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HomeMy WebLinkAbout2010-10-12; City Council; 20380; EXTENSION URGENCY ORDINANCECITY OF CARLSBAD - AGENDA BILL DEPT. DIRECTOR^AB# MTG. DEPT. 20.380 10/12/2010 CED 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 CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council hold a public hearing and ADOPT Ordinance No.CS-110. EXTENDING Urgency Ordinance CS-070 for twelve (12) months (through October 20, 2011) to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. That the City Council ADOPT Resolution No. CONCURRING with the preliminary land use recommendation for the power plant site and direct staff to prepare the necessary amendments to the General Plan, Zoning Map, Non-Conforming Use chapter of the Zoning Ordinance, Specific Plan 144, South Carlsbad Coastal Redevelopment Plan, and Encina Power Station Precise Development Plan, and to prepare an EIR for the land use changes and legislative actions to implement the preliminary study. ITEM EXPLANATION: On December 1, 2009, the City Council approved Ordinance CS-070 which extended 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. 2009-299) which directed City staff to review the existing Public Utility (P-U) zone designations and to revise them accordingly, including Specific Plan 144 (which includes the Encina Power Station). Staff has completed its study and recommendations and is, therefore, recommending that Urgency Ordinance CS-070 be extended twelve months through October 20, 2011 in order to prepare an EIR and legislative actions (GPA, ZC, ZCA, SPA, PPA) to implement the recommendations. Ordinance CS-067 is effective until October 20, 2010. Per California Government Code Section 65858, the City Council can extend that ordinance for an additional 12 months 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 3 and was available to the public as of October 1, 2010. The City Council formally issued the report at the City Council Meeting held on October 5, 2010. 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 DEPARTMENT CONTACT: Christer Westman 760-602-4614 christer.westman@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED ^ DENIED D CONTINUED Q WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 Options Analysis (Exhibit 5 of the City Manager Report). It is anticipated that these funds will be expended by the Redevelopment Agency to obtain the professional services of an environmental consultant to prepare an Environmental Impact Report to evaluate the environmental impacts of the proposed actions. 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 thermal electric power generation facilities in the Coastal Zone. EXHIBITS: 1. City Council Ordinance No. CS-110 2. City Council Resolution No. 2010-238 3. Encina Power Plant Land Use Analysis/City Council Written Report dated September 27,2010. EXHIBIT 1 ORDINANCE NO. CS-1101 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF 2 THE CITY OF CARLSBAD, CALIFORNIA, EXTENDING URGENCY ORDINANCE NO. CS-067 PROHIBITING THE 3 EXPANSION OR LOCATION OF THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN CARLSBAD'S 4 COASTAL ZONE FOR TWELVE MONTHS. WHEREAS, at its regular meeting of October 20, 2009, the City Council 6 adopted Urgency Ordinance No. CS-067 prohibiting any new or expanded thermal electric 7 power generation facilities located in Carlsbad's Coastal Zone; and 8 ! WHEREAS, Government Code section 65858 authorizes extension of said 9 emergency interim ordinance, after notice and hearing, by a four-fifths vote for up to ten (10) 10 months and fifteen (15) days; and a subsequent extension for up to one additional year; and 11 WHEREAS, at its regular meeting of December 1, 2009, the City Council 12 adopted Urgency Ordinance No. CS-070 extending Urgency Ordinance CS-067 by ten (10) \ O months and fifteen (15) days to expire October 20, 2010, prohibiting any new or expanded14 15 16 17 18 19 20 21 22 28 thermal electric power generation facilities located in Carlsbad's Coastal Zone; and WHEREAS, pursuant to Government Code section 65858(d), a written report prepared by planning staff describing the measures taken to alleviate the conditions which led to the adoption of the interim ordinance was made available to the public on October 1, 2010, and was issued by the City Council in substantially the same form on October 5, 2010, more than ten days prior to the expiration of CS-070 on October 20, 2010; and WHEREAS, this interim 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 a subsequent one additional year, and 04 WHEREAS, the Public Utility Zone was established and created in 1971; and 25 WHEREAS, that zone has not been studied or substantially amended since 26 that time; and 27 ' -1 - 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 WHEREAS, the General Plan designation establishing a public utilities land use classified "U" was established October 15, 1974 and has not been substantially reviewed or amended since that time; and WHEREAS, the City needs additional time to comprehensively study both the General Plan and Public Utilities Zones in order to determine whether or 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 its citizens; and WHEREAS, public utilities, without distinction between electrical energy generation, gas generation, water utilities, treatment of waste water processing and disposal utilities and other public utilities are permitted within that designation upon obtaining a Specific Plan, Precise Development Plan or similar actions adopted by ordinance and none of these uses are a conditional use within 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 General Plan designation establishing a public utilities land use and implementing zone; and WHEREAS, the Agua Hedionda Local Coastal Plan (LCP) was 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, land use, recreation, agriculture, aquaculture, visual impacts and uses of the lagoon; and 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 WHEREAS, the CECP represents an expansion of the Encina Power Station; and WHEREAS, the CEC has notified the City that the proposed Encina Power Station site is the prime candidate for expansion because of the ready 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-through cooling ocean water to operate the plant and generate electricity; and WHERAS, with current technology, thermal electric power generation facilities no longer require ocean water for cooling and as such are no longer 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; and WHEREAS, the construction and expansion of the existing plant will add pollutants and noxious emissions to the environment affecting the health, safety and welfare of the citizens of Carlsbad and its environs; and WHEREAS, the construction and expansion of the existing plant will affect the fish and wildlife ecosystem of the Agua Hedionda Lagoon; and WHEREAS, expansion of the Encina Power Station may be prejudicial to other proposed nearby land uses; and -3- 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 WHEREAS, the expansion to the Encina Power Station will require increased fossil fuel consumption and expose the citizens of Carlsbad to additional environmental risks; and WHEREAS. The City intends to study the appropriateness of the General Plan land use designation for the site; and WHEREAS, construction of the CECP may be in conflict with a zoning 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 prejudice the ability of the City to permit, conditionally permit or prohibit expansion or location of thermal electric power generation facilities at this location or at other locations; and 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. NOW, THEREFORE, the City Council of the City of Carlsbad ordains as follows: 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. SECTION 3: No development application shall be accepted, 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. SECTION 4: That the Memorandum to the City Manager dated September 27, 2010 titled "Encina Power Plant Land Use Analysis" constitutes the written report of the City Council describing the measures taken to alleviate