HomeMy WebLinkAbout2009-12-01; City Council; 20054; Extension of Urgency Ordinance CS-067CITY OF CARLSBAD
AND
HOUSING AND REDEVELOPMENT COMMISSION
JOINT AGENDA BILL
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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WITHDRAWN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
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CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
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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.
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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
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said emergency interim ordinance, after notice and hearing, by a four-fifths vote for
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up to ten (10) months and fifteen (15) days; and a subsequent extension for up to
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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
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1971; and
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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
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both the General Plan and Public Utilities Zones in order to determine whether or
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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
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energy generation, gas generation, water utilities, treatment of waste water
6 processing and disposal utilities and other public utilities are permitted within that
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designation upon obtaining a Specific Plan, Precise Development Plan or similar
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actions adopted by ordinance and none of these uses are a conditional use within9
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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
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zone; and
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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,
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and
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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
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5 WHEREAS, the CECP represents an expansion of the Encina Power
6 Station; and
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WHEREAS, the CEC has notified the City that the proposed Encina
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Power Station site is the prime candidate for expansion because of the ready9
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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
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WHERAS, with current technology, thermal electric power generation
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facilities no longer require ocean water for cooling and as such are no longer
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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;
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21 WHEREAS, the construction and expansion of the existing plant will
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add pollutants and noxious emissions to the environment affecting the health, safety
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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
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6 WHEREAS, the City intends to study the appropriateness of the
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General Plan land use designation for the site; and
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WHEREAS, construction of the CECP may be in conflict with a zoningy
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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
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location of thermal electric power generation facilities at this location or at other
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locations; and
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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
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NOW, THEREFORE, the City Council of the City of Carlsbad ordains
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as follows:
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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
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SECTIONS: No development application shall be accepted,
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5 SECTION 4: That Ordinance No. CS-067 is extended ten (10)
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months and fifteen (15) days.
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DECLARATION OF URGENCY: This ordinance is hereby declared to
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be an emergency ordinance adopted as an urgency measure to protect the publicy
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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,
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safety and welfare of the citizens of Carlsbad.
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EFFECTIVE: This ordinance as amended shall be effective
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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
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City Council shall issue a written report describing the measures it has taken to
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alleviate the conditions which led to the adoption of this ordinance. The City Clerk of
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the City of Carlsbad shall certify to the adoption of this ordinance and cause it to be
published within 15 days after its adoption.
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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
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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
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thermal electric power generation facilities within the City, including the Encina Power
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Station site, should be amended; and
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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
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Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the
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non-conforming use provisions to the Zoning Ordinance, as appropriate; and
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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
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land use study for the Encina Power Plant and related properties and/or related
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environmental review is estimated to be no more than $200,000, and shall be paid for
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by the Carlsbad Redevelopment Agency with funds loaned to said Agency from the City
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of Carlsbad pursuant to a Cooperative Agreement approved by the Council and
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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.
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2. That pursuant to Section 21.52.020 of the Carlsbad Municipal Code and
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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
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determine whether the present Land Use Element of the General Plan and Zoning
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designations for thermal electric power generation facilities within the City, including the
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Encina Power Station site, should be amended.
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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.
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5. That the Planning Director is authorized to solicit Requests for
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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
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appropriate.
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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 $200,000 from the General Fund-Fund Balance to complete the desired study
19 and alternative land use recommendations report and/or related environmental review
20 for the Encina Power Plant properties, and that said loan shall constitute an
71 indebtedness of the Housing and Redevelopment Commission and shall be repaid.
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PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the
Carlsbad City Council and Carlsbad Housing and Redevelopment Commission held on
the 1st day of December 2009, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
LEWIS, Mayor
ATTEST:
LORRAIN
(SEAL)
'$
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.
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11 ..
WHEREAS, at its regular meeting on October 20, 2009, the City Council adopted
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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
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Station site, should be amended; and
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WHEREAS, the Housing and Redevelopment Commission hereby declares its
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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
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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,
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City Council and Housing and Redevelopment Commission to determine whether the
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present General Plan and Zoning designations for thermal electric power generation
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facilities within the South Carlsbad Coastal Redevelopment Area and other areas of the
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City, which include the existing Encina Power Station site, should be amended; and
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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
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Public Utility exemptions from the non-conforming use provisions to the Zoning
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Ordinance, as appropriate; and
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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
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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
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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
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Coastal Redevelopment Area; and
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WHEREAS, the Carlsbad Redevelopment Agency desires to obtain a loan from
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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.
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NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment
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Commission of the City of Carlsbad, California as follows:
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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.
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3. That the Housing and Redevelopment Director and Planning Director are
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hereby authorized and directed to work together to study this land use matter, prepare
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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
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generation facilities within the City, including the Encina Power Station site, should be
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amended.
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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
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appropriate.
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6. That said Agency and City staff are authorized to solicit Requests for
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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
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the City of Carlsbad to fund one or more professional service agreements to complete
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the desired study and alternative land use recommendations report and/or related
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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
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3 Cooperation Agreement between the City of Carlsbad and Carlsbad Redevelopment
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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
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Agency dated August 7, 2001.
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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