Municipal Code Section 21.48.080(a) states that, generally, a
non-conforming use or building shall not be altered, improved, reconstructed, restored, repaired,
intensified, expanded, or extended, except under very limited circumstances, during this
amortization period. The three allowed exceptions are for a) partially-destroyed buildings
[21.48.080(b)], b) p re air or reconstruction necessitated as a result of normal wear and tear
[21.48.080( c)], and a special provision [21.48.080(d)] under which the Planning Commission
may approve alterations or improvements subject to a conditional use permit with very narrow
and specific conditions applied. These conditions would include: 1) the value of the additions or
alterations could not exceed twenty-five percent of the value of the building at the time the
permit was requested, 2) the change is specifically designed to be easily removed, and 3) the
changes would meet all current provisions of the Municipal Code, including setback, height and
other limitations. In approving this conditional use permit the Planning Commission is also
required to establish a date by which all non-conforming structures and uses would be made
confirming or be removed from the site, and this time frame could not exceed the normal
amortization period, in this case forty ‘years from the original construction of the house.
The implication of Section 21.48.080(d) is that even if the Planning Commission or, on appeal,
the City Council, were to approve the requested variance, a building permit for Mr. Nessim’s
proposed modifications to the currently non-conforming structure could not be approved without
the Planning Commission first approving a Conditional Use Permit, as just described.
In April of 1996, after the building became legal, but non-conforming, the applicant was granted
a building permit to construct a stair tower, which was then built. Although the tower appears to
conform to the new 30-foot height limit, it constituted a prohibited expansion due to the non-
conforming nature of the building. No Conditional Use Permit was issued and no amortization
period was established pursuant to Section 21.48.080(d). Therefore, the permits for the
construction of the stair tower were issued in error by the City. If a Conditional Use Permit for
the applicant’s current proposal is pursued, the project description should also include the stair
tower.
V 98-01 - NESSIM RESIDENCE
May 6,1998
Page 7 L
V. ENVIRONMENTAL REVIEW
The proposal does not meet the standards of the Zoning Ordinance and the findings required for a
variance cannot be made. In addition, the proposal does not satisfy the Master Environmental
Impact Report for the 1994 General Plan Update mitigation measures for potentially significant
aesthetic impacts. The project is recommended for denial by staff and no environmental review
was conducted. Should the proposal be denied, the project would be statutorily exempt from
environmental review pursuant to Section 15270 of the State CEQA Guidelines. In order for the
proposal to be approved, a Negative Declaration would need to be prepared and approved. Since
the project is not consistent with the General Plan and Zoning Ordinance, the project is not in
Prior Environmental Compliance with the Master Environmental Impact Report for the City’s
1994 General Plan Update.
ATTACHMENTS:
1. Planning Commission Resolution No. 4286
2. Location Map
3. Background Data Sheet
4. Variance Justification Form, completed by applicant
5. Exhibits “A” - “C”, dated May 6, 1998
MG:kc:mh
BACKGROUND DATA SHEET
CASE NO: V 98-01
CASE NAME: Nessim Residence
APPLICANT: Gary Nessim
REQUEST AND LOCATION: Reouest for a variance to the R-l buildina height regulations to
allow a three storv exnansion to an existing. non-conforming three storv single family house on
the northwest corner of Carlsbad Village Drive and Highland Drive.
LEGAL DESCRIPTION: Parcel 2 of Parcel Man 9739. Citv of Carlsbad, filed in the
Office of the Countv Recorder Februarv 28. 1980, Countv of San Diego, State of California.
APN: 156-190-68 Acres: 0.25 Proposed No. of Lots/Units: N/A
GENERAL PLAN AND ZONING
Land Use Designation: RLM - Residential Low Medium Den&v
Density Allowed: 0.0 - 3.2 du/ac Density Proposed: N/A
Existing Zone: R-l-l 0,000 Proposed Zone: N/A
Surrounding Zoning and Land Use: (See attached for information on Carlsbad’s Zoning
Requirements)
Zoning
Site R-1-10;OOO --
North R-l-10,000
South R-P
East R-1-10,000
West R-P & R-l-l 0,000
Land Use
Single family residential
Single family residential
Library parking lot
Single family residential
Single family & vacant
PUBLIC FACILITIES
School District: Carlsbad Unified Water District: Carlsbad Sewer District: Carlsbad
Equivalent Dwelling Units (Sewer Capacity): i EDU
Public Facilities Fee Agreement, dated: N/A
ENVIRONMENTAL IMPACT ASSESSMENT
cl Negative Declaration, issued
cl Certified Environmental Impact Report, dated
cl Other, Exempt nursuant to Section 15270 of the State CEOA Guidelines
.JFiH-OS-1998 1el:El - CIT'i' Of= GiRLSERD -- 7'33 431 5769 P.EwO4
JUSTIFlCATION FOR VARIANCE .
By law a Variance may be approved only if certain facts are found to exist. Please read these
requirements carefully and explain how the proposed project IIWZS each of these facts. USC additional
sbccts if necessaty.
I, Explain why there are exceptional or extraordinary circumstances or conditious applicable to the
property w to the intended use that do not apply generally to the other property or class of use in
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m-k&Q &a Yh hmdmw8 fat the preservation and mjoyment of a sub~tnntial
property tight prs& by other properry in the spmc vicinity and zone but which is denied to the property in question: A Qt- WCAIG /4%d! WA- * a /awr sfrtb her
bef7n &mnQ -eykmlo?? * *c&l t , khhf /ww-.su)e/fl7t CiJ
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Explain why @US granting of such variance will not be materially detrimental to the public
welfare or injurious to the property or improvements in such vicinity and zone in which the
Explain why the granting of such vtiance will not adversely affect the wmprebensive general
plan: ,
Jl
Page 5 or 5
EXI-WT 6
5. V 98-01 - NESSIM RESIDENCE - Request for a Variance to the R-l, One-Family Residential
building height regulations to legalize an existing nonconforming three-story structure and allow a
three-story expansion of that structure, located at the northwest corner of Carlsbad Village Drive
and Highland Drive, in Local Facilities Management Zone 1.
MINUTES JZI
PLANNING COMMISSION May 6, 1998 Page 8
Assistant Planning Director, Gary Wayne, introduced this item and stated that Project Planner, Michael
Grim, would present the staff report.
