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HomeMy WebLinkAbout2011-01-25; City Council; 20431; EL FUERTE APPEAL PLANNING COMMISSION APPROVALCITY OF CARLSBAD - AGENDA BILL A6# m43jL MTG. 1/25/11 DEPT. CED EL FUERTE VIEW APPEAL OF PLANNING COMMISSION APPROVAL OF CT 04-13/HDP 04-06/HMP 09-10 AND CONSIDERATION OF GPA 09-08/ZC 09-09 DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council hold a public hearing and ADOPT Resolution No. 2011-006 to UPHOLD the Planning Commission's approval of Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Permit HMP 09-10 and recommendation to adopt a Mitigated Negative Declaration and approve General Plan Amendment GPA 09-8 and Zone Change ZC 09-09 and DENY the appeal. That the City Council hold a public hearing and ADOPT Resolution No. 2011-007 ADOPTING a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and APPROVING General Plan Amendment (GPA 09-08) and INTRODUCE Ordinance No. cs-116 APPROVING Zone Change (ZC 09-09) based upon the findings and subject to the conditions contained therein. ITEM EXPLANATION: Project Application(s) Environmental Review (MND) GPA 09-08 ZC 09-09 CT04-13 HDP 04-06 HMP 09-10 Administrative Approvals Planning Commission RA RA RA X X X City Council X X X RA = Recommended Approval x = Final City decision-making authority s - requires Coastal Commission approval The El Fuerte View project is a seven lot residential subdivision on a 3.91 acre infill lot located south of El Fuerte Street and west of the intersection with Cacatua Street and El Fuerte Street. The property has a General Plan land use designation of Residential Low-Medium (RLM) and a Zoning designation of One-Family Residential (R-1). The proposed project includes a General Plan Amendment and Zone Change to change a 1.56 acre portion of the property from RLM and R-1 to Open Space (OS). The General Plan Amendment and Zone Change require City Council approval. The project was originally taken to the Planning Commission as a six lot Planned Unit Development subdivision which included a private street. Urged by input from the La Costa Meadows Unit 3 Architectural Review Committee, the basic design of the project was changed to take individual lot access off of El Fuerte Street, thereby revising the grading design and lowering the pad elevations to roughly the same elevation of the adjacent El Fuerte Street. Along with the change in grading and lot access, one lot was added for a total of seven. The requirement for a Planned Unit Development Permit was also eliminated when the project was redesigned to delete the private street. DEPARTMENT CONTACT: Christer Westman 760-602-4614 christer.westman@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D Dn D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES Council approved Resolution No. D /-^ D Da 2011-006 3-// and returned Resolution No. 2011-007 and Ordinance No. CS-116 to the City Planner for reconditions on the project (See Minutes for details) Page 2 The Planning Commission held public hearings on March 17, 2010, April 7, 2010, September 1, 2010, and October 6, 2010. The Planning Commission received testimony from the public including the La Costa Meadows Unit 3 Architectural Review Committee at all public hearings and voted on October 6, 2010 to approve the Tentative Tract Map, Hillside Development Permit, and Habitat Management Permit and recommend approval of the Mitigated Negative Declaration and legislative actions to the City Council on a 5-1-0 (Vice Chairperson L'Heureux voted no and Chairperson Douglas was absent) vote. A full disclosure of the Planning Commission's actions and a complete description and staff analysis of the proposed project is included in the attached minutes and Planning Commission staff report. On October 18, 2010 an appeal of all of the Planning Commission actions was submitted by Robert Lattin on behalf of the La Costa Meadows Unit 3 Architectural Review Committee. A copy of the appeal is attached as Exhibit 7. The reasons listed for the appeal are 1) that an Environmental Impact Report (EIR) should have been prepared for the project and that the project Mitigated Negative Declaration does not adequately address potential impacts; 2) that a Habitat Management Plan mapping error was incorrectly processed; 3) that the grading design and project conditions are insufficient to eliminate a landslide risk; and, 4) that the City has refused to require the project applicant to submit its development plans to the La Costa Meadows Unit 3 Architectural Review Committee for review and approval. The City Council should first consider the appeal since the issues raised on appeal may impact the Council's decision on the legislative actions. Following is staff's summary response to the stated reasons for the appeal: 1. EIR AND ADEQUACY OF CONDITIONS IN THE MMRP ISSUE The proper environmental analysis was conducted in compliance with the procedures established by the California Environmental Quality Act (CEQA). An Environmental Impact Report is not warranted given all of the evidence in the record including biological resources surveys that were conducted and reports submitted in June 2003, May 2004, March 2005, January 2006, and May 2009. The succession of expert testimony contained in the reports support a determination that the site does not contain significant biological habitat or other features which, if eliminated, would be considered a significant adverse impact. All of the reports, including the May 2009 biological survey supported the Notice of Intent to Adopt a Mitigated Negative Declaration which was published in September 2009, which is within four months of when the survey was conducted. No California gnatcatchers have been identified onsite, and it follows that there are no significant impacts to gnatcatchers to be mitigated. Regardless, as a conservative precautionary measure prior to issuance of a grading permit, surveys for gnatcatchers and raptors are conditioned to be conducted to assess the possibility of changed circumstances. Neither the La Costa Meadows Unit 3 Architectural Review Committee nor Coast Law Group has presented any substantial evidence to the contrary, based on fact, that has identified any onsite resource or impact created by the project that is significant including noise, geotechnical status, biology, traffic, and aesthetics. The Coast Law Group claim of "fair argument" as sufficient reason to warrant an EIR is not supported by factual evidence in the record and is therefore not persuasive. 2. HMP PROCESS ISSUE The premise that the project site is within a hardline preserve is incorrect, so all references to improprieties regarding hardline preservation, equivalency findings and HMP hardline amendment protocol do not apply. Figure 28 of the Habitat Management Plan mistakenly included this property as a hardline even though the there was no agreement to designate it as such by the property owner and even though the property is and has been designated as developable as single family residential on both the General Plan and the Zoning Maps. The three signatories to the Habitat Management Plan, the California Department of Fish and Game, the U.S. Fish and Wildlife Service, and the City of Carlsbad, have all agreed that the property was never intended to be designated as a hardline preserve, and all signatories, pursuant to the HMP implementing agreement (following Appendix F in the Habitat Management Plan; Section 20.1(2) correction of any maps or exhibits to correct errors in mapping ...Page 29) have all agreed in writing that mapping the project site as an "existing hardline preserve" was Page 3 done in error and without benefit of the property owner's authorization. The mapping error is therefore the City's responsibility and it is not that of the applicant's to rectify the HMP map and hardline acreages. The claim that the property was correctly designated as a hardline on Figure 28 of the HMP and that the City and applicant improperly removed the property from the HMP as a hardline from the HMP is incorrect. 3. GRADING ISSUE The proposed project has been reviewed by the applicant's geotechnical engineer, by city staff, and by a third-party independent geotechnical engineer. The project is conditioned to undergo further review by a third-party independent geotechnical engineer during the final design process. The grading plans will incorporate the mitigation measures specified by the geotechnical engineers, and all grading onsite will be under the direct supervision of a geotechnical firm. Prior to approval of grading plans, the developer will post sufficient security to complete the grading including all mitigation measures. Upon completion of grading, developer shall file an "as-graded" geologic plan with the city engineer. The plan shall clearly show all the geology as exposed by the grading operation, and all geologic corrective measures as actually constructed. 4. ARCHITECTURAL REVIEW COMMITTEE AS REQUIRED BY CC&RS ISSUE CC&Rs are an agreement between two private entities. The City does not have the authority to require the applicant to submit to the demand of the La Costa Meadows Unit 3 Architectural Review Committee. Once the appeal has been considered, the Council may proceed with consideration of the legislative actions. Staff recommends that the City Council uphold the Planning Commission approval of the El Fuerte View project, deny the appeal, and approve the requested General Plan Amendment and Zone Change. FISCAL IMPACT: There are no direct fiscal impacts to the City associated with this project approval. All public improvements necessary to serve the project will be funded by the developer. ENVIRONMENTAL IMPACT: Staff has conducted an environmental impact assessment to determine if the project could have a potentially significant impact on the environment pursuant to CEQA Guidelines and the Environmental Protection Ordinance (Title 19) of the Carlsbad Municipal Code. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, but mitigation measures, agreed to by the applicant, would avoid or mitigate the effects to a point where no significant effect on the environment would occur, and there is no substantial evidence in light of the whole record that the project as conditioned may have a significant impact on the environment. Consequently, a notice of intent to adopt a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program was published by the Planning Director for public review September 4, 2009 and the Planning Commission held public hearings on the project on March 17, 2010 and April 7, 2010. The project was redesigned in May 2010 so a second notice of intent to adopt a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program was published by the Planning Director for public review June 30, 2010. EXHIBITS: 1. City Council Resolution No. 2011-006 2. City Council Resolution No. 2011-007 3. City Council Ordinance No. CS-116 Page 4 4. Planning Commission Resolutions No. 6669, 6670, and 6671 5. Planning Commission Staff Reports dated September 1, 2010 and October 6, 2010 6. Excerpts of the Planning Commission Minutes dated September 1, 2010 and draft excerpts of the Planning Commission Minutes dated October 6, 2010 7. Letter of appeal dated October 18, 2010. EXHIBIT 1 1 RESOLUTION NO. 2011-006 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING THE APPEAL AND 3 UPHOLDING THE PLANNING COMMISSION'S DECISION TO APPROVE TENTATIVE TRACT MAP CT 04-13, HILLSIDE 4 DEVELOPMENT PERMIT HDP 04-06, AND HABITAT MANAGEMENT PERMIT HMP 09-10 AND RECOMMENDATION 5 TO ADOPT A MITIGATED NEGATIVE DECLARATION AND APPROVE GENERAL PLAN AMENDMENT GPA 09-08 AND 6 ZONE CHANGE ZC 09-09 ON PROPERTY GENERALLY LOCATED SOUTH OF EL FUERTE STREET AND NORTH OF 7 CACATUA STREET IN LOCAL FACILITIES MANAGEMENT ZONE 6. 8 CASE NAME: EL FUERTE VIEW CASE NO.: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 9 09-10 10 WHEREAS, pursuant to the provisions of the Municipal Code, the Planning 11 Commission did, on October 6, 2010, hold a duly noticed public hearing as prescribed by law 12 and approved a Tentative Map CT 04-13, Hillside Development Permit HDP 04-06, and Habitat 13 Management Permit HMP 09-10, recommended adoption of a Mitigated Negative Declaration, 14 and recommended approval of a General Plan Amendment GPA 09-08 and Zone Change ZC 15 09-09 for the grading of a seven lot single family residential subdivision; and 16 WHEREAS, the appellant on October 18, 2010 timely filed an appeal with the City 17 Clerk; and 1 810 WHEREAS, after providing the opportunity for all persons both in favor and 19 opposed to testify on the appeal and having considered all documents, reports, correspondence 20 and other evidence and having duly deliberated on the appeal. 21 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 22 Carlsbad, California, as follows: 23 1. That the above recitations are true and correct. 24 2. That the findings of the Planning Commission in Resolutions No. 6669, 25 6670, 6671, 6672, 6674 and 6675 on file with the City Clerk and incorporated herein by reference constitute the findings of the City Council in this matter. 26 3. That the appellant's appeal is denied with prejudice and that the 27 appellants shall bear their costs of appeal. 28 1 4. This action is the final date this resolution is adopted by the City Council. 2 The provisions of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial 3 Review" shall apply. 4 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council 5 of the City of Carlsbad on the 25th day of January 2011, by the following vote 6 to wit: 7 .. AYES: Council Members Hall, Kulchin, Blackburn, Douglas and Packard. 8 NOES: None. 10 ABSENT: None. 12 13 14 15 MATT H&LlTMayor 16 ATTEST: 17 18 19 lORRAlNE M. WOOD, City Clerk 20 (SEAL/) 21 22 23 24 25 26 27 28 EXHIBIT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2011-007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ADOPTING A MITIGATED NEGATIVE DECLARATION AND MITIGATION MONITORING AND REPORTING PROGRAM AND APPROVING A GENERAL PLAN AMENDMENT TO CHANGE THE GENERAL PLAN LAND USE DESIGNATION FROM RESIDENTIAL LOW MEDIUM (RLM) TO OPEN SPACE (OS) ON A 1.56 ACRE PORTION OF PROPERTY GENERALLY^ULtULU L!UUl'H«£F EL FUERTE STREET AND NORTH OF C^CATUA STREEXlN LOCAL FACILITIES MANAGEMENT ZONE CASE NAME: EL FUERTE VIE\ CASE NO.: GPA 09-08 The City Council of the Qity of Carlsbad^£alifornia, does Jiereby resolve as follows: WHEREAS, pursuant to the \rovisions of the MViicipal tode, the Planning Commission did, on October 6, 2010, hold a duhyWiticed public hearing^ prescribed by law to consider the Mitigated Negatjyi^gclaration and MiViation Monitoring and Reporting Program as referenced in flanning (Jommission Resolution No. 6\69 and the General Plan Amendment ^^GPA 09-08, according to E^iibit "GPA 09-08"\ttached to PlaTining Commission Resolution No. 6670 and incorporated herein by reference to c\ange the General Plan land use designation from Residential L<l/v Medium\RLM) to Open SpacV (OS) on a 1.56 acre portion of land and the Planning Commiss^in adopte\ Planning Commpsion Resolutions No. 6669 and 6670 re%mmending to the\ity Council tftet they be apprcj/ed; and WHERE/\3, the City CouhsiLpf thfXity of Carlsbad, on the day of _, 201\ held a duly noticed public hearing to consider adoption of a Mitigated Negative%eclaratioV and Mitigation Monitoring and Reporting Program and General Plan Amendment GPA 0^38; anc WHEREAS, at sNfiLpVblic hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, the City Council considered all factors relating to the adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and General Plan Amendment. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Carlsbad as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 1.That the above recitations are true and correct. 2. That the recommendation of the Planning Commission for the adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and approval of a General Plan Amendment (GPA 09-08) are adopted and approved, and that the findings and conditions of the Planning Commission contained in Planning Commission Resolutions No. 6669 and 6670 on file with the City Clerk and incorporated herein by reference, are the findings and conditions of the C^v Council. 3. That the application for aVBeneral PlaTN^riendment to change the Land Use designation from Residential Low MediumVRLM) to Oper^pace (OS) on a portion of property generally located south of El Fuerte Stretet and north oflCacatua Street as shown in Planning Commission Resolution No. 6670, is he\by accepted fnd approved, and shall be effective no sooner than thirty days after its adoption.? 4. The Provisions Limits for Judicial Review" shall apply: C^lsbad Municipal Code, "Time The time within whi« by Code of Civil Prc the City o/Carlsbad' other pa| the nine] however] record is| or prepar court is 3VI6Wr seeking ith day foil! if within ten lied with a ition of such rec ;ended to not lither personally iview of thi^ecision must be sought is governed ;edure, Sechqn 1094.6^Vhich has been made applicable in Carlsbad Iwynicipal Code Chapter 1.16. Any petition or led in the appropriate court not later than on which this decision becomes final; cision becomes final a request for the nt sufficient to cover the estimated cost ithin which such petition may be filed in irtieth day following the date on which the or mailed to the party, or his attorney ofrecord is record, if hi has one. A written request for the preparation of the record of the proceedingsXshall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive\)arlsbad, CA. 92008 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 % 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the day of , 2011, by the following vote to wit: AYES: NOES: ABSENT: LL, Mayor LORRAINE M. WOOD, City Clerk (SEAL) Exhibit "GPA 09-08' August 04, 2010 GPA 09-08 El Fuerte View EXISTING PROPOSED Related Case File No(s): ZC 09-09 / CT 04-13 / HDP 04-06 / HMP 09-10 LCPA Land Use Designation Changes Property A.|215-370-28 From: RLM To: RLM and OS C~ y' n i f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. CS-116 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING SECTION 21.05.030 OF THE CARLSBAD MUNICIPAL CODE BY AN AMENDMENT TO THE ZONING MAP TO GRANT A ZONE CHANGE, ZC 09-09, FROM ONE-FAMILY RESIDENTIAL (R-1) TO OPEN SPACE (OS) ON A 1.56 ACRE PORTION OF PROPERTY GENERALLY LOCATED SOUTH OF EL«ERTE STREET AND NORTH OF CACATUA STREET IN LOmfc*EA£ILITIES MANAGEMENT ZONE 6. CASE NAME: EL FUERTE VIE\ CASE NO.: ZC 09-09 The City Council of the Cl\^of Carlsb\l, California, foes hereby resolve as follows: I: That Section 21.050\JO of the C\clsbadJv1unicipal Code, being the zoning map, is amenfied as ihown on the map n\rked ExhibjJfZC 09-09," dated August 4, 2010, attached herejo and madt a part nS|eof. SECriON II: Thai the findingsVid conditions of the Planning Commission as set forth in Planning Commission Re\olution No. 66\1 constitute the findings and conditions of the City Council. DATE: Xhis ordinancl shall be effective no sooner than thirty days adoption, and\he City Clerk shalKertifyJO the adoption of this ordinance and cause it to be pdbtighed at least olice in a publication of general circulation in the City of Carlsbad within fifteen days^ "V \AND FIRST READ at a regular meeting of the Carlsbad City Council on the da^il X 2011, and thereafter. -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of 2011, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: APPROVED AS TO FORM AND LEGAJ? RONALD R. BALJT City MATT HALL, ATTEST: -2- Exhibit "ZC 09-09" August 04, 2010 ZC 09-09 El Fuerte View EXISTING PROPOSED Related Case File No(s): GPA 09-08 / CT 04-13 / HDP 04-06 /HMP 09-10 Zoning Designation Changes Property A. |215-370-28 From: R-1 To: R-1 and OS 12 EXHIBIT 4 1 PLANNING COMMISSION RESOLUTION NO. 6669 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING ADOPTION OF A MITIGATED NEGATIVE DECLARATION 4 AND MITIGATION MONITORING AND REPORTING PROGRAM TO AMEND THE LAND USE ELEMENT OF THE GENERAL PLAN, AMEND THE ZONING MAP, AND TO 6 ALLOW FOR THE SUBDIVISION OF 3.91 ACRES INTO SEVEN SINGLE-FAMILY RESIDENTIAL LOTS AND ONE 7 OPEN SPACE LOT ON PROPERTY GENERALLY LOCATED SOUTH OF EL FUERTE STREET AND NORTH OF 8 CACATUA STREET IN LOCAL FACILITIES MANAGEMENT o ' ZONE 6. CASE NAME: EL FUERTE VIEW 10 CASE NO.: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/ HMP09-10 11 WHEREAS, Michael Schmidt and Nataliya Orlova, "Owner/Developer," has 13 filed a verified application with the City of Carlsbad regarding property described as 14 Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, County of San Diego, State of California, according to Map 15 thereof No. 7076, filed in the Office of the County Recorder of 16 San Diego County, October 16,1971 17 ("the Property"); and 18 WHEREAS, a Mitigated Negative Declaration and Mitigation Monitoring and 19 Reporting Program (MMRP) was prepared in conjunction with said project; and 20 WHEREAS, the Planning Commission did on March 17, 2010, April 7, 2010, 21 September 1, 2010 and October 6, 2010 hold duly noticed public hearings as prescribed by law 22 to consider said request; and 24 WHEREAS, at said public hearings, upon hearing and considering all testimony 25 and arguments, examining the initial study, analyzing the information submitted by staff, and 2® considering any written comments received, the Planning Commission considered all factors 27 relating to the Mitigated Negative Declaration and MMRP. 28 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as follows: A) That the foregoing recitations are true and correct. 2 B) That based on the evidence presented at the public hearing, the Planning 3 Commission hereby RECOMMENDS ADOPTION of the Mitigated Negative Declaration and MMRP, Exhibit "MND" according to Exhibits "Notice of Intent (NOI)," and "Environmental Impact Assessment Form - Initial Study (EIA)," attached hereto and made a part hereof, based on the following findings: Findings: 7 1. The Planning Commission of the City of Carlsbad does hereby find: o0 a. it has reviewed, analyzed, and considered the Mitigated Negative Declaration and n MMRP for the El Fuerte View project, the environmental impacts therein identified for this project and any comments thereon prior to 10 RECOMMENDING APPROVAL of the project; and b. the Mitigated Negative Declaration and MMRP has been prepared in accordance with requirements of the California Environmental Quality Act, the State Guidelines and the Environmental Protection Procedures of the City of Carlsbad; 13 and 14 c. it reflects the independent judgment of the Planning Commission of the City of Carlsbad; and15 ,, d. based on the EIA and comments thereon, there is no substantial evidence the project will have a significant effect on the environment. 17 Conditions: 18 1. Developer shall implement, or cause the implementation of, the EL FUERTE VIEW - 19 GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 Project Mitigation Monitoring 2Q and Reporting Program. 21 22 23 24 25 26 27 28 PC RESO NO. 6669 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on October 6, 2010, by the following vote, to wit: AYES: Commissioners Baker, Dominguez, Montgomery, Nygaard and Schumacher NOES: Vice Chairperson L'Heureux ABSENT: Chairperson Douglas ABSTAIN: STEPHEN "HAP" L'HEUKf UX» Vice Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6669 -3-15 "T*^CITY O V Planning Department www.carlsbadca.gov NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION CASE NAME: El Fuerte View CASE NO: GPA Q9-08/ZC 09-09/CT 04-13/HDP Q4-06/HMP 09-10 PROJECT LOCATION: South side of El Fuerte Street between Chorlito Street and Cacatua Street PROJECT DESCRIPTION: A Tentative Tract Map (CT 04-13), Hillside Development Permit (HDP 04-06), and Habitat Management Permit (HMP 09-10) for the subdivision and grading of a 3.9 acre property into seven residential lots greater than 10,000 square feet in size and a common open space lot generally located on the south side of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. A General Plan Amendment and Zone Change are also proposed to re-designate the open space lot from Residential Low Medium (RLM 0-4 du/ac) and Residential Single Family (R-l) to Open Space (OS) The site has been disturbed previously and includes flat areas as well as manufactured and natural slope areas. Portions of the site are fully disturbed without vegetation, others are disturbed with scattered vegetation and part of the site is in a natural and undisturbed state.. The site is a triangular shape, bordered on the south by existing single family home residences, on the north by El Fuerte Street and on the west by an Open Space preserve area. PROPOSED DETERMINATION: The City of Carlsbad has conducted an environmental review of the above described project pursuant to the Guidelines for Implementation of the California Environmental Quality Act (CEQA) and the Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the City that the project "as revised" may have a significant effect on the environment. Therefore, a Mitigated Negative Declaration will be recommended for adoption by the City of Carlsbad Planning Commission. A copy of the initial study (EIA Part 2) documenting reasons to support the proposed Mitigated Negative Declaration is on file in the Planning Department, 1635 Faraday Avenue, Carlsbad, California 92008. Comments from the public are invited. Pursuant to Section 15204 of the CEQA Guidelines, in reviewing Mitigated Negative Declarations, persons and public agencies should focus on the proposed finding that the project will not have a significant effect on the environment. If persons and public agencies believe that the project may have a significant effect, they should: (1) identify the specific effect; (2) explain why they believe the effect would occur; and (3) explain why they believe the effect would be significant. Please submit comments in writing to the Planning Department within 20 days of the date of this notice. The proposed project and Mitigated Negative Declaration are subject to review and approval/adoption by the City of Carlsbad Planning Commission and City Council. Additional public notices will be issued when those public hearings are scheduled. If you have any questions, please call Christer Westman in the Planning Department at (760) 602-4614. PUBLIC REVIEW PERIOD June 30. 2010-Julv 20. 2010 PUBLISH DATE June 30. 2010 1635 Faraday Avenue, Carlsbad, CA 92008-7314 7(760)602-4600 F (760) 602-8559 ®Jla MITIGATED NEGATIVE DECLARATION CASE NAME: El Fuerte View CASE NO: GPA 09-08/ZC Q9-09/CT Q4-13/HDP 04-06/HMP 09-10 PROJECT LOCATION: South side of El Fuerte Street between Chorlito Street and Cacatua Street PROJECT DESCRIPTION: A Tentative Tract Map (CT 04-13), Hillside Development Permit (HDP 04-06), and Habitat Management Permit (HMP 09-10) for the subdivision and grading of a 3.9 acre property into seven residential lots greater than 10,000 square feet in size and a common open space lot generally located on the south side of El Fuerte Street and north of Cacatua Street in Local 'Facilities Management Zone 6. A General Plan Amendment and Zone Change are also proposed to re-designate the open space lot from Residential Low Medium (RLM 0-4 du/ac) and Residential Single Family (R-l) to Open Space (OS) The site has been disturbed previously and includes flat areas as well as manufactured and natural slope areas. Portions of the site are fully disturbed without vegetation, others are disturbed with scattered vegetation and part of the site is in a natural and undisturbed state. The site is a triangular shape, bordered on the south by existing single family home residences, on the north by El Fuerte Street and on the west by an Open Space preserve area. DETERMINATION: The City of Carlsbad has conducted an environmental review of the above described project pursuant to the Guidelines for Implementation of the California Environmental Quality Act and the Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, and the City of Carlsbad finds as follows: Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on the attached sheet have been added to the project. A copy of the initial study (EIA Part 2) documenting reasons to support the Negative Declaration is on file in the Planning Department, 1635 Faraday Avenue, Carlsbad, California 92008. ADOPTED: [CLICK HERE date] , pursuant to [CLICK HERE Administrative Approval PC/CC Resolution No., or CC Ordinance No.1 ATTEST: DON NEU Planning Director ENVIRONMENTAL IMPACT ASSESSMENT FORM - INITIAL STUDY CASE NO: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 DATE: May 21. 