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HomeMy WebLinkAbout2009-12-01; City Council; 20054; Extension of Urgency Ordinance CS-067CITY OF CARLSBAD AND HOUSING AND REDEVELOPMENT COMMISSION JOINT AGENDA BILL 13 AB#20,054 MTG> 12/01/09 DEPT. HRED EXTENSION OF URGENCY ORDINANCE PROHIBITING ANY NEW OR EXPANDED THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN CARLSBAD'S COASTAL ZONE AND AUTHORIZATION FOR RELATED LAND USE STUDIES DEPT. HEAD l)>/ 4&'i (f CITY ATTY. iJjpf CITY MGR. ^L^- RECOMMENDED ACTION: 1. City Council to Adopt Ordinance NO._CS=QZQ_. extending Urgency Ordinance CS-067 for ten (10) months and fifteen (15) days to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. 2 City Council to adopt Council Resolution No. 2009-299 directing City Staff to prepare a land use study and recommendations for the existing Encina Power Plant property that is consistent with Land Use Analysis Options 1B and 1C as set forth within Exhibit 5, which may include revisions to the Land Use Element of the General Plan, Local Coastal Program, Zoning Ordinance, and Specific Plan 144 and any other planning regulations as necessary regarding appropriate locations for thermal electric power generation facilities within the City of Carlsbad, and authorizing a loan of funds to the Carlsbad Redevelopment Agency to allow for the expenditure of funds for said land use study and/or related environmental review for the Encina Power Plant and related properties. 3. Housing and Redevelopment Commission to adopt Commission Resolution No. 479 directing Redevelopment Agency staff to work with City staff to prepare a land use study and recommendations for the existing Encina Power Plant and related properties as noted above, and to accept a loan from the City of Carlsbad to allow for expenditure of funds for said land use study and/or related environmental review for the Encina Power Plant and related properties, which are located within the South Carlsbad Coastal Redevelopment Area and therefore within the jurisdiction of the Commission. DEPARTMENT CONTACT: Christer Westman, 602-4614, christer.westman@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED tf D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D D D ITEM EXPLANATION: On October 20, 2009, the City Council approved Ordinance CS-067 which declared a moratorium on any new or expanded thermal-electric power plants within Carlsbad's coastal zone. A companion resolution was also approved (Resolution No. 2009-263) which directed City staff to review existing Public Utility (P-U) zone designations and to revise them accordingly, including Specific Plan 144 (which includes the Encina Power Station). Staff has not yet completed its study and recommendations and is, therefore, recommending that Urgency Ordinance CS-067 be extended ten months and fifteen days. In addition to the City Council directing staff to complete the noted study, it is requested that the Housing and Redevelopment Commission also take action to direct its staff to work with City staff on completing the subject study and submitting recommendations, as appropriate. Ordinance CS-067 is effective until December 4, 2009. Per California Government Code Section 65858, the City Council can extend that ordinance for an additional 10 months 15 days if it finds that there is a current and immediate threat to the health, safety, and welfare of the citizens of Carlsbad. California Government Code Section 65858(d) requires that a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance be issued no less than 10 days prior to the expiration of the adopted urgency ordinance in order to consider an extension of the moratorium. The report is attached as Exhibit 4. As is summarized in the report, since the October 20, 2009 meeting, the City and Redevelopment Agency have both conveyed its respective concerns regarding health, safety, and public welfare to siting a new power plant along its coastline to the California Energy Commission (CEC) and within the South Carlsbad Coastal Redevelopment Area. The CEC recognized the City's and some of the Agency concerns in its Final Staff Analysis (FSA) which was released on November 12, 2009. Staff has met to identify and evaluate potential land use study options for the existing Encina Power Plant property and other properties included within Specific Plan 144, which has resulted in a staff recommendation for City Council and Housing and Redevelopment Commission consideration at this time. Land Use Study Options Staff has identified a number of options with regards to the scope of the land use study for the existing Encina Power Plant property and other properties included within Specific Plan 144. The attached matrix (Exhibit 5) summarizes these options for Council and Commission consideration. Based on benefit to the City and Redevelopment Agency, projected cost, usefulness and time constraints, staff recommends Council and Commission direct staff to proceed with a land use study for said properties in a manner consistent with Options 1B and 1C of said matrix report. These options would allow Council/Commission to consider amendments to land use which address the current concerns while preserving the requirement that any future development require a more specific level of planning that will also include opportunities for public input. Staff anticipates that it would take approximately 12 to 24 months to complete the land use study, prepare the necessary amendments and complete the environmental review. The projected budget for Option 1B or 1C is estimated at $200,000. If approved by Council, City staff will also complete a study of alternative sites within the City that may accommodate and are acceptable to the City for the location and operation of thermal electric power generation facilities. FISCAL IMPACT: The project budget is estimated not to exceed $200,000 for the land use study and/or related environmental review consistent with either Option 1B or 1C of the Encina Power Plant Land Use Options Analysis (Exhibit 5). It is anticipated that these funds will be expended by the Redevelopment Agency to obtain professional services of various land use and/or legal consultants to study the land use and to develop recommendations on the desired "Conceptual Master Plan and/or Land Use Development Strategy" for the existing Encina Power Plant and related properties, and/or to complete appropriate environmental review for said project. The Carlsbad South Coastal Redevelopment Project Area, however, will require a loan of said funds from the General Fund Reserve in order for the Redevelopment Agency to fund said professional services. Per a Cooperative Agreement approved on August 7, 2001 between the Commission and Council, the City Council has previously agreed to loan funds to the Housing and Redevelopment Commission, as needed, for operations and projects of the Carlsbad Redevelopment Agency as related to the South Carlsbad Coastal Redevelopment Project Area. The proposed land use study and related environmental review for the Encina Power Plant and related properties is a project of the Carlsbad Redevelopment Agency and requires a loan from the General Fund Reserve of up to $200,000 to fund said project. The loan shall constitute an indebtedness of the Housing and Redevelopment Commission and shall be repaid at the