Project Planner, Mike Grim, presented the staff report and described the .project as follows: There are two
components to this variance; 1) to allow the existing three story structure; and, 2) to allow a three story
expansion of that structure. The site is located on the comer of Carlsbad Village Drive and Highland
Drive, immediately east of the Carlsbad Public Library parking lot, and is surrounded on the other sides by
single family homes characteristic of the R-l Zone up and down the north end of Highland Drive. The
building currently on the site has been there for some time. The current property owner, Gary Nessim,
has approached the City, several times, in an effort to enhance the existing building by making it a three
story Victorian home. There was a building permit issued for that project in 1990, that would have allowed
a building very similar to the one currently proposed. At that time the building height code for single family
homes was 35 feet to the mid point of the roof. There were no exceptions for flat roofs and three stories
were acceptable. Although the building permit was issued, City records show that no inspections were
called for or conducted on the property. Building permits expire, after a certain period of time, if no
inspections have been requested and none performed. During the life of that first building permit, a new
building height ordinance became effective, which reduced the building height limitations to 30 feet to the
peak of the roof and specified a two story maximum in R-l Zones. Shortly after the adoption of the new
Building Height Ordinance, Mr. Nessim was sent a letter advising him that the building permit was about to
expire. In turn, Mr. Nessim applied for, and received, a six month extension to that permit to allow him to
continue (or start) doing work again. However, as of February 15, 1993, no inspections were called for or
conducted and the building permit expired. Mr. Nessim reapplied for a building permit, but since the
building height ordinance had changed, the Planning Department staff could no longer support his
request. Approximately two years later, Mr. Nessim once again approached the Planning Department and
stated that if he ever wanted to occupy this building, he would need access to all three floors and pointed
out that the only access to the third floor (as it currently stands) is an outside staircase from the second to
the third floor. Staff reviewed Mr. Nessim’s proposal to build a stair tower that would allow access to all
three stories and since the stair tower met the existing R-l single family building height codes (not above
30 feet to the peak of the roof with allowed encroachments), staff approved the stair tower permit. That
permit appears to have been issued in error, as a Conditional Use Permit was a necessary because the
house was a legal, but nonconforming structure.
When reviewing the project for the applicability of the four findings for a variance, staff was unable to make
those four findings in this case. Basically, the site is similar in size and shape to most of the other sites in
the area and therefore no existing constraints could be found. The second finding states that if staff
denies this variance, the City would be denying the applicant some property right that others in his zone
enjoy. That finding also could not be made since this lot could be developed with a one or two story
structure and capture the same amount of square footage as any of the other single family homes in the
neighborhood. The third finding requires that there would be no material detriment to the surrounding
properties or persons by issuance of this variance. Staff could not make that finding because to do so
would set a precedent to allow other three story homes since many lots have precisely the same
constraints as the applicant’s lot. Also, the goal of the 1994 Building Height Revisions was to keep single
family neighborhoods limited to two stories in height. The fourth required finding for a variance states that
it must be consistent with the General Plan and must not adversely affect the General Plan. Staff could
not make that finding because when the General Plan Update was conducted a Master Environmental
Impact Report was done for the buildout of the City and one of the mitigation measures to avoid
potentially significantly aesthetic and visual impacts is adherence to the existing standards for building
heights. Therefore, going against those standards, without good cause and effect, could create potentially
significant aesthetic impacts. After the factual review of the case, and the history, staff has been unable to
make the findings for a variance and therefore is requesting denial of Variance No. 9801. It should also be
noted that there was no environmental review conducted on this site. There is an exemption allowed in
CEQA stating that if the proposal is denied, the project would be statutorily exempt from environmental
review pursuant to Section 15270 of the State CEQA Guidelines. Should the Commission (or the City
Council on appeal) wish to approve the project, it would have to go under environmental review before
approval.
MINUTES 23
PLANNING COMMISSION May 6, 1998 Page 9
Assisting Gary Nessim of 2987 Highland Drive, Kathy Kinane, also of 2987 Highland Drive, Carlsbad, read
a prepared statement of the history of the property and the proposed project. The use of overhead
projections were used for visual aid. Following the presentation, Mr. Nessim answered questions by the
Commission.
Commissioner Monroy asked what will happen if he doesn’t get the approval for this project and is there
any room in this project for compromise.
Mr. Nessim showed overhead projections of the house as approved in 1991, and of the tower as it was
originally built.
Commissioner Welshons asked Mr. Nessim if, at the time he pulled the original permit for the stair tower,
he was aware that he would have to apply for and received a variance to complete the rest of the project
and Mr. Nessim’s answer was “no”.
Commissioner Compas also asked what Mr. Nessim will do if he does not receive the variance.
Mr. Nessim replied that he has not yet decided what he will do.
Commissioner Savary asked if this building will actually be a single family residence.
Mr. Nessim responded affirmatively.
Chairperson Noble opened Public Testimony and offered the invitation to speak.
Bill Billings, 1351 Forest Avenue, Carlsbad, stated that he owns the property immediately adjacent to the
Nessim property and that he feels that the project would be an attractive addition to the City and would like
to see it built.
Bertha Levy, 3021 Highland Drive, Carlsbad, stated her opposition to Mr. Nessim’s project and asked the
Commission to deny the variance for the project. Ms. Levy also submitted a letter (a copy of which is on
file in the Planning Department) from a neighboring resident, Cathryn B. Craft, stating her opposition to the
project.
Terry Simpkins, 3042 Highland Drive, Carlsbad, read and submitted a letter of opposition (a copy of which
is on file in the Planning Department) and stated his concurrence with the recommendation for denial in
that he is not in favor of setting precedent - in this case for three story single family homes.
Commissioner Monroy asked Mr. Simpkins if he is against variances, citywide, or just in his own area.
Mr. Simpkins replied that his position is that applications for variances should be taken with a great deal of
consideration and that it should be very, very difficult to obtain a variance.
Chairperson Noble stated that another letter of opposition, from Mr. James R. Swab, had been received
and entered into the record. A copy of Mr. Swabs letter is also on file in the Planning Department.
Mr. Nessim, in response to previous testimony, stated there it is no objection from the Planning
Department concerning the existing three story building. The objection is maintaining the existing balcony
with a roof line over it. He further stated that the objections, as stated by the neighboring property owners,
really do not pertain to the question that is before the Commission.
Commissioner Heineman asked Mr. Nessim if there is a specific reason why he cannot adjust the plans in
order to comply with what the Planning Department is requesting.
Mr. Nessim replied that it is possible to change the plans and comply, but, it would look significantly less
MINUTES a4
PLANNING COMMISSION May 6,1998 Page 10
attractive and much of the existing space would be lost.
Seeing no one else wishing to testify, Chairperson Noble closed Public Testimony.
Commissioner Monroy asked if the City has the right to require the existing three story structure be
demolished and also, how much work can Mr. Nessim do inside the proposed building in order to conform,
without any significant opposition from the City.