2010 BACKGROUND 1. CASE NAME: El Fuerte View 2. LEAD AGENCY NAME AND ADDRESS: City of Carlsbad 3. CONTACT PERSON AND PHONE NUMBER: Christer Westman (760) 602-4614 4. • PROJECT LOCATION: El Fuerte Street between Chorlito Street and Cacatua Street 5. PROJECT SPONSOR'S NAME AND ADDRESS: Hossein Zomorrodi c/o KS Engineering 7801 Mission Center Court Suite 100 San Diego CA 92108 6. GENERAL PLAN DESIGNATION: Residential Low-Medium (RLNf) 7. ZONING: One Family Residential (R-l) 8. OTHER PUBLIC AGENCIES WHOSE APPROVAL IS REQUIRED (i.e., permits, financing approval or participation agreements): N/A 9. PROJECT DESCRIPTION/ ENVIRONMENTAL SETTING AND SURROUNDING LAND USES: A Tentative Tract Map (CT 04-13"). Hillside Development Permit (HDP 04-06). and Habitat Management Permit (HMP 09-10) for the subdivision and grading of a 3.91 acre property into seven residential lots greater than 10,000 square feet in size and a common open space lot generally located on the south side of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. A General Plan Amendment and Zone Change are also proposed to re-designate the open space lot from Residential Low Medium (RLM 0-4 du/ac) and Residential Single Family (R-l) to Open Space (OS) The site has been disturbed previously and includes flat areas as well as manufactured and natural slope areas. Portions of the site are fully disturbed without vegetation, others are disturbed with scattered vegetation and part of the site is in a natural and undisturbed state. The site is a triangular shape, bordered on the south by existing single family residences, on the north by El Fuerte Street and on the west by an Open Space preserve area. GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The summary of environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact," or "Potentially Significant Impact Unless Mitigation Incorporated" as indicated by the checklist on the following pages. Aesthetics Agricultural Resources Air Quality /\ Biological Resources Cultural Resources Geology/Soils /\ Noise Hazards/Hazardous Materials LJ Population and Housing Hydro logy/Water Quality X. Land Use and Planning Mineral Resources Mandatory Findings of Significance Public Services Recreation Transportation/Circulation Utilities & Service Systems Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View DETERMINATION. I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have "potentially significant impact(s)" on the environment, but at least one potentially significant impact 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. A Negative Declaration is required, but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects (a) have been analyzed adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project. Therefore, nothing further is required. Date G-HO-/Q Planning Director's Signature Date Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View ENVIRONMENTAL IMPACTS STATE CEQA GUIDELINES, Chapter 3, Article 5, Section 15063 requires that the City conduct an Environmental Impact Assessment (EIA) to determine if a project may have a significant effect on the environment. The Environmental Impact Assessment appears in the following pages in the form of a checklist. This checklist identifies any physical, biological and human factors that might be impacted by the proposed project and provides the City with information to use as the basis for deciding whether to prepare an Environmental Impact Report (EIR), Negative Declaration, or to rely on a previously approved EIR or Negative Declaration. • A brief explanation is required for all answers except "No Impact" answers that are adequately supported by an information source cited in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the • impact simply does not apply to projects like the one involved. A "No Impact" answer should be explained when there is no source document to refer to, or it is based on project-specific factors as well as general standards. • "Less Than Significant Impact" applies where there is supporting evidence that the potential impact is not significantly adverse, and the impact does not exceed adopted general standards and policies. • "Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The developer must agree to the mitigation, and the City must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level. • "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significantly adverse. • Based on an "ELA-Initial Study", if a proposed project could have a potentially significant adverse effect on the environment, but all potentially significant adverse effects (a) have been analyzed adequately in an earlier EIR or Mitigated Negative Declaration pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR or Mitigated Negative Declaration, including revisions or mitigation measures that are imposed upon the proposed project, and none of the circumstances requiring a supplement to or supplemental EIR are present and all the mitigation measures required by the prior environmental document have been incorporated into this project, then no additional environmental document is required. • When "Potentially Significant Impact" is checked the project is not necessarily required to prepare an EIR if the significant adverse effect has been analyzed adequately in an earlier EIR pursuant to applicable standards and the effect will be mitigated, or a "Statement of Overriding Considerations" has been made pursuant to that earlier EIR. • A Negative Declaration may be prepared if the City perceives no substantial evidence that the project or any of its aspects may cause a significant adverse effect on the environment. • If there are one or more potentially significant adverse effects, the City may avoid preparing an EIR if there are mitigation measures to clearly reduce adverse impacts to less than significant, and those mitigation measures are agreed to by the developer prior to public review. In this case, the Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP 04-06/HMP 09-10 El Fuerte View appropriate "Potentially Significant Impact Unless Mitigation Incorporated" may be checked and a Mitigated Negative Declaration may be prepared. • An EIR must be prepared if "Potentially Significant Impact" is checked, and including but not limited to the following circumstances: (1) the potentially significant adverse effect has not been discussed or mitigated in an earlier EIR pursuant to applicable standards, and the developer does not agree to mitigation measures that reduce the adverse impact to less than significant; (2) a "Statement of Overriding Considerations" for the significant adverse impact has not been made pursuant to an earlier EIR; (3) proposed mitigation measures do not reduce the adverse impact to less than significant; or (4) through the EIA-Initial Study analysis it is not possible to determine the level of significance for a potentially adverse effect, or determine the effectiveness of a mitigation measure in reducing a potentially significant effect to below a level of significance. A discussion of potential impacts and the proposed mitigation measures appears after each related set of questions. Particular attention should be given to discussing mitigation for impacts, which would otherwise be determined significant. Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant Impact No Impact I. AESTHETICS - Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including but not limited to, trees, rock outcroppings, and historic buildings within a State scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light and glare, which would adversely affect day or nighttime views in the area? a), b), c), and d) No Impact. The site is located in an area that has been developed with single family residential homes and does not have significant value as a scenic resource. The project will not generate significant light or glare since it is a typical single family, detached residential subdivision similar to what is existing in the neighborhood. The site is adjacent to El Fuerte Street (a local collector street), at the toe of a manufactured slope, and has been previously graded. The City does not have a view preservation ordinance for the protection of private views. Regardless, the project will not have a significant effect on the views to the north or west from the existing residential neighborhood located south of .the property along Cacatua Street since the project pad elevations range from 20 to 46 feet lower in elevation than the existing home pads on Cacatua Street. As seen from the properties on the north side of El Fuerte Street, the new development will have a backdrop of the protected and undeveloped upper reaches of the existing slopes. Rev. 02/22/06 23 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact II. AGRICULTURAL RESOURCES - (In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model-1997 prepared by the California Department of Conservation as an optional model to use in assessing impacts on agriculture and farmland.) -Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? c) Involve other changes in the existing environment, which, due to their location or nature, could result in conversion of Farmland to non-agricultural use? a), b), and c) No Impact. There is no evidence that the site has been used for agricultural production. Although the site has been graded, there is no reasonable opportunity for use of the site for agricultural production. There is not a Williamson Act contract on the property. Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View III.AIR QUALITY - (Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations.) Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact b) Violate any air quality standard or contribute substantially to an existing or projected Qi'r quality violation? air c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is in non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? a) No Impact. The project site is located in the San Diego Air Basin which is a state non-attainment area for ozone (O3) and for particulate matter less than or equal to 10 microns in diameter (PM10). The periodic violations of national Ambient Air Quality Standards (AAQS) in the San Diego Air Basin (SDAB), particularly for ozone in inland foothill areas, requires that a plan be developed outlining the pollution controls that will be undertaken to improve air quality. In San Diego County, this attainment planning process is embodied in the Regional Air Quality Strategies (RAQS) developed jointly by the Air Pollution Control District (APCD) and the San Diego Association of Governments (SANDAG). A Plan to meet the federal standard for ozone was developed in 1994 during the process of updating the 1991 state-mandated plan. This local plan was combined with plans from all other California non- attainment areas having serious ozone problems and used to create the California State Implementation Plan (SIP). The SIP was adopted by the Air Resources Board (ARJB) after public hearings on November 9th through 10th in 1994, and was forwarded to the Environmental Protection Agency (EPA) for approval. After considerable analysis and debate, particularly regarding airsheds with the worst smog problems, EPA approved the SIP in mid-1996. The proposed project relates to the SIP and/or RAQS through the land use and growth assumptions that are incorporated into the air quality planning document. These growth assumptions are based on each city's and the County's general plan. If a proposed project is consistent with its applicable General Plan, Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View then the project presumably has been anticipated with the regional air quality planning process. Such consistency would ensure that the project would not have an adverse regional air quality impact. Section 15125(B) of the State of California Environmental Quality Act (CEQA) Guidelines contains specific reference to the need to evaluate any inconsistencies between the proposed project and the applicable air quality management plan. Transportation Control Measures (TCMs) are part of the RAQS. The RAQS and TCM plan set forth the steps needed to accomplish attainment of state and federal ambient air quality standards. The California Air Resources Board provides criteria for determining whether a project conforms with the RAQS which include the following: • Is a regional air quality plan being implemented in the project area? • Is the project consistent with the growth assumptions in the regional air quality plan? The project area is located in the San Diego Air Basin, and as such, is located in an area where a RAQS is being implemented. The project, at a density of 3.2 du/ac is consistent with the General Plan and regional air quality plan and will in no way conflict or obstruct implementation of the regional plan. b) Less Than Significant Impact. The closest air quality monitoring station to the project site is at Camp Pendleton. Data available for this monitoring site from 2000 through December, 2004, indicate that the most recent air quality violations recorded were for the state one hour standard for ozone (a total of 10 days during the 5-year period). No other violations of any air quality standards have been recorded during the 5-year time period. The project would involve minimal short-term emissions associated with grading and construction. Such emissions would be minimized through standard construction measures such as the use of properly tuned equipment and watering the site for dust control. Long-term emissions associated with travel to and from the project will be minimal. Although air pollutant emissions would be associated with the project, they would neither result in the violation of any air quality standard (comprising only an incremental contribution to overall air basin quality readings), nor contribute substantially to an existing or projected air quality violation. Any impact is assessed as less than significant. c) Less Than Significant Impact. The air basin is currently in a state non-attainment zone for ozone and suspended fine particulates. The proposed project would represent a contribution to a cumulatively considerable potential net increase in emissions throughout the air basin. As described above, however, emissions associated with the proposed project would be minimal. Given the limited emissions potentially associated with the proposed project, air quality would be essentially the same whether or not the proposed project is implemented. According to the CEQA Guidelines Section 15130(a)(4), the proposed project's contribution to the cumulative impact is considered de minimus. Any impact is assessed as less than significant. d) No impact. As noted above, the proposed would not result in substantial pollutant emissions or concentrations. In addition, there are no sensitive receptors (e.g., schools or hospitals) located in the vicinity of the project. No impact is assessed. e) No Impact. The construction of the proposed project could generate fumes from the operation of construction equipment, which may be considered objectionable by some people. Such exposure would be short-term or transient. In addition, the number of people exposed to such transient impacts is not considered substantial. Rev. 02/22/06 2CP IV. BIOLOGICAL project: RESOURCES Would the a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian, aquatic or wetland habitat or other sensitive natural community identified in local or regional plans, policies, or regulations or by California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including but not limited to marsh, vernal pool, coastal, etc.) through direct removal, filing, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact a) and b) Potentially Significant Unless Mitigation Incorporated. The project was analyzed in 2005 for biological impacts and a Mitigated Negative Declaration was circulated for comment in 2006. The project was redesigned in 2008 and the foot print of disturbance was reduced which in turn reduced impacts to native and non-native habitats and a Mitigated Negative Declaration was circulated for comment in early 2010. The project was redesigned in May 2010 addressing concerns raised by surrounding property owners in response to the early 2010 public notice. The following discussion is based on the May 2010 redesigned footprint, the 2005 analysis prepared by Dudek; the 2009 analysis 10 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View prepared by Helix Environmental Planning, and an updated May 2010 geographic information system (GIS) map analysis prepared by the City of Carlsbad. The project will affect a total of 1.33 acres of sensitive vegetation communities comprised of 0.31 acres of non-native grass land, 0.14 acres of coastal sage scrub. 0.59 acres of disturbed coastal sage scrub, 0.11 acres of scrub oak chaparral, and 0.18 acres of disturbed scrub oak chaparral. A total of 1.56 acres will not be disturbed by project development. Habitat Type Existing Impacted Not Impacted Non-native grassland Coastal Sage Scrub Coastal Sage Scrub: Disturbed Scrub' Oak Chaparral Scrub Oak Chaparral: Disturbed Developed/Ornamental Ruderal TOTAL 0.31 0.35 0.64 0.73 0.56 0.35 0.97 3.91 0.31 0.14 0.59 0.11 0.18 0.19 0.83 2.35 0.00 0.21 0.05 0.62 0.38 0.16 0.14 1.56 NOTE: Acreage numbers have been rounded down to two decimal points. Mitigation for the impacts to sensitive habitats include the preservation of the 1.56 acre portion of the site in open space, designation of 2.35 acres offsite as hardline preserve, and the payment of the Habitat Management Plan Habitat In-Lieu Fee for each of the specified onsite habitat types. In summary that includes: 1.02 acres of disturbed lands (Group F at al:l ratio); 0.31 acres of non-native grass land (Group E at a 0.5:1.0 ratio), 0.14 acres of coastal sage scrub (Group D at a 1:1 ratio), 0.59 acres of disturbed coastal sage scrub (Group D at a 1:1 ratio), 0.11 acres of scrub oak chaparra] (Group D at a 1:1 ratio), and 0.18 acres of disturbed scrub oak chaparral (Group D at a 1:1 ratio) b), c), and e) No Impact. The project site does not contain a riparian, aquatic or wetland habitat natural community and will therefore not have significant impacts to those communities. Impacts to Coastal Sage Scrub are not considered substantially adverse and will be mitigated through onsite preservation and payment of an in-lieu fee. d) Potentially Significant Unless Mitigation Incorporated The site has the potential of containing habitat for the coastal California gnatcatcher. Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy. e), f) Potentially Significant Unless Mitigation Incorporated. The 3.91 acre site was erroneously identified as an Existing Hardline Preserve area in the City of Carlsbad's Habitat Management Plan. The site has been previously graded and left undeveloped and contains 1.58 acres of disturbed land. With the exception of City-owned parcels, the original Existing HMP Hardline Preserves were intended to include only those properties designated as open space in the City's General Plan or Zoning or those properties encumbered by an open space or conservation easement. The El Fuerte View property was annexed into the City of Carlsbad in 1972 with a General Plan designation of Residential Low Medium (RLM) and a Zoning designation of One Family Residential (R-l) and no changes to those designations have occurred since annexation. The site has never been encumbered by an open space or conservation easement and is shown as developable property in the final subdivision map (La Costa Meadows Unit 3). Since the property was never designated as open space and not encumbered by an easement, and the property owner did not consent to conservation of the property, it was inappropriate for the property to be included in the original Existing HMP Hardline Preserve. 11 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Section 20.1 of the HMP Implementing Agreement (IA) anticipates that some text and mapping errors may occur and provides a process and criteria for correcting these errors. The process involves a Minor Amendment to the HMP, requiring notification to all signatories of the IA and their concurrence on three findings, detailed below: 1. The Minor Amendment shall not result in operations under the HMP that are significantly different than those analyzed in connection with the HMP; 2. The Minor Amendment shall not result in any adverse effects on the environment that are new or significantly different from those analyzed in the original HMP; 3. The Minor Amendment would not result in additional take not analyzed in connection with the original HMP. The El Fuerte View project is conditioned to provide preservation of the associated future HMP Hardline Preserve in perpetuity, guided by an approved Preserve Management Plan and funded by a non-wasting endowment, prior to issuance of a grading permit. The Preserve Manager must file annual reports detailing the management and monitoring activities on the site and coordinate with the City's Preserve Steward as described in the City's Open Space Management Plan (OSMP); therefore no alterations or revisions to HMP operations or implementation would result from the Minor Amendment. The project site's location at the eastern terminus of a larger habitat area with no nearby habitat to the east, north, or south precludes the parcel from serving as a wildlife movement corridor or linkage. The impacted natural lands (coastal sage scrub, chaparral, and non-native grassland habitats) are all habitat types that the HMP envisioned being impacted by development, hence the ability to mitigate these impacts through payment of an HMP In-Lieu Mitigation Fee. Since there are no listed species located within the impact area, the project would not result in any take not analyzed in the original HMP. With regard to completion of the HMP preserve and satisfaction of the conservation levels described in Table 8 of the HMP, the City is undergoing a Citywide evaluation of all HMP lands and lands currently covered by conservation easements and has identified areas that can be added to the preserve in order to offset the loss of acreage associated with this and other future Minor Amendments for mapping corrections should they occur. This process is a preserve-wide issue and relates to the overall City HMP conservation levels rather than a site or project level conservation. 12 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact V. CULTURAL RESOURCES - Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in §15064.5? b) Cause a substantial adverse change in the significance of an archeological resource pursuant to §15064.5? c) Directly or indirectly destroy a unique pale- ontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside of formal cemeteries? a), b), c), and d) No Impact. The site has been previously graded and there is no evidence that the site has significance as a cultural resource. In addition, the California Historic Resources Information Center conducted a records search in August 2009 to determine the need for a cultural resources survey. The National American Heritage Commission (NAHC) Sacred Lands File (SLF) search did not indicate the presence of Native American cultural resources within one-half mile radius of the Area of Project Effect (APE). 13 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View VI. GEOLOGY AND SOILS - Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i. Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic ground shaking? iii. Seismic-related ground failure, including liquefaction? iv. Landslides? b) Result in substantial soil erosion or the loss of topsoil? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction, or collapse? d) Be located on expansive soils, as defined in Table 18 - 1-B of the Uniform Building Code (1997), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? a), b), and e) No Impact. A geotechnical report, Geotechnical Update and Grading Plan Review Report El Fuerte View Project (Carlsbad Tract 04-13) El Fuerte Street Carlsbad, California prepared by Vinje & Middleton Engineering, Inc. dated June 8, 2009, was prepared for the site. The geotechnical investigation determined that the site is not subject to seismic related ground failure. There is no known earthquake fault within or near the property, as delineated on the most recent Alquist Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault. As such there is no evidence that development of the site will expose people to strong seismic ground 14 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View shaking resulting in ground failure including liquefaction and landslides. Refer to Division of Mines and Geology Special Publication 42Standard erosion control methods will be implemented to insure that there is no soil erosion or loss of topsoil. The project will not use septic or alternative wastewater, but will connect to the City sewer system. c) and d) Less Than Significant Impact. Per Geotechnical Update and Grading Plan Review Report El Fuerte View Project (Carlsbad Tract 04-13) El Fuerte Street, Carlsbad, California prepared by Vinje & Middleton Engineering, Inc. dated June 8, 2009, expansive soils were identified onsite. Remedial grading is required which includes excavation and re-compaction of the expansive soils and will be incorporated into the project grading plan. 15 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Potentially Significant Potentially Unless Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact VII. GREENHOUSE GAS EMISSIONS - Would the project: a) Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment? b) Conflict with an applicable plan, policy or regulation adopted for the purposes of reducing the emissions of greenhouse gases? a) No Impact. The City of Carlsbad has not established greenhouse gas emission thresholds to which projects subject to the California Environmental Quality Act may be compared against. However, the California Air Pollution Control Officers Association (CAPCOA) has prepared a document entitled: CEQA and Climate Change; Evaluating and Addressing Greenhouse Gas Emissions frorh projects subject to the California Environmental Quality Act. January 2008. According to the document, absent an adopted threshold and/or Greenhouse Gas Reduction Plan, a tiered approach to determining significance is a viable alternative. The report suggests that residential projects of 50 units will have a contribution of 900 metric tons of greenhouse gasses and that this level of contribution cumulatively can be considered insignificant. The project is one-seventh the size of the suggested sample and can therefore be assumed to have a contribution level of approximately 126 metric tons. This assumed contribution is also considered less than significant. To the greatest extent feasible, new buildings should be constructed using passive solar building design, low-energy building, or zero-energy building techniques, using renewable heat sources. Buildings can be made efficient through the use of insulation, high-efficiency appliances (particularly hot water heaters and furnaces), double- or triple-glazed gas-filled windows, external window shades, and building orientation and siting. Renewable heat sources such as shallow geothermal and passive solar energy reduce the amount of greenhouse gasses emitted. In addition to designing buildings which are more energy efficient to heat, it is possible to design buildings that are more energy efficient to cool by using lighter-colored, more reflective materials in the development of urban areas (e.g. by painting roofs white) and planting trees. This saves energy because it cools buildings and reduces the urban heat island effect thus reducing the use of air conditioning. b) No Impact. The City of Carlsbad has not adopted a Greenhouse Gas Reduction Plan or other regulation regarding the reduction of Greenhouse Gases. 