time tax increment funds become available. The loan shall be repaid with future tax increment funds generated solely from the South Carlsbad Coastal Redevelopment Project Area and as set forth within the Cooperation Agreement between the City and Agency dated August 7, 2001. City staff will complete the study of acceptable/alternative sites for the location of thermal electric power generation facilities within the City of Carlsbad. It is not anticipated at this time that additional funding shall be required to complete said study of acceptable/alternative sites. ENVIRONMENTAL IMPACT: This action does not constitute a project as defined under CEQA (California Environmental Quality Act section 15378) pursuant to Public Resources Code Section 21065 in that the proposed ordinance would not cause any direct or indirect physical change in the environment because the Moratorium prohibits the approval of any development application for a thermal electric power generation facilities in the Coastal Zone. EXHIBITS: 1. Ordinance No. cs-070 2. City Council Resolution No. 2009-299 3. Housing and Redevelopment Commission Resolution No. 479 4. Report on Moratorium-driven activities 5. Matrix of Land Use Study Options for Encina Power Plant and related properties. 1 2 3 4 5 6 7 8 9 14 15 16 17 22 23 24 EXHIBIT 1 ORDINANCE NO. CS- CS-070 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, EXTENDING URGENCY ORDINANCE NO. CS-067 PROHIBITING THE EXPANSION OR LOCATION OF THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN CARLSBAD'S COASTAL ZONE FOR TEN MONTHS AND FIFTEEN DAYS WHEREAS, at its regular meeting of October 20, 2009 the City Council adopted Urgency Ordinance No. CS-067 prohibiting any new or expanded thermal electric power generation facilities located in Carlsbad's Coastal Zone; and WHEREAS, Government Code section 65858 authorizes extension of 11 said emergency interim ordinance, after notice and hearing, by a four-fifths vote for 12 up to ten (10) months and fifteen (15) days; and a subsequent extension for up to 13 one additional year; and WHEREAS, this ordinance is adopted pursuant to Government Code section 65858(a) allowing the extension of such urgency ordinance by a four-fifths vote of its legislative body for ten (10) months and fifteen (15) days; and 1R WHEREAS, the Public Utility Zone was established and created in 19 1971; and 20 WHEREAS, that zone has not been studied or substantially amended since that time; and WHEREAS, the General Plan designation establishing a public utilities land use classified "U" was established October 15, 1974 and has not been or substantially reviewed or amended since that time; and 26 WHEREAS, the City needs additional time to comprehensively study 27 both the General Plan and Public Utilities Zones in order to determine whether or 28 -1 - not, due to the passage of time and advances in technology, existing standards are no longer appropriate or sufficient to protect the health, safety and welfare of its2 3 4 energy generation, gas generation, water utilities, treatment of waste water 6 processing and disposal utilities and other public utilities are permitted within that 7 designation upon obtaining a Specific Plan, Precise Development Plan or similar 8 actions adopted by ordinance and none of these uses are a conditional use within9 10 11 12 17 18 19 20 24 25 26 27 28 citizens; and WHEREAS, public utilities, without distinction between electrical that designation; and WHEREAS, the San Diego Gas and Electric Company (SDG&E) constructed the existing Encina Power Station in approximately 1952 and prior to the 13 General Plan designation establishing a public utilities land use and implementing 14 zone; and 15 WHEREAS, the Agua Hedionda Local Coastal Plan (LCP) was16 adopted in 1982 which pertained to the properties then owned by SDG&E including the Encina Power Station; and WHEREAS, the LCP contains numerous regulations and restrictions which impact the Encina Power Station site including those related to public access, 21 land use, recreation, agriculture, aquaculture, visual impacts and uses of the lagoon; 22 and 23 WHEREAS, in 1999, SDG&E sold a significant portion of its holdings within Specific Plan 144 to Cabrillo Power LLC, now known as the Carlsbad Energy Center LLC, including the Encina Power Station and outer, middle, and inner basins of the Agua Hedionda Lagoon; and -2- 1 2 3 4 5 WHEREAS, the CECP represents an expansion of the Encina Power 6 Station; and 7 WHEREAS, the CEC has notified the City that the proposed Encina 8 Power Station site is the prime candidate for expansion because of the ready9 10 11 12 17 18 19 25 26 27 28 WHEREAS, the Carlsbad Energy Center LLC ("Applicant") filed a Notice of Intention on September 14, 2007 with the California Energy Commission ("CEC") for the development of the Carlsbad Energy Center Project (CECP), a 558- megawatt (MW) gross combined-cycle power generating facility; and availability of land and existing electric utility related infrastructure; and WHEREAS, at the time the existing Encina Power Station was established it required a daily need for hundreds of millions of gallons of once- 13 through cooling ocean water to operate the plant and generate electricity; and 14 WHERAS, with current technology, thermal electric power generation 15 facilities no longer require ocean water for cooling and as such are no longer 16 considered coastal-dependent land uses; and WHEREAS, the construction of the addition to the existing plant will have significant effects on the environment including impacts to existing visual blight; 20 and 21 WHEREAS, the construction and expansion of the existing plant will 22 add pollutants and noxious emissions to the environment affecting the health, safety 23 and welfare of the citizens of Carlsbad and its environs; and24 WHEREAS, the construction and expansion of the existing plant will affect the fish and wildlife ecosystem of the Agua Hedionda Lagoon; and -3- 1 2 3 4 5 environmental risks; and 6 WHEREAS, the City intends to study the appropriateness of the 7 General Plan land use designation for the site; and 8 WHEREAS, construction of the CECP may be in conflict with a zoningy 10 11 12 24 25 26 27 28 WHEREAS, expansion of the Encina Power Station may be prejudicial to other proposed nearby land uses; and WHEREAS, the expansion to the Encina Power Station will require increased fossil fuel consumption and expose the citizens of Carlsbad to additional proposal which the City Council intends to study; and WHEREAS, processing and approval of the CECP, until these studies are completed and the General Plan and zoning districts amended, would severely 13 prejudice the ability of the City to permit, conditionally permit or prohibit expansion or 14 location of thermal electric power generation facilities at this location or at other 15 locations; and 16 WHEREAS, the City Council has determined for the reasons stated above, such expansion of the existing Encina Power Station represents a current and immediate threat to the public health, safety and welfare; and 17 18 19 20 NOW, THEREFORE, the City Council of the City of Carlsbad ordains 22 as follows: 23 SECTION 1: That the above recitations are true and correct. SECTION 2: That the proposed CECP represents a current and immediate threat to the public health, safety, and welfare to the Citizens of Carlsbad -4- SECTIONS: No development application shall be accepted, 2 3 4 5 SECTION 4: That Ordinance No. CS-067 is extended ten (10) 6 months and fifteen (15) days. 7 DECLARATION OF URGENCY: This ordinance is hereby declared to 8 be an emergency ordinance adopted as an urgency measure to protect the publicy 10 11 12 17 18 19 25 26 27 28 processed or approved which would increase the size, location, generating capacity or use of the existing Encina Power Station or allow the establishment of any other thermal electric power generation facility within the Coastal Zone. health, safety and welfare and shall take effect immediately upon its adoption. The facts constituting the emergency are set forth in Ordinance No. CS-067 and Council Resolution No. 2009-263, dated 10/20/2009 on file with the City Clerk and made a 13 part of hereof and represent a current and immediate threat to the public health, 14 safety and welfare of the citizens of Carlsbad. 