the condition which led -4- 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 to the adoption of the Urgency Ordinance as required by Section 65858(d) of the California Government Code. SECTIONS: That Ordinance No. CS-067 is extended for twelve (12) months. DECLARATION OF URGENCY: This ordinance is hereby declared to be an emergency ordinance adopted as an urgency measure to protect the public 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 part of hereof and represent a current and immediate threat to the public health, safety and welfare of the citizens of Carlsbad. EFFECTIVE: This interim ordinance as amended shall be effective immediately upon passage and shall be of no further force and effect after twelve (12) months of the date of its adoption unless extended by the City Council according to law. The City Clerk of the City of Carlsbad shall certify to the adoption of this ordinance and cause it to be published within 1 5 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 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of October 2010, by the following vote to wit: AYES: Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Council Member Lewis. APPROVED AS TO FORM AND LEGALITY PAUL EDMONSON, Assistant City Attorney ATTEST: (SEAL) ayor Pro Tern EXHIBIT 2 1 RESOLUTION NO. 2010-238 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, 4 ZONING ORDINANCE AND OTHER REGULATIONS PERTAINING TO THE LOCATION AND OPERATION OF 5 THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN THE CITY. 6 WHEREAS, at its regular meeting on October 20, 2009, the City Council adopted 7 Resolution No. 2009-263 which declares its intention to consider amendments to the General 8 Plan, the Zoning Ordinance and other regulations pertaining to the location and operation of 9 thermal electric power generation facilities within Carlsbad's Coastal Zone; and WHEREAS, at its regular meeting on December 1, 2009, the City Council adopted Resolution No. 2009-299 which further declares its intention to consider amendments12 to the General Plan, the Zoning Ordinance and other regulations pertaining to the location and operation of thermal electric power generation facilities within Carlsbad's Coastal Zone; and WHEREAS, City staff was authorized and directed to study and prepare recommendations and to set public hearings before the Planning Commission and City Council16 to determine whether the present General Plan and Zoning designations for thermal electric power generation facilities within the City, including the Encina Power Station site, should be18 amended; and WHEREAS, the study may include preparing land use alternatives and/or a 2, "Conceptual Master Plan or Land Use Development Strategy" for the properties included in the 22 Encina Power Station site and, may include the use of consulting firms to assist city staff in 2-> preparing said land use alternatives for the Encina Power Station site and/or preparing 24 appropriate environmental review documents; and 25 WHEREAS, staff is also directed to consider the repeal or amendments to 26 Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the non- 27 conforming use provisions to the Zoning Ordinance, as appropriate; and 28 1 WHEREAS, City staff have developed land use study options. 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 3 Carlsbad, California as follows: 1. That the above recitations are true and correct. 2. That pursuant to Section 21.52.020 of the Carlsbad Municipal Code and Section 65358 of the State Government Code, the City Council of the City of Carlsbad declares its intention to consider amendments to the Land Use Element of the General Plan, the Zoning Ordinance and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City of Carlsbad. 8 3. That the City Manager and/or designee is hereby authorized and directed to 9 prepare an EIR and legislative actions (GPA,ZC,ZCA,SPA,PPA) to implement the land use recommendations. 10 4. That the City Manager and/or designee is also directed to repeal or amend Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the non- conforming use provisions to the Zoning Ordinance, as appropriate.12 "NOTICE TO APPLICANT" 13 The time within which judicial review of this decision must be sought is governed 14 by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a 16 request for the record is filed with a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA. 92008." 20 "' 21 "' 22 '" 23 '" 24 "' 25 '" 26 "' 27 28 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of October 2010, by the following vote to wit: AYES: Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Council Member Lewis. C,TV O, EXH'BIT3 CARLSBAD Memorandum September 27, 2010 To: Lisa Hildabrand, City Manager From: Christer Westman, Senior Planner Via: Gary Barberio, Community and Economic Development Don Neu, City Planner ^yi Re: Encina Power Plant Land Use Analysis BACKGROUND The City Council took several actions in response to Carlsbad Energy Center LLC filing a Notice of Intention on September 14, 2007 with the California Energy Commission ("CEC") to construct and operate the Carlsbad Energy Center Project (CECP), an additional 558-megawatt power generating facility, at the existing Encina Power Station site. These include: October 20. 2009 • The City Council adopted Urgency Ordinance CS-067 to: 1) declare that the CECP (expansion of the existing Encina Power Station) represents a current and immediate threat to public health, safety and welfare; and 2) adopted a 45 day moratorium to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. Urgency Ordinance CS-067 would expire on December 4, 2009, unless extended. • The City Council adopted Council Resolution 2009-263, directing staff to prepare a land use analysis that: 1) evaluates what appropriate land use designations and zones should be applied to Specific Plan Area 144 (which includes the Encina Power Station and the proposed CECP project site); and 2) identifies where, if any, locations are acceptable for power generation in Carlsbad. As shown on Exhibits 1 and 2, both properties are currently designated Public Utility (U) and zoned Public Utility (P-U). November 16. 2009 • Consistent with California Government Code Section 65858(d), a written report describing the measures taken to alleviate the subject urgency ordinance condition was provided to the City Manager (See Exhibit 4) no less than 10 days prior to expiration of the adopted urgency ordinance (by November 24, 2009) in order to consider an extension of the moratorium. Measures taken by the City to alleviate the subject urgency ordinance condition included the City's written objections to the CEC regarding the Carlsbad Energy Center Project (CECP). In response to Council Resolution 2009-263, staff identified five (5) Encina Power Plant Land Use Study Processing Options and a recommendation for the City Council (See Exhibit 5). Staff indicated that it would require additional time to complete the Land Use Studies and therefore recommended that the City Council extend Urgency Ordinance CS-067. Community & Economic Development 1635 Faraday Ave. I Carlsbad, CA 92008 I 760-602-2710 I 760-602-8560 fax I www.carlsbadca.gov Encina Power Plant Land Use Analysis September 27, 2010 Page 2 December 1. 