16 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View VIII. HAZARDS AND HAZARDOUS MATERIALS - Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or environment? e) For a project within an airport land use plan, or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 17 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View a), b), c), and d) No Impact. The project is a subdivision of property for single family homes and will not involve hazardous materials. The site is not included on a list of property known to have hazardous materials. e), f) and g) No Impact. The project site is not within two miles of the McClellan-Palomar Airport. The property is not within the airport Flight Activity Zone. The property is within the Airport Overflight Notification Area and therefore, a notice of overflight will be recorded against the property. The property Zoning and General Plan Land Use designation assumes development of the site as residential, and, the City's adopted emergency response or evacuation plan benefits residential development. h) Less Than Significant Impact. An open space preserve with natural vegetation is west of and adjacent to the project. The project design includes a wildfire interface buffer consistent with City of Carlsbad adopted Landscape Manual. 18 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View IX. HYDROLOGY AND WATER QUALITY - Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with ground water recharge such that there would be a net deficit in aquifer volume or a lowering of the local ground water table level (i.e., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner, which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the flow rate or amount (volume) of surface runoff in a manner, which would result in flooding on- or off-site? e) Create or contribute runoff water, which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality? g) Place housing within a 100-year flood hazard area as mapped on a Federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood delineation map? h) Place within 100-year flood hazard area structures, which would impede or redirect flood flows? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 19 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact i) Expose people or structures to a significant risk of loss injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? Potentially Significant Unless Mitigation Incorporated Less Than Significant Impact No . Impact a), b), c), d), e), f), g), h), i), and j) No Impact. A hydrology and hydraulics report was prepared for the property by Aleksandar Pantich, dated May 5, 2005. Although the project design has changed somewhat from what was analyzed in 2005, the project footprint and drainage will essentially remain the same as analyzed in the hydrology study. The project will implement all of the recommendations of the hydrology study and accepted Best Management Practices to protect the downstream flow of waters from pollutants. The project's seven single family residential lots will not have a significant demand on groundwater supplies nor will they have adverse effect on aquifer recharge since the property is located 400 feet above sea level and not in close proximity to an aquifer. The site is not near any streams, rivers, lagoons, estuaries, or lakes, is not in a flood plain, nor is it near the ocean or other bodies of water. Because of its inland location, the property is at no risk for being affected by seiche or tsunami. Mudflows are unlikely because of the remedial grading proposed for the site. 20 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View X. LAND USE AND PLANNING - Would the project: a) Physically divide an established community? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact b)Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c)Conflict with any conservation plan or conservation plan? applicable habitat natural community a) and b) No Impact. The project site is a vacant property located within a neighborhood that is developed with single family homes. Implementation of the project will add seven single family homes at a density of 3.2 du/ac on lots greater than 10,000 square feet to the community. The project is consistent with the General Plan Land Use designation of Residential Low Medium and the Zoning designation of One Family Residential. (0-4 du/ac with a Growth Management Control Point of 3.2 du/ac) c) Potentially Significant Unless Mitigation Incorporated. The 3.91 acre site was mistakenly identified as a hardline preserve area in the City of Carlsbad's Habitat Management Plan. The mapping error is evident in that the site has been previously graded, left undeveloped, and contains 1.58 acres of disturbed land; the site is not part of a dedicated open space easement or preserve; the site has a General Plan Land Use designation of Residential Low Medium (RLM) and a Zoning designation of One-Family Residential (R-l), none of which is consistent with the designation of an "existing" HMP hardline. The error in mapping will be rectified as part of the citywide HMP mapping correction effort that the City is currently undertaking. This citywide mapping correction effort is consistent with the procedure established fqr Minor Amendments according to the Implementing Agreement by and among the City of Carlsbad, California Department of Fish and Game, and the U.S. Fish and Wildlife Service to establish the Habitat Management Plan for the Conservation of Threatened, Endangered, and other Species in the City of Carlsbad California (Section 20.1). The project will pay the HMP habitat in-lieu mitigation fee consistent with the ratios established by the HMP for Group D, E and F habitats. 21 Rev. 02/22/06 GPA 09-OS/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View XI. MINERAL RESOURCES - Would the project: a) Result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan, or other land use plan? a) and b) No Impact. The property is located within an established residential area and is not designated for mineral resource recovery in the General Plan or any other land use plan. 22 Rev. 02/22/06 3F1 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View XII. NOISE - Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundbourne vibration or groundbourne noise levels? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within 2 miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? a) Potentially Significant Unless Mitigation Incorporated. The development of the site with single family residential homes will generate short term noise by construction equipment. Long term noise generation will be consistent with existing single family home development in the area and is not considered significant. An environmental noise assessment was prepared for the project submitted in 2004, by Pacific Noise Control, dated December 18, 2003 to determine what external noise sources may impact the development. The assessment determined that the project may be impacted by traffic noise generated from El Fuerte Street. A noise level of 65 dB(A) CNEL was anticipated for the 2004 design project's back yards adjacent to El Fuerte Street, which is above the acceptable noise level of 60 dB(A) CNEL per the City's Noise Guidelines manual. The project has been redesigned (in 2010) whereby the lots face El Fuerte Street and the rear yard areas are protected from the noise generated along El Fuerte Street by the homes themselves. Therefore, no exterior noise attenuation is required. Limitation of interior noise levels to 45 dB(A) CNEL or less will be achieved through construction techniques, including the use of sound rated windows on elevations facing El Fuerte Street. 23 Rev. 02/22/06 -fO GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View b), c), and d) No Impact. The site is not located near land uses that would cause substantial groundbourne vibration or noise levels. The increase in ambient noise levels will be negligible. The site will be developed with single family homes consistent with the surrounding neighborhood. e) and f) Less than Significant Impact. The project site is located more than two miles from McClellan- Palomar Airport but is within Review Area 2 of the Land Use Compatibility Plan. The project is also within the Airport Overflight Notification Area and will be conditioned to record a notice that the property is subject to overflight resulting from airport operations. 24 Rev. 02/22/06 Lfj GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View XIII. POPULATION AND HOUSING - Would the project: Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact a) Induce substantial growth in an area either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? a), b), and c) No Impact. The project site is a small, vacant, infill property in an existing single family residential neighborhood designated for single family residential development on the General Plan Land Use map and the Zoning Map. Development of the site with single family homes will not induce growth because the entire infrastructure is already in place for the neighborhood. The project will not displace or remove existing housing because it is currently vacant. 25 Rev. 02/22706 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact XIV. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered government facilities, a need for new or physically altered government facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the public services: i) Fire protection? ii) Police protection? iii) Schools? iv) Parks? v) Other public facilities? a) No Impact. The project will not result in substantial adverse physical impacts associated with the provision of new or physically altered government facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the public services. No new facilities will be required to provide the necessary public facilities for the project since adequate services are available and the demand is minimal. 26 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-137 HDP 04-06/HMP 09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact XV. RECREATION a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment? a) and b) No Impact. The project is a small single family residential subdivision of 7 lots plus an open space lot. There will not be a significant increase in demand for public recreation facilities created by the project. No private recreation facilities are required or proposed with the development. 27 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View XVI. TRANSPORTATION/TRAFFIC - Would the project: a) Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? f) Result in insufficient parking capacity? g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turn-outs, bicycle racks)? a) Less Than Significant Impact. The project will generate 70 Average Daily Trips (ADT) and six morning (a.m.) peak hour trips and seven evening (p.m.) peak hour trips. This traffic will utilize the following roadways El Fuerte Street, Poinsettia Lane, and Alga Road. Existing traffic on these arterials are 12,805 ADT (2009) on Alga Road; 7,703 (2010) on Poinsettia Lane and 2,637 ADT (2006) on El Fuerte Street. The 2009 peak hour level of service at the arterial intersection(s) impacted by the project is LOS A. The design capacities of the arterial roads affected by the proposed project are up to 40,000 vehicles per day for both Poinsettia Lane and Alga Road and up to 20,000 vehicles per day for El Fuerte Street. The project traffic would represent 0.0035% of the design capacity of El Fuerte Street. While the increase in traffic from the proposed project may be slightly noticeable, the street system has been designed and sized to accommodate traffic from the project and cumulative development in the City of Carlsbad. The proposed project would not, therefore, cause an increase in traffic that is substantial in relation to the existing traffic load and capacity of the street system. The impacts from the proposed project are, therefore, less than significant. 28 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View b) Less Than Significant Impact. SANDAG acting as the County Congestion Management Agency has designated three roads (Rancho Santa Fe Rd., El Camino Real and Palomar Airport Rd.) and two highway segments in Carlsbad as part of the regional circulation system. The Existing and Buildout average daily traffic (ADT) and Existing LOS on these designated roads and highways in Carlsbad is: Existing APT* LOS Buildout ADT* Rancho Santa Fe Road 17-35 "A-D" 35-56 El Camino Real 27-49 "A-C" 33-62 Palomar Airport Road 10-57 "A-D" 30-73 SR78 124-142 "F" 156-180 1-5 199-216 "D" 260-272 *The numbers are in thousands of daily trips. The Congestion Management Program's (CMP) acceptable Level of Service (LOS) standard is "E", or LOS "F" if that was the LOS in the 1990 base year (e.g., SR 78 in Carlsbad was LOS "F" in 1990). Accordingly, all designated roads and highways are currently operating at or better than the acceptable standard LOS. Note that the buildout ADT projections are based on the full implementation of the region's general and community plans. The proposed project is consistent with the general plan and, therefore, its traffic was used in modeling the buildout projections. Achievement of the CMP acceptable Level of Service (LOS) "E" standard assumes implementation of the adopted CMP strategies. Based on the design capacity(ies) of the designated roads and highways and implementation of the CMP strategies, they will function at acceptable level(s) of service in the short-term and at buildout. c) No Impact. The proposed project does not include any aviation components. The project is consistent with the Land Use Compatibility Plan for the McClellan-Palbmar Airport. It would not, therefore, result in a change of air traffic patterns or result in substantial safety risks. No impact assessed. d) No Impact. All project circulation improvements will be designed and constructed to City standards; and, therefore, would not result in design hazards. The proposed project is consistent with the City's general plan and zoning. Therefore, it would not increase hazards due to an incompatible use. No impact assessed. e) No Impact. The proposed project has been designed to satisfy the emergency requirements of the Fire and Police Departments. No impact assessed. f) No Impact. The proposed project is not requesting a parking variance. Additionally, the project would comply with the City's parking requirements to ensure an adequate parking supply. No impact assessed. g) No Impact. Other than the existing bus routes established by the North County Transit District, the project is not served by or not located in an area conducive to public transportation. 29 Rev. 02/22/06 GPA 09-OS/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View XVII. UTILITIES AND Would the project: SERVICES SYSTEMS a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which would cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? a), b), c), d), e), f), and g) No Impact. The project is the subdivision of the site into seven single family residential lots. The addition of seven residential lots is insignificant and will not exceed wastewater treatment requirements; will not require new or expansion of existing water or wastewater facilities or storm drains. There is sufficient water supply and adequate wastewater capacity for the project through the Carlsbad Water District. Sufficient land fill capacity is available in San Diego County according to the San Diego Integrated Waste Management Plan Countywide Siting Element, 2005 5-Year Revision Final, dated September 2005. 30 Rev. 02/22/06 -f-7 GPA 09-08/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact XVIII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects?) c) Does the project have environmental effects, which will cause the substantial adverse effects on human beings, either directly or indirectly? a) No Impact. The project is proposed for development within an area that has been previously disturbed and therefore does not have the potential to substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) No Impact. Impacts associated with the project are identified to be at a level of less than significant after mitigation. Similarly, past, current and probable future project impacts have been or can be mitigated and therefore will not have a cumulative considerable environmental impact. c) No Impact. The project is intended for the benefit of human beings. 31 Rev. 02/22/06 GPA 09-OS/ZC 09-09/CT 04-137 HDP04-06/HMP09-10 El Fuerte View XIX. EARLIER ANALYSES Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, one or more effects have been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case a discussion should identify the following on attached sheets: a) Earlier analyses used. Identify earlier analyses and state where they are available for review. b) Impacts adequately addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation measures. For effects that are "Less Than Significant with Mitigation Incorporated," describe the mitigation measures, which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 32 Rev. 02/22/06 GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View EARLIER ANALYSIS USED AND SUPPORTING INFORMATION SOURCES The following documents were used in the analysis of this project and are on file in the City of Carlsbad Planning Department located at 1635 Faraday Avenue, Carlsbad, California, 92008. 1. Final Master Environmental Impact Report for the City of Carlsbad General Plan Update (MEIR 93-01). City of Carlsbad Planning Department. March 1994. 2. Hydrology and Hydraulics Report for Carlsbad Tract 04-13, prepared by Aleksandar Pantich, dated May 5, 2005 3. Storm Water Management Plan for Carlsbad Tract 04-13, prepared by Aleksandar Pantich, dated May 23, 2005. 4. Biological Resources Technical Report and Impact Analysis for the El Fuerte Street Property prepared by Dudek and Associates, Inc., dated October, 2005. 5: Revised Impact Analysis of the El Fuerte View Project (Carlsbad Tract Q4-13/HDP 04-06/PUD 04-11) prepared by Helix Environmental Planning, Inc. dated May 20, 2009. 6. Preliminary Geotechnical Investigation prepared by Vinje & Middleton Engineering, Inc., dated April 5, 2004. 7. Environmental Noise Assessment prepared by Pacific Noise Control, dated December 18, 2003. 8. Habitat Management Plan for Natural Communities in the City of Carlsbad final approval November 2004 including implementing agreement and terms and conditions. 9. Geotechnical Update and Grading Plan Review Report El Fuerte View Project (Carlsbad Tract 04-13) El Fuerte Street. Carlsbad, California prepared by Vinje & Middleton Engineering, Inc. dated June 8, 2009 10. Geographic Information Systems mapping for habitat impacts prepared by the City of Carlsbad. 33 Rev. 02/22/06 SO GPA 09-08/ZC 09-09/CT 04-13/ HDP04-06/HMP09-10 El Fuerte View LIST OF MITIGATING MEASURES 1. If construction activities are to occur during the raptor nesting season (February 15-August 31), prior to the commencement of construction, the applicant shall hire a qualified biologist who shall perform a breeding/nesting bird survey to determine if there are birds present on or immediately adjacent to the project site. Nests that are detected within the proposed impact areas shall be avoided until nesting is completed. 2. Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy onsite. 3. Prior to issuance of a Grading Permit, the project applicant shall pay habitat in-lieu mitigation fees as established by the City of Carlsbad Habitat Management Plan for impacts to specified habitat types. In summary that includes: 1.02 acres of disturbed lands (Group F at al:l ratio); - 0.31 acres of non-native grass land (Group E at a 0.5:1.0 ratio), 0.14 acres of coastal sage scrub (Group D at a 1:1 ratio), 0.59 acres of disturbed coastal sage scrub (Group D at a 1:1 ratio), 0.11 acres of scrub oak chaparral (Group D at a 1:1 ratio), and 0.18 acres of disturbed scrub oak chaparral (Group D at a 1:1 ratio). 4. Prior to issuance of a Grading Permit or clearing of any habitat, whichever occurs first, the Developer shall take the following actions to the satisfaction of the Planning Director jn relation to the open space lot which is being conserved for natural habitat in conformance with the City's Habitat Management Plan: a. Select a conservation entity, subject to approval by the City, that possesses qualifications to manage the open space lot(s) for conservation purposes. b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City for estimating the costs of management and monitoring of the open space lot(s) in perpetuity in accordance with the requirements of the North County Multiple Habitats Conservation Plan and the City's Open Space Management Plan. c. Based on the results of the PAR, provide a non-wasting endowment or other financial mechanism acceptable to the Planning Director and conservation entity, if any, in an amount sufficient for management and monitoring of the open space lot(s) in perpetuity. d. Record a Conservation Easement over the open space lot(s). e. Prepare a Preserve Management Plan which will ensure adequate management of the open space lot(s) in perpetuity. 5. Prior to issuance of a Building Permit, sound rated windows shall be included on elevations facing El Fuerte Street and shown on the building plans. 6. To the greatest extent feasible, buildings should be constructed using passive solar building design, low-energy building, or zero-energy building techniques, using renewable heat sources. Buildings should use insulation, high-efficiency appliances (particularly hot water heaters and furnaces), double- or triple-glazed gas-filled windows, external window shades, and building orientation and siting to increase energy efficiency. 34 Rev. 02/22/06 GPA 09-OS/ZC 09-09/CT 04-13/ HDP 04-06/HMP 09-10 El Fucrte View APPLICANT CONCURRENCE WITH MITIGATION MEASURES THIS IS TO CERTIFY THAT I HAVE REVIEWED THE ABOVE MITIGATING MEASURES AND CONCUR WITH THE ADDITION OF THESE MEASURES TO THE PROJECT. Date '7 Signature jf Rev. 02/22/06 35 Page 1 of 3 PROJECT NAME: El Fuerte View APPROVAL DATE: FILE NUMBERS: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06 The following environmental mitigation measures were incorporated into the Conditions of Approval for this project in order to mitigate identified environmental impacts to a level of insignificance. A completed and signed checklist for each mitigation measure indicates that this mitigation measure has been complied with and implemented, and fulfills the City's monitoring requirements with respect to Assembly Bill 3180 (Public Resources Code Section 21081.6). Mitigation Measure Monitoring Type Monitoring Department Shown on Plans Verified Implementation Remarks If construction activities are to occur during the raptor nesting season (February 15-August 31), prior to the commencement of construction, the applicant shall hire a qualified biologist who shall perform a breeding/nesting bird survey to determine if there are birds present on or immediately adjacent to the project site. Nests that are detected within the proposed impact areas shall be avoided until nesting is completed Project Planning Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy onsite. Project Planning Prior to issuance of a Grading Permit, the project applicant shall pay habitat in-lieu mitigation fees as established by the City of Carlsbad Habitat Management Plan for impacts to specified habitat types. In summary that includes: 1.02 acres of disturbed lands (Group F at a1:1 ratio); 0.31 acres of non-native grass land (Group E at a 0.5:1.0 ratio), 0.14 acres of coastal sage scrub (Group D at a 1:1 ratio), 0.59 acres of disturbed coastal sage scrub (Group D at a 1:1 ratio), 0.11 acres of scrub oak chaparral (Group D at a 1:1 ratio), and 0.18 acres of disturbed scrub oak chaparral (Group D at a 1:1 ratio). Project Planning Explanation of Headings: Type = Project, ongoing, cumulative. Monitoring Dept. = Department, or Agency, responsible for monitoring a particular mitigation measure. Shown on Plans = When mitigation measure is shown on plans, this column will be initialed and dated. Verified Implementation = When mitigation measure has been implemented, this column will be initialed and dated. Remarks = Area for describing status of ongoing mitigation measure, or for other information. RD - Appendix P. Page 2 of 3 Mitigation Measure Monitoring Type Monitoring Department Shown on Plans Verified Implementation Remarks Prior to issuance of a Grading Permit or clearing of any habitat, whichever occurs first, the Developer shall take the following actions to the satisfaction of the Planning Director in relation to the open space lot which is being conserved for natural habitat in conformance with the City's Habitat Management Plan: a. Select a conservation entity, subject to approval by the City, that possesses qualifications to manage the open space lot(s) for conservation purposes. b. Prepare a Property Analysis Record (PAR) or other method acceptable to the City for estimating the costs of management and monitoring of the open space lot(s) in perpetuity in accordance with the requirements of the North County Multiple Habitats Conservation Plan and the City's Open Space Management Plan. c. Based on the results of the PAR, provide a non- wasting endowment or other financial mechanism acceptable to the Planning Director and conservation entity, if any, in an amount sufficient for management and monitoring of the open space lot(s) in perpetuity. d. Record a Conservation Easement over the open space lot(s). e. Prepare a Preserve Management Plan which will ensure adequate management of the open space lot(s) in perpetuity which includes erosion control; landscaping restrictions; fencing, signage, and lighting requirements; and predator and exotic species control. Project Planning Explanation of Headings: Type = Project, ongoing, cumulative. Monitoring Dept. = Department, or Agency, responsible for monitoring a particular mitigation measure. Shown on Plans = When mitigation measure is shown on plans, this column will be initialed and dated. Verified Implementation = When mitigation measure has been implemented, this column will be initialed and dated. '1 Remarks = Area for describing status of ongoing mitigation measure, or for other information. V RD - Appendix P. Page 3 of 3 Mitigation Measure Prior to issuance of a Building Permit, sound rated windows shall be included on elevations facing El Fuerte Street and shown on the building plans. To the greatest extent feasible, buildings should be constructed using passive solar building design, low-energy building, or zero-energy building techniques, using renewable heat sources. Buildings should use insulation, high-efficiency appliances (particularly hot water heaters and furnaces), double- or triple-glazed gas-filled windows, external window shades, and building orientation and siting to increase energy efficiency. Monitoring Type Project Project Monitoring Department Building Building Shown on Plans Verified Implementation Remarks Explanation of Headings: Type = Project, ongoing, cumulative. Monitoring Dept. = Department, or Agency, responsible for monitoring a particular mitigation measure. Shown on Plans = When mitigation measure is shown on plans, this column will be initialed and dated. Verified Implementation = When mitigation measure has been implemented, this column will be initialed and dated. Remarks = Area for describing status of ongoing mitigation measure, or for other information. RD - Appendix P. 1 PLANNING COMMISSION RESOLUTION NO. 6670 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF AN AMENDMENT TO THE LAND USE 4 ELEMENT AND THE OPEN SPACE AND CONSERVATION MAP OF THE GENERAL PLAN TO CHANGE THE LAND USE DESIGNATION FROM RESIDENTIAL LOW-MEDIUM 6 (RLM) TO RLM AND OPEN SPACE (OS) ON A 3.91 ACRE PROPERTY GENERALLY LOCATED SOUTH OF EL FUERTE 7 STREET AND NORTH OF CACATUA STREET IN LOCAL FACILITIES MANAGEMENT ZONE 6. 