Mr. Grim replied that the first question is addressed by a chapter in the code that is rarely invoked, about
non-conforming buildings and the abatement of same. He stated that in his experience, the City has
adopted a philosophy that if there is a non-conforming building (whether it was originally a non-conforming
building or because of new codes it became non-conforming) the City is not going to go in and
retroactively abate it and tell the owner to tear it down, If, on the other hand, if it is non-conforming and
becomes a public health, safety, and welfare issue, then the City would pursue it as just that and the
property would be abated. As for the work Mr. Nessim can do, Mr. Grim stated that he has discussed this
with Mr. Nessim and in Mr. Grim’s opinion, the three story component could be a two story component if
the second and third floor were combined into one and become a first and second floor that is open to the
roof above. He would be able to keep all of the roof line and exterior improvements he wishes. Mr. Grim
pointed out that since he is not an architect, he can’t really say how much or how little Mr. Nessim could
do within the structure without opposition from the City.
Commissioner Monroy asked how long Mr. Nessim would have to wait to reapply, if his application is
denied at both the Planning Commission and City Council levels.
Mr. Grim replied that if the project is denied, without prejudice, he can come back immediately. However,
if the project is denied with prejudice, he cannot come back with a substantially same proposal for twelve
months.
Commissioner Heineman asked if he is correct in his understanding that if the second floor were removed
or if there would be an extended ceiling to provide only two stories rather than three, Mr. Nessim could
keep the same roof line and exterior as proposed.
Mr. Grim replied that the City has been trying to work with Mr. Nessim on those points, given the very
definite definitions of stories and floors. Before the 1994 building heights revisions, those were gray areas
which have now been clarified for situations such as this one. He went on to point out that if Mr. Nessim
were to revise the plans and eliminate one floor, the expansion portion would be conforming. However,
that would still require an action by the Planning Commission or the City Council, on appeal, to condone
and issue a variance for the existing three story structure. Otherwise the building would be considered a
nonconforming structure and the City would have to go by the “non-conforming” chapter of the City Code,
which requires a Conditional Use Permit to expand a non-conforming structure. According to that chapter,
the structure would have to be easily removable and there would have to be an abatement period set
when that CUP is issued.
Commissioner Heineman, to clarify, asked if the rear portion (under the cupola), through the elimination of
one floor, would be acceptable so that the outside of the building would look the same.
Mr. Grim replied that Commission Heineman is correct in his assessment. He added that the building
would essentially look the same if these modifications are made and there seem to be several ways in
which to accomplish that goal.
ACTION:
VOTE:
AYES:
NOES:
Motion by Commissioner Welshons, and duly seconded, to adopt Planning
Commission Resolution No. 4286, denying Variance V 98-01, based upon the
findings contained therein.
7-o
Noble, Heineman, Savary, Monroy, Welshons, Compas, and Nielsen
None
MINUTES J3
PLANNING COMMISSION May 6,1998 Page 11
ABSTAIN: None
Chairperson Noble announced that the Commission’s action on this item is final and will not be forwarded
to the City Council unless it is appealed within ten (IO) calendar days.
-
1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008
Office of the City Clerk
EXHBIT 7
TELEPHONE
(619) 434-2808
DATE: May 15, 1998
TO: Bobbie Hoder, Planning Dept.
FROM:
RE:
Karen Kundtz, Clerk's Office
V 98-01 - Nessim
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 4 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
27
PPPEAL FOR4
I (We) appeal the decision of the PLANNING COMMISSION
to the Carlsbad Cii Council.
Date of Decision you are appealing: May 6, 1998
Subiect of Ameal:
BE SPECIFIC Examples: if the action is a City Engine&s Decision, please say so. If a project has
multiple elements. (such as a General Plan Amendment, NegatiVe Declaration, Specific Plan, etc.) please
list them all. lf you bnly want to appeal a. part of the whole a&on, please state that here.
A resolution of the Planning,Commission of the City of Carlsbad, California,
denying a building height variance on property generally located at the
Facilities management zone 1. Case No: V 98-01
. Reason(s) for ADDeal: l Please Note l Failure to spscify a mason may mult in denial of
the appeal, and you will be limitsd to the grounds stated here when prsocnting your appeal.
BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local
laws, plans, or policy?
See attached page.
.
(7601 434 2778
PHONE NO.
Qary Nessim 2987 Highland Drive
NAME (ptease print) ADDRESS: Street Name & Number
Id May 15, 1998 Carlsbad, CA 92008
DATE City. State, Zip Cod8
1200 Carlsbad Village Drive - Carlsbad. California 92008-l 989 l (619) 434-2808 @
Reasons for Appeal:
The finding of the Planning Commission is in error for the following reasons;
1. There are exceptional and extraordinary circumstances applicabie to this property. This is the
only property in Carlsbad with a three story building of this type. This building was created when
property was subject to condemnation proceedings. The condemnation of a portion of the
property reduced it’s size, elevation, and created a more difficult to deal with lot configuration.
There is only one potential safe driveway access due to the lots’ narrow width and presence of
Carisbad Village Drive, Traflic controls, utility p@es, and bus stops. In addition the property has
a slope maintenance easement bordering Carl&id Village Drive further narrowing the distance
in which to deal with the 10’ slope across the property.
The existing three story structure was moved to it’s present location in 1960 to preserve it’s
height and view following condemnation of a portion of the lot. The existing one story home
violated setback ordinances immediately upon condemnation as the street was located too close
to the extended Carl&ad Village Drive. This home was relocated to the west end of the property
to conform the city ordinances and make room for renovation of the three story structure. These
plans were permitted before changes to the building height ordinances in 1994.
2. The variance is necessary for completion of the previously approved and permitted home
which was substantially higher than the proposed plan. This is a substantial property right and
preservation of the existing ocean view to any property is very valuable. Other properties in the
area have similar elevation due to the sIope to the property which was taken from this property
by condemnation previously. Historically the city has allowedprojects with ongoing
improvements during code revisions to retain &eir previously existing dimensions and this
applicant has reduced all unessential elements in an attempt to conform as close as possible to
the new ordinances. The driveway uses so much of the open space, expansion of the footprint
Mer is not feasible.
The granting of the 1997 permit for the most recently completed three story stair tower, which is
the tallest portion of the proposed remodel, clearly led the applicant to believe the balance of
submitted plans would be permitted. At this time denial of the variance for the existing three
story building and its previously approved architectural design would have a significantly
negative aesthetic and financial impact on the property owner, who has invested approximately
$100,000 in actual impr&ements.
3. The plans are clearly beneficial to the surrounding neighbors who have expressed their
approval of the renovation performed thus far Several neighbors have been waiting to build on
their properties for the applicant to complete my remodel thus increasing their property values.