15 EFFECTIVE: This ordinance as amended shall be effective 16 immediately upon passage and shall be of no further force and effect after ten (10) months and fifteen (15) days of the date of its adoption unless extended by the City Council according to law. At least ten days prior to the expiration of this interim ordinance, the 21 20 City Council shall issue a written report describing the measures it has taken to 22 alleviate the conditions which led to the adoption of this ordinance. The City Clerk of 23 the City of Carlsbad shall certify to the adoption of this ordinance and cause it to be published within 15 days after its adoption. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED, APPROVED, AND ADOPTED at a Joint Special Meeting of the Carlsbad City Council and Housing and Redevelopment Commission on the 1st day of December 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ABSTAIN: None. APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney ATTEST: ,*// 2- 1 RESOLUTION NO. 2009-299 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA DECLARING ITS 3 INTENTION TO STUDY AND CONSIDER , AMENDMENTS TO THE LAND USE ELEMENT OF THE GENERAL PLAN , ZONING ORDINANCE AND OTHER 5 REGULATIONS PERTAINING TO THE LOCATION AND OPERATION OF THERMAL ELECTRIC POWER 6 GENERATION FACILITIES WITHIN THE CITY 7 WHEREAS, at its regular meeting on October 20, 2009, the City Council8 9 adopted Resolution No. 2009-263 which declares its intention to consider amendments 10 to the General Plan, the Zoning Ordinance and other regulations pertaining to the 11 location and operation of thermal electric power generation facilities within Carlsbad's 12 Coastal Zone; and 13 WHEREAS, City staff was authorized and directed to study and prepare 14 recommendations and to set public hearings before the Planning Commission and City 15 Council to determine whether the present General Plan and Zoning designations for 16 thermal electric power generation facilities within the City, including the Encina Power 17 Station site, should be amended; and 18 WHEREAS, the study may include preparing land use alternatives and/or 20 a "Conceptual Master Plan or Land Use Development Strategy" for the properties 21 included in the Encina Power Station site and, may include the use of consulting firms to 22 assist city staff in preparing said land use alternatives for the Encina Power Station site 23 and/or preparing appropriate environmental review documents; and WHEREAS, staff is also directed to consider the repeal or amendments to 25 Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the 26 non-conforming use provisions to the Zoning Ordinance, as appropriate; and 27 28 1 WHEREAS, City staff have developed land use study options for City 2 Council consideration; and 3 WHEREAS, projected cost for professional consultant services for said 4 land use study for the Encina Power Plant and related properties and/or related 5 environmental review is estimated to be no more than $200,000, and shall be paid for 6 by the Carlsbad Redevelopment Agency with funds loaned to said Agency from the City 7 of Carlsbad pursuant to a Cooperative Agreement approved by the Council and o 9 Housing and Redevelopment Commission on August 7, 2001; and 10 WHEREAS, the City Council desires to loan the Carlsbad Redevelopment 11 Agency said funds in order to complete said study and related environmental review. 12 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 13 Carlsbad, California as follows: 14 1. That the above recitations are true and correct. 15 2. That pursuant to Section 21.52.020 of the Carlsbad Municipal Code and 16 Section 65358 of the State Government Code, the City Council of the City of Carlsbad17 , 0 declares its intention to consider amendments to the Land Use Element of the Generallo 19 Plan, the Zoning Ordinance and other regulations pertaining to the location and 20 operation of thermal electric power generation facilities within the City of Carlsbad. 21 3. That the Planning Director is hereby authorized and directed to study this 22 land use matter, prepare recommendations and to set public hearings before the 23 Planning Commission, City Council, and Housing and Redevelopment Commission to 24 determine whether the present Land Use Element of the General Plan and Zoning 25 designations for thermal electric power generation facilities within the City, including the 26 Encina Power Station site, should be amended. 28 1 4. That the Planning Director is hereby authorized and directed to study 2 alternative land uses and, if appropriate, prepare a "Conceptual Master Plan and/or 3 Land Use Development Strategy" for the properties included in the Encina Power 4 Station site. 5 5. That the Planning Director is authorized to solicit Requests for 6 Qualifications (RFQ's) and/or Proposals from consulting firms that are qualified and 8 interested to assist Director in completing said study and preparing recommendations 9 on alternative land uses for the Encina Power Station site and/or prepare the 10 appropriate environment review document. 11 6. That the Planning Director is also directed to consider the repeal or 12 amendment to Carlsbad Municipal Code section 21.48.100 regarding Public Utility 13 exemptions from the non-conforming use provisions to the Zoning Ordinance, as 14 appropriate. 15 7. That the City Council authorizes the Finance Director to appropriate16 17 funding in the form of a loan to the Carlsbad Redevelopment Agency in an amount not 18 to exceed $200,000 from the General Fund-Fund Balance to complete the desired study 19 and alternative land use recommendations report and/or related environmental review 20 for the Encina Power Plant properties, and that said loan shall constitute an 71 indebtedness of the Housing and Redevelopment Commission and shall be repaid. 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the Carlsbad City Council and Carlsbad Housing and Redevelopment Commission held on the 1st day of December 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. LEWIS, Mayor ATTEST: LORRAIN (SEAL) '$ 1 RESOLUTION NO. 479 2 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF 3 CARLSBAD, CALIFORNIA AUTHORIZING THE 4 PLANNING DIRECTOR ON BEHALF OF THE CARLSBAD REDEVELOPMENT AGENCY AND THE 5 CITY OF CARLSBAD TO STUDY AND CONSIDER AMENDMENTS TO THE LAND USE ELEMENT OF THE 6 GENERAL PLAN, ZONING ORDINANCES AND OTHER REGULATIONS PERTAINING TO PROPERTY WITHIN 7 THE SOUTH CARLSBAD COASTAL REDEVELOPMENT AREA, AND OTHER AREAS OF THE CITY, AS 8 RELATED TO THE APPROPRIATE LOCATIONS FOR, AND OPERATION OF, THERMAL ELECTRIC POWER GENERATION FACILITIES. 