2009 • The City Council adopted Ordinance CS-070 to extend Urgency Ordinance CS-067 for 10 months and 15 days (through October 20, 2010). • The City Council also adopted Council Resolution 2009-299, directing staff to 1) prepare a Land Use Study consistent with a combination of Land Use Study Processing Options IB (Redesignate the site as a Combination General Plan District) and 1C (Designate the site as a Special Planning Consideration Area in the General Plan); 2) complete a review 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 including public outreach and input through the City's General Plan Update; and 3) take up to 24 months to complete. (Including General Plan, Zone Code and zoning amendments; and 3) consider the repeal of C.M.C. Section 21.48.100 (Nonconforming Buildings and Uses) regarding Public utility exemptions; and, environmental review). PROJECT DESCRIPTION Under this direction, the Planning Division has undertaken a land use study to evaluate the appropriateness of the existing Public Utilities (U) land use designation as well as alternatives which may be more appropriate. The Public Utilities designation primarily allows for such uses as power generation facilities, wastewater treatment facilities, fuel oil storage facilities and public district maintenance, storage and operating facilities. Phase I of this Land Use Study (this memorandum) includes a number of land use findings and a preliminary land use recommendation. Prior to preparing a Request for Proposal (RFP) to hire an environmental consultant to assist staff in preparing an EIR and implementing ordinances for this land use change, staff is recommending that the City Council first review and concur with the preliminary land use recommendation. FINDINGS 1. While there is likely to be continuing future demand for additional power generating capacity, power plants are not coastal dependent land uses; they may be built and operated at any location where cooling water can be supplied, including desert locations. 2. The existing Encina facility currently creates significant environmental impacts, not only for Carlsbad, but for the entire region. The proposed second plant would significantly exacerbate these impacts. 3. Coastal resources are today understood to be fragile and very susceptible to damage from such impacts as oil spills, water pollution, and visual degradation. Through creation of the Coastal Act and other actions the people of the State of California and the people of Carlsbad have pledged both to protect remaining un-impacted coastal resources and to rehabilitate degraded and impacted resources. Encina Power Plant Land Use Analysis September 27, 2010 PageS 4. Carlsbad continues to grow while retaining its village/resort orientation. The economy is very dependent upon the long-term protection of the City's extraordinary environmental assets, especially along the coast. Heavy industry ought not to be located along the coast unless it is coastal dependent. Where not coastal dependent, heavy industry should be precluded from coastal areas. Under no circumstances should heavy industry be permitted in coastal areas when such industry requires offshore tanker delivery and shore-side transfer of large amounts of raw or processed petroleum. Instead, other uses, incorporating benign use of coastal resources, should be developed along coastal areas whenever possible. 5. The City's long-term growth has resulted in all of the land north and south of the plant being developed with residential and open space uses thereby increasing the numbers of people living in ever-closer proximity to the power plant. As shown on Exhibits 1 and 2, the middle and outer basins of the Agua Hedionda Lagoon are located north of the power plant. The Lagoon is designated and zoned Open Space (OS). On the north shore of the lagoon are Hubb's Seaworld, which is a fish research facility, and residentially developed properties. The Land Use designations for the residentially developed properties are Residential Medium High (RMH 8-15 du/ac) and Residential High (RH 15- 23 du/ac) densities. Properties are developed predominantly with multi-family structures. Located to the south of the power plant and west of the railroad is an established single family residential neighborhood. To the east of the power plant is located the inner basin of the Agua Hedionda Lagoon and the south shore of the lagoon which is currently vacant and used for the production of strawberries. The north shore of the lagoon is developed with a variety of residential neighborhoods ranging from single family homes on large lots to stacked flat condominium buildings. 6. There is increasing potential for off-site effects from pollution and major industrial accidents at the plant. There is therefore increased concern for the maintenance of the health and safety of the surrounding residential uses. Other uses of the property would have far less potential for such adverse impact. 7. Therefore, the Planning Division believes that the existing Public Utilities general plan designation for the Encina power plant site are inadequate and inappropriate and should be changed to designations which do not support the type of heavy industrial development now occurring on the site. 8. There are few locations in Carlsbad that are appropriate for the development of large scale power plants. Most of the City is developed as residential which severely limits compatibility with heavy industrial type uses. Properties west of the Interstate 5 are less desirable for power plant development given their locational strength for tourist serving commercial and residential development. The single area of the City which has any potential for the development of smaller peak plants is the industrial corridor that Encina Power Plant Land Use Analysis September 27, 2010 Page 4 runs east-west roughly along the alignment of the airport. The only larger industrially zoned properties that are vacant and could be considered for peaker plant development are those located east of the airport and north of Palomar Airport Road. Two appropriate properties were identified in testimony provided by the City regarding the proposed CEC project. The first property is Oaks North Phase 3 and the second is Fleet Services. The Oaks North property is privately held and the Fleet Services property is owned by the City (See Exhibit 3). Regardless, a more in-depth proximity/compatibility analysis would be needed to determine the viability of any of these properties. 9. Carlsbad Municipal Code Section 21.48.100 regarding Public Utility exemptions from non-conforming use provisions may be replaced pursuant to the City Council adoption of CS-050 (attached as Exhibit 6) on 08/18/2009. However, the ordinance is pending California Coastal Commission action and is therefore not effective. As a result a change to the code section will require a Zone Code Amendment. RECOMMENDATION The Planning Division has identified General Plan designations which would serve as an appropriate alternative to the current Public Utilities (U) designation. A Combination District (authorized in the General Plan) of Travel Recreation Commercial (TR) and Open Space (OS) is recommended. This designation would allow coastal-oriented commercial uses which could include various combinations of resort, hotels, motels, restaurants, and limited retail and active/passive recreation facilities which might include athletic fields, bicycle paths, campsites, picnic areas, and parks, to be developed on the site as alternatives to the existing public utility/heavy industry uses. The new permitted uses are clearly more compatible with the surrounding residential uses. The balance of the two proposed land uses would be determined at the time development was proposed. This Combination District designation would permit a broad range of economic alternatives, when and if the site should be redeveloped. In addition to the Combination District Land Use designation, the site should be designated in the General Plan as a Special Planning Considerations Area. As a Special Planning Considerations area, site specific compatibility and goals can be established to guide development to be consistent with the City Council's intended direction. Should the City Council support the recommendation to process a change in the site's General Plan Land Use designation, it would be necessary also to re-zone the site, revise the Local Coastal Program Land Use and Zoning designations, amend the power plant Specific Plan (SP 144), South Carlsbad Redevelopment Plan, and Encina Power Station Precise Development Plan (POP 00-02), and prepare an Environmental Impact Report (EIR) analyzing the effects of the various actions. The various land use changes would be processed concurrently with the General Plan amendment so as not to create an inconsistency. The scope of work necessary to complete all of the tasks associated with the land use study, including the preparation of documents and holding the required public hearings, is extensive and cannot be completed