The proposed expansion of the building is no taller than the existing building. The third story
expansion is done within the existing building height and goes out from the building in a
westerly direction which would have no additional impact on the adjacent neighbors ocean view.
The proposed property is clearly more aesthetically pleasing than the existing structure. It was
not necessarily the intent of the 1994 Building Height revision to be retroactive to existing
buildings. No notice was ever given to this property owner during the ordinance review process
and the ordinance clearly would apply to very few existing three story residential buildings in
Carlsbad.
4. This variance conforms to the General Plan in that the proposed expansion and renovation
would significantly aestheticaIly improve the existing structure and the final result would be a
Victorian themed residence conforming to the height limits of the current zoning regulations.
I +e-
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-
PROOF OF PUBLIC. ION
(2010 4% 2011 C.C.P.)
STATE OF CALIFORNIA
County of San Diego
I am a citizen of the United States and a resident of
the County aforesaid: I am over the age of eighteen
years and not a party to or interested in the above-
entitled matter. I am the principal clerk of the printer of
North County Times
formerly known as the Blade-Citizen and The
Times-Advocate and which newspapers have been
adjudged newspapers of general circulation by the
Superior Court of the County of San Diego, State of
California, under the dates of June 30, 1989
(Blade-Citizen) and June 21, 1974 (Times-
Advocate) case number 171349 (Blade-Citizen)
and case number 172171 (The Times-Advocate)
for the cities of Escondido, Oceanside, Carlsbad,
Solana Beach and the North County Judicial
District; that the notice of which the annexed is a
printed copy (set in type not smaller than
nonpareil), has been published in each regular and
entire issue of said newspaper and not in any
supplement thereof on the following dates, to-wit:
July 17 1998
I certify (or declare) under penalty of perjury that
the foregoing is true and correct.
Dated a%%l#%~~~this 17th day
of July 1998
&-? -------- dc$k-f.q
Signature -
NORTH COUNTY TIMES
Legal Advertising
-
This space is [the County Clerks Filing Stamp
Proof of Publication of
Public Notice --------------------------
--------------------------
La-. .’ .~~~~~~~ “‘:) “’ *, j
ve8-01. ‘ ri citMPL&DA~~Hbnry*lwll
‘, 1. B Whemth+d&2misappeaWatofheCiiCcuncil. apfxakmudbe Medh~~nfenllo)calendardsysaf$rs~byMePlPnninpCan~~
PUSLISH: FRIDAY, JULY 17.198S kESSlt.4 RESlDEN,CE
v Ssal
(For.m A)
CITY CLERK’S OFFICE
FROM: PLANNING DEPARTMENT
RE: PUBLIC HEARING REQUEST
Attached are the materials necessary for you to notice
Appeal - Nessim Variance - V 98-01
for a public hearing before the City Council.
Please notice the ltem for the council meeting of First Available Hearing
.
Thank you.
Assistant City Man-- -
1
pi-i- 7k$9s
b-a 3-a ppi: +-I - 3:013pr--
Pw . . r/17
June 30, 1998
Date
@ q 0-
NESSIM RESIDENCE
V 98-01
,
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Carlsbad will
hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad,
California, at 6:00 p.m. on Wednesday, May 6, 1998, to consider a Request for a
Variance to the R-l, One-Family Residential building height regulations to legalize an
existing, non-conforming three-story structure and allow a three-story expansion of that
structure, on property generally located at the northwest corner of Carlsbad Village
Drive and Highland Drive, in Local Facilities Management Zone 1 and more particularly
described as:
Parcel 2 of Parcel Map 9739, City of Carlsbad, filed in the
Office of the County Recorder February 28, 1980, County of
San Diego, State of California
Those persons wishing to speak on this proposal are cordially invited to attend the
public hearing. Copies of the staff report will be available on and after April 30, 1998. If
you have any questions, please call Mike Grim in the Planning Department at (760)
438-l 161, extension 4499.
If you challenge the Variance in court, you may be limited to raising only those issues
you or someone else raised at the public hearing described in this notice or in written
correspondence delivered to the City of Carlsbad at or prior to the public hearing.
CASE FILE: V 98-01
CASE NAME: NESSIM RESIDENCE
PUBLISH: APRIL 24, 1998
CITY OF CARLSBAD
PLANNING DEPARTMENT
207.5 La Palmas ID-. - Carlsbad. CA 92009 1576 - (760) 438-l 161 * FAX (7FiO) 438-0894
-
CARLSBAD UNIF SCHOOL DIST
801 PINE AVE
CARLSBAD CA 92008
REGIONAL WATER QUALITY
STE B
9771 CLAIREMONT MESA BLVD
SAN DIEGO CA 92124-1331
AIR POLLUTION CNTRL DIST
9150 CHESAPEAKE DR
SAN DIEGO CA 92123
(ABOVE ADDRESS - For City
Council Notices Only)
CITY OF CARLSBAD
MUNICIPAL WATER DISTRICT
SD COUNTY PLANNING
STE B
5201 RUFFIN RD
SAN DIEGO CA 92123
SANDAG
STE 800
401 B,STREET
SAN DIEGO CA 92101
I.P.U.A.