8 CASE NAME: EL FUERTE VIEW 9 ' CASE NO: GPA 09-08 10 WHEREAS, Michael Schmidt and Nataliya Orlova, "Owner/Developer," has 11 filed a verified application with the City of Carlsbad regarding property described as Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, 13 County of San Diego, State of California, according to Map thereof No. 7076, filed in the Office of the County Recorder of 14 San Diego County, October 16,1971 15 ("the Property"); and WHEREAS, said verified application constitutes a request for a General Plan 17 Amendment as shown on Exhibit "GPA 09-08" dated August 4, 2010, attached hereto and on 18 file in the Carlsbad Planning Department, EL FUERTE VIEW - GPA 09-08, as provided in 2Q Government Code Section 65350 et. seq. and Section 21.52.150 of the Carlsbad Municipal Code; 21 and 22 WHEREAS, the Planning Commission did, on March 17, 2010, April 7, 2010, 23 September 1, 2010 and October 6, 2010 hold duly noticed public hearings as prescribed by law 24 to consider said request; 25 WHEREAS, at said public hearings, upon hearing and considering all testimony26 27 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 28 relating to the General Plan Amendment. 1 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 2 Commission of the City of Carlsbad, as follows: 3 A) That the above recitations are true and correct. 4 B) That based on the evidence presented at the public hearing, the Commission RECOMMENDS APPROVAL of EL FUERTE VIEW - GPA 09-08, based on g the following findings: 7 Findings: o 1. The Planning Commission finds that the project is in conformance with the Elements of Q ' the City's General Plan based on the facts set forth in the staff report dated August 4, 2010 including, but not limited to the following: that the proposed change in General 10 Plan Land Use designation from Residential Low-Medium (RLM) to RLM and Open Space (OS) is based on the environmental constraints of the property and is 11 environmentally appropriate for the site in that the sensitive habitat within the 1.56 acre OS parcel will be preserved; that the development of the site with 7 single family lots is consistent with the 0-4 du/ac density range established by the RLM 13 designation since the density proposed is 3.2 du/ac; and, that the Habitat Management Plan requires resource areas to be designated as Open Space at the 14 time of development. 15 2. The change in General Plan Land Use designation from RLM to RLM and OS for ,,. the portions of the site proposed for open space habitat preservation is consistent with the adopted General Plan, in that the General Plan Open Space Element 17 requires resource areas to be designated as Open Space at the time of development. 18 3. The Planning Commission of the City of Carlsbad does hereby find: a. it has reviewed, analyzed, and considered the Mitigated Negative Declaration and 2Q Mitigation Monitoring and Reporting Program (MMRP) for the El Fuerte View project, the environmental impacts therein identified for this project and said 21 comments thereon, and the Program, on file in the Planning Department, prior to RECOMMENDING ADOPTION of the project; and 22 b. the Mitigated Negative Declaration and the MMRP have been prepared in accordance with requirements of the California Environmental Quality Act, the State Guidelines 24 and the Environmental Protection Procedures of the City of Carlsbad; and 25 c. they reflect the independent judgment of the Planning Commission of the City of Carlsbad; and26 27 d. based on the EIA Part II and comments thereon, the Planning Commission, finds that there is no substantial evidence the project will have a significant effect on the 28 environment. PC RESO NO. 6670 -2- 4. The Planning Commission has reviewed each of the exactions imposed on the Developer 2 contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the 3 degree of the exaction is in rough proportionality to the impact caused by the project. Conditions: If any of the following conditions fail to occur, or if they are, by their terms, to be 5 implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to 7 revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer 10 or a successor in interest by the City's approval of this General Plan Amendment. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the General Plan Amendment documents, as necessary to make them internally consistent and in conformity with the final action on the project. 13 Development shall occur substantially as shown on the approved Exhibits. Any proposed development, different from this approval, shall require an amendment to this approval. 14 3. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of building permit issuance. 4. If any condition for construction of any public improvements or facilities, or the payment 17 of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code 18 Section 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 20 5. Developer shall implement, or cause the implementation of, the El Fuerte View Project 21 Mitigation Monitoring and Reporting Program. 22 6. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold „ harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 24 and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this General Plan Amendment, 25 (b) City's approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and 26 (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation 28 survives until all legal proceedings have been concluded and continues even if the City's approval is not validated. PC RESO NO. 6670 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. This approval is granted subject to the approval of the Mitigated Negative Declaration and ZC 09-09 and is subject to all conditions contained in Planning Commission Resolutions No. 6669 and 6671 for those other approvals incorporated herein by reference. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on October 6, 2010, by the following vote, to wit: AYES: Commissioners Baker, Dominguez, Montgomery, Nygaard and Schumacher NOES: Vice Chairperson L'Heureux ABSENT: Chairperson Douglas ABSTAIN: STEPHEN^flA^' L'HEUREtfX, Vice Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6670 -4- Exhibit "GPA 09-08' August 04, 2010 GPA 09-08 El Furte View EXISTING PROPOSED Related Case File No(s): ZC 09-09 / CT 04-13 / HDP 04-06 / HMP 09-10 LCPA Land Use Designation Changes A. Property 215-370-28 From: RLM To: RLM -and OS 1 PLANNING COMMISSION RESOLUTION NO. 6671 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF A ZONE CHANGE FROM ONE-FAMILY 4 RESIDENTIAL (R-l) TO R-l AND OPEN SPACE (OS) ON A 3.91 ACRE PROPERTY GENERALLY LOCATED SOUTH OF EL FUERTE STREET AND NORTH OF CACATUA STREET 6 IN LOCAL FACILITIES MANAGEMENT ZONE 6. CASE NAME: EL FUERTE VIEW 7 CASE NO: ZC 09-09 8 WHEREAS, Michael Schmidt and Nataliya Orlova, "Owner/Developer," has 9 filed a verified application with the City of Carlsbad regarding property described as 10 Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, 11 County of San Diego, State of California, according to Map thereof No. 7076, filed in the Office of the County Recorder of San Diego County, October 16,1971 13 ("the Property"); and 14 WHEREAS, said application constitutes a request for a Zone Change as shown on j 6 Exhibit "ZC 09-09" dated August 4, 2010; and 17 WHEREAS, the proposed Zone Change is set forth in draft City Council 18 Ordinance, Exhibit "X," dated September 1, 2010 and attached hereto as EL FUERTE VIEW 19 -ZC 09-09; and 20 WHEREAS, the Planning Commission did on March 17, 2010, April 7, 2010, 21 September 1, 2010 and October 6, 2010 hold duly noticed public hearings as prescribed by law 22 _„ to consider said request; and 24 WHEREAS, at said public hearings, upon hearing and considering all testimony 25 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 96ZD relating to the Zone Change. 27 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 28 Commission as follows: A) That the foregoing recitations are true and correct. 2 B) That based on the evidence presented at the public hearing, the Commission 3 RECOMMENDS APPROVAL of EL FUERTE VIEW - ZC 09-09, based on the following findings: 4 , Findings: That the proposed Zone Change from One-Family Residential (R-l) to Open Space (OS) on a portion of the project site is consistent with the goals and policies of the 7 various elements of the General Plan, in that the proposed change in zone designation from R-l to R-l and OS is based on the environmental constraints of the property and is environmentally appropriate in that the OS parcel will be included in ah open space habitat preserve area; and, that this area is proposed to be designated as OS on the General Plan Land Use and Open Space and Conservation maps in 10 accordance with the Habitat Management Plan requirements to designate resource areas as open space at the time of development. 11 . That the Zone Change will provide consistency between the General Plan and Zoning as mandated by California State law and the City of Carlsbad General Plan Land Use Element, in that the R-l and OS zone designations shown on Exhibit "ZC 09-09" attached hereto, implement the General Plan Land Use designations of RLM and 14 OS proposed on the site. That the Zone Change is consistent with the public convenience, necessity, and general welfare, and is consistent with sound planning principles in that the Zone Change implements the Habitat Management Plan requirements to designate resource areas 17 as open space at the time of development and the proposed R-l and OS zone designation is compatible with the adjacent and future residential land uses. 18 4. The Planning Commission of the City of Carlsbad does hereby find: 20 a. it has reviewed, analyzed, and considered the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (MMRP) for the El Fuerte View 21 project, the environmental impacts therein identified for this project and said comments thereon, and the Program, on file in the Planning Department, prior to 22 RECOMMENDING ADOPTION of the project; and 23 b. the Mitigated Negative Declaration and the MMRP have been prepared in accordance 24 with requirements of the California Environmental Quality Act, the State Guidelines and the Environmental Protection Procedures of the City of Carlsbad; and 25 c. they reflect the independent judgment of the Planning Commission of the City of 26 Carlsbad; and 27 d. based on the EIA Part II and comments thereon, the Planning Commission, finds 28 that there is no substantial evidence the project will have a significant effect on the environment. PCRESONO. 6671 -2- (£• 5. The Planning Commission has reviewed each of the exactions imposed on the Developer 2 contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the 3 degree of the exaction is in rough proportionality to the impact caused by the project. Conditions: If any of the following conditions fail to occur, or if they are, by their terms, to be 5 implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to 7 revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer 10 or a successor in interest by the City's approval of this Zone Change. 11 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Zone Change documents, as necessary to mate them internally consistent and in conformity with the final action on the project. Development shall 13 occur substantially as shown on the approved Exhibits. Any proposed development, different from this approval, shall require an amendment to this approval. 14 3. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of building permit issuance. 4. If any condition for construction of any public improvements or facilities, or the payment 17 of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code 18 Section 66020. If any such condition is determined to be invalid, this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 20 5. Developer shall implement, or cause the implementation of, the El Fuerte View Project 21 Mitigation Monitoring and Reporting Program. 22 6. Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims 24 and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Zone Change, (b) City's 25 approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all 27 liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have 28 been concluded and continues even if the City's approval is not validated. PCRESONO. 6671 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 7. This approval is granted subject to the approval of the Mitigated Negative Declaration and GPA 09-08 and is subject to all conditions contained in Planning Commission Resolutions No. 6669 and 6670 for those other approvals incorporated herein by reference. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on October 6, 2010, by the following vote, to wit: AYES: Commissioners Baker, Dominguez, Montgomery, Nygaard and Schumacher NOES: Vice Chairperson L'Heureux ABSENT: Chairperson Douglas ABSTAIN: STEPHEN "HAP" L'HEUREUX, Vice Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PCRESONO. 6671 -4- Exhibit "X" September 1, 2010 1 ORDINANCE NO. 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING SECTION 21.05.030 OF 3 THE CARLSBAD MUNICIPAL CODE BY AN AMENDMENT TO THE ZONING MAP TO GRANT A ZONE CHANGE, ZC 09-09, 4 FROM ONE-FAMILY RESIDENTIAL (R-1) TO OPEN SPACE (OS) ON A 1.56 ACRE PORTION OF PROPERTY GENERALLY 5 LOCATED SOUTH OF EL FUERTE STREET AND NORTH OF CACATUA STREET IN LOCAL FACILITIES MANAGEMENT 6 ZONE 6. CASE NAME: EL FUERTE VIEW 7 CASE NO.: ZC 09-09 8 The City Council of the City of Carlsbad, California, does hereby resolve as follows: 9 SECTION I: That Section 21.050.30 of the Carlsbad Municipal Code, being the 10 zoning map, is amended as shown on the map marked Exhibit "ZC 09-09," dated August 4, 2010, attached hereto and made a part hereof. 12 SECTION II: That the findings and conditions of the Planning Commission as set forth in Planning Commission Resolution No. 6671 constitute the findings and conditions of the City Council. EFFECTIVE DATE: This ordinance shall be effective no sooner than thirty days16 after its adoption, 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 within18 fifteen days after its adoption. INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City -, Council on the day of 2010, and thereafter.zl 22 '" 23 '" 24 /// 25 '" 26 I" 27 I" 28 -1- Exhibit "X" September 1, 2010 1 PASSED AND ADOPTED at a regular meeting of the City Council of the City of 2 Carlsbad on the day of 2010, by the following vote, to wit: 3 AYES: 4 NOES: 5 ABSENT: 6 ABSTAIN: 7 8 APPROVED AS TO FORM AND LEGALITY 9 10 M RONALD R. BALL, City Attorney 12 13 CLAUDE A. LEWIS, Mayor 14 ii ATTEST:15 16 17 LORRAINE M. WOOD, City Clerk 18 (SEAL) 19 20 21 22 23 24 25 26 27 28 Exhibit "ZC 09-09' August 04, 2010 ZC 09-09 El Furte View EXISTING PROPOSED Related Case File No(s): GPA 09-03 / CT 04-13 / HDP 04-06 /HMP 09-10 Zoning Designation Changes Property A.1 21 5-370-28 From: R-1 To: R-1 and OS EXHIBIT 5 The City of Carlsbad Planning Department A REPORT TO THE PLANNING COMMISSION Item No. P.C. AGENDA OF: September 1, 2010 Application complete date: 08/09/2005 Project Planner: Christer Westman Project Engineer: Clyde Wickham SUBJECT: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTE VIEW - Request for a recommendation of adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; a recommendation of approval for a General Plan Amendment and Zone Change to designate an open space preservation lot as Open Space; and a request for approval of a Tentative Tract Map, Hillside Development Permit and Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven single family homes and one (1) 1.56 acre open space lot, on property generally located south of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 6669 RECOMMENDING ADOPTION of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and ADOPT Planning Commission Resolutions No. 6670 and 6671 RECOMMENDING APPROVAL of General Plan Amendment GPA 09-08 and Zone Change ZC 09-09, and ADOPT Planning Commission Resolutions No. 6672, 6674, and 6675 APPROVING Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Plan HMP 09-10, based on the findings and subject to the conditions contained therein. II. INTRODUCTION The proposed project is the subdivision and development of a 3.91-acre site into seven, minimum 10,760 square foot, single family residential lots for the development of 7 future single family homes and a 1.56 acre open space lot. The infill project site is generally located south of El Fuerte Street and north of Cacatua Street in La Costa. The proposed project requires a General Plan Amendment (GPA) to change the existing General Plan Land Use designation from Residential Low Medium (RLM) to Residential Low Medium and Open Space (OS). A Zone Change (ZC) is also required to change the existing zoning designation on the property from One-Family Residential (R-l) to One-Family Residential and Open Space (OS). A Tentative Tract Map (CT) is required in order to subdivide the parcel into seven single-family residential lots and one open space lot. A Hillside Development Permit is required to develop the site since it includes natural slopes that are both greater than 15% gradient and greater than 15 feet in height. 1 ( GPA 09-08/ZC 09-09/CT 04-u/HDP 04-06/HMP 09-10 - ELFUERTb VIEW September 1,2010 PAGE 2 A Habitat Management Plan Permit is required since the project will have impacts to natural resources covered by the Habitat Management Plan and the project will mitigate those impacts consistent with the Habitat Management Plan. The GPA and ZC require the approval of the City Council. The approval of the CT, HDP, and HMP is final at the Planning Commission. The project has been reviewed for environmental impacts and no significant unmitigable impacts were found. As designed and conditioned, the project is consistent with all applicable standards and policies, and the necessary findings to approve the project can be made. III. PROJECT DESCRIPTION AND BACKGROUND The 3.91 acre site is vacant, has a General Plan land use designation of Residential Low-Medium (RLM) and zoning designation of one family residential (R-l). The northern to eastern 1.63 acres of the site have been previously graded and include a relatively flat pad area. The remainder of the site is a combination of natural and manufactured slopes. There are slopes from the pad area down to El Fuerte Street up to 30 feet in height and up to the adjoining lots on Cacatua Street up to 60 feet in height. The site contains both native and non-native plant species. To the east, south, and north is existing single family residential development. To the west is a sloping open space lot which is part of an established La Costa subdivision. The project proposal is the development of a 3.91-acre site into seven (7), minimum 10,760 square foot, single-family residential lots for the future development of seven single family homes and one (1) open space lot. The 1.56 acre open space Lot number 8 wraps around the development area to the north and south and contains both natural and manufactured slopes with native and ornamental plant species. The proposed project pads are created by cutting into the slopes and the installation of retaining walls along the south edge of the development area as well as the export of material. Residential lots 2 through 7 are stepped with split pads that differ in elevation by ten feet. The individual residential lots are accessed off of El Fuerte Street. The proposed residential lot areas range in size from 10,760 square feet to 13,878 square feet. The pad areas on the residential lots range in size from 5,300 square feet to 9,500 square feet. No homes are proposed at this time. IV. ANALYSIS The proposed project is subject to the following plans, ordinances, standards, and policies: A. Carlsbad General Plan Residential Low Medium Density (RLM) and Open Space (OS) Land Use designation regulations; B. One-Family Residential (R-l) Zone, and Open Space (OS) Zone (Chapters 21.10 and 21.33 of the Carlsbad Municipal Code); C. Subdivision Map Act and City of Carlsbad Subdivision Regulations (Title 20 of the Carlsbad Municipal Code); D. Inclusionary Housing Ordinance (Chapter 21.85 of the Carlsbad Municipal Code); E. Hillside Development Regulations (Chapter 21.95 of the Carlsbad Municipal Code); GPA 09-08/ZC 09-09/CT 04-1J/HDP 04-06/HMP 09-10 - EL FUERTt VIEW September 1,2010 PAGES F. Habitat Management Plan; and G. Growth Management Ordinance (Chapter 21.90 of the Carlsbad Municipal Code) and Zone 6 Local Facilities Management Plan. The recommendation for approval of this project was developed by analyzing the project's consistency with the applicable regulations and policies. The project's compliance with each of the above regulations is discussed in the sections below. A. Carlsbad General Plan Residential Low-Medium Density (RLM) and Open Space (OS) Land Use Designations / The existing General Plan Land Use designation for the site is Residential Low-Medium Density (RLM). The RLM designation allows for the development of single-family residential dwellings within a density range of 0-4 dwelling units per acre (du/ac) with a Growth Management Control Point (GMCP) of 3.2 du/ac. The project site has a net developable area of 2.18 acres. At the RLM GMCP, the site would yield 6.98 dwelling units. This yield is rounded up to the nearest whole number which is seven (7). The project proposal to develop the site with seven single family lots at a density of 3.2 du/ac is consistent with the intent of the RLM General Plan land use designation. The project's proposed density of 3.2 du/ac is at the Growth Management Control Point density (3.2 du/ac) used for the purposes of calculating the City's compliance with Government Code Section 65584. Consistent with the regulations of the City's Habitat Management Plan, that portion of the property being designated as an open space lot will be designated on the General Plan Land Use map and on the Zoning map as Open Space. The proposed General Plan land use change will place the Open Space lot into a permanent Open Space (OS) land use designation. The remaining portion of the lot, being developed with the single-family lots, will remain as RLM on the General Plan Land Use map. In addition to the above, the project complies with all elements of the General Plan as discussed in Table A below: TABLE A - GENERAL PLAN COMPLIANCE ELEMENT USE, CLASSIFICATION, GOAL, OBJECTIVE OR PROGRAM PROPOSED USES & IMPROVEMENTS COMPLY Land Use The project site is designated RLM (Residential Low- Medium Density). RLM anticipates one-family dwellings at a density of 0-4 du/ac with a GMCP of 3.2 du/ac. Seven (7) single-family lots are proposed for the future construction of detached one- family dwellings. The project's density of 3.2 du/ac is within the RLM density range of 0-4 du/ac, and does not exceed the GMCP of 3.2 du/ac. Yes GPA 09-08/ZC 09-09/CT 04-1 j/HDP 04-06/HMP 09-10 - EL FUERTt VIEW September 1,2010 PAGE 4 TABLE A - GENERAL PLAN COMPLIANCE CONTINUED ELEMENT USE, CLASSIFICATION, GOAL, OBJECTIVE OR PROGRAM PROPOSED USES & IMPROVEMENTS COMPLY Housing Provision of affordable housing. The project is conditioned to purchase one Villa Loma housing credit in order to provide their proportionate share of affordable housing. Yes Public Safety Review new development proposals to consider emergency access, fire hydrant locations and fire flow requirements. The project includes or has been conditioned to provide facilities to ensure that the development proposal complies with public safety requirements. Yes Open Space & Conservation Minimize environmental impacts to sensitive resources within the City. The project includes the preservation of open space and the designation of the open space lot as Open Space (OS) on the General Plan land use map. Yes Open Space & Conservation Utilize Best Management Practices for control of storm water and to protect water quality. The project will conform to all NPDES requirements and has been designed in accordance with the City's Stormwater regulations. It has been conditioned to implement Best Management Practices (BMP) for water quality protection, to comply with the City of Carlsbad Standard Urban Stormwater Mitigation Plan (SUSMP), Order R9-2007-0001 issued by the San Diego Region of the California Regional Water Quality Control Board and with the City of Carlsbad Municipal Code. Yes GPA 09-08/ZC 09-09/CT 04-1 j/HDP 04-06/HMP 09-10 - EL FUERTt, VIEW September 1,2010 PAGE 5 , TABLE A - GENERAL PLAN COMPLIANCE CONTINUED ELEMENT Noise Circulation USE, CLASSIFICATION, GOAL, OBJECTIVE OR PROGRAM Residential exterior noise standard of 60 dB(A) CNEL and interior noise standard of 45 dB(A) CNEL. Require new development to construct all roadways needed to serve the development. PROPOSED USES & IMPROVEMENTS An acoustical site assessment was prepared for the project. According to the report, the project site is impacted by traffic noise originating from El Fuerte Street. Mitigation in the form of each of the future homes will ensure that exterior rear yard areas will not exceed the residential noise standard threshold of 60 dB(A) CNEL. In addition, the project has been conditioned to provide an interior noise analysis prior to the issuance of building permits for the construction of all future homes to ensure compliance with the interior noise standard of45dB(A)CNEL. No improvements to public roadways will be required. The project includes the construction of onsite private driveways. COMPLY Yes ! Yes B. One-Family Residential (R-l) Zone and Open Space (OS) Zone (Chapters 21.10 and 21.33 of the Carlsbad Municipal Code) The project site is presently zoned One-Family Residential (R-l) which is consistent with the existing General Plan Land Use designation of RLM. The R-l Zone is also consistent with the existing R-l zoned properties to the north, south, and east. The proposed Zone Change will place the 1.56 acre Open Space lot into a permanent Open Space (OS) zoning designation. The remaining portion of the lot, being developed with the single-family lots, will remain as R-l on the Zoning map. The project complies with the applicable development standards of the R-l zone in that each residential lot is greater than the minimum 7,500 square feet required and lot widths are greater than the minimum 60 feet required. Lots range in size from 10,764 square feet to 13,878 square feet and range in width from 76 feet to 171 feet. 72 GPA 09-08/ZC 09-09/CT 04-i j/HDP 04-06/HMP 09-10 - EL FUERTt, VIEW September 1,2010 PAGE 6 C. Subdivision Map Act and the City of Carlsbad Subdivision Regulations (Title 20 of the Carlsbad Municipal Code) The Engineering Department has reviewed the proposed tentative tract map and has concluded that the subdivision complies with all applicable requirements of the Subdivision Map Act and the City's Subdivision Ordinance. All major subdivision design criteria have been complied with and the project is conditioned to install infrastructure improvements concurrent with development. The developer will be required to offer various dedications (e.g., drainage, public utility) and will be responsible for a number of public and private improvements, including but not limited to curbs, gutters, sidewalks, sewer facilities, drainage facilities, water line facilities, fire hydrants, and street lights. ' The project has been designed in accordance with the City's Stormwater regulations. It has been conditioned to implement Best Management Practices (BMP) for water quality protection, to comply with the City of Carlsbad Standard Urban Stormwater Mitigation Plan (SUSMP), Order R9-2007-0001 issued by the San Diego Region of the California Regional Water Quality Control Board and with the City of Carlsbad Municipal Code.