prior to the expiration of the urgency ordinance moratorium adopted Encina Power Plant Land Use Analysis September 27, 2010 PageS on December 1, 2009 (with an October 20, 2010 expiration date). Consistent with California Government Code Section 65858(a), the urgency ordinance moratorium should therefore be extended by one (1) more year to expire October 20, 2011. DIM:CW:bd Attachments Exhibit 1 - Encina Power Station Land Use map Exhibit 2 - Encina Power Station Zoning Map Exhibit 3 - Alternative Power Generation locations Exhibit 4 - City Manager Report (November 16,2009) Exhibit 5 - Encina Power Plant Land Use Options Exhibit €-0rxffnance-NorCS^GSO General Plan Land Use OPEN SPACE PLANNED INDUSTRIAL HIGH DENSITY (IS-23 du/ac) RIM LOW-MEDIUM DENSITY (0-4 du/ac! Precise Development Planning Area , ••. •J:\Requests2010Plus>ComE<;onDevV>lanning\4423256_10 Specific Plan 144(H) General Plan Map Exhibit 1 Zoning Cannon Road Agricultural / Open Space Zone COMMERCIAL TOURIST OPEN SPACE PLANNED INDUSTRIAL PUBLIC UTILITY ONE FAMILY RESIDENTIAL TWO FAMILY RESIDENTIAL R-A-10000 RESIDENTIALAGRICULTURAL Precise Development Planning Area J:\Requests2010Ptus\ComEconDevflanning\4423256_10 Specific Plan 144(H) Zoning Map Exhibit 2 GENERAL PLAN LAND USE MAP City of Carlsbad Alternate Power Plant Sites 1. Fleet Services 2. Oaks North LEGEND INDUSTRIAL CORRIDOR • [E] ELEMENTARY SCHOOL SH[H] HIGH SCHOOL cm [HC] CONTINUATION SCHOOL M[J] JUNIOR HIGH SCHOOL • [P] PRIVATE SCHOOL CO [PI] PLANNED INDUSTRIAL B[G] GOVERNMENTAL FACILITIES ••[OS] OPEN SPACE CH[UA] UNPLANNED AREAS • [TC] TRANSPORTATION CORRIDOR CD[U] PUBLIC UTILITIES CD[CF] COMMUNITY FACILITIES COMMERCIAL CD[R] REGIONAL COMMERCIAL CD[L] LOCAL SHOPPING CENTER CD [T-R] TRAVEL/RECREATION COMMERCIAL • [O] OFFICE & RELATED COMMERCIAL «[V] VILLAGE RESIDENTIAL CD[RL)LOWDENSITY (0-1 5 du/ac) CD[RLM] LOW-MEDIUM DENSITY (0-4 du/ac) CD [RM] MEDIUM DENSITY (4-8 du/ac) LD[RMH] MEDIUM-HIGH DENSITY (8-15 du/ac) f^AIRPORT INFLUENCE AREA Oi [RH] HIGH DENSITY (1 5-23 du/ac) HfJ SPECIAL RESOURCEAREA fiiH PRIME ARTERIAL E3 MAJOR ARTERIAL Q SECONDARY ARTERIAL §3 COLLECTOR STREET E3 RAILROAD E3 BEACH OVERLAY ZONE [3 COASTAL ZONE 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 williake 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 - Chance the land Use Designations • General Plan Amendment • Zone Change • local Coastal Plan Amendment (Agua Hedlonda land Use Plan) • Specific Plan 144 Amendment ..• South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the IWfiWfifvnfflnij VK flww • Environmental Impact Report • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility • Could narrow chokes • PubHc 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 Nonconformlng Use Chapter • Environmental Impact Report • Faster to complete when compared to Option 2 • Less costly • Provides the developer flexibility • Could narrow chokes • Public feels excluded Option IB - Combination General Plan District • Designate the srtewKh more than one land use classification • Requires the future approval of a spectfk plan prior to development of 25 acres or more < • General Plan Amendment • Zone Change • local Coastal Plan Amendment (Agua Hedlonda Land Use Plan) • Speclfk Plan 144 Amendment . • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment to the • Environmental Impact Report • Requires a future specific plan • PubNc 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 chokes • 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 Hedlonda land Use Plan) • Speclfk Plan 144 Amendment • Wn?JsUMeWl«HfWn!Pljri Amendment • Precise Development Plan Amendment • Zone Code Amendment to the Nonconformlng Use Chapter • Environmental Impact Report • Requires a future more spectfk 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 chokes • 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 Hedlonda land Use Plan) • Specific Plan 144 Amendment • South Carlsbad Redevelopment Plan Amendment • Precise Development Plan Amendment • Zone Code Amendment lo the Nonconformlng Use Chapter • cnwdllMnlil Imp*'! rl'"fl • Clear direction/vision • Public Involved at the ground floor • Creates interest/buzz • Economk 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 \> 1 ORDINANCE NO. CS-050 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A ZONE CODE 3 AMENDMENT TO: 1) REPEAL AND RE-ENACT THE NONCONFORMING BUILDINGS AND USES - CHAPTER 21.48 4 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04- 5 DEFINITIONS, 3) REPEAL SECTION 21.46.210 OF CHAPTER 21.46 - YARDS, 4) AMEND SECTION 21.44.010 OF CHAPTER 6 21.44 - PARKING AND, 5) AMEND SECTION 21.45.090A OF CHAPTER 21.45 - PLANNED DEVELOPMENTS. 7 CASE NAME: NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION 8 CASE NO.: ZCA 09-01/LCPA 09-01 9 The City Council of the City of Carlsbad, California, does ordain as follows: 10 SECTION I: That the title of Chapter 21.48, as referenced in the list of 11 Chapters contained in Title 21 of the Carlsbad Municipal Code, is amended to read as follows: 12 21.48 Nonconforming Lots, Structures and Uses 13 SECTION II: That Chapter 21.04 of the Carlsbad Municipal Code is amended by the addition of Sections 21.04.027, 21.04.140.1, 21.04.278, 21.04.281, 21.04.299.1, 21.04.299.2 and 21.04.354, and by the amendment of Sections 21.04.275, 21.04.280 and16 21.04.355, which shall read as follows: 18 21.04.027 Alter. "Alter" means any change to the interior or exterior of a structure that does not result in an increase to the gross floor area of the structure. 21 22 21.04.140.1 Expansion. "Expansion" means to enlarge or increase the size of an existing structure or use 23 including the physical size of the property, building, parking and other improvements. 24 25 21.04.275 Nonconforming structure. "Nonconforming structure" means a structure, or portion thereof, which was lawfully 26 erected or altered and maintained, but which, because of the application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it 27 is located. 28 1 21.04.278 Nonconforming lot. "Nonconforming lot" means a lot which was legally created, but which, because of the 2 application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it is located. 3 21.04.280 Nonconforming non-residential use. 4 "Nonconforming non-residential use" means a non-residential use which was lawfully established and maintained, but which, because of the application of this title to it, no longer 5 conforms to the current use regulations of the zone in which it is located. 6 21.04.281 Nonconforming residential use. "Nonconforming residential use" means a residential use which was lawfully established 7 and maintained, but which exceeds the Growth Management Control Point or the maximum density range of the underlying General Plan Land Use designation. 8 9 21.04.299.1 Repair. 10 "Repair" means any improvements to correct deficiencies in a building or structure. 21.04.299.2 Replace. "Replace" means to construct a structure that is substantially equivalent in size, shape 12 and location to a structure that has been destroyed or demolished. 13 14 21.04.354 Structure. "Structure" means anything constructed or erected which requires location on the ground or attached to something having a location on the ground, but not including fences or walls used as fences six feet or less in height. All buildings are structures.16 21.04.355 Substandard lot. 17 See "Nonconforming lot". 18 SECTION III: That Section 21.44.010.A of the Carlsbad Municipal Code is amended to read as follows: 21.44.010 Required off-street parking. A. Off-street parking, designed in accordance with the requirements of this chapter, 22 shall be provided for: 1. All newly constructed buildings; 23 2. Additions to existing buildings, except for: a. An existing single family residence which does not meet the required parking 24 standard (i.e. a two car garage) may expand floor area if a minimum of two off- street parking spaces are provided on-site in a location consistent with Section 21.44.060. 25 3. Any change of use within an existing building. 26 SECTION IV: That Section 21.45.090.A of the Carlsbad Municipal Code is 27 amended to read as follows: 28 -2- 1 21.45.090 Residential additions and accessory uses A. General. 