SCHOOL OF PUBLIC ADMIN AND
URBAN STUDIES
SAN DIEGO STATE UNIVERSITY
SAN DIEGO CA 92182-4505
CITY OF CARLSBAD
PUBLIC WORKS/ENGINEERING
DEPT
PROJECT PLANNER
MIKE GRIM
CALIF DEPT OF FISH & GAME
STE 50
330 GOLDENSHORE
LONG BEACH CA 90802
LAFCO
1600 PACIFIC HWY
SAN DIEGO CA 92101
U.S. FISH & WILDLIFE
2730 LOKER AVE WEST
CARLSBAD CA 92008
CITY OF CARLSBAD
PUBLIC WORKS/COMMUNITY
SERVICES
LARSON ARCHIE L&MILDRED R 2869 ELMWQQD ST
CARLSBAD CA 92008
LOPE2 MARIA S D L 2905 ELMUQW ST
CARLSBAD CA 92008
PFEIFFER EDUARD&PAULA REVOCABLE
4119 ANDRCJS UAY
OCEANSIDE CA 92056
BERG MATTHEW R&LESLIE A
2946 HIGHLAND DR
CARLSBAD CA 92008
COJOCARI MICHAEL&GLORIA I
3376 GARIBALDI PL
CARLSBAD CA 92008
SUAB JAMES R
SUAB JAMES R
CWTY FAMILY TRUST 01-15-97
- 2883 ELMUOCQ ST
CARLSBAD CA 92008
CAREY JAMES U 2923 ELHUOOO ST
CARLSBAD CA 92008
SEARSQN STEPHEN GBJOYCE D
1275 STRATFORD LN
CARLSBAD CA 92008
PRINCE CARL F&MARJORIE E
2935 VALLEY ST
CARLSBAD CA 92008
2lMMERER JOHN W&ELISABETH H
28Y0 HIGHLAND DR
CARLSBAD CA 92008
HOENIG GEORGE
3002 HIGHLAND DR
CARLSBAD CA 92008
SWAB JAMES R
SIMPKINS TERRY J&LINDA M
3042 HIGHLAND DR
CARLSBAD CA 92008
LACEY HELEN F LIVING TRUST 09-21 2889 ELMUQQD ST
CARLSBAD CA 92008
BRYTT-STUART JACQUELINE
1270 STRATFORD LN
CARLSBAD CA 92008
MARLIN JOHN H&KATHY L
1274 STRATFQRD LN
CARLSBAD CA 92008
RUN20 FRANKIE G IRREVOCABLE HOUS 3000 HIGHLAND DR
CARLSBAD CA 92008
BREMER MYRON D&DOROTHY R TRS
2880 HIGHLAND DR
CARLSBAD CA 92008
SWAB JAMES R
POBOX194
CARLSBAD CA 92018
SWAB JAMES R
DUNNE KATHERINE E REVOCABLE LIVI
3016 HIGHLAND DR
CARLSBAD CA 92008
POWERS JON M&NANCY A 2860 ELMWOOD ST
CARLSBAD CA 92008
BARONE FAMILY TRUST 2884 ELMWOOD ST
CARLSBAD CA 92008
MARWE SARAN S G 2973 CARLSBAD BLVD
CARLSBAD CA 92008
PETERSON MARK A 1350 OAK AVE
CARLSBAD CA 92008
SMILEY BLAINEBHAZEL TRUST 04-12-
1300 OAK AVE
CARLSBAO CA 92008
MARCHIONI RALPH A
1450 OAK AVE
CARLSBAD CA 92008
BACCUS DENNIS
4114 CONQUISTA AVE
LAKEWDOD CA 90713
DAY RICHARD B&KENNEDY-DAY FIONA 2685 HIGHLAND DR
CARLSBAD CA 92008
- BURNETTE GINO A
2870 ELMWOOD ST
CARLSBAD CA 92008
RAMSUICK RONALD L&BLANCHE 2886 ELHWOOD ST
CARLSBAD CA 92008
CLAVIER GREGORY A&RICK1 G 2992 ELMWWD ST
CARLSBAD CA 92008
HARVEY FAMILY 1985 TRUST 04-22-8 2003 DAVID DR
ESCONDIDO CA 92026
DIMOCK ANN W
13831 CHANDLER ST
VAN NUYS CA 91401
GERUM ELISABETH 1995 REVOCABLE T
13342 DEL MONTE DR #?iF
SEAL BEACH CA 90740
CRAFT CATHRYN L TRUST 02-16-96
3057 HIGHLANO DR
CARLSBAD CA 92008
LEVY BERTHA M
3021 HIGHLAND DR
CARLSBAD CA 92008
SHUGART MATTHEW F&MERRY J
28% HIGHLANO DR
CARLSBAD CA 92008
- KUHN HEINZ K 2880 ELMWOCMl ST
CARLSBAD CA 92008
SAGER PHILLIP A&HEATHER M
2911 HIGHLAND DR
CARLSBAD CA 92008
SANDY JOE&BETTY J
3081 HIGHLAND DR
CARLSBAD CA 92008
HUTTON R TBJ T
1264 OAK AVE
CARLSBAD CA 92008
CCKJRDUFF JOHN&KATHLEEN A
1330 OAK AVE
CARLSBAD CA 92008
DOAN LARRY G
2873 HIGHLAND DR
CARLSBAD CA 92008
GARNER ROBERT W&VIOLET K TRS
2905 HIGHLAND DR
CARLSBAD CA 92008
.
KIRMSE GEORGETTE TR
1542 OAK AVE
P 0 BOX 366
CARLSBAD CA 92018
NODZELESKI VINCENT E&JUDITH E
1618 JAMES DR
CARLSBAD CA 92008
GARDNER JAMES 1636 JAMES DR
CARLSBAD CA 92008
DOUDlNG SANDRA K
- 1606 JAMES OR
CARLSBAD CA 92008
MOORE DOUGLAS E&DIANE D
1624 JAMES DR
CARLSBAD CA 92008
ANDERSON DANIEL B&BARBARA 1642 JAMES DR CARLSBAD CA 92008
BRISEBOIS FRANCES B
- 3461 CELINDA DR
CARLSBAD CA 92008
EKDAHL HARRY E JR&MARIA P
1630 JAMES DR CARLSBAD CA 92008
WAITE DAVID W&ELAINE 1648 JAMES DR CARLSBAD CA 92008
# Labels Printed: 36
.
2ADA KARLA H REVOCABLE TRUST 12-
1342 OAK AVE
CARLSBAD CA 92008
KIMBER DONALD M&UIRIAM L BILLINGS UILLIAM E 1987 TRUST
2945 HIGHLAND DR P 0 BOX 371105
CARLSBAD CA 92008 LAS VEGAS NV 89137
- PARDEE HOYT S
8530 WILSHIRE BLVD #509
BEVERLY HILLS CA 90211
DANNA ARMANDDO&DORA
1280 OAK AVE
CARLSBAD CA 92008
LOOSEN ANDREA K
1340 OAK AVE
CARLSBAD CA 92008
STEWART KENNETH T&TERI L
1258 OAK AVE
CARLSBAD CA 92008
CITY OF CARLSBAD
NESSIH GARY S
2987 HIGHLAND DR
CARLSBAD CA 92008
# Labels Printed: 39
.
1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008
Office of the City Clerk
DATE: May 15, 1998
TO: Bobbie Hoder, Planning Dept.
FROM: Karen Kundtz, Clerk's Office
RE: V 98-01 - Nessim
TELEPHONE (619) 434-2808
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.) f
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
J CITY OF CARtSBAD
1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008
434-2887
REC’D FROM (ggJ.qd& 23 l%hmh-- 4’
ACCOUNT NO. DESCRIPTION
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RECEIPI%lO. 506 ~6 @ PrhtcdortrccyclcdpDp.
ND1 VALlD UNLESS VALEDATGD BY TUT’AL I
i :
CASN NBNBTBR &II, ‘-
APPEAL FORM
I (We) appeal the decision of the PLANNING COMMISSION
to the Carlsbad City Council.