•i D. Inclusionary Housing (Chapter 21.85 of the Carlsbad Municipal Code) Since the application is proposing 7 dwelling units, Chapter 21.85 (Inclusionary Housing Ordinance) requires that the project offset its impact on housing by providing 15% of the total onsite residential units as affordable to lower income households. Satisfaction of the onsite housing may also be satisfied through the purchase of an affordable housing credit in an existing development. This project has been conditioned to purchase one Villa Loma housing credit in lieu of providing affordable housing onsite as recommended by the Housing Policy Team. E. Hillside Development Regulations (Chapter 21.95 of the Carlsbad Municipal Code) The proposed project involves development over sloping topography with an elevation grade change greater than 15 feet and slopes equal to or greater than 15% gradient. Therefore, the project is subject to the Hillside Development Regulations, Chapter 21.95 of the Zoning Ordinance. Hillside conditions of the project have been properly identified on the constraints map, which show existing and proposed conditions and slope percentages. The project site contains two areas of slopes over 40% inclination. These consist of manufactured 2:1 slopes along the El Fuerte Street frontage and along the south perimeter of the project site, which were created as a result of road improvements for the development of El Fuerte Street and a previously approved and graded pad. The site does not contain any natural slopes greater than 40%. The entire 3.91-acre site is therefore considered developable per the Hillside Ordinance. The project includes grading over 1.78-acres of the 3.9-acre site. The proposed grading includes an estimated 15,556 CY of cut and 2,960 cubic yards (CY) of fill resulting in 12,596 cubic yards (CY) of export and a grading volume of 8,739 cubic yards per acre (CY/AC) which is identified by the Hillside Development Regulations as being within the "potentially acceptable" range (8,000-10,000 CY/AC). The proposed export causes the project to fall into the potentially acceptable range. The export is justified since it achieves a grading scheme which results in pad elevations that are at the same grade elevations as El Fuerte Street. Keeping the lot pads at the same elevation as El Fuerte Street minimizes the visual presence of the project. In addition, and GPA 09-08/ZC 09-09/CT 04-1 j/HDP 04-06/HMP 09-10 - EL FUERTb VIEW September 1,2010 PAGE? consistent with the Hillside Ordinance, the proposed lots are terraced and designed with split pads to follow the existing topography; the project does not propose any manufactured slopes exceeding 40 feet in height; and all manufactured slopes will be landscaped and screened in accordance with the Hillside Development and Design Guidelines and also the City of Carlsbad's Landscape Manual. The project design and lot configuration minimizes the height of the pads relative to El Fuerte Street. The development is clustered near the street to avoid onsite slopes and sensitive habitat as much as possible, retaining walls are used to minimize the grading footprint and maximize hillside and habitat preservation, and the proposed residences are designed to step with topography and minimize grading impacts to the site. ' F. Habitat Management Plan The 3.91 acre site was erroneously identified as a hardline preserve area in the City of Carlsbad's Habitat Management Plan. Section 20.1 of the HMP Implementing Agreement (IA) anticipates that some text and mapping errors may occur and provides a process and criteria for correcting these errors. The process involves a Minor Amendment to the HMP, requiring notification to all signatories of the IA and their concurrence on three findings, detailed below: 1. The Minor Amendment shall not result in operations under the HMP that are significantly different than those analyzed in connection with the HMP; 2. The Minor Amendment shall not result in any adverse effects on the environment that are new or significantly different from those analyzed in the original HMP; 3. The Minor Amendment would not result in additional take not analyzed in connection with the original HMP. The site has been previously graded and left undeveloped and contains 1.58 acres of disturbed land. The site is not part of a dedicated open space easement or preserve. The site has a General Plan Land Use designation of Residential Low Medium (RLM) and a Zoning designation of One Family Residential (R-l), none of which is consistent with an HMP hardline designation. Based on previous consultation with the Wildlife Agencies, it was determined that the error in mapping will be rectified as part of the citywide HMP mapping correction effort that the City is currently undertaking. The project design avoids and minimizes impacts to wildlife habitat and species of concern to the maximum extent practicable. The residential development is clustered on the least environmentally sensitive portion of the site. Mitigation measures have been included with the project to address the interface between the proposed development and the existing habitat, which includes fire management zones, erosion control, landscaping restrictions, fencing, signage and lighting requirements, and predator and exotic species control, and sound rated windows shall be included on elevations facing El Fuerte Street. In addition, prior to issuance of a Grading Permit or clearing of any habitat, whichever occurs first, the Developer is conditioned to select a conservation entity, prepare a Property Analysis Record (PAR), provide a non-wasting endowment or other financial mechanism acceptable to the Planning Director and conservation entity, record a Conservation Easement over the open space lot, and prepare a Preserve Management Plan which will ensure adequate management of the open space lot(s) in perpetuity. GPA 09-08/ZC 09-09/CT 04-1 j/HDP 04-06/HMP 09-10 - EL FUERTb VIEW September 1,2010 PAGES G. Growth Management Ordinance (Chapter 21.90 of the Carlsbad Municipal Code) and Zone 6 Local Facilities Management Plan The proposed project is located within Local Facilities Management Zone 6 in the southeast quadrant of the City. The project is subject to the provisions of the Growth Management Ordinance, as contained in Chapter 21.90 of the Zoning Ordinance. The impacts on public facilities created by the project, and its compliance with the adopted performance standards, are summarized in Table B below. TABLE B - GROWTH MANAGEMENT COMPLIANCE STANDARD City Administration Library Waste Water Treatment Parks Drainage Circulation Fire Open Space Schools Sewer Collection System Water IMPACTS 24.34 sq. ft. 12.98 sq. ft. 7EDU 0.05 acre 11.1CFS 70 ADT Station No. 6 0.58 acres Carlsbad Unified (E=1.84/M=. 56/HS = .62) 7EDUs 3,850 GPD COMPLIANCE Yes Yes Yes Yes Yes Yes Yes N/A Yes Yes Yes V.ENVIRONMENTAL REVIEW Staff has conducted an environmental impact assessment to determine if the project could have a potentially significant impact on the environment pursuant to CEQA Guidelines and the Environmental Protection Ordinance (Title 19) of the Carlsbad Municipal Code. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, but mitigation measures, agreed to by the applicant, would avoid or mitigate the effects to a point where no significant effect on the environment would occur, and there is no substantial evidence in light of the whole record that the project as conditioned may have a significant impact on the environment. A Mitigated Negative Declaration (MND) has been prepared for the project. The project site has been disturbed by previous development and grading. The adjacent properties are developed with residential land uses and all the support utilities and infrastructure has been constructed or has been conditioned to be constructed. Interior noise levels for the future homes may exceed 45 dBA CNEL, therefore, a mitigation measure is included which requires the applicant to submit a supplemental acoustical analysis prior to issuance of a building permit to insure that the plans have been designed so that interior noise levels are mitigated to 45 dBA or less. The project will affect a total of 1.33 acres of sensitive vegetation communities comprised of 0.31 acres of non-native grass land, 0.14 acres of coastal sage scrub, 0.59 acres of disturbed coastal sage scrub, 0.11 acres of scrub oak chaparral, and 0.18 acres of disturbed scrub oak GPA 09-08/ZC 09-09/CT 04-1J/HDP 04-06/HMP 09-10 - EL FUERIc, VIEW September 1,2010 PAGE 9 chaparral. A total of 1.56 acres will not be disturbed by project development. Mitigation has been identified in the project Mitigation Monitoring and Reporting Program (MMRP). In consideration of the foregoing, the Planning Director issued a notice of intent to adopt a Mitigated Negative Declaration for the project on June 30, 2010. The notice was sent to the La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee, U.S. Fish and Wildlife Service (USFWS), and California Department of Fish and Game (CDFG). Comments were received from the La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee during the 20 day public review period which ended on July 20, 2010. A written response was provided to the La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee. Both the La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee comment letter and written response is included as attachments. ATTACHMENTS: 4-. Planning Commission Resolution No. 6669 (MND) 3: Planning Commission Resolution No. 6670 (GPA) 3-. Planning Commission Resolution No. 6671 (ZC) 4-. Planning Commission Resolution No. 6672 (CT) $-. Planning Commission Resolution No. 6674 (HDP) &-. Planning Commission Resolution No. 6675 (HMP) 7. Location Map 8. Background Data Sheet 9. Local Facilities Impact Assessment Form 10. Disclosure Statement 11. Comment letter from La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee 12. Response letter to the La Costa Meadows Unit 3 Homeowners Association Architectural Review Committee 13. Minor HMP Amendment approval by US Fish and Wildlife Service 14. Minor HMP Amendment approval by California Department of Fish and Game 15. Reduced Exhibit 16. Full Size Exhibit "A" dated August 4, 2010 SITEMAP NOT TO SCALE El Fuerte View GPA 09-08 / ZC 09-09 / CT 04-13 HDP 04-06/HMP 09-10 "7 1 BACKGROUND DATA SHEET CASE NO: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 CASE NAME: EL FUERTE VIEW APPLICANT: Michael Schmidt and Nataliva Orlova REQUEST AND LOCATION: Subdivision of 3.91 acres into 7 residential lots and one open space lot generally located south of El Fuerte Street and north of Cacatua Street. LEGAL DESCRIPTION: Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 7076, filed in the Office of the County Recorder of San Diego County, October 16, 1971. i APN: 215-370-28-00 Acres: 3.91 Proposed No. of Lots/Units: 8 lots/7 SFR units GENERAL PLAN AND ZONING Existing Land Use Designation: RLM Proposed Land Use Designation: RLM/OS Density Allowed: 3.2 du/ac Density Proposed: 3.2 Existing Zone: R-l Proposed Zone: R-l/OS Surrounding Zoning, General Plan and Land Use: Zoning General Plan Current Land Use Site North South East West R-l R-l R-l R-l OS/PC RLM RLM RLM RLM OS/RLM Vacant Single Family Detached Single Family Detached Single Family Detached OS/SF Detached LOCAL COASTAL PROGRAM Coastal Zone: \~] Yes 1X1 No Local Coastal Program Segment: N/A Within Appeal Jurisdiction: [ I Yes [X] No Coastal Development Permit: | | Yes [X] No Local Coastal Program Amendment: | | Yes [X] No Existing LCP Land Use Designation: N/A Proposed LCP Land Use Designation: N/A Existing LCP Zone: N/A Proposed LCP Zone: N/A PUBLIC FACILITIES School District: San Marcos Water District: Carlsbad Sewer District: Leucadia County Equivalent Dwelling Units (Sewer Capacity): 7. Revised 01/06 ENVIRONMENTAL IMPACT ASSESSMEIS f Categorical Exemption, Mitigated Negative Declaration, issued August 4. 2010. I | Certified Environmental Impact Report, dated D Other, •79Revised 01/06 CITY OF CARLSBAD GROWTH MANAGEMENT PROGRAM LOCAL FACILITIES IMPACTS ASSESSMENT FORM PROJECT IDENTITY AND IMPACT ASSESSMENT: FILE NAME AND NO: EL FUERTE VIEW - GPA 09-08/ZC 09-09/CT 04-13/HDP 04- 06/HMP 09-10 LOCAL FACILITY MANAGEMENT ZONE: 6 GENERAL PLAN: RLM ZONING: R-l DEVELOPER'S NAME: Michael Schmidt and Nataliva Orlova ADDRESS: 13617 Valero Street, #C. Van Nuys. CA 91405 PHONE NO.: 310-699-5122 ASSESSOR'S PARCEL NO.: 215-370-28-00 QUANTITY OF LAND USE/DEVELOPMENT (AC., SQ. FT., DU): 3.91 acres/7 SFR A. B. C. D. E. F. G. H. I. J. K. L. City Administrative Facilities: Library: Wastewater Treatment Capacity Park: Drainage: Circulation: Fire: Open Space: Schools: Sewer: Water: Demand in Square Footage = 24.34 0.05 11.1 D 70 = 6 Demand in Square Footage = 12.98 7_EDU Demand in Acreage = Demand in CFS = Identify Drainage Basin Demand in ADT = Served by Fire Station No. = Acreage Provided = Elementary Middle High Demands in EDU Identify Sub Basin = Demand in GPD = 3,850 1.56 1.84 0.56 .62 7 LCWD The project is 0.02 units above the Growth Management Dwelling unit allowance. <£% • ty CITY OF CARLSBAD DISCLOSURE STATEMENT Development Servi^s Planning Department 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this information is completed. Please print. APPLICANT (Not the applicant's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership. include the names, titles, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person NO^O &*4( (P&M Corp/Part _ Title Address \fa&4UO Title Address OWNER (Not the oer's agent) Provide the COMPLETE, LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e., partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, titles, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW, If a publicly-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary.) Person Title Corp/Part_ Title Address V* <&*/# - Page 1 of 2 Revised 04/09 ORIGINAL 3. NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust. list the names and addresses of ANY person serving as an officer or director of the non- profit organization or as trustee or beneficiary of the. Non ProWTrust Non ProfttTTrust Title Title Address Address 4. Have you had more than $500 worth of business transacted with any member of City staff, Boards, Commissions, Committees and/or Council within the past twelve (12) months? Yes LjNo If yes, please indicate person(s): NOTE: Attach additional sheets if necessary. I certify that all the above information is true and correct to the best otfny Knowledge. Signaturffof owner/date ' Signature ft applicant/date ">^ Print or type "name of owner Print or type name of applicant Signature of owner/applicant's agent if applicable/date Print or type name of owner/applicant's agent f-1 W Paga 2 of 2 Revised 04/09 TENTATIVE MAP - EL FUERTE VIEW CARLSBAD TRACT 04-13 / HDP 04-06 SHEET 1 OF 1 SHEETS MENT NET NOTES:FIRE DEPARTM 1. AREA: 18 AC. NET 2. PRESENT ZONE: R-1-7SOO 1 PROPOSED ICHfc R-I-7MO 4. PROPOSED Oman u OJJ./AC. 3. GENERAL PLAN OE9GNADON: IU / 0-4 O.U./AC. 8. SHUET RNHT-OF-UK JS'-WDE PRIVATE (MC 7. CUT MAX 11. FUMAX 11 a. PROMHMT sou REPORT re UK* * UODLETON EHONECHNG we. a. TOPOGRAPHY MM CONTOUR MIERMAL OF I BY UERCATOH ASSOC. DATED M/02/M 10, LOT SURFACE OflAHAGC PER CITY SID. SS-li MB LJWER PAD HIH J" PVC TELEPHONE: SBC WATER: UALLECITOS WATER aSWCT SEK& OTT OF CARLSBAD (ANNEXATION M PROCESS) fK PHOTECDOK OTT OF CARLSBAD SCHOOLS CARLSBAD UHFKD SCHOOL cower M ACnWMAl EASEMENTS KAY BE REGURCD BT QTY EWMEER 13. FIRE H1MAHT5 AS REQUDED BY QTY CMONEER AND FK. UAR5HM. CFUHI& •SIMZT: (PHVATE DRIVE} 'OPFJI SPACE: 1 15. AVtflAOE DALY TOAfBC I IXia - M 16. ASSESSOR'S PARCEL NUUEft 2JS-J70-28 17. SAM OKCO COUNTY WAOR AUMMTY CAPAQTY CHAROE WU. BC COLLECIED AT ISSUANCE OF AmjCATJOM FOR ANT VETO WSTAUADOH It AVEHAGE SEVER CENERAUON PER OAT; J« X 7 - i860 GPO IB. AVERAGE POTABLE HMTER OEUAMD PER DAT: 7 X S50 SW> • IflSO CPO. 30. SKKU DRAM: EASCUENTS AtU NPROVEUENn AS KOUREO BI 1HC OTY OF CARLSBAD FfiOU TABL A-I. (wi nn. v - unt nuwt - FIRE FLOW DEUAMD H 6AUONS PfX UVUTE - 2.SOO GFU FUHI DURA1KM - 2 HOURS QUANTITIES: OWNER/PERMITEE: . 1X17 VALEMO STflEH ftVAH HUTS, CA I1«S REFERENCE PLAN: OVG 1U/1I * UAP 707* LEGAL DESCRIPTION (DEED « 2004-10271641 REFERRED TO W WIS REPUHT IS STUAIED W THE STAlE OF CAUFOHNIA.; SAN OEGO AND IS DESCRIBED AS FOUOW& LOT »J OF U COSTA UEAOOWS UNIT NO. 3. H THE CITY OF CAAL5BAO. COUNTY OF SAN OCGO. STATE OF CAUFQfiNIA. ACCORDING TO MAP THEREOF NO. 7076, fILED M M TOTAL GRADED AHEA-1.76 ACRES SOLAR STATEMENT: PUflSUAtn TO CHAPlBt 4. AROCLE t. SECTION M4711 PARACRAWS 1 AND HTHE DE5KH at MS SuaOIMSON NKMOCSTURAL HEATING OR COOLMG OPPOHIUMTES. QUDNG KAIERUAW OOSIUH SEVER UAH PREP. SEVER SOW. PROP. WATER SEW. HJHAE ORIWMAY PROP- CONC. PROP. CONC. BROW DITCH PROP. SLOPE 11 PROP. C»e HALL OR EQUAL PROP. SEWS UAMHOLE PROP. DMUH LINE P80P. DHVEWA CONSTRUCTION NOTES: (TJ EXIST. 30* HOP STORy PROP. CONCRC7E SUE1ALK. Q PROP. 0* SCtCft HAW. Ql PROP. SEVER MANHGU. ENGINEER OF WORK TYPICAL STREET SECTION EL FUERTE STREET LA COSTA MEADOWS UNIT NO. 3 HOMEOWNERS ASSOCIATION 2848 Cacatua Street Carlsbad, CA 92009 (760)918-0180 Architectural Committee: James Bradley Anne Estes \ 2 20tO Robert Lattin June 12,2010 " ^_ CITY OF CARLSBAD Christer Westman PLANNING DEPT City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, CA 92008-7314 Re: Case Name: El Fuerte View Case No: GPA 09-08/CT 04-13/PUD 04-11/HDP 04-06/HMP 09-10 Project Location: El Fuerte Street between Chorlito St. and Cacatua SL Dear Mr. Westman: In response to the Mitigated Negative Declaration, we request that the City of Carlsbad Planning Commission not proceed- with the review and/or approval of the above noted project until the following conditions are met: 1. APPROVAL BY THE ARCHITECTURAL COMMITTEE OF LA COSTA MEADOWS UNIT NO. 3. The proposed project is in violation of the Covenants, Conditions and Restrictions (CCR's) on the title of the property. The owners of the property are required to furnish the appropriate documents along with certain fees to the Architectural Committee of La Costa Meadows Unit No. 3., to be reviewed and approved. The owners are aware of this requirement. They have been provided with copies of the CCR's and the Architectural Committee has met with and explained these requirements with the owners. At our suggestion on April 5, 2010 the owners reconfigured the design and put the lots at street level. However, in utter disregard of our request, the owners increased the number of lots from 6 to 7. The owners have apparently chosen to ignore the Architectural Committee. This MND and the plans provided is not a presentation to the . Architectural Committee. Therefore the Architectural Committee of La Costa Unit #3 does not approve this project. 2. VIOLATION OF THE HABITAT MANAGEMENT PLAN. The proposed project is in violation of the Habitat Management Plan of the City. According to the Habitat Management Plan the proposed project is in a hardline preserve area where no building is allowed. The Planning Department has indicated that this designation was in error and wants to correct this error by Christer Westman June 12, 2010 Page 2 use of a minor amendment per section 20.1 of the HMP Implementation Agreement. According to Section 20.1 of the HMP Implementing Agreement a minor amendment proposal must be provided to all parties which would included City Council of Carlsbad, the California Fish and Game, and the U.S. Fish and Wildlife Service. According this section, "proposed modifications will become effective upon all other parties' written approval". It is our understanding there is no written approval from any of the parties. According to Section 20.1 of the HMP Implementing Agreement "If, for any reason, a receiving party objects to a proposed minor amendment, it must be processed as a major amendment". In a letter dated October 6, 2009, the United •States Department of the Interior Fish and Wildlife Service stated: "As we stated in our previous comments, and HMP minor amendment/equivalency finding would not be appropriate for this project because no equal amount of habitat is proposed to be added to the HMP preserve". The Planning Department should not submit this project to the Planning Commission until a minor amendment or a major amendment to the HMP is approved in writing by all parties to the Habitat Management Plan. The Planning Commission should also obtain a legal opinion as to whether the Planning Commission can approve on behalf of the City any amendments to the HMP. 3. NEW REVIEW OF BIOLOGICAL RESOURCES In 2005 the owner's biologist found 6 pair of the California Gnatcatchers on the property. Since that time, the property owners surrounding the property continue to see each year a number California Gnatcatchers on the property. Disruption of this property will clearly impact the nesting habits of the California Gnatcatcher. A-further study by an independent biologist should be made reviewing the impact of this project on the California Gnatcatcher before this property is removed from the Hardline Reserve category of the Habitat Management Plan. The Planning Department may be unaware of the rocks located on the property that have shells and other marine life imbedded in them. These rocks could possibly indicate that the ocean was at this location millions of years ago. Before this site is destroyed, the Planning Department should require the appropriate geologist examine these rocks. Photos of the rocks were provided in our 2006 comments on the MND. New photos will be provided upon request. 4. INDEPENDENT REVIEW OF SLOPE STABILITY AND BOND REQUIREMENT. Slope stability appears to be a major problem addressed in the Vinje & Middleton Engineering, inc., Geotechnical Update and Grading Plan Review . Report dated June 8, 2009. Such statements as "areas of potential shallow slope instability are recognized on the project" and "Surface slumping and slope Christer Westman June 12, 2010 Page 3 creep movement is apparent which could impact developed properties" are a concern to surrounding residents. Rich Wong, a geologist in the area, is also concerned about the slope stability. He said, "The proposed 12-ft high crib wall along the southern portion of the development will require a steep, temporary cut slope to allow for the construction of the wall. This steep excavation could affect the stability of the. slope located beneath the homes located on the north side of Cacatua Street." Large equipment and estimates of from 700 to 1000 dirt trucks on the property could undermine the slope. The City of Carlsbad is also concerned about the possibility of undermining the existing residences and it has called for additional independent review before the grading permit is issued. This- independent review should be made prior to the Planning Commission approving this project. To protect the surrounding developed properties, a bond should be provided by the developer to pay for any damage done by the grading. 5. AESTHETICS: PRESOLD REQUIREMENT BEFORE ISSUING GRADING PERMIT At our April 5, 2010 meeting, the owners of the property indicated their plan was to grade the property into the 7 lots and then sell each of the lots. As the real estate market is questionable at this time, there would be a good chance that the property would be graded and then would sit for a number of years in a half completed state. This would be potentially dangerous, an eyesore and reduce property values in the surrounding neighborhood. The planning department should require that a number of the lots be sold prior to issuing a grading permit. - Reference is made to our previous letters of concerns dated March 24, 2006 and April 5, 2010 related to the Mitigated Negative Declaration. Even though the project was changed, a number of our concerns, at that time, still apply and have not been reiterated here. Sincerely, Robert Lattin Cc: Don Neu (/ Janet Stuckrath, US Fish and Wildlife Service Libby Lucas, California Department of Fish and Game ••file ' C I T Y O F CARLSBAD Planning Division www.carisbadca.gov August 16, 2010 Robert Lattin La Costa Meadows Unit No.3 Homeowners Association 2848 Cacatua Street Carlsbad CA 92009 RE: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - El Fuerte View Dear Mr. Lattin: Thank you for your comment letter dated June 12, 2010 in response to the Notice of Intent to Adopt a Mitigated Negative Declaration for the El Fuerte View project. Following are responses to your comments. The Architectural Review Committee's comments and these responses will become a part of the public record that will be presented to the Planning Commission for their consideration. 1. Approval by the La Costa Meadows Unit No. 3 Architectural Review Committee The City is not in the position to enforce CC&Rs with the exception of articles which have been incorporated into the CC&Rs as a condition of the City's approval and are explicitly stated to be subject to the City's authority. The formation of the Architectural Review Committee and their charge according to the CC&Rs was not a condition of approval imposed by the City and is therefore not subject to the City's authority. 2. Violation of the Habitat Management Plan As stated on numerous occasions, the El Fuerte View property was erroneously mapped as an "existing hardline preserve" in the Habitat Management Plan. The City has coordinated with both the USFWS and the CDFG on a Minor Amendment to rectify the site mapping designation. 3. New review of biological resources Biological resources surveys were conducted and reports submitted in June 2003, May 2004, March 2005, January 2006, and May 2009. None of the surveys indicate that California gnatcatchers are present onsite. Conversely, the reports do state that there is coastal sage scrub onsite, but, that it is of a quality and concentration that it would not likely be occupied by the California gnatcatcher. The reference to rocks onsite that have shells and other marine life imbedded in them suggests that the property may have a significant paleontological value. However the soils types identified in the soils report for the site are existing fill and soil slump debris which are not consistent with those typically containing significant paleontological resources. 