10 11 .. WHEREAS, at its regular meeting on October 20, 2009, the City Council adopted 12 Resolution No. 2009-263 which declares its intention to consider amendments to the13 General Plan, the Zoning Ordinances and other regulations pertaining to the location 15 and operation of thermal electric power generation facilities within Carlsbad's Coastal 16 Zone; and 17 WHEREAS, City staff was authorized and directed to study and prepare 18 recommendations and to set public hearings before the Planning Commission and City 19 Council to determine whether the present General Plan and Zoning designations for 20 thermal electric power generation facilities within the City, including the Encina Power 21 Station site, should be amended; and 22 WHEREAS, the Housing and Redevelopment Commission hereby declares its 23 intention to work together with the City of Carlsbad to consider amendments to the 25 General Plan, the Zoning Ordinances and other regulations pertaining to the location 26 and operation of thermal electric power generation facilities within the boundaries of the 27 South Carlsbad Coastal Redevelopment Area; and 28 1 WHEREAS, the Housing and Redevelopment Commission hereby authorizes 2 and directs Redevelopment Agency staff to work together with City staff to study and 3 prepare recommendations and to set public hearings before the Planning Commission, 4 City Council and Housing and Redevelopment Commission to determine whether the 5 present General Plan and Zoning designations for thermal electric power generation 6 facilities within the South Carlsbad Coastal Redevelopment Area and other areas of the 7 City, which include the existing Encina Power Station site, should be amended; and 8 g WHEREAS, the study may include preparing land use alternatives and/or a 10 "Conceptual Master Plan or Land Use Development Strategy" for the properties 11 included in the Encina Power Station site and, may include the use of consulting firms to 12 assist Agency and City staff in preparing said land use alternatives for the Encina Power 13 Station site and/or prepare appropriate environmental review documents; and WHEREAS, Agency Staff is also directed to work with City Staff to repeal or 15 recommend amendments to Carlsbad Municipal Code section 21.48.100 regarding 16 Public Utility exemptions from the non-conforming use provisions to the Zoning 17 Ordinance, as appropriate; and 18 WHEREAS, City and Agency staff have developed land use study options for 2Q City Council and Housing and Redevelopment consideration; and 21 WHEREAS, the Housing and Redevelopment Commission has determined that 22 Agency and City Staff may require the professional services of various land use and/or 23 legal consultants to study said land use and to develop recommendations on the 24 desired "Conceptual Master Plan and/or Land Use Development Strategy" for said 25 properties in the South Carlsbad Coastal Redevelopment Area; and 26 27 28 1 WHEREAS, the City Council has appropriated funding for the subject consultant 2 services and has previously agreed, per a Cooperative Agreement approved on August o 7, 2001, to loan funds to the Housing and Redevelopment Commission for operations 4 and projects of the Carlsbad Redevelopment Agency as related to the South Carlsbad 5 Coastal Redevelopment Area; and 6 WHEREAS, the Carlsbad Redevelopment Agency desires to obtain a loan from 7 the City of Carlsbad for said operations and project costs related to the land use study8 9 set forth herein; and !0 WHEREAS, the expenditure of funds by the Housing and Redevelopment 11 Commission, on behalf of the Carlsbad Redevelopment Agency, on said land use study 12 and related reports and recommendations is consistent with the goals and objectives 13 and anticipated expenditure plan set forth within the South Carlsbad Coastal 14 Redevelopment Five-Year Implementation Plan as approved on January 17, 2006. 15 16 NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment 17 Commission of the City of Carlsbad, California as follows: 18 19 1. That the above recitations are true and correct. 20 2. That pursuant to Section 21.52.020 of the Carlsbad Municipal Code and 21 Section 65358 of the State Government Code, the City Council of the City of Carlsbad 22 has declared its intention to consider amendments to the General Plan, the Zoning 23 Ordinances and other regulations pertaining to the location and operation of thermal 24 electric power generation facilities within the City. 25 3. That the Housing and Redevelopment Director and Planning Director are 26 hereby authorized and directed to work together to study this land use matter, prepare 28 1 recommendations and to set public hearings before the Planning Commission, City 2 Council and Housing and Redevelopment Commission, as appropriate, to determine 3 whether the present General Plan and Zoning designations for thermal electric power 4 generation facilities within the City, including the Encina Power Station site, should be 5 amended. 6 4. That said Agency and City staff are also hereby authorized and directed to 0 study alternative land uses and, if appropriate, prepare a "Conceptual Master Plano 9 and/or Land Use Development Strategy" for the properties included in the Encina Power 10 Station site. 11 5. That said Agency and City staff are also directed to consider the repeal or 1 ?amendments to Carlsbad Municipal Code section 21.48.100 regarding Public Utility 13 exemptions from the non-conforming use provisions to the Zoning Ordinance, as 14 appropriate. 15 6. That said Agency and City staff are authorized to solicit Requests for 16 Qualifications and/or Proposals, as appropriate, from consulting firms that are qualified 18 to assist staff in completing said study and preparing recommendations on alternative 19 land uses for the Encina Power Station site and/or to prepare the appropriate 20 environmental review document. 71 7. That on behalf of the Carlsbad Redevelopment Agency, the Housing and 22 Redevelopment Commission accepts a loan in an amount not to exceed $200,000 from 23 the City of Carlsbad to fund one or more professional service agreements to complete 24 the desired study and alternative land use recommendations report and/or related 25 environmental review. The loan shall constitute an indebtedness of the Carlsbad26 27 Redevelopment Agency and shall be repaid at the time tax increment funds become 28 1 2 3 Cooperation Agreement between the City of Carlsbad and Carlsbad Redevelopment 4 available. The loan shall be repaid with future tax increment funds generated solely from the South Carlsbad Coastal Redevelopment Project Area and as set forth within the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 "" Agency dated August 7, 2001. Illl Illl Illl Illl Illl Illl Illl Illl 20 21 22 23 24 25 //// 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the Carlsbad Housing and Redevelopment Commission and Carlsbad City Council held on the 1st day of December 2009, by the following vote to wit: AYES: Commission Members Lewis, Kulchin, Hall, Packard and Blackburn NOES: None. ABSENT: None. <&AtJD<E A LEWIS/Chairman ATTEST: LISA HILDABRAND, Secretary (SEAL) EXHIBIT 4 November 16, 2009 TO: CITY MANAGER VIA: COMMUNITY DEVELOPMENT DIRECTOR FROM: Planning Director SUBJECT: Power Plant Development in the Coastal Zone Moratorium The City Council adopted an urgency ordinance (CS-067) prohibiting the development of power generation plants within the coastal zone on October 20, 2009. This ordinance was in response to NRG's proposal to add additional power generation at the existing Encina Power Station site. Unless extended, the urgency ordinance is due to expire on December 4, 2009. California Government Code Section 65858(d) requires that a written report describing the measures taken to alleviate the subject urgency ordinance condition must be issued no less than 10 days prior to the expiration of the adopted urgency ordinance in order to consider an extension of the moratorium. The following is intended to serve as the required report. As highlighted in the October 20, 2009 City Council meeting, the City has demonstrated a history of its desire to limit the expansion of the existing power plant and the development of new plants along the coast in favor of developing coastal properties with recreation, commercial, and tourism uses that are unique to the coast. Since the October 20 meeting, the City has conveyed its objections to siting a new power plant along its coastline to the California Energy Commission (CEC), which is the State agency responsible for licensing new power plants. The CEC recognizes the City's concerns in its Final Staff Analysis which was released on November 12, 2009. Additionally, during the October 20, 2009 council meeting, the City Council adopted Resolution No. 2009-263, which directs staff to prepare a land use analysis that studies where, if any, locations are acceptable for power generation in Carlsbad's coastal zone and to evaluate what appropriate land use designation(s) should be applied to Specific Plan Area 144 (this includes the Encina Power Station). Subsequent to the October 20 meeting, staff has met to identify and evaluate potential land use analysis options (Exhibit 1), which has resulted in a staff recommendation for City Council's consideration. Staff expects that it will take several months to complete the above-mentioned land use study. For that reason, staff recommends that the City Council extend Urgency Ordinance CS-067. ENCINA POWER PLANT LAND USE OPTIONS- OCTOBER 28, 2009 EXHIBIT 5 OPTIONS REQUIREMENTS PROS CONS Option 1 - Change the Land Use Designations • General Plan Amendment • Zone Change • Local Coastal Plan Amendment (Agua Hedionda Land Use Plan) • Specific Plan 144 Amendment • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconforming Use Chapter • Environmental Impact Report • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility • Could narrow choices • Public feels excluded Option 1A - Change to an Unplanned Area General Plan Designation • Requires that future planning be done to establish the land uses • General Plan Amendment • Zone Change -Change to Limited Control (L-C) • Local Coastal Plan Amendment • Specific Plan 144 Amendment • South Carlsbad redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconforming Use Chapter • Environmental Impact Report • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility • Could narrow choices • Public feels excluded Option IB - Combination General Plan District • Designate the site with more than one land use classification • Requires the future approval of a specific plan prior to development of 25 acres or more • General Plan Amendment • Zone Change • Local Coastal Plan Amendment (Agua Hedionda Land Use Plan) • Specific Plan 144 Amendment • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconforming Use Chapter • Environmental Impact Report • Requires a future specific plan • Public involvement could be expanded during the specific plan process • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility as the plan details are developed closer to the time of development • Provides direction based on the designations approved for the site • Could narrow choices • Public feels excluded Option 1C -General Plan Special Planning Consideration Area • Designation requires that the area receive a more specific level of planning review • General Plan Update could cover the public outreach and input needed for the area • General Plan Amendment • Zone Change • Local Coastal Plan Amendment (Agua Hedionda Land Use Plan) • Specific Plan 144 Amendment • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconforming Use Chapter • Environmental Impact Report • Requires a future more specific level of planning • Public involvement could be expanded during the future planning phase • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility as the plan details are developed closer to the time of development • Provides direction based on the designations approved for the site • Could narrow choices • Public feels excluded Option 2 - Focused Planning Process to Determine the Best Use • Prepare a new Specific Plan for the area • General Plan Amendment • Zone Change • Local Coastal Plan Amendment (Agua Hedionda Land Use Plan) • Specific Plan 144 Amendment • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconforming Use Chapter • Environmental Impact Report • Clear direction/vision • Public involved at the ground floor • Creates interest/buzz • Economic attractor • Establishes land use designations and shortens the process for the developer • Partnership opportunities • Unknowns with the site • Time consuming • Expensive • May create false community expectations • Wasted effort if the plans of a future developer require substantial revision of the plan • Limits the developer PROOF OF PUBLICATION (2010 & 2011 C.C.P.) This space is for the County Clerk's Filing Stamp 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 Proof of Publication of Formerly known as the Blade-Citizen and The Times- Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: November 21st, 2009 NOTICE OF PUBLIC HEARING I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at ESCONDIDO, California This 23rd, day of Move Jane Allshouse NORTH COUNTY TIMES Legal Advertising NOTICE IS HEREBY GIVEN that the City. Council of theCity of Carlsbad will hold a public hearing at the CityCouncil Chambers, 1200 Carlsbad Village Drive, Carls-bad, California, at 6:00 p.m., on Tuesday, December 1,2009 to consider an extension of an Urgency Ordinance(Ordinance No. CS-067), relating to the prohibition of anynew or expanded thermal electric power generation fa-cility within the City of Carlsbad's Coastal Zone. Those persons wishing to speak on this proposal arecordially invited to attend the public heanng. If you have Planning Director, at 760-602-4601. If you challenge the Urgency Ordinance) in court, youmay be limitecno raising only those issues raised by youor someone else at the public hearing described in This hearing.APPEALS j The time within which you may judicially challenge thisproiect if approved, is established by State law and/or city ordinance, and is very short. If you challenge thisproject in court, you may be limited to raising only those issues you or someone else raised at the public hearingdescribed in this notice or in written correspondence de-livered to the City of Carlsbad at or prior to the publichearing. a Coastal Commission