2 1. Additions and accessory uses shall be subject to all applicable development standards of this chapter, unless otherwise specified in this section. 3 2. Additions to buildings that are legally nonconforming shall comply with the requirements of Chapter 21.48 of this code. 4 5 SECTION V: That Section 21.46.210 of the Carlsbad Municipal Code is 6 repealed. 7 SECTION VI: That Chapter 21.48 of the Carlsbad Municipal Code is repealed in 8 its entirety and reenacted as follows: 9 Chapter 21.48 10 NONCONFORMING LOTS, STRUCTURES AND USES 11 Sections: 12 21.48.010 Purpose and intent. 21.48.020 Applicability. 13 21.48.030 General provisions. 21.48.040 Nonconforming lots. 21.48.050 Nonconforming residential structures and uses. 21.48.060 Nonconforming non-residential structures. 15 21.48.070 Nonconforming non-residential uses. 21.48.080 Nonconforming construction permit '" 21.48.090 Abatement of nonconforming structures and uses. 17 21.48.010 Purpose and intent. A. The purpose and intent of this chapter is to: 18 1. Allow for the development of nonconforming lots that were legally created. 2. Establish procedures for the abatement of structures and uses that do not comply with all of the requirements and development standards of this title and which may be adverse to the orderly development of the city and to the public health, safety, or welfare of persons or property. 3. Permit the continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the requirements and 22 development standards of this title, in a manner that is not adverse to the public health, safety or welfare of persons or property. 4. Permit the repair, alteration, expansion or replacement of nonconforming structures subject to the requirements of this chapter. 24 5. Permit the expansion or replacement of nonconforming uses subject to the requirements of this chapter. 25 21.48.020 Applicability. A. The provisions of this chapter apply to: 1. Legally created lots which do not conform to the current requirements and 27 development standards of the zone in which they are located. 28 -3- 1 2. Legally constructed structures and site development features (except for nonconforming signs which are addressed in Section 21.41.130) which do not comply with the 2 current requirements and development standards of the zone in which they are located. 3. Legally established uses which do not conform to the current permitted use 3 regulations of the zone in which they are located. 4 21.48.030 General provisions. A. It shall be the responsibility of the owner of a nonconforming lot, structure or use 5 to prove to the planning director that such lot, structure or use was lawfully established, existed on the date of adoption or amendment of this chapter, and has existed continuously as defined 6 herein. B. Nothing in this chapter shall be deemed to prevent the rehabilitation, repair, 7 alteration, strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any city official charged with protecting the public safety, upon order of such 8 official. Repairs and alterations may be made to restore a structure to the same condition that existed prior to damage or deterioration, provided that such repairs or structural alterations 9 conform to the provisions of this chapter. 10 21.48.040 Nonconforming lots. A. A nonconforming lot may be developed, provided that the development is 11 consistent with the General Plan and complies with all of the requirements and development standards of the zone, master plan, or specific plan in which it is located.12 21.48.050 Nonconforming residential structures and uses. A. Specific Provisions. 1. A nonconforming residential structure and/or nonconforming residential use may be continued and the structure and/or use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure or use (i.e. the addition of a new dwelling unit to an existing over density residential use except 1' as otherwise allowed by the General Plan); and, c. Reduce the number and size of any required existing parking spaces. 1 2. Any expansion of floor area or the addition of a new dwelling unit that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand, in compliance with the parking requirements of Chapter 20 2144'3. An existing single family residence which does not meet the required parking _. standard (i.e. a two car garage) may expand floor area if a minimum of two off-street parking spaces are provided on-site in a location consistent with Section 21.44.060(4). ~- B. Repair or Alteration. 1. A nonconforming residential structure and/or a structure which is occupied by a nonconforming residential use may be repaired or altered, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 24 and 18. C. Expansion. 25 1. A nonconforming residential structure and/or a nonconforming residential use may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings 27 of fact pursuant to Section 21.48.080(6). 28 -4- 1 2. Where a single-family residential structure is nonconforming only by reason of substandard yards, the provisions of this chapter requiring a nonconforming construction permit 2 for an expansion shall not apply provided that: a. The area of expansion is not more than 40% of the existing floor space prior to 3 the enlargement or a maximum of 640 square feet, whichever is less; and b. The area of expansion, when combined with prior expansions of the 4 nonconforming structure, does not exceed 40% of the floor space that existed prior to any expansions or 640 square feet, whichever is less; and 5 c. The area of expansion shall comply with all current development standards including, but not limited to, setbacks, lot coverage and height limitations; and 6 d. Expansions that exceed the limits of this exception shall require a nonconforming construction permit. 7 D. Replacement in the Event of a Disaster. 1. A nonconforming residential structure and/or nonconforming residential use that 8 is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a 9 nonconforming construction permit is submitted within two years of the date of the disaster and the planning director approves the findings of fact pursuant to Section 21.48.080(6). The 10 planning director may grant an extension to the above two-year application submittal limit upon demonstration of good cause by the applicant. 11 E. Voluntary Demolition and Subsequent Replacement. 1. A nonconforming residential structure and/or nonconforming residential use that 12 js proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming 13 construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to the date of the demolition. 21.48.060 Nonconforming non-residential structures. 15 A. Specific Provisions. 1. A nonconforming non-residential structure may be continued and the structure 16 repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: 17 a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure; 18 and c. Reduce the number and size of any required existing parking spaces. 2. Any expansion of floor area that results in an increase in parking demand, 9f) pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand. 21 B. Repair or Alteration. 1. A nonconforming non-residential structure may be repaired or altered subject to 22 issuance of all required discretionary and building permits, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 23 and 18. C. Expansion. 24 1. A nonconforming non-residential structure may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and 25 building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 26 21.48.080(6). D. Replacement in the Event of a Disaster. 27 1. A nonconforming non-residential structure that is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required 28 -5- 1 discretionary and building permits and provided that an application for a nonconforming construction permit is submitted within two years of the date of the disaster and the planning 2 director approves the findings of fact pursuant to Section 21.48.080(6). E. Voluntary Demolition and Subsequent Replacement. 3 1. A nonconforming non-residential structure that is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building 4 permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to 5 the date of the demolition. 