Date of Decision you are appealing: May 6, 1998
Subiect of ADDgal:
BE SPECIFIC Examples: if the action is a City Engineer’s Decision, please say so. If a project has
multiple elements, (such as a General Plan Amendment, Negative Declaration, Specific Plan, etc.) please
list them all. If you only want to appeal a part of the whole action, please state that here.
A resolution of the Planning Commission of the City of Carlsbad, California,
denying a building height variance on property generally located at the .I ., - " ~ ., .e LX.,!. iJI'k"2i.l II i,~i1..i1.: 'ii iJi3.l .?.I>';._*,". ? .J.- :. id,./;c u.! IV1" J'1L.i Jil northwest corner of Carlsbad VillagenDrive and Highland Drive in Local
Facilities management zone 1. Case No: V 98-01
Reason(s) for ADpeak l Please Note l Failure to specify a reason may result in denial of
the appeal, and you will be limited to the grounds stated here when presenting your appeal.
BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local
laws, plans, or policy?
See attached page.
.
(760) 434 2778 PHONE NO.
@ary Nessim
NAME (please print)
a5 May 15, 1998
DATE
2987 Highland Drive
ADDRESS: Street Name & Number
Carlsbad, CA 92008
CW, State, Zip Code
1200 Carlsbad Village Drive l Carlsbad, California 92008-l 989 - (619) 434-2808
t
/ *
Reasons for Appeal:
The finding of the Planning Commission is in error for the following reasons;
1. There are exceptional and extraordinary circumstances applicable to this property. This is the
only property in Carlsbad with a three story building of this type. This building was created when
property was subject to condemnation proceedings. The condemnation of a portion of the
property reduced it’s size, elevation, and created a more diffrcuh to deal with lot configuration.
There is only one potential safe driveway access due to the lots’ narrow width and presence of
Carisbad Village Drive, Traffic controls, utility poles, and b,us stops. In addition the property has
a slope maintenance easement bordering Carlsbad Village Drive further narrowing the distance
in which to deal with the 10’ slope across the property.
The existing three story structure was moved to it’s present location in 1960 to preserve it’s
height and view following condemnation of a portion of the lot. The existing one story home
violated setback ordinances immediately upon condemnation as the street was located too close
to the extended Carisbad Village Drive. This home was relocated to the west end of the property
to conform the city ordinances and make room for renovation of the three story structure. These
plans were permitted before changes to the building height ordinances in 1994.
2. The variance is necessary for completion of the previously approved and permitted home
which was substantially higher than the proposed plan. This is a substantial property right and
preservation of the existing ocean view to any property is very valuable. Other properties in the
area have similar elevation due to the slope to the property which was taken from this property
by condemnation previously. Historically the city has allowed projects with ongoing
improvements during code revisions to retain their previously existing dimensions and this
applicant has reduced all unessential elements in an attempt to conform as close as possible to
the new ordinances. The driveway uses so much of the open space, expansion of the footprint
further is not feasible.
The granting of the 1997 permit for the most recently completed three story stair tower, which is
the tallest portion of the proposed remodel, clearly led the applicant to believe the balance of
submitted plans would be permitted. At this time denial of the variance for the existing three
story building and its previously approved architectural design would have a significantly
negative aesthetic and financial impact on the property owner, who has invested approximately
$100,000 in actual improvements.
3. The plans are clearly beneficial to the surrounding neighbors who have expressed their
.
approval of the renovation performed thus far. Several neighbors have been waiting to build on
their properties for the applicant to complete my remodel thus increasing their property values.
The proposed expansion of the building is no taller than the existing building. The third story
expansion is done within the existing building height and goes out from the building in a
westerly direction which would have no additional impact on the adjacent neighbors ocean view.
The proposed property is clearly more aesthetically pleasing than the existing structure. It was
not necessarily the intent of the 1994 Building Height revision to be retroactive to existing
buildings. No notice was ever given to this property owner during the ordinance review process
and the ordinance clearly would apply to very few existing three story residential buildings in
Carlsbad.
4. This variance conforms to the General Plan in that the proposed expansion and renovation
would significantly aesthetically improve the existing structure and the final result would be a
Victorian themed residence conforming to the height limits of the current zoning regulations.
. MENGk nEM LLfL /
July 24, 1998
Mayor Lewis,
c: MiiY0r
City COldI
City MaWW
City Attoi'W
city Clerk
Re: Variance request for completion of our home at 2987 Highland Drive on
Council agenda for July 28, 1998
Attached please find a copy of a petition in favor the variance and completion of
our home signed by a significant majority of the neighbors within 600 feet as
determined by the Planning Department. Each homeowner viewed the same
presentation as shown to you and Councilwoman Finella. A few were supportive
but don’t want to get involved. Several were on vacation.
Also attached are some suggested findings that could be made to support the
issuance of that variance. One or more from each category should be selected.
Your support is appreciated.
Sincerely,
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for
the completion of the renovation of 2987 Highland Dr. The code currently
requires newly constructed R-l buildings to be a maximum of two stories and 30 ft. high.
The residents of 2987 Highland Dr.would like to complete the renovation of the existing
three story 30’ high garage building into their single family residence. We(I) have reviewed the proposed plans and realize that the renovation would include an extension of the First, Second and Third Floor at the existing height of 30 ft. in a primarily westerly direction. The third floor extension in question would primarily be confined to the airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in
place of the third floor extension square footage without a variance if they built to the North
and/or South, which would significantly affect the view corridor. We would therefore
City
’ Comments
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NAME City
/
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A Signature Comments
2 4t/ g L l&k/ AUP /PA
Street Address City .
Comments
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion of the renovation of 2987 Highland Dr. The code currently requires newly constructed R-l buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr.would like to complete the renovation of the existing three story 30’ high garage building into their single family residence. We(I) have reviewed the proposed plans and realize that the renovation would include an
extension of the First, Second and Third Floor at the existing height of 30 ft. in a primarily
westerly direction. The third floor extension in question would primarily be confined to the
airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of the third floor extension square footage without a variance if they built to the North and/or South, which would significantly affect the view corridor. We would therefore
J A. 4 . . ,gy$$z k2h?ukvd .