Appealable Project:X This site is located within theCoastal Zone Appealable Area. Where the decision is appealable to the Coastal Com- mission, appeals must be filed with the Coastal Commis-sion within fen (10) working days after the Coastal Com-,mission has received a Notice of Final Action from theCitv of Carlsbad. Applicants will be notified by the Coast-al Commission of The date that their appeal period willconclude. The San Diego office of the Coastal Commis-sion is located at 7575 Metropolitan Drive, Suite 103,San Diego, California 92108-4402. PUBLISH: November 21, 2009 NCT 2238774 CITY OF CARLSBADCITY COUNCIL LEGAL ADVERTISING Printed on 11/18/2009 si 10:16 by 11 Ad* 2238774 First taken by iJ Last changed by 11 11/18/2009 l(t;12 11/18/2009 10:16 (760) 434-2917 Acct# 16158 CITY OF CARLSBAD 1200 CARLSBAD VIUAGE DR. CITY CLERK CARLSBAD, CA 92008 Subscr? N Given by CITY OF CARLSBAD Start 11/21/2009 Stop 11/21/2009 Transient Bill Expir. Class 16000 LEGAL ADVERTISING Index: NOTICE OF PUBLIC HEARING EXTENSION Cols 2 Lines 58 Inches 4.44 Words 359 Graphics i Box? fi TOTAL AD COST 146.88 NOTICE of guano HE/UMNG TICE IS HEREBY GIVEN trial the f' of Carlsbad will ho«f a public.' California at 6*0 p.m, <J«T„9, to consider an extension or an II . ,HJrd»nana> Ife CS-067). ralatmg to the pVohfcrbon oH anyMW wwMwtea ««*•) eteeftepowtr awie««w» f£cility «-Khm the Cny of CartsLads Coastal Zone. Those peraoos wishjog to speak on iNs prqposai arecordially invited to attend the piihc heamg. rf you have If you ehaitenge the Ufocncy O"Jin-a»fce in court, •may be imitecrto raising?*^ fhoae issues raised by jor someone else at the public heancn dsscnbsd n 1nofce, or in wrWeftcouwsospdence wlgnmd to tie C^^«*«IC» Cffi^»ce. ii!00 C»f«>«l VMisbad. CA. XXtSe. at. or pnor to. j APPEALS j you or someone else rased at the pudescnbad In this notice_or In ivrrtten correajc111,-ered to the CMy ol Carlsbad at or prior to ihearing. Q (fcmilComMMiMi Aweiftote« This site 13 located w«wi theCoastai Zone Appealabte Area, Where the Oeoaion a mssiofi has fecetved aCitvol Carlsbad. ' Com- ^ Adkn.be notified bv the (131 f)Mr appea p$nod willat the Coaalal Carrms-, Suite 103. CITY OF CARLSBADCITYCOUfCIt COPY NOTICE OF PUBLIC HEARING EXTENSION OF URGENCY ORDINANCE RELATING TO THE PROHIBITION OF ANY NEW OR EXPANDED THERMAL ELECTRIC POWER GENERATION FACILITY WITHIN THE CITY OF CARLSBAD'S COASTAL ZONE NOTICE IS HEREBY GIVEN that the City Council of the City of Carlsbad will hold a public hearing at the City Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m., on Tuesday, December 1, 2009, to consider an extension of an Urgency Ordinance (Ordinance No. CS-067), relating to the prohibition of any new or expanded thermal electric power generation facility within the City of Carlsbad's Coastal Zone. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. If you have any questions regarding this matter please call Don Neu, Planning Director, at 760-602-4601. If you challenge the Urgency Ordinance in court, you may be limited to raising only those issues raised by you or someone else at the public hearing described in this notice, or in written correspondence delivered to the City of Carlsbad City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA, 92008, at, or prior to, the public hearing. APPEALS The time within which you may judicially challenge this project, if approved, is established by State law and/or city ordinance, and is very short. If you challenge this project 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. a Coastal Commission Appealable Project: ^ This site is located within the Coastal Zone Appealable Area. Where the decision is appealable to the Coastal Commission, appeals must be filed with the Coastal Commission within ten (10) working days after the Coastal Commission has received a Notice of Final Action from the City of Carlsbad. Applicants will be notified by the Coastal Commission of the date that their appeal period will conclude. The San Diego office of the Coastal Commission is located at 7575 Metropolitan Drive, Suite 103, San Diego, California 92108-4402. PUBLISH: November 21, 2009 CITY OF CARLSBAD CITY COUNCIL LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 San Diego, CA 92101 LUCE, FORWARD, HAMILTON & SCRIPPS LLP 619.236.1414 619.232.8311 fax www.luce.com RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.699.2572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse@luce.com December 1,2009 HAND DELIVERED Mayor Lewis and Councilmembers City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: December 1, 2009 Meeting Agenda Item #13 Proposed Extension of Urgency Ordinance (CS-070) Dear Mayor Lewis and Councilmembers: We are special counsel to Cabrillo Power I, LLC, owner/operator of the entire Encina Power Station (EPS), and Carlsbad Energy Center, LLC, applicant before the California Energy Commission (CEC) for certification of the Carlsbad Energy Center Project (CECP). Both entities are subsidiaries of NRG Energy, Inc. and will collectively be referred to in this letter as "Cabrillo". At the City Council's initial urgency ordinance Cabrillo appeared and opposed adoption of the claimed "emergency" ordinance (CS-067) in furtherance of the City's continuing efforts to block and frustrate the CEC's careful and exhaustive consideration of the CECP. At that meeting, I submitted a letter on Cabrillo's behalf and it is hereby incorporated herein. The CECP represents a long standing planned effort to improve the region's critical electrical energy production infrastructure through the construction of a new, modern, efficient, combined cycle gas fired generation facility and the concurrent retirement of three of the existing, older, less efficient boiler units at EPS. Locating modern efficient generation at the existing EPS is the best location as the regional electrical distribution grid and associated support facilities are well established at the site. The City's staff report and proposed extension ordinance (CS-070) acknowledges that existing zoning and associated land use regulations have consistently provided for electrical energy production at the EPS site for decades and the regional energy grid has developed around EPS to fully support it. The CECP would utilize a portion of the easterly approximately 32 acres of the EPS site, between Interstate 5 and the railroad tracks, leaving the balance of the overall EPS site westerly of the railroad tracks for potential future development when the balance of the existing facility can also be retired. CARMEL VALLEY/DEL MAR • Los ANGELES • RANCHO SANTA FE • SAN DIEGO • SAN FRANCISCO LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers December 1,2009 Page 2 Since the prior City Council meeting on October 20, 2009, the CEC Final Staff Assessment ("FSA") has been released. The FSA concludes that the CECP is fully consistent with all applicable laws, ordinances, regulations and statutes including all City ordinances, policies and regulations. Prior to the October 20 City Council meeting, the San Diego Air Pollution Control District ("SDAPCD") issued its Final Determination of Compliance ("FDOC"), concluding that the CECP will meet all ambient air quality standards and is protective of public health goals. Cabrillo remains steadfast that the City's original urgency ordinance (CS-067) and its extension (CS-070) are legally inapplicable to the CECP, improper and factually unsupportable. Cabrillo also objects to claims that the CECP will be a threat to public health and safety. Moreover, Cabrillo and its corporate parent, NRG Energy, Inc., would not support a project that would threaten public health and safety and the CEC staff and SDAPCD have concluded the CECP will not harm the environment. FACTUAL INACCURACIES The staff report and the proposed extension ordinance contain many inaccurate and unsupported statements regarding the CECP. The only reason for the City to have embarked on this course of action at this late date is to bolster the proposed urgency ordinance extension and the City's long standing opposition to the CECP, notwithstanding the true state of affairs. Regrettably, the continuing inaccurate and unsupported statements and project renderings only serve to confuse the public and community and do not promote or protect the public interest. A major factually unsupportable theme throughout the staff report and proposed ordinance extension is that the CECP will have adverse unmitigable environmental effects and associated health and safety impacts. The FSA, however, represents the comprehensive environmental analysis undertaken by the independent CEC staff and concludes that the CECP will not have any unmitigable adverse environmental effects or pose any health and safety concerns. In fact, part and parcel of the CECP is the concurrent retirement of the three older, less efficient boiler units at EPS. As a result of the CECP, electrical power generation in the basin will be cleaner, more efficient and emit fewer pollutants per megawatt of energy output than the existing EPS units. Further, the City continually suggests the CECP represents an additional new 540 MW of generating capacity. In fact, the CECP replaces approximately 320 MW of outdated, inefficient generation and produces a net increase in generating capacity of only about 220 MW. However, because the new combined cycle gas fired air cooled units are much more efficient and lower emitting per megawatt of energy output, the overall environmental benefits will be much greater as demonstrated and documented in the CEC FSA. The CEC's FSA and the SDAPCD's LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers December 1,2009 Page 3 previously issued FDOC conclude that the CECP will not harm the environment and fully support the CECP as environmentally sound. Among other inaccuracies, the City's staff report infers that the CECP will harm the fish and wildlife ecosystem as a result of a modest (approximately 4.3 million gallons a day) ocean water purification process that will utilize the existing EPS discharge. Nothing could be further from the truth. In fact, the small ocean water purification process is intended as an alternative interim water supply until reclaimed water or similar provisions become available. In fact, the CECP application to the CEC originally proposed to use reclaimed water from the nearby Encina Wastewater Authority. The City, however, refused to provide the CECP reclaimed water thereby necessitating CECP's proposal to apply an ocean water purification process to a small portion of the existing EPS discharge. The City's objection to the CECP's use of this source flies in the face of the City's long standing support for the Poseidon desalination project. The City is on record for fully supporting Poseidon's reliance on the same water source yet the City's favored Poseidon project will use at least 80 times more water. Thus, the City cannot credibly raise "environmental" objections to CECP's modest ocean water purification while denying alternative reclaimed water sources to the CECP and supporting Poseidon's use of the same water sources. LEGAL OBJECTIONS 1. Power Plant Siting is Within Exclusive Jurisdiction of CEC. The siting and operation of the CECP is within the exclusive jurisdiction of the CEC under the Warren-Alquist Act. The City and the City's Redevelopment Agency are active interveners in that process and all activities regarding the CECP must be submitted and evaluated through the comprehensive process established by the CEC under California law. The CEC "occupies the field" in terms of jurisdiction and the City's attempted circumvention of California law is improper and beyond its legitimate powers. Further, it is impermissible under California law for the City to use an urgency ordinance adopted in reliance on Government Code Section 65858 to prohibit the submittal or processing of development applications. See Building Industry Legal Defense Foundation v. Superior Court (1999) 72 Cal.App.4th 1410. 2. No Urgency Exists to Support Ordinance. The City's efforts to proceed under the "urgency ordinance" provisions are misplaced. The City's staff report and proposed extension ordinance each note the CECP application has been pending since September, 2007. Thus, the City fails to and cannot establish the requisite facts or LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers December 1,2009 Page 4 circumstances necessary to establish any urgency or emergency justifying this action. The CEC administrative record is complete with multiple objections from the City for the better part of two years; common sense establishes the absence of any emergency conditions, particularly where, as here, the FSA and FDOC conclude no adverse environmental impacts will occur. 3. Illegal Spot Zoning. The proposed ordinance demonstrates a conscious, deliberate, arbitrary and capricious pattern of conduction in the form of impermissible/illegal "spot zoning" as it is clearly directed at a single pending project and a single landowner. The proposed action cannot be justified as general legislation; in essence, it represents an improper initial step toward retro-active zoning to illegally attempt to pre-empt the exclusive jurisdiction of the CEC regarding siting of power plants. The EPS is a long standing electrical power generation use. As illustrated by the City's two year effort to block the CECP application, the proposed extension ordinance is part of a conscious pattern and program of spot zoning. 4. No Substantial Evidence to Support Ordinances. In the proposed extension ordinance, the City "resolves" that certain factual conclusions exist regarding the "need" for the ordinance. However, there are no facts in the administrative record supporting the City's unsubstantiated conclusions or claims, for the urgency ordinance. The City's unsupported claims that the ordinance is needed to protect the immediate health and safety of the community is equally baseless. 5. Failure to Comply with California Environmental Quality Act. The City has failed to comply with the California Environmental Quality Act (CEQA) by attempting to rely on an inapplicable "exemption" citing Admin. Reg. Sec. 15262 in its staff report. The proposed ordinance attempts and purports to go far beyond the permissible scope of "planning and feasibility" studies authorized by the limited CEQA exemption cited. The City has made no effort to comply with CEQA. The City's staff report and ordinance extension allege adverse environmental effects are involved here. For the City to now assert that no environmental impacts are raised by its proposed extension ordinance is ludicrous and inexplicably ignores the CEQA compliance requirements applicable to City actions. 