1635 Faraday Avenue, Carlsbad, CA 92008-7314 T 760-602-4600 F 760-602-8559 ©- Air Quality: The comments did not relate to air quality but referred to the Habitat Management Plan In-Lieu Fee, the visual quality of the project, and project grading which have been addressed above. Biological Resources: The comments focus on the status of the erroneous "existing hardline" mapping. The same comments are found in the June 12, 2010 letter and are addressed above. Geology & Soils: The comments refer to the project's original grading design which included the creation of 1.5:1 slopes. The redesigned project does not include the creation of new 1.5:1 slopes. Final design of the site grading will consider all of the technical aspects of grading methodology proposed for the specific soils types found onsite. Hazards and Hazardous Materials: The comment refers to wildfire interface. The project includes the City's standard 60 foot , three fire suppression zone plan. The maintenance of the fire suppression zones is the responsibility of the individual private property owners for that portion of the zone that is within each homeowner's lot and the of the homeowners association for those portions of the zones that are within the commonly held open space lot. The plan has been reviewed by the City of Carlsbad Fire Prevention Division and found to be acceptable. Land Use and Planning: The comments refer to the status of the erroneous "existing hardline" mapping. The same comments are found in the June 12, 2010 letter and are addressed above. In addition, the property has a General Plan land use designation of Residential Low Medium which allows for residential development at a density of 3.2 dwelling units per acre. The property is zoned R-1 which anticipates single family detached residential development. Development of the property with single family residential is consistent with the General Plan, Zoning Ordinance and with the surrounding existing neighborhoods which are also single family residential. Noise: The comment refers to noise impacting the project that is generated by vehicular movement on El Fuerte Street. The project will be subject to noise generated along El Fuerte Street. The City's noise guidelines require that noise at the backyard is mitigated to no more than 60db CNEL. This mitigation will be achieved by the homes themselves since they are located between the noise source and the backyard. Transportation/Traffic: The comments refer to the proposal of a private street. The project has been redesigned and no longer includes a private street. Your letters dated August 24, 2006, April 5, 2010 and June 12, 2010 and this letter of response will be included in the public record for the Planning Commission's consideration. Sincerely, CHRISTER WESTMAN, AICP Senior Planner c: Don Neu, Planning Director Chris DeCerbo, Principal Planner Glen Van Peski, Senior Civil Engineer Clyde Wickham, Associate Engineer Christer Westman From: Elizabeth Lucas [ELucas@dfg.ca.gov] Sent: Monday, August 23, 2010 11:34 AM To: Christer Westman Cc: Mike Grim; Janet_Stuckrath@fws.gov Subject: El Fuerte View HMP Minor Amendment Christer, Assuming that the USFWS' understanding reflected in Danet's email below is correct, the Department too concurs with your request to process a Minor Amendment for El Fuerte View based on Section 20.1(2) of the City's HMP. Thank you. , , Libby Lucas Staff Environmental Scientist NCCP Program California Department of Fish and Game 4949 Viewridge Avenue San Diego CA 92123 Phone: 858 467-4230 Fax: 858 467-4299 e-mail: ELucas(Sdfg. ca.gov Starting August 1, 2010, per Governor Schwarzenegger's Executive Order S-12-10, this office will be closed on the second, third, and fourth Fridays of each month. Original Message From: Danet_Stuckrath@fws.gov [mailto:3anet_Stuckrath@fws.gov] Sent: Thursday, August 12, 2010 4:05 PM To: Christer Westman Cc: David_Zoutendyk@fws.gov; ELucas@dfg.ca.gov; Mike Grim Subject: El Fuerte View HMP Minor Amendment FWS-SDG-06B0013-10TA0891 Christer, Following our review of the additional information you provided to us via electronic mail on Duly 16, 2010, the Service concurs with your request to process a Minor Amendment based on Section 20.1(2) of the City's HMP. Our concurrence is based on our understanding that the City is in the process of a City-wide mapping correction to address errors in mapping that occurred at the time the HMP was approved. It is our expectation that the removal of 2.35 acres of the El Fuerte View property that was erroneously designated as Hardline Preserve will be balanced with the addition of other lands elsewhere in the City. We expect the City to ensure no-net-loss of overall preserve as a result of the mapping correction process. Janet Stuckrath U.S. Fish and Wildlife Service (760) 431-9440 ext. 270 (760) 431-5902 (fax) Christer Westman From: Janet_Stuckrath@fws.gov Sent: Thursday, August 12, 2010 4:05 PM To: Christer Westman Cc: David_Zoutendyk@fws.gov; ELucas@dfg.ca.gov; Mike Grim Subject: El Fuerte View HMP Minor Amendment FWS-SDG-06B0013-10TA0891 Christer, Following our review of the additional information you provided to us via electronic mail on July 16, 2010, the Service concurs with your request to process a Minor Amendment based on Section 20.1(2) of the City's HMP. Our concurrence is based on our understanding that the City is in the process of a City-wide mapping correction to address errors in mapping that occurred at the time the HMP was approved. It is our expectation that the removal of 2.35 acres of the El Fuerte View property that was erroneously designated as Hardline Preserve will be balanced with the addition of other lands elsewhere in the City. We expect the City to ensure no-net-loss of overall preserve as a result of the mapping correction process. Danet Stuckrath U.S. Fish and Wildlife Service (760) 431-9440 ext. 270 (760) 431-5902 (fax) OQ LA COSTA MEADOWS UNIT NO. 3 HOMEOWNERS ASSOCIATION 2848 Cacatua Street Carlsbad, CA 92009 (760)918-0180 Architectural Committee: James Bradley Anne Estes Robert Lattin Octobers, 2010 Ronald R. Ball, Esq. City Attorney of City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: Case Name: El Fuerte View Project Location: El Fuerte Street between Chorlito St. and Cacatua St. Dear Mr. Ball: The Architectural Committee of La Costa Meadows Unit No. 3 questions your position with regard to the minor amendment to the Habitat Management Plan ("HMP") for the above project as follows: 1. The approvals that you have received by e-mails from the U.S. Fish and Wildlife Service and the California Department of Fish and Game are based upon the following: "Our concurrence is based on our understanding that the City is in the process of a City-wide mapping correction to address errors in mapping that occurred at the time the HMP was approved". Why would you allow the destruction of a "hardline reserve" in the HMP before the appropriate minor amendment has been completed and signed by all parties? 2. The HMP was approved and signed by Mayor Bud Lewis in 2004. Do the Planning Department and/or the Planning Commission have the authority to approve a minor amendment to the HMP? Shouldn't the City Council be the deciding entity? Your prompt answers to the above questions would be appreciated. Sincerely, Robert W. Lattin Cc: Bud Lewis, Mayor Members of the City Council Members of the Planning Commission ^ Don Neu, Planning Department COAST LAW GROUP i Octobers, 2010 1140 South Coast Hwy 101 Encinitas, CA 92024 Tel 760-942-8505 Fax 760-942-8515 www.coastlawgroup.com Christer Westman, AICP Via Electronic Mail Senior Planner Christer.Westman@carlsbadca.gov Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: El Fuerte View Project Coastal Environmental Rights Foundation Planning Commission Hearing - Oct. 6, 2010 Dear Mr. Westman: Coast Law Group LLP represents the interests of the Coastal Environmental Rights Foundation (CERF) with respect to the City's review of the above-referenced project (the Project). CERF is a nonprofit organization established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents. Thank you for the opportunity to participate in the review process. In anticipation of the Planning Commission's consideration of the Project at its October 6, 2010 hearing, we submit the following comments on the Mitigated Negative Declaration (MND), and the Project's failure to comply with both the Multiple Habitat Conservation Program (MHCP) and the Carlsbad Habitat Management Program (HMP). Because the City has engaged in deficient environmental review under the California Environmental Quality Act (CEQA) and because the findings necessary to issue an HMP amendment simply cannot be made, the Project cannot be legally approved as proposed. Further, given the environmental sensitivity of the subject site and surrounding area, a MND is entirely inappropriate for this Project. The proposed mitigation measures do not reduce the impacts to a level of insignificance. Indeed, the MND is nothing more than an initial study checklist, and fails to identify and investigate a number of potentially significant impacts. As detailed below, the City must require the preparation of a full environmental impact report (EIR) under CEQA's "fair argument" standard, as there is no question that the Project "may" have a significant impact on the environment. (Pub. Res. Code § 21080). 1. Improper Baseline Condition As a preliminary matter, the City has adopted an inappropriate baseline for conducting CEQA review. Notwithstanding the property's inclusion in the HMP as a hardline preserve area, the applicant has destroyed sensitive vegetation and disturbed portions of the site on a regular basis. The HMP expressly prohibits any such activity, and an applicant cannot be permitted to benefit from its own violations of the HMP or otherwise gain from its unregulated destruction of protected habitat. Nonetheless, the MND purports to crecWthe applicant's misconduct by finding less than significant impacts based on the same degraded conditions that the applicant Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 2 itself has deliberately caused. For obvious policy reasons, the Project must be reviewed based on the environmental conditions that existed prior to the applicant's degradation of the property, and the baseline conditions applied in the MND cannot serve as an appropriate benchmark for environmental review. Further, unless and until an HMP amendment (minor or otherwise) is finalized, the City cannot allow any further degradation of the site. As the City is aware, it has an ongoing duty to enforce the anti-degradation policies set forth in the HMP, which will continue to apply to the Project absent a valid amendment. The continued failure to enforce those restrictions will only further allow the applicant to circumvent the environmental review process and reduce its mitigation obligations.1 It is entirely disingenuous and circular to allow the degradation of HMP protected > habitat and to then subsequently authorize development on the site based on a claim that the habitat lacks biological value. 2. The Fair Argument Standard In order for the City to rely on an MND to analyze the Project, all potential impacts caused by the Project must be avoided or mitigated "to a point where clearly no significant effect on the environment would occur." (Pub. Res. Code § 21080(c)(2); emphasis added). If any portion of the Project may have a significant impact, an EIR must be prepared. (CEQA Guidelines §15063(b)(1)). As a corollary, an MND will only be upheld when there is no credible evidence that the project may have a significant environmental impact. (Qua/7 Botanical Gardens Found, v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602). CEQA requires the preparation of an EIR "whenever it can be fairly argued on the basis of substantial evidence that.the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 75 (emphasis added)). "Substantial evidence... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions may also be reached." (CEQA Guidelines §15384). Here, as detailed below, this standard has been met as the Project clearly "may" result in significant impacts to biological resources, including the coastal California gnatcatcher and its habitat. Because the Project will also result in significant noise, aesthetic, and geological impacts, an EIR must be prepared. 3. Biological Resources a. Removal of the Site from the Hardline Preserve will Result in Significant Environmental Impacts. As the City is aware, the HMP establishes hardline preserve areas as a mechanism for ensuring that highly valuable biological resources will be adequately protected. Indeed, these areas have been specifically designated as "lands that will be conserved and managed" because of "their value to biological resources." (MHCP, p. 3-2; Guidelines for Biological Studies (Biological Guidelines), p. 4). These values clearly apply to the Project site, as the U.S. Fish & Wildlife Service (FWS) has "determined that potential habitat for the coastal California Indeed, to the extent the City authorized or had knowledge of the applicant's activities, the City is potentially subject to a citizen suit enforcement action under the Endangered Species Act for negligently or intentionally allowing the degradation of hardline preserve habitat. Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 3 gnatcatcher. . . occurs on site, contrary to evidenced provided in the Biological Resources Technical Report." (See Oct. 6, 2009 FWS letter, p. 3). And as noted in the HMP itself, "[d]irect impacts to the Gnatcatcher could result from the loss of coastal sage scrub habitat used for nesting and foraging by Gnatcatchers." (HMP, App. C., p. C-40). Moreover, it has now been well documented that residents in the area have observed the species on-site. Given the express purposes of the MCHP and HMP in regulating take and protecting sensitive environmental resources, any amendment calling for the removal of hardline preserve from the HMP constitutes a significant environmental impact under CEQA. Because those valuable resources will no longer be protected from development (including viable gnatcatcher habitat in this case), there is no question that the removal of hardline preserve area from the HMP "may/1 > result in significant biological impacts. For this reason alone, approval of the Project will constitute an abuse of discretion. b. Violation of HMP Amendment Procedures and Improper Segmentation of Environmental Review. Further, contrary to the findings made in the MND, the Project will result in significant land use and planning impacts, as the City and applicant have not complied with the procedural requirements for processing an HMP amendment. The City's regulatory guidelines provide that "[m]inor adjustments to hardline boundaries that result in no net loss of the quality or quantity of habitat are allowed if processed as a Minor Amendment through an Equivalency Finding." (Biological Guidelines, p. 19, citing HMP p. E-3; IA Section 20, p. 29; emphasis added). By the same token, the "[rjemoval of lands from conserved areas, or reconfiguration of hardline areas resulting in a decrease of acreage or quality of habitat, shall constitute a Major Amendment to the HMP." (HMr^pr-E-4i~emphasis added). Here, the/£c£ujva]ejTcy_lind^ cannot be made because replacement preserve site(s) have not yet beerudentified or evaluated. The City generally states that the offset issue will be reconciled at some indeterminate point in the future as part of the process of addressing "overall City HMP conservation levels rather than a site or project level conservation." (MND, p. 12). Any approval of the Project on this basis will constitute an abuse of discretion, as the "equivalency" finding simply cannot be made when the site(s) to be annexed to the hardline preserve have never been evaluated during the review process. Indeed, because this critical piece of information is missing, it is impossible to evaluate whether the hardline amendment will result in a net loss of the quantity or quality of the removed habitat. For instance, the equivalency finding cannot be.made unless the replacement habitat has the potential to support the California gnatcatcher, as this determination has been made by the FWS with respect to the El Fuerte site. (See Oct. 6, 2009 FWS letter, p. 3). Moreover, "Projects that change the Hardline Preserve require official Agency approval prior to HMP compliance determination (i.e., Equivalency Findings)." (Biological Guidelines, p. 9; emphasis added). Here, although the FWS and Department of Fish & Game have informally suggested via email that it may be appropriate "to process a Minor Amendment" for the site, they have expressly conditioned that concurrence on the requirement that there be "no-net-loss of overall preserve." (See August 12 and 23,2010 emails from FWS and DFG, respectively). Notably, the agencies have not yet found that this requirement has been met. Again, such a determination cannot be made until site-specific replacement habitat is identified and substantively evaluated. Given these procedural defects, the application must be processed as a Major Amendment under the HMP. (See HMP, p. E-4, providing that "removal of lands from Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 4 conserved areas" must be processed as a Major Amendment).2 Because the City and applicant have not complied with the express procedural requirements for amending the HMP, the Project cannot legally be approved. Further, the MND is deficient because it fails to identify significant land use and planning impacts resulting from the Project's inconsistencies with the MHCP and HMP. The City's review of the Project is further deficient because the failure to identify replacement habitat as part of the CEQA review process has resulted in the improper segmentation and deferral of environmental review. Because the completion of that process has been deferred to an undetermined date through the City's de facto amendment process, the full impacts of the/ >• HMP amendment cannot be known. By engaging in this piecemeal review of the Project, the City" has circumvented CEQA's fundamental goals of providing for informed decision-making and full public disclosure. c. Deficient Analysis and Discussion of Biological Impacts The Project does not comply with the impact analysis and mitigation standards set forth in the City's own Guidelines for Biological Studies (Sept. 30, 2008, the "Biological Guidelines"). The Biological Guidelines "were developed to provide the biological standard for processing HMP permits" and set forth the procedures to be followed in demonstrating "compliance with the HMP, MHCP, and CEQA." (Biological Guidelines, p. 1). They are further intended to "ensure that an adequate environmental impact analysis is conducted using the appropriate biological data, and that HMP-compliant mitigation is incorporated into project design and permit conditions." (Id.', emphasis added). "All development projects and fuel modification activities in the city shall comply with [the Guidelines]." (Id. at p. 18; emphasis added). First, the MND is deficient because the City's review of the Project is not based on an adequate biological survey. The Biological Guidelines state that biological surveys "must be recent to be used for a project impact analysis." To be considered "recent," surveys should be "no more than one year old' where, as here, the City and applicant presume that a species such as the gnatcatcher is absent. (See Biological Guidelines, p. 32). To meet minium survey standards applicable to the gnatcatcher, the review must be conducted between February 15 and August 30, must consist of three separate surveys, and the surveys must be at least seven days apart. (Id., p. 25), Here, a biological survey was prepared in October 2005, and an amended "impact analysis" was prepared in May 2009. (MND, p. 33). These studies have not bee included in the Staff Report and it is unclear whether they meet the separate site-visit requirements set forth above. In any event, they are outdated and do not provide an adequate basis for evaluating project impacts under CEQA.3 "Within Carlsbad, the number of existing coastal California Gnatcatcher 2 Similarly, the requisite findings set forth in Section 20.1 of the Implementing Agreement cannot be made. For instance, the amendment will result in operations, impacts and take not contemplated under the original HMP, as the property was designated for full protection under the hardline standards set forth in the MHCP and HMP. J The failure to conduct necessary studies renders it more likely the fair argument standard will be met and an EIR will be required. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 311.) It is not the public's duty to prepare the proper studies. (Id.) Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 PageS pairs fluctuates seasonally and from year to year, based on weather, fires and a number of other factors." (HMP, App. C., p. C-40; emphasis added). Because the gnatcatcher constitutes a "high priority as a preserve planning species and conservation target" (MHCP, p. 3-7), the Project must be reviewed based on current biological surveys that satisfy the minimum gnatcatcher standards set forth in the Biological Guidelines. Indeed, identification of impacts and consideration of feasible mitigation measures prior to project approval are the very cornerstones of CEQA law. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 306-07). Because the City's own "biological standard for processing HMP permits" has not been satisfied, the Project must be denied. i i' d. Deficient Analysis and Implementation of Mitigation Measures Per the City's own review standards, "CEQA documentation must outline impact mitigation with enough detail fo illustrate how they will reduce impacts to a level below significant, and satisfy HMP and CEQA requirements." (Biological Guidelines, p. 34). Indeed, "when a mitigated negative declaration is proposed, it is particularly important that the study fully describe the mitigation measures and explain how they will avoid the project's potential impacts." 1 Kostka & Zischke, Practice under the California Environmental Quality Act (Cont.Ed.Bar 2004) § 6.18, p. 266 (emphasis added). Here, the MND fails to identify how proposed mitigation measures will actually reduce Project impacts. For instance, the MND purports to mitigate impacts to gnatcatchers as follows: "Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy on site." (MND, p. 34). First, as noted above, it is improper to defer these studies to a later date, as they are necessary to allow the public and the Commission to understand the scope of Project impacts in the first place. Second, and equally problematic, the measure is deficient because it fails to identify what steps must be undertaken in the event qnatcatchers are identified on site. Simply conducting a survey will not protect species found to be on site. Because the MND fails to specify "how this will reduce impacts" it fails to comply with CEQA and the HMP.4 Further, the MND must be recirculated, as "any necessary mitigation measures must be specifically set forth at the time of publication of a mitigated negative declaration in advance of the City's adoption of it." (Quail Botanical Gardens, supra, at 1606 fn. 4). The proposed measures for mitigating impacts to raptors are likewise deficient. The MND states that if construction activities are to occur during the raptor nesting season, the applicant shall hire a qualified biologist who shall determine if birds are present on or near the site prior to construction. The MND further provides that "[n]ests that are detected within the proposed impact areas shall be avoided until nesting is completed." (MND, p. 34). Again, however, the foregoing does not meet the minimum standards set forth in the Biological Guidelines. The Guidelines state, "Surveys will also be conducted by a qualified biologist in appropriate habitat for nesting raptors and migratory birds (including, but not limited to the least 4 The measure is further deficient because it does not incorporate the minimum gnatcatcher survey requirements specified above. (See a/so Biological Guidelines, p. 41, specifying additional gnatcatcher survey requirements). Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 6 Bell's vireo) and within an additional 500-ft survey buffer within three days of construction." (Biological Guidelines, p. 41). "If nests of listed birds, migratory birds, raptors, or other sensitive species are located, they will be fenced with a protective buffer of at least 500 feet from active nests of listed species, and 300 feet from other sensitive bird species. All construction activity will be prohibited within this area." (/d.; emphasis added). The MND is deficient because the proposed mitigation measures do not meet these standards. Further, the City previously identified the presence of Nuttall's scrub oak on the Project site. The FSW has indicated that the MND should specify whether the oaks will be salvaged and, if so, how they will be salvaged. (See FSW October 6, 2009 letter). In response, the City has indicated that "efforts can be made to salvage those plants impacted by the development of the* site through transplantation as a condition of approval." (City October 9, 2009 letter to FSW). However, the transplantation of Nuttall Scrub Oak is not identified as a mitigation measure in the MND, nor does it appear to have been included as a project condition. Given the failure to mitigate this impact, the Project will result in significant environmental impacts under CEQA and an EIR must be prepared. 4. Noise and Traffic Impacts The MND states that a noise study was conducted in 2003 "to determine what external noise sources may impact the development." (MND, p. 23). As a preliminary matter, the study is entirely outdated. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 409 (an inadequate or unsupported study is entitled to no judicial deference)). Further, the foregoing stands the environmental review process squarely on its head, as the review process is intended to evaluate the Project's impacts on the environment and surrounding uses rather than the other way around. In that regard, the MND fails to adequately discuss potential noise impacts on biological resources and neighboring property owners. For instance, the Project will require 12,596 cubic yards of export. (Sept. 1, 2010 Staff Report, p. 6). Yet the MND fails to evaluate potential noise and traffic impacts resulting from the individual truck loads that will be necessary to haul the material. In addition, the MND fails to evaluate short-term construction impacts and associated noise levels both within the preserve and at neighboring properties. 5. Grading and Geological Impacts As the City is aware, the applicant's own engineers have identified potential areas of instability on the Project site. This issue has not been adequately addressed in the MND, and the City has failed to consider appropriate mitigation measures as a result. For instance, the MND does consider or evaluate potential slope stability impacts to neighboring properties. Further, because the City improperly prepared an MND for this Project, it has failed to consider Project alternatives that would avoid these impacts altogether, including alternatives with a lesser number of developable lots. The MND also fails to adequately consider the potential for short- term vibrational impacts resulting from construction. 6. Aesthetic Impacts The MND states that the Project will not result in significant impacts to aesthetics because "the area does not have significant value as a scenic resource." (MND, p. 6). However, views from Cacatua Street will clearly be impacted, as the proposed Project will interfere with views of the preserve and surrounding valley to the west. The Project will result in significant aesthetic Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page? impacts, and the MND's findings to the contrary are not supported by substantial evidence. 