6 21.48.070 Nonconforming non-residential uses. A. Specific Provisions. 7 1. A nonconforming non-residential use and/or structure which is occupied by a nonconforming non-residential use may be continued and the structure and/or use repaired, 8 altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: 9 a. Increase the degree of the existing nonconformity of all or part of such structure or use; and, 10 b. Reduce the number and size of any required existing parking spaces. 2. Any expansion of a non-residential use and/or structure which is occupied by a 1 nonconforming non-residential use that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand. 12 B. Repair or Alteration. 1. A structure which is occupied by a nonconforming non-residential use may be repaired or altered subject to issuance of all required discretionary and building permits, provided that he repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18. C. Expansion of Use. 1. A nonconforming non-residential use may be expanded, so as to occupy a greater area of land or more floor area within a structure, subject to issuance of all required 16 discretionary and building permits, provided that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 17 21.42.030(A). D. Relocation. 1 ° 1. A nonconforming non-residential use may be moved, in whole or in part, to any other on-site structure, or to any other portion of the structure, lot or site within or upon which it is located, subject to issuance of all required discretionary and building permits and provided -„ that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A). E. Change of Use. 1. A nonconforming non-residential use may be changed to a use that is permitted 22 in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval of the planning director and the issuance of a business license. F. Replacement of Use. 1. A nonconforming non-residential use may be replaced with the same or a similar 24 use, as determined by the planning director, so long as the replacement use does not expand or in any other manner increase the degree of nonconformity with the use regulations of this title. 25 G. Discontinuance. 1. If a structure or parcel of land which is occupied by a nonconforming non- residential use is, or hereafter becomes vacant and remains unoccupied for a continuous period of one year or more, the planning director shall determine and shall notify the owner of the 27 property, in writing, that the nonconforming use has been discontinued and the nonconforming use may not be renewed or reestablished. 28 -6- 1 H. Reestablishment of a Nonconforming Use in the Event of a Disaster. 1. A nonconforming non-residential use that is destroyed by fire, explosion, other 2 casualty or natural disaster, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit 3 is submitted within two years of the date of the disaster, and the planning commission approves the findings of fact pursuant to Section 21,42.030(A). 4 I. Voluntary Demolition and Subsequent Reconstruction. 1. A nonconforming non-residential use that is proposed to be voluntarily 5 demolished and subsequently reconstructed, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use 6 permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A) prior to the demolition. 7 21.48.080 Nonconforming construction permit. 8 A. Authority. 1. The planning director or his designee may approve, conditionally approve or 9 deny a nonconforming construction permit as prescribed in this chapter, upon making the findings of fact listed in Section 21.48.080(6) of this chapter. 10 B. Findings of Fact. 1. A nonconforming construction permit shall be granted only if the following facts 11 are found to exist in regard thereto: a. The expansion/replacement of the structure and/or use would not result in an 12 adverse impact to the health, safety and welfare of surrounding uses, persons or property. b. The area of expansion shall comply with all current requirements and 13 development standards of the zone in which it is located, except as provided in Subsection 21.48.050(A)(3) of this chapter. 14 c. The expansion/replacement structure shall comply with all current fire protection and building codes and regulations contained in Titles 17 and 18. 15 d. The expansion/replacement would result in a structure that would be considered an improvement to, or complementary to and/or consistent with the character of the 1" neighborhood in which it is located. C. Application and Fees.17 1. Application for a nonconforming construction permit may be made by the owner of the property affected or the authorized agent of the owner. Application shall be made in 18 writing on a form provided by the planning department. The application shall state fully the circumstances and conditions relied upon as grounds for the application and shall be accompanied by adequate plans, a legal description of the property involved and all other materials as specified by the planning department. 2. At the time of filing the application, the applicant shall pay a processing fee in an ~. amount as specified by city council resolution. 21 D. Notices. 22 1. Upon the filing of an application for a nonconforming construction permit, the planning director shall give written notice by mail or personal delivery to the project applicant, 23 the owner of the subject real property or the owner's duly authorized agent and to all property owners as shown on the latest equalized assessment roll within three hundred feet of the 24 subject property at least fifteen days prior to a decision on the application. E. Decision-Making Process. 25 1. Applications for nonconforming construction permits shall be acted upon in accordance with the decision process identified below: 26 a. Any person so notified in accordance with Section 21.48.080(0) above may file written objections or a written request to be heard within ten days after the mailing or personal 27 delivery of the notice. If a written request to be heard is filed, the planning director shall 28 -7- 1 schedule an informal hearing and provide written notice to the applicant and the requestor at least five days prior to the hearing. The hearing is not a formal public hearing, 2 b. An application for a nonconforming construction permit may be approved, conditionally approved or denied by the planning director based upon his/her review of the facts 3 as set forth in the application and review of the circumstances of the particular case, and the planning director may only approve, or conditionally approve, the nonconforming construction 4 permit if all of the findings of fact in Section 21.48.080(6) of this chapter are found to exist. F. Announcement of Findings and Decision. 5 1. Not more than twenty days following the termination of the proceedings for a nonconforming construction permit, the planning director shall announce his/her findings by 6 letter. The letter shall recite, among other things: a. The facts and reasons which, in the opinion of the planning director, make the 7 granting or denial of the nonconforming construction permit necessary to carry out the provisions and general purpose of this title; 8 b. That the nonconforming construction permit be granted or denied; and, c. If the letter orders that the nonconforming construction permit be granted, it shall 9 also recite such conditions and limitations as the planning director may impose. G. Mailing of Notice of Decision. 10 1. Not later than seven days following the announcement of a decision ordering that a nonconforming construction permit be granted or denied, a copy of the letter shall be mailed to 11 the applicant at the address shown on the application filed with the planning director. H. Appeals. 12 1. In the case of nonconforming construction permits, the action of the planning director may be appealed to the planning commission in accordance with Section 21.54.140 of 13 this title. The planning commission's action to approve, conditionally approve or deny is final. I. Expiration Period. 1. Expiration of Permit if Not Exercised. a. Any nonconforming construction permit becomes null and void if not exercised within twenty-four months of the date of approval. 