6. Unconstitutional Regulatory Taking/Inverse Condemnation. Cabrillo acquired the EPS in 1999. Subsequently, the City consistently encouraged Cabrillo to modernize the facility by constructing a modem, efficient power generation facility in the eastern portion of the larger EPS site between the railroad tracks and Interstate 5. The CECP is precisely LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers December 1,2009 Page 5 the type of modernization project encouraged and promoted by the City. Further, the City encouraged Cabrillo to be the "host" for the City sponsored industrial use - Poseidon Desalination Plant - as part of a larger program to locate the Poseidon facility to use the existing ocean water cooling system operated by EPS and in immediate proximity to existing electrical power generation and transmission facilities as Poseidon's electrical energy and water consumption for desalination will be enormous. In reliance on the City's multi-year encouragement to modernize the existing EPS and eventually replace the entire EPS generating facility over time, Cabrillo developed and sought CEC approval for the CECP pursuant to the State mandated process the City has zealously opposed. The City's opposition to the CECP, combined with the proposed urgency ordinance extension, is part of a conscious effort to adopt new or revised land use ordinances and/or regulations intended to prohibit the long standing generation of electrical power at EPS; and more critically a failure on the City's part to promote and protect the public health, safety and welfare by attempting to block and prohibit the construction of a modern, environmentally beneficial power plant that replaces an aging, inefficient set of generators in order to provide regionally critical electrical generating capacity. Simply stated, the Constitutions of the United States and California each limit local land use powers to avoid regulatory takings that have the effect of prohibiting reasonable beneficial uses of property, particularly when those uses are fully supported by applicable laws, ordinances, regulations and statutes and supported by legitimate investment backed expectations. Additionally, the City has made it plain in its various actions that it intends to prohibit electrical power generation at EPS in order to "redevelop" the site for undefined public uses and purposes. The City's course of conduct suggests an ongoing program and strategy to frustrate the existing power generation uses and the environmentally superior modernization thereof as part of a long range program to effectively take all or portions of the property for unspecified public uses not supportable by the public record, which conduct is impermissible under the United States and California Constitutions. CONCLUSION This late, illegal and factually unsupportable effort is but another manifestation by the City of its opposition to the modernization of electrical power generation in our region and the efficient use of the existing electrical transmission infrastructure. This vital infrastructure has been in place and represents the multi-million dollar development investment that has occurred over multiple decades in order to provide the local and regional community reliable, safe and clean electrical generation. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers December 1,2009 Page 6 The CECP, as presented and analyzed exhaustively by the FSA and FDOC is environmentally superior to available options and has the following positive attributes and benefits: • Allows for the concurrent retirement of three older, less efficient boiler units at the existing EPS facility; • Provides clean, safe and rapid response local power generation capabilities necessary for increased grid penetration of renewable energy generation from locations outside the region; and • The smaller footprint, and lower profile natural gas fueled combined cycle CECP units will be located on the easterly 32 acres of the EPS property between Interstate 5 and the railroad tracks, thus allowing for future development options on the EPS property westerly of the tracks. Cabrillo objects and again respectfully asks the City to cease and desist in its efforts to adopt the unsupported and unlawful urgency ordinance extension. Instead, Cabrillo requests the City to work through the CEC State mandated process to make sure the CECP meets all legitimate environmental and land use policies to assure the most efficient, cost effective and reliable local and regional energy sufficiency. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/lml cc: Carlsbad City Clerk, City Attorney and City Manager 101201532.3 Extension of Urgency Ordinance Prohibiting Any New or Expanded Thermal Electric Power Generation Facilities Within Carlsbad’s Coastal Zone and Authorization For Related Land Use Studies Ordinance CS-067 •Adopted October 20, 2009 •Moratorium on the expansion of existing or the development of new thermal-electric power plants within the Coastal Zone •Valid for 45 days •May be extended for 10 months and 15 days Carlsbad Coastal Zone Land Use Analysis •Companion Resolution: –No. 2009-263: •Analysis of properties zoned Public Utility (PU) •Analysis of Specific Plan 144 •Process will include: –Public Hearings »Planning Commission »City Council »California Coastal Commission –Public Review of CEQA Document –Public comment through Phase 2 Envision Carlsbad •First Phase Analysis: Option Table Land Use Analysis •Staff Recommended Option(s) –Combine Option 1B and 1C •Allows consideration of Land Use Amendments –Big Picture Versus Detailed Site Plans •Preserves Future PC/CC Development Review •Includes Public Participation •12-24 month review period •Estimated expense : $200,000.00 SP 144 Properties Zoned Public Utility RANCHO SANTA FE RD Pacific OceanBUENA VISTA LAGOON AGU A HE D I O N D A L A G O O N BATIQUITOS LAGOON PALOMAR AIRPORT RD TA MA R A CK AV LA COSTA AV PALOMAR AIRPORT RD C A RLSBAD BL C A R LS B A D V ILL A G E DRLA COSTA AVCARLSBAD BLOLIVENHAIN RD CARLSBAD VIL L AGE DR ALGA RDPOINSETTIA L NCANNON R D CANNON RD PO IN SETTIA LNCOLLEGE BLEL C A MI NO R E A L MELROSE D R AVI AR A PYTA MARACK AVCOLLEGE B L CITY OF CARLSBAD PUBLIC UTILITY ZONING 0 1 20.5 Miles Legend Public Utility Zoning Local Coastal Zone Steps Necessary for Extension •Report preparation •Publish Report ten days prior to expiration –Measures include: •Conveying concerns regarding health, safety, and welfare including to the California Energy Commission including: –Increases to power plant emissions –Hazards related to power generation –Visual blight –Potential negative impacts to coastal tourism •Adoption of Resolution No. 2009-263 –Prepare Land Use studies for Public Utility zoned property and Evaluate SP 144 •Make Findings as described in Ordinance CS-070 City Council Action •Adopt Urgency Ordinance CS-067 Extension •Direct staff to prepare the necessary Land Use Studies consistent with Land Use Analysis Options 1B and 1C •Authorize a loan to the Redevelopment Agency for the preparation of the Land Use Analysis Housing and Redevelopment Commission Action •Direct staff to prepare the necessary Land Use Studies consistent with Land Use Analysis Options 1B and 1C •Accept loan from City of Carlsbad for the preparation of the Land Use Analysis