NAMEU LJ Street Address Citv
? /7>F3\. Htr a-u+rm R GWLSas3o
Street Address City
Comments
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion of the renovation of 2987 Highland Dr. The code currently requires newly constructed R-l buildings to be a maimurn of two stories and 30 ft. high. The residents of 2987 Highland Dr.would like to complete the renovation of the existing
three story 30’ high garage building into their single family residence. We(I) have reviewed the proposed plans and realize that the renovation would include an
extension of the First, Second and Third Floor at the existing height of 30 ft. in a primarily
westerly direction. The third floor extension in question would primarily be confined to the airspace immediately adjacent and below the existing balcony. The current plans minimally effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of the third floor extension square footage without a variance if they built to the North and/or South, which would significantly affect the view corridor. We would therefore recommend approval of the variance.
k? ,O&N~@
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Signature
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Comments
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Comments I! h a
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Street Address ,I City
Si8t;attu-e Comments
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion of the renovation of 2987 Highland Dr. The code currently requires newly constructed R-l buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr.would like to complete the renovation of the existing three story 30’ high garage building mto their single family residence. We(I) have reviewed the proposed plans and realize that the renovation would include an
extension of the First, Second and Third Floor at the existing height of 30 ft. in a primarily westerly direction. The third floor extension in question would primarily be confined to the airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of the third floor extension square footage without a variance if they built to the North and/or South, which would significantly affect the view corridor. We would therefore
recommend approval of the variance. ,,
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Signature Comments ’ I ’
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion
of the renovation of 2987 Highland Dr. The building code currently requires newly constructed R-
1 buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr.
Would like to complete the renovation of the existing three story 30’ high garage building into their
single family residence. We (I) have reviewed the proposed plans and realize that the renovation
would include an extension of the First, Second and Third floor at the existing height of 30 ft. in a
primarily westerly direction. The third floor extension in question would primarily be confined to
the airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of
the third floor extension square footage without a variance if they built to the North and /or South,
which would significantly affect the view corridor. We would therefore recommend approval of the
variance.
NAME Street Address City
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Comments J ,
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NAME City
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NAME ( Street Address City
/Signature ’ Comments
NAME
: I- 1’1 t? c 2~706~
Street Address City
Comments
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion
of the renovation of 2987 Highland Dr. The building code currently requires newly constructed R-
1 buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr.
Would like to complete the renovation of the existing three story 30’ high garage building into their
single family residence. We (I) have reviewed the proposed plans and realize that the renovation
would include an extension of the First, Second and Third floor at the existing height of 30 ft. in a
primarily westerly direction. The third floor extension in question would primarily be confined to
the airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of
the third floor extension square footage without a variance if they built to the North and /or South,
which would significantly affect the view corridor. We would therefore recommend approval of the
variance.
L / NAME Street Address City
Signature Comments
JM wry S[ucur% ~s"7S
NAME J Street Address City
, s luQ/d- .
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Street Address I City
Signature Comments
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NAME “’ Street Address / City
. *:- L ,. 2JiALbb
Comments
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion of
the renovation of 2987 Highland Dr. The building code currently requires newly constructed R- 1
buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr. Would
like to complete the renovation of the existing three story 30’ high garage building into their single
family residence. We (I) have reviewed the proposed plans and realize that the renovation would
include an extension of the First, Second and Third floor at the existing height of 30 ft. in a primarily
westerly direction. The third floor extension in question would primarily be confined to the airspace
immediately adjacent and below the existing balcony. The current plans minimally effect the view
corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of
the third floor extension square footage without a variance if they built to the North and /or South,
which would significantly affect the view corridor. We would therefore recommend approval of the
v iance. J” $JJA\li& l-ml&
NAME . Street Address City
Signature Comments
j300 OW
Street Address
CFM44A[ l
CommegU /
/33n
NAME Street Address City
J x0+ CwmuF /30 of&w4 il,@&-,/,, c Signature Cornrnents
V NAME Street Address City
hlQ LA- -zL&+ CQeJt . ( 49 ,Ll I . / Signature Lmments ’
Petition to approve a building code variance for 2987 Highland Dr.
As a resident of Carlsbad, I would like to support the approval of a variance for the completion
of the renovation of 2987 Highland Dr. The building code currently requires newly constructed R-
1 buildings to be a maximum of two stories and 30 ft. high. The residents of 2987 Highland Dr.
Would like to complete the renovation of the existing three story 30’ high garage building into their
single family residence. We (I) have reviewed the proposed plans and realize that the renovation
would include an extension of the First, Second and Third floor at the existing height of 30 ft. in a
primarily westerly direction. The third floor extension in question would primarily be confined to
the airspace immediately adjacent and below the existing balcony. The current plans minimally
effect the view corridor of adjoining residents.
We are aware that the residents could build an additional 30 ft. high two story extension in place of
the third floor extension square footage without a variance if they built to the North and /or South,
which would significantly affect the view corridor. We would therefore recommend approval of the
variance. JP4 4v’k
NAME Street Address
Signature Comments
NAME Street Address City
.
Signature Comments
NAME Street Address City
Signature Comments
NAME Street Address City
Signature Comments
v 98-01- NESSIM RESIDENCE
1. That there are exceptional or extraordinary circumstances or conditions
applicable to the property or to the intended use that do not apply generally
to the other property or class of use in the same vicinity and zone, in that;
a. The existing structure itself is extraordinary in being the only three story
building of this type in Carlsbad. Compatible and harmonious architecture,
which would allow for an enlargement of the home a size commonly enjoyed
by others, would dictate a three story design. As requested, the design
complies with the overall height restriction and no precedent would be set, in
that this is the only such structure in Carlsbad.
b. The property is exceptional in that it is constrained by sloping topography,
road condemnation proceedings that reduced the size and buildable area of the lot, traffic controls and a slope maintenance easement due to its proximity to
Carlsbad Village Drive, utihty poles and a bus stop. These constraints
severely restrict the area of possible expansion
c. The location of the home is exceptional in that it is along a main
transportation corridor, is in a transitional zoning area directly adjoining, and
physically relating to, professional, commercial and other non-residential uses
including the library, city hall, tire station, a day-care center and a church. A unique architectural treatment is appropriate in a transitional area and would
not adversely impact a residential neighborhood
d. The location of the home is exceptional in that it in an area of sloping
topography which affords views of the ocean. In order to be sensitive to these
exceptional view corridors and to not obstruct the views of neighboring
properties, the expansion is designed to be contained within the southern and
northern limits of the current building envelope. The expansion is proposed
for the back of the home, in an area of sloping topography. Confining the
expansion to an envelope that does not interfere with the view corridors
significantly constrains the buildable portion of the lot.