2. Extension of Permit if Not Exercised. a. Not more than ninety days or less than forty-five days prior to the expiration of a nonconforming construction permit the permittee may apply to the planning director for an 1' extension of the permit. The planning director may extend the time, without public notice, within which the right or privilege granted under a nonconforming construction permit must be 18 exercised for one additional year upon receipt of a written request from the applicant prior to the expiration of such nonconforming construction permit. In granting such extension the planningy director shall make a written finding that neighborhood conditions have not substantially changed since the granting of such nonconforming construction permit. J. Amendment. « 1. Any approved nonconforming construction permit may be amended by following the same procedure as for approval of a nonconforming construction permit and upon payment 22 of the application fee contained in the most recent fee schedule adopted by the city council. 21.48.090 Abatement of nonconforming structures and uses. A. If a nonconforming use and/or structure is determined by the planning director to be adverse to the orderly development of the city and/or to the public health, safety, or welfare of persons or property, the planning director shall schedule a public hearing before the planning commission to establish the conditions of abatement and the abatement period. The abatement period shall start from the date of the applicable resolution and shall be: 1. For all Residential Uses. a. Not less than one or more than five years. 27 2. For all Non-Residential Uses. a. Not less than one or more than ten years. 28 -8- 1 3. For all Nonconforming Structures. a. Not less than three years or more than twenty-five years. 2 4. Nothing in these provisions shall preclude abatement of a nuisance pursuant to Section 6.16.150 of the Carlsbad Municipal Code. 3 B. Public Hearing Notice. 1. Notice of said public hearing shall be given as required by Section 21.54.060. 4 C. Public Hearing Evidence. 1. The planning commission shall consider at the public hearing, all pertinent data 5 to enable it to arrive at an equitable abatement period which will protect the public health, safety or welfare of persons or property, yet will allow the owner of record, or lessee if applicable, 6 sufficient time to amortize their investment. B. The owner or lessee shall be allowed to present any evidence related to the 7 case. C. When setting the abatement period, the planning commission shall take into 8 consideration the type of construction, age, condition, and extent of nonconformity of the structure or use in question; any structural alterations or expansions; and/or the installation of 9 major equipment designed into the structure prior to the date of nonconformity. D. Heahng Decision. 10 1. After the close of the public hearing, the planning commission shall determine and establish by resolution the abatement period, and shall set forth in said resolution all 1 findings and facts upon which the date of such abatement period is based: E. Notice of Decision to Owner. 12 1. The secretary of the planning commission shall formally notify the owner of the property of the action of the planning commission by mailing a copy of the resolution, via 13 certified return receipt mail, within ten days following the date of its adoption by the planning commission. 14 F. Appeal. 1. The above action of the planning commission shall be final unless an appeal to the city council is filed in accordance with the procedure provided in Section 21.54.150. G. Recordation. 1. The secretary of the planning commission shall transmit a final signed copy of the resolution of the planning commission or city council, whichever is final, to the County 1' Recorder of San Diego for recordation. 18 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, but not until approved by the California Coastal Commission and the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in a „- publication of general circulation in the City of Carlsbad within fifteen days after its adoption. 23 '" 24 25 '" 26 27 28 -9- 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 AND FIRST READ at a regular meeting of the Carlsbad City Council on the 11th day of August, 2009, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 18th day of August, 2009, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard, Blackburn NOES: None ABSENT: None APPROVED AS TO FORM AND LEGALITY RONALD #. BALL, City Attorney v / I , Mayor ATTEST: (SEAL) -10- This space is for the County Clerk's Filing Stamp PROOF OF PUBLICATION (2010 & 2011 C.C.P.) STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above- entitled matter. I am the principal clerk of the printer of Proof of Publication of North County Times Formerly known as the Blade-Citizen and Th Advocate and which newspapers havi adjudicated newspapers of general circulatior Superior Court of the County of San Diego, California, for the City of Oceanside and the Escondido, Court Decree number 171349, County of San Diego, that the notice of wi annexed is a printed copy (set in type not sma nonpariel), has been published in each regi entire issue of said newspaper and not supplement thereof on the following dates, to-v October 02nd, 2010 I certify (or declare) under penalty of perjury foregoing is true and correct. Dated at Escondido, California This 04th, of October 2010—. NOTICE OF PUBLIC HEARING ION OF URGENCY ORDINANCE RELATING TO THE PROHIBITION OF ANY ) THERMAL ELECTRIC POWER GENERATION FACILITV »»TUIMWDEJD 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 Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, October 12, 2010, to declare its intention to continue the preparation of studies and consider amendments to the Land Use Element of the General Plan, Zoning Ordinance, and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City, to ratify the report describing the measures taken to alleviate the conditions which led to the adoption of the Urgency Ordinance, and to extend Ordinance No. CS-067 for twelve (12) months stating that no development application shall be accepted, 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. 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 Christer Westman, Senior Planner, at 760-602-4614. 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. • •n«.t »» im , Q Coastal Commission Appealable Project: H 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:October 2, 2010 CITY OF CARLSBAD CITY COUNCIL Jane Allshouse NORTH COUNTY TIMES Legal Advertising Impression antibourrage et a sechage rapide Utilisezlegabarit5160® www.avery.com 1-800-GO-AVERY AVERY® 5160® CARLSBAD UNIF SCHOOL DIST 6225 EL CAMINO REAL CARLSBAD CA 92011 SAN MARCOS SCHOOL DISTRICT STE 250 255 PICO AVE SAN MARCOS CA 92069 ENCINITAS SCHOOL DISTRICT 101 RANCHO SANTA FE RD ENCINITAS CA 92024 SAN DIEGUITO SCHOOL DISTRICT 701 ENCINITAS BLVD ENCINITAS CA 92024 LEUCADIA WASTE WATER DIST TIM JOCHEN 1960 LA COSTA AVE CARLSBAD CA 92009 OLIVENHAIN WATER DISTRICT 1966OLIVENHAINRD ENCINITAS CA 92024 CITY OF ENCINITAS 505 S VULCAN AV ENCINITAS CA 92024 CITY OF SAN MARCOS 1 CIVIC CENTER DR SAN MARCOS CA 92069-2949 CITY OF OCEANSIDE 300 NORTH COAST HWY OCEANSIDE CA 92054 CITY OF VISTA 600 EUCALYPTUS AVE VISTA CA 92084 VALLECITOS WATER DISTRICT 201 VALLECITOS DE ORO SAN MARCOS CA 92069 I.P.U.A. SCHOOL OF PUBLIC ADMIN AND URBAN STUDIES SAN DIEGO STATE UNIVERSITY SAN DIEGO CA 92182-4505 CALIF DEPT OF FISH & GAME 4949 VIEWRIDGE AV SAN DIEGO CA 92123 REGIONAL WATER QUALITY STE 100 9174 SKY PARK CT SAN DIEGO CA 92123-4340 SD COUNTY PLANNING STEB 5201 RUFFIN RD SAN DIEGO CA 92123 LAFCO 1600 PACIFIC HWY SAN DIEGO CA 92101 AIR POLLUTION CONTROL DISTRICT 10124 OLD GROVE RD SAN DIEGO CA 92131 SANDAG STE 800 401 B STREET SAN DIEGO CA 92101 U.S. FISH & WILDLIFE 6010 HIDDEN VALLEY RD CARLSBAD CA 92011 CA COASTAL COMMISSION STE 103 7575 METROPOLITAN DR SAN DIEGO CA 92108-4402 AIRPORT LAND USE COMMISSION SAN DIEGO COUNTY AIRPORT AUTHORITY PO BOX 82776 SAN DIEGO CA 92138-2776 CARLSBAD CHAMBER OF COMMERCE 5934 PRIESTLEY DR CARLSBAD CA 92008 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD, CA 92011-1009 (760)438-3941 CARLSBAD ENERGY CENTER LLC SUITE 104 1817 ASTON PLACE CARLSBAD CA 92008 CITY OF CARLSBAD PUBLIC WORKS/ENGINEERING DEPT- PROJECT ENGINEER CITY OF CARLSBAD PROJECT PLANNER STEVE MACIEJ - BIASD STE 110 9201 SPECTRUM CENTER BLVD SAN DIEGO CA 92123-1407 ®09ts AH3AV-O9-008-1 ®091S 6unuuj aa&i a6onuic DUB wer 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 Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, October 12,2010, to declare its intention to continue the preparation of studies and consider amendments to the Land Use Element of the General Plan, Zoning Ordinance, and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City, to ratify the report describing the measures taken to alleviate the conditions which ted to the adoption of the Urgency Ordinance, and to extend Ordinance No. CS-067 for twelve (12) months stating that no development application shall be accepted, 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. 