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
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power generation facilities located in Carlsbad's Coastal Zone; and
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WHEREAS, Government Code section 65858 authorizes extension of said
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emergency interim ordinance, after notice and hearing, by a four-fifths vote for up to ten (10)
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months and fifteen (15) days; and a subsequent extension for up to one additional year; and
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WHEREAS, at its regular meeting of December 1, 2009, the City Council
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adopted Urgency Ordinance No. CS-070 extending Urgency Ordinance CS-067 by ten (10)
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months and fifteen (15) days to expire October 20, 2010, prohibiting any new or expanded14
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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
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that time; and
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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
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WHEREAS, the Carlsbad Energy Center LLC ("Applicant") filed a Notice of
Intention on September 14, 2007 with the California Energy Commission ("CEC") for the
development of the Carlsbad Energy Center Project (CECP), a 558-megawatt (MW) gross
combined-cycle power generating facility; and
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
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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
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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.
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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
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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
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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."
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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
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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
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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
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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
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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 '"
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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
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101 RANCHO SANTA FE RD
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LEUCADIA WASTE WATER DIST
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1960 LA COSTA AVE
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SAN MARCOS CA 92069-2949
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OCEANSIDE CA 92054
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201 VALLECITOS DE ORO
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SCHOOL OF PUBLIC ADMIN AND
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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
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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