V 98-01- NESSIM RESIDENCE
page 2 of 3
2. That the requested variance is necessary for the preservation and enjoyment
of a substantial property right possessed by other property in the same
vicinity and zone but which is denied to the property in question, in that;
a. The right to modemize, improve and expand the livable portion of the home is
a substantial property right that has been exercised by many in the same
vicinity and zone. Due to the exceptional and extraordinary circumstances
and conditions described above, the subject property is denied those same
rights.
b. A building permit to make a similar and taller expansion was previously
granted prior to the change in the height ordinance. That permit lapsed. A
second permit was then granted to construct a three story stair tower, without
a variance, while the current ordinance was in effect. Mr. Nessim was led to
believe by staff that the additional expansion would be permitted provided
that the overall height was lowered to 30 feet. Relying on these assurances
and permits, Mr. Nessim invested over $100,000 in property renovations,
plans and plan revisions. Having been previously granted a permit for a 3
story addition since the change in ordinance, denying him the same now
would deny him a right previously enjoyed and be inconsistent with the
precedent already set.
c. Other properties can and have enjoyed the right to build to a height of three
stories without a variance. Permission was recently granted to a property on
Jefferson to build three stories, without a variance, under the provisions of the
hillside development regulations. The proposed expansion adheres to the
same principles of design of view preservation and massing.
3. That the granting of this variance would not be materially detrimental to
the public welfare or injurious to the property or improvements in the
vicinity and zone in which the property is located, in that;
a. Allowing the completion of the renovations would be a visual enhancement to
the neighborhood. The property is in a highly visible location near many
public facilities. The work performed to date has vastly improved the
appearance of the home. Completion of the construction proposed would
benefit the public, improve the property value and the aesthetics of the
neighborhood. Neighbors of the property support this viewpoint.
V 98-01- NESSIM RESIDENCE
page 3 of 3
4. That the granting of the variance will not adversely affect the General Plan, in
that;
a. The Policies and Action Programs of the Land Use Element of tbe General
Plan requires “review of the architecture of buildings with the focus on ensuring
the quality and integrity of design”. The three story expansion preserves the integrity of the existing architecture.
b. The Land Use Element of the General Plan mandates congruence with the
Local Coastal Plan which sets as a goal maintaining coastal view corridors.
While the subject property is not within the coastal zone, the underlying
principles of the Land Use Element call for “balancing urban land uses with
environmental features”. Granting the variance as requested would enable the
expansion of the property, through sensitive design, without encroachment into the view corridor.
\ CITY OF CARLSBAD
-
T. (.I
REQUEST FOR REFUND /* ., ‘, i
Account No. 0013210 4813 Vendor No.
Amount of Refund $600 l 00 Fee Paid For: Appeal of Planning Commissiori deni
Date Fee Paid: 5115198 Fee Paid By: Gary Nessim
Facts Supporting Request: City Council granted the appeal and variance (V 98-01) on 7/28/98
Council Policy 854 requires the refund of appeal fees when the appeal is granted.
Name of Applicant: Gary Nessim
Address: 2987 Highland Dr.
Street
Carlsbad CA 92008 (760) 434-2778
City State Zip Telephone
I - I Finance investigation: Ret:
0 Approve 0 Disapprove Dept. Head Signature Date
I City Manager’s Action: I I 0 Approve 0 Disapprove City Manager Signature Date
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- CITY OF CARLSBAD - AGE,:JA BILL
AB# 14,790 TITLE:
MTG. 7/28/98 NESSIM VARIANCE APPEAL I v 98-01
DEPT. PLN 4# ClTYMGRa
RECOMMENDED ACTION:
That City Council ADOPT Resolution No. 98-256, UPHOLDING the Planning Commission’s
decision to DENY the Variance for the Nessim Residence, located on the northwest corner of
Carlsbad Village Drive and Highland Drive.
ITEM EXPLANATION:
On May 6, 1998, the Planning Commission conducted a public hearing and denied, with a 7-O
vote, the Variance request for the Nessim Residence. The project site is located at the
northwest corner of Carlsbad Village Drive and Highland Drive and is zoned R-1-10,000 (Single
Family Residential with 10,000 square foot minimum lot size). The requested variance would
allow conversion of the existing non-conforming three-story garage building into a conforming
habitable home and allow a three-story, Victorian-style expansion to that home. The maximum
number of stories allowed for a single family home in the R-l, Single Family Residential zone is
two. ’
The grounds for appealing a variance are contained in Section 21.50.100 of the Carlsbad
Municipal Code. According to this section, the City Council shall affirm the Planning
Commission’s decision on the variance unless “the appellant shows by a preponderance of the
evidence that the decision of the Planning Commission was in error, inconsistent with State law,
the General Plan, or any applicable zoning ordinance or policy of the City”.
The appellant’s grounds for the appeal are contained in the attached appeal form. He attempts
to address where the Commission erred by referencing the four required findings for a variance.
Staff has reviewed the appellants evidence and cannot agree that the decision of the Planning
Commission was in error. Staffs comments on Mr. Nessim’s statements are contained in the
attached memo to the City Manager.
According to Section 21.50.020 of the Zoning Ordinance, “the sole purpose of any variance shall
be to prevent discrimination, and no variance shall be granted which would have the effect of
granting a special privilege not shared by other property in the same vicinity and zone”. Given
that no other property in the area possesses a three story structure, habitable or otherwise,
granting of the variance would allow a special privilege not shared by neighboring properties. In
essence, Mr. Nessim is requesting exactly such a special privilege since he could develop his
property in the same manner as the neighboring properties without need for a variance.
FISCAL IMPACT:
The fiscal impacts to the City are negligible, whether the variance is denied or approved, since
all public facilities necessary to serve either the existing structure or an expanded structure are
already in place. All necessary development fees for an expansion would be collected through
building permit processing.
L
APPEAL FORM
1 (We) appeal the decision of the PLANNING COMMISSION
to the Carlsbad City Council.
Date of Decision you are appealing: May 6, 1998
Subiect of Ameal:
BE SPECIFIG Examples: if the action is a City Engineer’s Decision, please say so. If a project has
multiple elements, (such as a General Plan Amendment, Negative Declaration, Specific Plan, etc.) please
list them all. If you only want to appeal a part of the whole action, please state that here.
A resolution of the Planning Commission of the City of Carlsbad, California,
denying a building height variance on property generally located at the IYG 3nd *iI northwest corner nDrive kd Highland Drive in Local
Facilities management zone 1. Case No: V 98-01
Reason(d for Ameal: l Please Note l Failure to specify a reason may result In denial of
the appeal, and you will be limited to the grounds stated here when presenting your appeal.
BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local
laws, plans, or policy?
See attached page.
c 5-E
Qary Nessim
NAME (please print)
(7601 4 4
PHONE N:. 2778
2987 Highland Drive
ADDRESS: Street Name i% Number
v May 15, 1998 Carlsbad, CA 92008
DATE w, State, Zip Code
1200 Carlsbad Village Drive - Carlsbad. California 92008-l 989 - (619) 434-2808