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 Christer Westman, Senior Planner, at 760-602- 4614. 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: [X] 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 tocated at 7575 Metropolitan Drive, Suite 103, San Dtego, CafFfornia 92108-4402. PUBLISH: October 2,2010 CITY OF CARLSBAD CITY COUNCIL Designated Public Utility Coastal Zone City of Carlsbad Public Notice Power Plant Moratorium Extension 1,000 2,000 N A 4,000 ••Feet Map created by the City of Carlsbad CIS. Portions of the DERIVED PRODUCT contain geographic information copyrighted by SanGIS. All Rights Reserved LUCE FORWARD 6s ATTORNEYS AT LAW • FOUNDED 1873 San Diego, CA 92101 LUCE, FORWARD, HAMILTON & SCRIPPS LLP 619.236.1414 www.luce.com RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.699.2572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse(®luce.com October 12, 2010 HAND DELIVERED Mayor Lewis and Councilmembers City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: October 12,2010 Meeting Agenda Item #3 Proposed Extension of Urgency Ordinance (CS-110) and Adoption of Resolution 2010-23 8 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 on October 20, 2009, 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. Cabrillo submitted a letter in opposition, which is incorporated herein by this reference. On December 1, 2009, the City adopted Urgency Ordinance (CS-070) extending the prior ordinance; again Cabrillo opposed the extension and submitted a letter, which is also incorporated herein by this reference. Tonight, Cabrillo restates its opposition to the further Extension of Urgency Ordinance (CS-110) and adoption of Resolution 2010-238. 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. SAN DIEGO • SAN FRANCISCO • Los ANGELES • CARMEL VALLEY/DEL MAR • ORANGE COUNTY • RANCHO SANTA FE LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 2 The City's staff report (Agenda Bill #20,380) and proposed further extension ordinance (CS- 110) 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. 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), its prior extension (CS-070) and tonight's proposed facilities further extension (CS-110) 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 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, LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 3 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 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 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 directly contradicts 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 (existing EPS ocean water discharge channel) 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 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 4 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 continuously proceed under the "urgency ordinance" provisions are misplaced. The City's staff report and proposed extension ordinances each note the CECP application has been pending since September, 2007. Thus, the City fails to and cannot establish the requisite facts or 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 three 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. City Actions Inadequate to Support Extension. Under California Government Code Section 65858, the existing urgency ordinance may only be extended for a year if the City has meaningfully attempted to ". . . alleviate the condition which led to the adoption of the [urgency] ordinance. (Gov't Code Sec. 65858(d)). Here, the City purports to rely on the "Report" attached as Exhibit 3 to Agenda Bill 20,380. While the "Report" makes recommendations for future land use amendments, it does not demonstrate or identify any actions taken by the City over the previous twelve (12) months directed to "alleviate the condition" which led to original urgency ordinance. Therefore, the City has failed to establish the statutory prerequisite to further extension. 4. 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 multi-year effort to block the CECP application, the proposed extension ordinance is part of a conscious pattern and program of spot zoning. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 PageS 5. 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 unsupported. 6. 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. 15378 in its staff report. The City has made no effort to comply with CEQA, notwithstanding its prior urgency ordinance adoption a year ago. The City's staff report and ordinance extension allege adverse environmental effects justify the further urgency ordinance extension and Resolution 2010-238 proposes comprehensive rezoning. For the City to now assert that no environmental impacts are raised by its proposed extension ordinance inexplicably ignores the CEQA compliance requirements applicable to City actions. Clearly, the further urgency ordinance extension and actions contemplated by Resolution 2010-238 has the ". . . potential for resulting in either a direct physical in the environment, or a reasonably foreseeable indirect physical change. . ." and therefore, constitutes a "project" requiring CEQA compliance. 7. Unconstitutional Regulatory Taking/Inverse Condemnation. Cabrillo acquired the EPS in 1999. Subsequently, the City consistently encouraged Cabrillo to modernize the facility by constructing a modern, efficient power generation facility in the eastern portion of the larger EPS site between the railroad tracks and Interstate 5. The CECP is precisely 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. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 6 The City's opposition to the CECP, combined with the proposed urgency ordinance extensions, 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 existing 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 urgency ordinance extension 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 electrical generation 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. 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 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page? • 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. RQnald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/ldb cc: Carlsbad City Clerk, City Attorney and City Manager 101325189.2 Extension of CS-067 Christer Westman October 12, 2010 Ordinance CS-110 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 •Extended December 2009 (CS-070) •Moratorium on the expansion of existing or the development of new thermal-electric power plants within the Coastal Zone •Valid until October 20, 2010 •May be extended for 12 months (CS-110) Carlsbad Coastal Zone Land Use Analysis •Companion Resolution: –No. 2010-238: •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 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 •Make Findings as described in Ordinance CS-110 City Council Action •Adopt Interim Ordinance CS-110 –Extension of CS-067 for 12 months –Expiration October 20, 2011 •Adopt Resolution No. 2010-238 –Prepare Land Use actions –Prepare an Environmental Impact Report