7. Conclusion As discussed above, the Project will result in a number of significant environmental impacts under CEQA. Because the fair argument standard has clearly been met, an EIR must be prepared for the Project. By failing to adequately evaluate Project impacts in a comprehensive EIR (and by improperly segmenting the review process by deferring the identification and evaluation of replacement preserve habitat), the City has improperly limited the scope of environmental review. Further, the Project is in violation of the MHCP and HMP, and the procedures for processing a plan amendment have not been followed. Based on the foregoing, the Project is not legally defensible and certification of the MND will constitute an abuse of discretion. Thank you for your time and consideration of the above. Sincerely, COAST LAW GROUP LLP Ross M. Campk Marco A. Gprfzalez RONALD R. BALL ^HfSlf^ RONALD KEMP CITY ATTORNEY DEPUTY CITY ATTORNEY JANE MOBALDI , CITY OF CARISRAD PAUL G. EDMONSON ASSISTANT CITY ATTORNEY V> I I I V^ I V-AA IV L^7 Lf A1 U DEPUTY CITY ATTORNEY 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1949 (760) 434-2891 October 6, 201 0 FAX: (760) 434-8367 Robert W. Lattin La Costa Meadows Unit No. 3 Homeowners Association 2848 Cacatua Street Carlsbad, California 92009 Re: Case Name: El Fuerte View Project Location: El Fuerte Street between Chorlito Street and Cacatua Street Dear Mr. Lattin: Mr. Ball has asked that I respond to the letter he received from you dated October 5, 2010 regarding the minor amendment to the Habitat Management Plan ("HMP") related to the El Fuerte View project currently pending before the Planning Commission. As I explained at the meeting of September 1, 2010 for the El Fuerte View project, the Implementing Agreement dated November 12, 2004 sets forth the procedures for a minor amendment to the HMP, Likewise, Carlsbad Municipal Code ("CMC") Chapter 2I.2I0.080(3)(b) also addresses minor amendments to the HMP and its provisions mirror those of the HMP Implementing Agreement. That section provides that: "The Planning Director shall consult with and obtain approval from the wildlife agencies reviewing requests for a minor amendment. Minor amendments shall require the approval or the conditional approval of the Planning Commission or City Council, based upon which authority is the final decision maker on the concurrent permits." The final decision maker on the permits for El Fuerte View is the Planning Commission, which will be approving the tentative tract map, hillside development permit and habitat management plan permit. CMC Chapter 21.210.080(3)(b) also provides mat a request for a minor amendment shall be processed concurrently with any other permit required for the development project, which is the procedure being followed in this case. According to CMC Chapter 21.210.080(B)? the City Council is designated as the deciding entity only in the case of major amendments. I hope this information is helpful to your understanding of the procedures being followed. Very truly yours, ANE MOBALDI Assistant City Attorney /la- ce: Mayor City Council Members Planning Commission Members Planning Director /*•? © ine City of Carlsbad Planning Division A REPORT TO THE PLANNING COMMISSION Item No.1 P.C. AGENDA OF: October 6, 2010 Application complete date: 08/09/2005 Project Planner: Christer Westman Project Engineer: Clyde Wickham SUBJECT: GPA 09-08/ZC Q9-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTE VIEW - Request for a recommendation of adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; 'a recommendation of approval for a General Plan Amendment and Zone Change to designate an open space preservation lot as Open Space; and a request for approval of a Tentative Tract Map, Hillside Development Permit and Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven single family homes and one (1) 1.56 acre open space lot, on property generally located south of El Fuerte Street and north of Cacatua Street -in Local 'Facilities Management Zone 6. I.RECOMMENDATION That the Planning Commission review the information provided by the applicant and that the Planning Commission ADOPT Planning Commission Resolution No. 6669 RECOMMENDING ADOPTION of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and ADOPT Planning Commission Resolutions No. 6670 and 6671 RECOMMENDING APPROVAL of General Plan Amendment GPA 09-08 and Zone Change ZC 09-09, and ADOPT Planning Commission Resolutions No. 6672, 6674, and 6675 APPROVING Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Plan HMP 09-10, based on the findings and subject to the conditions contained therein. II. INTRODUCTION The proposed project is the subdivision and development, of a 3.91-acre site into seven, minimum 10,760 square foot, single family residential lots for the development of 7 future single family homes and a 1.56 acre open space lot. The infill project site is generally located south of El Fuerte Street and north of Cacatua Street in La Costa. The proposed project requires a General Plan Amendment (GPA) to change the existing General Plan Land Use designation from Residential Low Medium (RLM) to Residential Low Medium and Open Space (OS). A Zone Change (ZC) is also required to change the existing zoning designation on the property from One-Family Residential (R-l) to One-Family Residential and Open Space (OS). A Tentative Tract Map (CT) is required in order to subdivide the parcel into seven single-family residential lots and one open space lot. A Hillside Development Permit is required to develop the site since it includes natural slopes that are both greater than 15% gradient and greater than 15 feet in height. o GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTfc VIEW October 6, 2010 Page 2 A Habitat Management Plan Permit is required since the project will have impacts to natural resources covered by the Habitat Management Plan and the project will mitigate those impacts consistent with the Habitat Management Plan. The GPA and ZC require the approval of the City Council. The approval of the CT, HDP, and HMP is final at the Planning Commission. The project has been reviewed for environmental impacts and no significant unmitigable impacts were found. As designed and conditioned, the project is consistent with all applicable standards and policies, and the necessary findings to approve the project can be made. HI. PROJECT DESCRIPTION AND BACKGROUND The Planning Commission reviewed the project on September 1, 2010 and asked for various components of the proposed tentative map to be reviewed by the applicant and staff to determine the feasibility of developing the project as proposed. Components included the practical ability to develop Lot 1 with a single family home, removal of the proposed drainage brow ditches from the Open Space lot, verification that there is adequate vehicular sight distance, and assess the possibility of requiring the project to be graded and improved as a single phase. The concern with the developability of Lot 1 is because there are easements across Lot 1 for a 30" RCP storm drain and an 8" VC sewer line and the proposal of a 12 foot tall retaining wall for a portion of the site. • The existing Storm Drain easement is ten (10) feet wide and will be expanded to twenty (20) feet. The storm drain lies in the center of the easement. The depth of the storm drain relative to the proposed finish grade at its shallowest point is 2.5 feet. The applicant is proposing to revise the finish grade for Lot 1 to establish a minimum five (5) foot cover. The revision is accomplished by raising the proposed house pad by 2.5 feet and garage pad by 4.5 feet. The grade separation between the nearest existing home on Cacatua Street and proposed house pad is 17 feet and for the proposed garage pad is 15 feet. The change in pad elevation reduces the height of the necessary onsite retaining wall from 12 feet to six (6) feet at its tallest. With observance of the two 20 foot easements, the lot has the potential of accommodating a 2,200 square foot single story home with an attached 400 square foot garage. The concern with a brow ditch in the proposed open space was that maintenance of the brow ditch could adversely affect the preservation of plants within the Open Space lot. • The subdivision has been modified to locate the proposed brow ditch at the property line(s) between the home lots and the open space lot with the exception of the existing brow ditch at the west end of the project. This westernmost segment follows the contour that transitions from natural grade to the slope created by the construction of El Fuerte Street. GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTE VIEW October 6, 2010 Page 3 A concern was voiced that there could be hazards to vehicles exiting the individual lots on to El Fuerte Street. • Exhibit AA illustrates the sight distance corridors for traffic movement on El Fuerte Street and vehicles exiting the easternmost and westernmost home lots. CalTrans standard sight distance for a design speed of 40 miles per hour is met at each of the lots as shown on Exhibit AA. According to the standards, there is adequate sight distance for safe vehicular travel on El Fuerte Street and for ingress/egress form the proposed lots. A concern was raised regarding the ultimate construction of the proposed project and how the onsite soils would be controlled to guarantee that the onsite slopes will remain stable. • Staff recommends that the following condition is added to Planning Commission Resolution No. 6672 and the non-mapping data sheet: All grading as shown on the approved grading plan shall be completed as a single phase. \ Staff has determined that the project as revised is suitable for approval and therefore recommends approval. The attached exhibits illustrate the project's compliance with the applicable development standards. ATTACHMENTS: 1. Exhibits 1-4 2. Planning Commission Resolution No. 6669 (MND) 3. Planning Commission Resolution No. 6670 (GPA) 4. Planning Commission Resolution No. 6671 (ZC) 5. Planning Commission Resolution No. 6672 (CT) 6. Planning Commission Resolution No. 6674 (HDP) 7. Planning Commission Resolution No. 6675 (HMP) 8. Planning Commission Staff Report with attachments dated September 1, 2010 EXHIBIT 6 Planning Commission Minutes September 1, 2010 Page 4 3. GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTE VIEW - Request for a recommendation of adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; a recommendation of approval for a General Plan Amendment and Zone Change to designate an open space preservation lot as Open Space; and a request for approval of a Tentative Tract Map, Hillside Development Permit and Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven single family homes and one (1) 1.56 acre open space lot, on property generally located south of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. Mr. Neu introduced Agenda Item 3 and stated Senior Planner Christer Westman would make the Staff presentation assisted by Associate Engineer Clyde Wickham. Vice Chairperson L'Heureux opened the public hearing on Agenda Item 3. Mr. Westman gave a detailed presentation and stated he would be available to answer any questions. Vice Chairperson L'Heureux asked if there were any questions of Staff. Commissioner Montgomery asked what conditions can be placed on the project so that the development proceeds according to plan and constructed as designed. Mr. Wickham stated the project is conditioned with a Hold Harmless Geotechnical Agreement for the geologist's design and work. There is an "As Graded" condition so that as the project is graded and any issues arise such as landslides, all the corrective measures will be documented. Mr. Wickham stated the project has not gone through the final design review. The bond for the project will be in place until the site is graded, final geotechnical reports have been submitted and the as graded plan is presented and accepted by the City. Commissioner Schumacher asked where the sidewalks would be installed for the project. Mr. Wickham stated that sidewalks will be installed along the entire project frontage as conditioned. Commissioner Schumacher stated he would like to see sidewalks installed along the southern edge past the project's frontage as part of the project. Ms. Mobaldi stated that in terms of requiring a developer to install a sidewalk which is not part of his or her project's frontage, it is not something the City requires. Vice Chairperson L'Heureux acknowledged receipt of a letter dated August 26, 2010 and sent to each Commissioner and is part of the public record. Vice Chairperson L'Heureux asked if the applicant wished to make a presentation. Hossem Zomorrodi, K&S Engineering, 7801 Mission Center Court Suite 100, San Diego, stated he would be available to answer any questions. Commissioner Montgomery asked if the applicant had found any items of significance with the geotechnical studies. Mr. Zomorrodi stated that his firm does not perform geotechnical engineering; however the property owners have obtained the services of MV Engineering in Escondido. MV Engineering has prepared extensive geotechnical studies for the site and has not seen anything that would prohibit the grading of the project as proposed. Mr. Zomorrodi also stated that City Staff required a third party review of the geotechnical study and soils report, which also deemed the property as developable as proposed. • Vice Chairperson L'Heureux asked if the applicant would be willing to install the piece of the missing sidewalk Mr. Zomorrodi stated that if he were the property owner he would be hesitant to agree to that because of the fact that the condition for the project is limited to the project's frontage as pointed out by the Assistant City Attorney. Vice Chairperson L'Heureux opened public testimony on Agenda Item 3. Anne Estes, 2825 Esturion Street, and Bob Lattin, 2848 Cacatua Street, representing the homeowner's association, gave a detailed presentation and stated they would be available to answer any questions. Planning Commission Minutes September 1,2010 Page 5 Adam Althouse, 2836 Cacatua Street, stated that there have already been land movements along the project site along with large amounts of water flowing from the site after rain. He is concerned with the potential for land slippage. Arthur Markovits, 3002 Unicornio Street, stated the proposed project may have a total 21 or 30 cars and he does not see how the added traffic can be safe for the existing neighborhood. George Sarnecky, 2856 Cacatua Street, commented that he is concerned with the potential additional traffic problems near the project site. Tim Austin, 2819 Esturion Street, stated he is also concerned about the traffic safety in the area. Lawrence Sanders, 2837 Cacatua Street, inquired as to how high the retaining wall will be along the northern side project site. He also stated that the slope of the existing street makes the road extremely dangerous. Charles Marshall, 2840 Cacatua Street, is concerned about the construction of 7 new houses in the area given the current economy. Richard Weston, 2852 Cacatua Street, stated his opposition to the project and questioned the meaning of the Habitat Management Plan. He stated an adequate environmental impact report has not been submitted as part of the proposed project. Mr. Weston further stated there might be an issue regarding adverse possession for some of the lots along the project site. Sam Gazzo, 2813 Esturion Street, also stated his opposition to the project. Vice Chairperson L'Heureux asked if there were any other members of the audience who wished to speak on the item Seeing none, he closed public testimony on Agenda Item 3. RECESS Vice Chairperson L'Heureux called for a 5-minute recess at 7:30 p.m. CALL TO ORDER Vice Chairperson L'Heureux called the meeting to order with all Commissioners present. Ms. Mobaldi stated because many of the issues raised by the public are legal issues, she would respond to them. Ms. Mobaldi stated that CC&Rs are private regulations and are not the laws of the City. The City does not enforce them or consider them when reviewing development applications. That is not to say that those CC&Rs are not valid and enforceable by the homeowners association. It would be a private action by the homeowner's association against the person they believe to be in violation. In regards to representations made by real estate agents, Ms. Mobaldi stated that if someone feels they have been defrauded because of what an agent told them regarding a property that was purchased, the action would be against the agent, not against the City. Ms. Mobaldi stated that in terms of the architectural committee, that committee could in fact have the authority to review architectural plans; however, the City does not make it its business to review those private agreements and make legal judgments about them. It is something that needs to be pursued by private attorneys and in court if necessary With regards to the Habitat Management Plan (HMP), it is an agreement between the City, Department of Fish and Game, and the Fish and Wildlife Service. Those three parties agree as to the process for amendments. Section 20 of the Implementation Agreement for the HMP specifies that a correction of a map error does qualify for a minor amendment. In this case, the wildlife agencies have given their written concurrence that they feel this particular situation qualifies for that amendment. The City has, as part of this minor amendment, stated it has an obligation to replace this property that was erroneously mapped. It is not an obligation that can be placed on the developer. Ms. Mobaldi further commented that the City does not have a view ordinance and the City does not enforce private view corridors. A view easement can be negotiated between the private parties involved With regards to property values, the Planning Commission is concerned with the City's development standards and the Planning Commission Minutes September 1, 2010 Page 6 City's policies and protects property values by making sure those policies and standards are followed when approving applications. The Commission is not otherwise concerned with individual property values of homeowners. Ms. Mobaldi stated that in regards to backyard noise, the City does not have a municipal code which regulates what is considered to be normal noise which occurs as a result of living in a single family residential neighborhood. It would not be appropriate to impose a condition that is not recognized by the City's codes or policies. Regarding the issue of adverse possession, Ms. Mobaldi stated that is a legal issue in which only a court must make a legal determination that someone has notoriously adversely possessed for a sufficient amount of time so that they then have a right to ownership of that property in fee as opposed to the person who was the original owner. The Planning Commission does not have the authority to make those determinations; it would be a private, legal action. Ms. Mobaldi stated that in regards to development rights, the City cannot prevent a private property owner from developing his or her own property assuming that owner is complying with the law and all applicable codes and regulations in place for development, If someone wants to take the risk of developing in a down market, that is his or her business and the Planning Commission does not get involved in those types of private property owner decisions. Commissioner Dominguez asked Ms. Mobaldi if any type of enforcement which involves any litigation is then strictly the responsibility of the homeowners association. Ms. Mobaldi stated yes regarding the architectural committee and the CC&Rs. Vice Chairperson L'Heureux asked if there were any other questions of staff. Commissioner Nygaard asked Staff to address the issues regarding traffic. Mr. Wickham stated the current traffic on El Fuerte is 2600 ADT. The road is designed for 10,000 to 20,000 vehicles and is designed to carry a similar amount as La Costa Avenue. Mr. Wickham stated that in looking at the accident history for El Fuerte, there have been 4 accidents in the past two years. Mr. Wickham also gave a brief comparison of the two roads in terms of traffic volumes. Vice Chairperson L'Heureux asked if the proposed project is taken into consideration when Staff completes the site analysis. Mr. Wickham stated yes, and in this case, there will be a parkway available as well as a 64 foot wide curb-to-curb roadway which provides extra room to obtain extra sight distance. There is opportunity to improve site visibility if it is shown to be a hazard. Engineering Staff does not see any site visibility issues with this project's preliminary design. Vice Chairperson L'Heureux inquired about how fast a vehicle will be traveling once it travels from the stop sign at Chorlito until it reaches Cacatua Street. Mr. Wickham stated that is an uphill grade and the speed limit is 45 mph but it would be difficult how to determine the rates of speed. Commissioner Baker asked for clarification on the issues regarding slides in the area after rains and the clearing and/or mowing of the site. Mr. Wickham stated that all of the preliminary reviews have commented on superficial failures, which means the top area gets saturated with water during the rains and the soil then slumps. The proposed development will control some of the water leaving the site by diverting it to the proper storm drain. Commissioner Baker asked if the site has been previously graded Mr Wickham stated he believes it was graded with the original subdivision in 1971 and has sat in its current condition since. As for the clearing/mowing, Mr. Wickham stated that property owners of vacant lots receive an annual notice from the Fire Department stating that the lots need to be cleared and weeds need to be removed. Vice Chairperson L'Heureux asked if that lot could be cleared if it was part of the Habitat Management Plan. Mr. Westman stated that this property has never been designated as a preserve area. It is residentially zoned and has General Plan Designation for residential development. Vice Chairperson L'Heureux stated that along Park Drive in Bristol Cove, there has always been an issue with water coming from the hillside and debris building up on the street. He asked if this property has a similar issue, and if so, how can it be fixed. Mr. Wickham stated that he understands the issue on Park Drive to be a perched water table. It is his opinion that this property does have the same problem. During the course of grading for the project, the engineers will be looking at those conditions and repairing them. There is also a proposed browditch around the entire project to intercept that water and /OS Planning Commission Minutes September 1,2010 Page 7 take it to the available storm drain. Vice Chairperson L'Heureux stated that brow ditches do not last forever. He asked who would ultimately be responsible for the maintenance of the brow ditch. Mr. Wickham stated the slopes, the retaining walls, the brow ditches, and the private drainage systems within this subdivision will be the responsibility of the future homeowners and the developers. Vice Chairperson L'Heureux asked if there will be a requirement for CC&Rs for this development to specifically maintain that or if it will be a part of the master CC&Rs. Mr. Wickham stated there are conditions for CC&Rs to maintain those items. Commissioner Dominguez stated there are the existing CC&Rs which this applicant rejected and this development will have supplemental CC&Rs. Mr. Westman stated that a new set of CC&Rs specific to this development and there will not be any connection to the existing La Costa Meadows Unit 3 CC&Rs. Commissioner Montgomery asked if this property would then be encumbered by 2 sets of CC&Rs. Mr. Westman stated yes. Commissioner Schumacher inquired as to why that would occur. He stated he understood this development would be a part of the existing CC&Rs. Mr. Westman stated that this situation is actually fairly common. There was a larger subdivision that was created and a lot was left for future development. There will be issues that are very specific to and remain only for that one lot and should not be the burden of the rest of the HOA. Commissioner Nygaard asked if all of the properties included in the existing CC&Rs would be responsible for the maintenance of this property had this piece of property been developed at the same time as the rest of the subdivision was developed. Mr. Westman stated that could have been a possibility. Commissioner Montgomery inquired if the new CC&Rs will include any improvements in the open space area that will need to be maintained by the separate HOA. Mr. Wickham stated yes, indicated the location on the PowerPoint slide and gave a brief explanation. Commissioner Montgomery asked if the newly created open space will be part of the hardline preserve area. Mr. Wickham stated it will be identified in the HMP as a hardline preserve area. The General Plan and Zoning Designations will be Open Space and the HMP mapping will show the area to be part of the hardline preserve. It will then have all the managing and monitoring requirements associated with it. Commissioner Dominguez asked it the area will be fenced. Mr. Westman stated no. Commissioner Montgomery asked that there should not be any drainage improvements on the open space lot as proposed Mr. Wickham stated that the drainage brow ditch could be redesigned to go directly across the property line outside of the new open space habitat. Mr. Westman further explained it is common to have improvements such as a brow ditch in an open space easement or HMP preserve. Commissioner Nygaard inquired about the possibility of existing properties infringing into the open space area. Mr Wickham stated that as Ms. Mobaldi pointed out, it would be a private matter for courts to determine. Vice Chairperson L'Heureux asked which individuals would be involved in a private matter such as that. Ms. Mobaldi stated that it would be a private matter between the owner of the habitat land and the people who theoretically have encroachments. Vice Chairperson L'Heureux asked if the Commission should require that issue be resolved. Ms. Mobaldi stated that she does not believe the Commission can require that that issue be resolved. Vice Chairperson L'Heureux asked if the Commission could refuse to accept the open space. Ms. Mobaldi stated yes because the Commission is making a recommendation for a General Plan Amendment and a Zone Code Amendment to open space. Mr. Neu clarified that if there is a perception that the City will own the open space that will not be the case. In all likelihood, it will be owned by a third party that will be in charge of managing and maintaining the open space. Typically the developers find a third party conservation entity that will take the property, and one of the concerns the entity will have will be whether or not to take the property given the encroachments into the open space. Mr. Neu stated that when the La Costa Resort project was being reviewed and homeowners had encroached into the La Costa Resort property, in that case, the La Costa Resort management company made lot line adjustments and went through a very extensive process to give and take property back and Planning Commission Minutes September 1,2010 Page 8 forth. That is something the owners will decide; however it could become an impediment to a conservation entity taking the properties so it would be most likely be forced to be resolved. Vice Chairperson L'Heureux asked what would happen if a conservation entity refused to take the property. Mr Neu stated it would become a roadblock to getting the project completed and having the final map and grading map approved. Vice Chairperson L'Heureux asked if the final map is conditioned upon there being acceptance of the open space lot by an agency, Mr. Neu stated yes, that Condition No. 16 of Resolution 6672 is the implementation condition regarding the selection of a conservation entity that would manage and maintain the property. There have been situations where the entity will accept an easement over it and some underlying property owner would retain ownership. Commissioner Dominguez asked for clarification regarding who is ultimately responsible for maintaining all of the existing infrastructure items. Mr. Wickham stated there is a set of 1971 CC&Rs and conditions that includes all of La Costa Meadows Unit No. 3. Vice Chairperson L'Heureux asked who has the responsibility of making sure all of the conditions for the project are met and that all of the public improvements are installed. Mr. Wickham stated that Staff feels this project will be graded as one project and it will not be graded as seven individual minor graded lots. Vice Chairperson L'Heureux asked if there is a condition that assures that will done and stated he would like to see ironclad assurances that before the lots are sold, all public improvements are installed and the lots are ready to be built upon. Mr. Wickham stated there will be one final map recorded for the project. With that final map there will be one final grading plan approved. There will be a third party review of the project as well as extensive investigation of the entire development. Once completed there will be one as-graded final report, signed off by the geologist documenting the conditions that have been exposed and the entire repairs and remedies performed fix any issues during the grading. Vice Chairperson L'Heureux asked if the City has any control to require that the lots be developed in a specific timeframe. Mr. Wickham stated that from an Engineering standpoint, the grading is proposed to be done all at one time. Mr. Westman stated there is nothing proposed at this time to require the construction of the homes to be completed in a specific amount of time. This project is simply a subdivision creating the lots. Ms. Mobaldi stated that it could be specified that the entire project needs be graded simultaneously. Commissioner Nygaard inquired if the developer would be responsible for taking care of the open space lot if the lots are not sold all at the same time. Mr. Westman stated that would be the case until the newly formed HOA took over ownership and responsibility. The developer is the majority HOA member until the lots are sold, and as such, has the responsibility to keep things managed until they are a minority member. Commissioner Montgomery stated that in his opinion, the reality of this project is that the final map is approved, bonding is in place, and it will be difficult and various owners involved through the final development of the project. DISCUSSION Commissioner Montgomery stated the community has come forward with many arguments; however, he disagrees with most and only agrees with a few. He stated that he agrees with the mapping error and that the site was always planned for development of some type. Commissioner Montgomery feels this proposal is better than the previous proposal but there are two impacts which need to be resolved before he can support the project. First there is visible site sloughage of materials. He believes that within the confines of this development there should be a drainage system and it should not be in the proposed open space Secondly, he stated he does not agree with the inclusion of lot 1 within the subdivision due to the variety of easements across that lot, and the walls proposed to be built on that lot could impact the surrounding neighborhood to a point where it needs to be more fully investigated or be abandoned. Commissioner Schumacher stated he is empathetic to the citizens that have spoken against this project; however, he feels the intent of the property was to be designed as residential and the mapping was done in error. He stated that his biggest concerns that still remain are the engineering concerns and protecting the existing homes on Cacatua Street. Commissioner Schumacher stated any additional safeguards that Planning Commission Minutes September 1, 2010 Page 9 can be included with the project would be beneficial. He further stated that he is generally is in support of the concept of this development. He also stated he would like to see the sidewalk installed. Commissioner Baker also commented on the community's input on this project. She stated that she does believe the evidence does show that this property was always zoned as residential. It is a difficult piece of property to develop. She commented that this proposal is a better design than the previous proposal. Given that the grades of pads are lower, she stated she does not believe there will be as many impacts as previously designed Commissioner Baker stated that Commissioner Montgomery's suggestion of eliminating Lot 1 is intriguing. Commissioner Dominguez stated his support of the project and feels Commissioner Montgomery's suggestions should be considered further. He stated he is concerned about the traffic. He commented that this is a property rights situation where this property was designated for this type of development and the owner has a right to proceed regardless of the market situation. Commissioner Nygaard thanked the HOA for their involvement. She stated she feels it is a better project than what it started out as. She commented that there is a right for the owners to develop this property. Commissioner Nygaard stated she is a little concerned with the trigger with the HMP and how that will impact being able to move forward with the project. She stated she agrees with Commissioner Montgomery in regards to Lot 1 and is concerned with the overall drainage of the site. She stated she can support the project but is open to adjustments. Vice Chairperson L'Heureux agrees that the revised project is better than the first project but he is concerned with adding more homes onto El Fuerte. He commented that he is concerned with small HOAs normally because they do not have any professional management. He stated he is concerned with long term management of things such as the browditches. Vice Chairperson L'Heureux feels that the drainage should be contained on the site. He feels the project should be returned to Staff and the applicant to work on a redesign of the project. He further stated that Lot 1 is a potential problem and that the missing segment of sidewalk needs to be installed. Ms. Mobaldi stated that an alternative is to make the recommendation with the conditions the Commission is proposing. Mr. Westman clarified that the map is final at Planning Commission so perhaps the Commission can direct Staff to incorporate these kinds of conditions and issues into the resolutions or as notes on the map. Commissioner Montgomery stated he would prefer that the project come back to the Commission redesigned. Commissioner Dominguez stated his concern regarding sight line compromise might be added as a condition to the map. Commissioner Schumacher stated that he does not know if Lot 1 needs to be abandoned but he would like Staff to look into alternatives. Commissioner Montgomery stated he is concerned about the large retaining wall, the crisscrossing easements on the lot, what the conditions of those easements are, what the utilities are, and the placement of the utilities within the easements. He feels that Lot 1 will be completely restricted as to the placement of the structure. Commissioner Baker stated that she agrees with Commissioner Schumacher in that she is not against the inclusion of Lot 1 but if the removal of one lot helps to solve some of the drainage issues and stability of the retaining wall, it might be worth looking into. Commissioner Dominguez stated his concurrence with Commissioner Baker. Vice Chairperson L'Heureux asked what meeting this project could be continued to if the Commission votes to continue it. Mr Neu stated that the next meeting is on September 15th which would be very Planning Commission Minutes September 1, 2010 Page 10 difficult to have everything complete for the project. The meeting after that would be October 6th and he suggested that the Commission ask the applicant if that would allow enough time to address the issues. Mr. Westman asked the Commission for specific direction regarding a proposed redesign. Commissioner Montgomery stated that he is asking the applicant and Staff to return with a recommendation for a project with 6 lots. Commissioner Dominguez also stated his support for that idea. Vice Chairperson L'Heureux asked the applicant's representative how much time would be needed to work with Staff to address the issues of the Commission. Mr. Zomorradi stated he still does not understand the request from the Commission. With regards to Lot 1, Mr. Zomorradi stated the existing easements are being widened to meet City standards. There are more easements being granted to the City The retaining wall on Lot 1 is similar to the wall on Lots 6 and 7. He stated he has demonstrated that with Lot 1, with consideration of staying with the confines of the proposed pad, is buildable and architectural plans have been developed for the building envelope shown. Mr. Zomorradi stated it is very feasible to develop Lot 1. Any retaining walls or grading will not affect the existing sewer lines or drainage system. Commissioner Montgomery stated that he would like to know where the utilities are within the easements and their elevations, if there will be any impacts on the proposed home on that lot as well as the impact of the retaining wall on the proposed home. Mr. Zomorradi stated extensive research was performed with the available records at the city. The elevations of the easements are noted on the plan and there will be no effect of drainage from the existing pipe seeping onto the lot. Commissioner Montgomery suggested that it be investigated further. Commissioner Schumacher asked if these details will be further embellished upon when this project goes through final Engineering review. Mr. Wickham stated yes. Commissioner Schumacher stated he is comfortable with the project as it is currently proposed. MOTION ACTION: Motion by Commissioner Nygaard, and duly seconded, that the Planning Commission adopt Planning Commission Resolution No. 6669 recommending adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and adopt Planning Commission Resolutions No. 6670 and 6671 recommending approval of General Plan Amendment GPA 09-08 and Zone Change ZC 09-09, and adopt Planning Commission Resolutions No 6672, 6674, and 6675 approving Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Plan HMP 09-10, based on the findings and subject to the conditions contained therein including maintaining drainage improvements within Lots 1-7 and to add a non-mapping note to Condition 46 of Resolution 6672 for grading to be done simultaneously for all lots. VOTE: 3-3-1 AYES: Commissioner Baker, Commissioner Nygaard and Commissioner Schumacher NOES: Vice Chairperson L'Heureux, Commissioner Dominguez, and Commissioner Montgomery ABSENT: Chairperson Douglas ABSTAIN: None Planning Commission Minutes September 1, 2010 Page 11 MOTION ACTION: VOTE: AYES: NOES: ABSENT: ABSTAIN: Motion by Commissioner Dominguez, and duly seconded, that the Planning Commission continue Agenda Item 3 to October 6, 2010 so that staff will assess a condition to require simultaneous grading; redesign of the subdivision to contain the drainage brow ditches within the subdivision and not within the open space lot; consideration of a condition to require the construction of sidewalk improvements offsite adjacent to the subdivision; assess possible restrictive map conditions to promote clear vehicular sightlines to El Fuerte Street from the subdivision lots; and to provide feedback regarding the consideration of elimination of Lot 1 due to that lot's vehicular sightline, multiple restrictive easements, use of a 12 foot retaining wall, and existing sewerline elevations relative to the lot pad. 5-1-1 Vice Chairperson L'Heureux, Commissioner Dominguez, Commissioner Montgomery, Commissioner Nygaard and Commissioner Schumacher Commissioner Baker Chairperson Douglas None Vice Chairperson L'Heureux closed the public hearing and thanked Staff for their presentations. COMMISSION COMMENTS None. PLANNING DIRECTOR COMMENTS None. CITY ATTORNEY COMMENTS None. ADJOURNMENT By proper motion, the Regular Meeting of the Planning Commission of September 1, 2010, was adjourned at 8:52 p.m. DON NEU Planning Director Bridget Desmarais Minutes Clerk Planning Commission Minutes Octobers, 2010 Page 2 PLANNING COMMISSION PUBLIC HEARING Vice Chairperson L'Heureux asked Mr. Neu to introduce the first item. 1. GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 - EL FUERTE VIEW - Request for a recommendation of adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; a recommendation of approval for a General Plan Amendment and Zone Change to designate an open space preservation lot as Open Space; and a request for approval of a Tentative Tract Map, Hillside Development Permit and Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven single family homes and one (1) 1.56 acre open space lot, on property generally located south of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. Mr. Neu introduced Agenda Item 1 and stated Senior Planner Christer Westman would make the Staff presentation assisted by Associate Engineer Clyde Wickham. Vice Chairperson L'Heureux asked if the applicant wished to continue with only 6 Commissioners present. The applicant stated yes. Vice Chairperson L'Heureux opened the public hearing on Agenda Item 1. Mr. Westman gave a brief presentation and stated he would be available to answer any questions. Vice Chairperson L'Heureux asked if there were any questions of Staff. Mr. Neu stated that the Commission did receive a letter from the La Costa Meadows Unit No. 3 Home Owners Association as well as a response to the HOA from the City Attorney. Commissioner Montgomery stated that the items he previously was concerned with have been resolved with this new redesign. Commissioner Dominguez asked if the Commission would consider restricting the home on lot 1 to being a single story. Commissioner Baker stated she is opposed to that because the city does not have a view ordinance and it would set a precedent. She stated it is not an issue the Commission should be involved in. Vice Chairperson L'Heureux asked if there were any further questions of Staff. Seeing none, he asked if the applicant wished to make a presentation. The applicant stated no. Vice Chairperson L'Heureux asked if there were any members of the audience who wished to speak on the item. He stated that because the item is a continued item, the Commission is focused on the new information presented at tonight's meeting and asked any speakers to limit comments to only those items. Vice Chairperson L'Heureux opened the public testimony on Agenda Item 1. Marco Gonzales, legal counsel for the Coastal Environmental Rights Foundation, stated while he understands the Commission's desire to have a closure to the public hearing with the continuance limit on public comment, the California Environmental Quality Act requires that the Commission accept all comments made prior to a final decision including appeal to the City Council. Mr. Gonzalez stated that he had submitted a letter this afternoon having recently become aware of the project and the various issues he has with it. Mr. Gonzalez stated there are procedural and substantive problems with the project, and the Commission cannot defer mitigation and defer resolution of mapping errors to a future point in time and essentially rubber stamp an initial study that is purporting to be a mitigated negative declaration. Mr. Gonzalez stated these items have been detailed in the letter which was submitted. He feels that in order for the Commission to legally move forward with the project, the Commission does need to move forward with the minor amendment to the MHCP. He further stated there is a reason for the minor amendment process and it is spelled out very clearly in the HMP Implementing Agreement that when there are Planning Commission Minutes Octobers, 2010 Page 3 purported mapping errors the project needs to go through the minor amendment process. Mr. Gonzalez stated that he disagrees that the mapping error gives the Planning Department the right to simply turn a blind eye to the historic degradation to the hardline preserve, in essence giving the developer a credit for having a degraded parcel near the proposed map site 1. The letter also outlines many issues that need to be resolved. He commented that he expects the matter to be appealed to the City Council in which there will be additional opportunities to work with staff and perhaps convince the City Council that a full EIR is needed. Mr. Gonzalez implored the Commission to postpone their decision until they have had the opportunity to review the letter, or in the alternative simply refer the matter to the City Council with neither an approval nor a denial. Assistant City Attorney Jane Mobaldi stated that neither she, the Commission, the Project Planner nor the Planning Director had received the letter Mr. Gonzalez referred to during his public testimony. Mr. Gonzalez stated the next speaker, Ross Campbell, submitted the letter that afternoon and would be able to give the Commission the details on the delivery. Ross Campbell, also representing Coastal Environmental Rights Foundation, stated the letter was submitted electronically at approximately 3:30 p.m. to Mr. Westman. Mr. Campbell commented that there are a number of issues with regard to the project including the minor amendment process in terms of equivalency findings. He stated that it is very difficult at this point, because of the fact that the offset in restoration habitat area has not been identified or evaluated, to evaluate whether or not they are equivalent in terms of habitat value, quality and quantity. Mr. Campbell stated there is a general indication that in the future it is not going to be a problem and the restoration habitat will be identified later, which is not what is contemplated under the Habitat Management Plan. With respect to the CEQA process, given the very sensitive biological resources onsite, this project is not appropriate for a mitigated negative declaration, an EIR is required. Under the Fair Argument Standard, very clearly, there may be a significant impact and that is all that is required. Mr. Neu stated that specificity is needed as to what the significant impacts are rather than an open-ended statement that there is one. Ms. Mobaldi asked to whom Mr. Campbell sent the letter this afternoon. Mr. Campbell stated Christer Westman. Commissioner Baker stated this project has been going on for months and for a letter to be submitted at the twelfth hour with the expectation that the Planning Commission stop everything that they have been working towards and to delay the project again seems extremely unfair. Mr. Campbell stated that he understands Commission Baker's concern; however the legislature has determined and enacting CEQA and promulgating applicable regulations that information may be submitted up until the time of the hearing. From the legislature's standpoint, Mr. Campbell stated it is appropriate and it is fair. Ms. Mobaldi stated that Mr. Campbell does have a right to submit information up until the time a decision is made. She suggested the Commission review the comment letter and consider it before moving forward with a decision to continue the item or to vote on the permits tonight. Ms. Mobaldi stated that it is her position that the Habitat Management Plan is an agreement between the City and the wildlife agencies and those are the signatory parties to the agreement and those are the signatory parties to the implementation agreement. She stated that if anyone knows what was contemplated by the Implementation Agreement, it is the two .parties that made the Agreement not necessarily some outside third party. Secondly, if you review the HMP Implementation Agreement, it allows administrative amendment of a mapping error. The Carlsbad Municipal Code does refer to minor amendments and major amendments and when they need to go before one body or another. Technically, the Commission's approval for the minor amendment is not required in this case, because this is a mapping error, which is not spelled out in the Municipal Code as a type of minor amendment that needs to be approved by the Planning Commission; it can be handled administratively between the wildlife agencies and the City pursuant to the Implementation Agreement. It was brought before the Planning Commission as a courtesy to get concurrence because the planning staff needed to disclose the mapping error as background on the project.. Ms. Mobaldi further stated that she responded to a letter from Mr. Bob Lattin who inquired as to why the minor amendment did not go before the City Council. Ms. Ill Planning Commission Minutes Octobers, 2010 Page 4 Mobaldi explained that minor amendments do not go before City Council no matter what the nature is. However this particular minor amendment did not need Planning Commission approval. RECESS Vice Chairperson L'Heureux called for a 10 minute recess at 6:23 p.m. MEETING CALLED TO ORDER Vice Chairperson L'Heureux called the meeting to order at 6:38 p.m. with all Commissioners present. Mr. Neu addressed some of the comments brought up in the letter submitted by Ross Campbell. Mr. Neu stated Staff did identify roughly three mapping errors in the whole city. When the mapping was done at the scale that it was completed for the entire city, it was not perfect. In the City's discussions with the wildlife agencies which lasted over a year and this project's applicant was stuck in the middle. The ultimate decision was, as mentioned by Ms. Mobaldi, that the permit is issued to the City to administer and it is an agreement between the City and the two wildlife agencies. In the context of the mapping error, at the end of the life of the HMP permit, the City has a certain number of acres of habitat that must be preserved in a number of habitat categories. It is the City's obligation to ensure those numbers are met or exceeded. When Staff approached this project and the wildlife agencies concurred that it was a mapping error, it was with the full understanding on the City's part that the full number of acres of habitat is there in the end. City staff has been working with the wildlife agencies to identify other areas within the city that will be the replacement habitat. The steps have not been taken to formally trade those areas out so that the review of the entire city is complete and the trade outs can be done at one time. As discussed at the previous meeting, Mr. Neu stated this is a site that always had the General Plan designation of residential and it had no zoning for open space and no open space easements. Because of that, the agencies did concur that there was a mapping error. One of the things that Staff has done is to approach the project as if, assuming it was not a hardline preserve area in the HMP, what other mitigation is required. In this case, Mr. Neu stated there is the creation of the open space lot with the endowment and the management requirements, the preconstruction surveys for gnatcatchers, and the payment of the HMP impact fees for the areas to be developed. The HMP has been implemented with all of its requirements, with the acknowledgement of the mapping error. Mr. Westman also addressed comments from the letter. Mr. Westman stated the noise impacts from traffic, were analyzed in the noise study. Typically a noise analysis is done to determine whether or not the existing noise or future noise created by road traffic would have an impact on the project itself. Mr. Westman stated the study was completed in 2003 and is still valid. The intent of the noise study is to help determine how best to protect the project from future noise. When the homes are actually built, they will essentially serve as a noise mitigation wall for the required noise attenuation for outdoor recreation space. There is also a condition for this project which requires that prior to the issuance of a building permit there needs to be evidence that there will be noise attenuation such as multi-pane windows, etc., to reduce the noise level to what is required by the General Plan. Mr. Westman further stated that this project is not required to provide any noise mitigation for existing homes along El Fuerte or the surrounding properties. As far as the grading and geological impacts, the Engineering Division has previously described in detail how the various geologic reports have been analyzed, and how the grading plans are prepared, and that even before a grading permit is issued, there will be a third party review by an independent geotechnical firm. Mr. Westman stated that regarding aesthetic impacts and the views impacted by the homes on Cacatua, and as stated previously by Staff and by the Commission, there is no view ordinance in the city. Within the realm of CEQA, a scenic corridor or a scenic vista is not being impacted by this project and this property could not be reasonably considered a significant visual resource for the city. For that reason also there is no impact. Staff is confident that the environmental analysis has been done correctly and thoroughly. Ms. Mobaldi responded stated that the fundamental premise of the letter is that the hardline preserve area is being taken, and that fundamental premise is incorrect. This is a mapping error and is not a situation where something was intended to be a hardline preserve. Planning Commission Minutes Octobers, 2010 Page 5 Commissioner Montgomery commented that it does appear from the letter that was submitted, that Mr. Gonzalez and Mr. Campbell understand the project to be part of the HMP and subject to the standards. Commissioner Montgomery stated the city is not reviewing this project like it was in the HMP. Mr. Neu stated that staff is reviewing the project as if it were subject to the requirements of the HMP but there is a difference in the requirements if something is in the hardline area which would then mean it is to be preserved in its entirety versus it is in standards area or not covered but still subject to the requirements in terms of mitigation for habitat loss. Commissioner Montgomery stated the city is not evaluating this project like it is within the hardline area of the HMP. Mr. Neu stated that was correct. Commissioner Montgomery asked that, in regard to the noise impact, that for residential projects, a noise study analyzes the noise from the exterior of a project boundary to be the noise study of the actual project itself, and the construction of the project itself is never evaluated. Mr. Westman stated the standard for noise is that for certain locations within a project boundary, noise levels are not to be exceeded. If there was a project that created excessive noise, there would be mitigation that would have to be applied to the building so that it would meet performance criteria not to affect the adjacent properties. In this case, it is a residential development and there is an assumed noise level that will be generated by people occupying the home and going about their daily lives. It is not an unusual circumstance; historically it is not considered the type of project that creates excessive, significant noise impacts to a surrounding neighborhood. Staff then looks at protecting, from a building standpoint, the open space and recreation areas that are required for a project such as this, so that the outdoor space can be by the future home owner's. Commissioner Montgomery asked if that is typical of the City for residential projects. Mr. Westman stated yes. Commissioner Montgomery stated that according to the letter submitted, the applicant is benefitting from the continual deliberate degradation of the project from the clearing of weeds; therefore there are potential biological impacts that are not there because of the continual clearing. Mr. Westman stated the Fire Department does issue letters to property owners that are subject to weed abatement requirements in order to reduce the potential for fire hazards. The project site has been disturbed in the past. Biologists and staff have both been out to the project site in the past, and it is not a pristine biological site. The site has never been designated as a hardline preserve area, it is not General Plan designated or zoned as open space. Mr. Westman stated that the analysis that has been provided to the City by the biologist have identified a certain level of biological significance and that has been accounted for in the review and is reflected in the mitigated negative declaration and the measures that are being imposed on this project. Commissioner Montgomery asked about the surveys being within the previous year versus five years. Mr. Westman stated that the mitigated negative declaration was issued in 2009 for public comment. At the time it was issued, it was very current. Mr. Neu pointed out the requirement for a pre-construction survey for gnatcatchers so if gnatcatchers were nesting on the site, it would delay construction until the end of the nesting season, or if they were in such a location to not be impacted by the construction, it may be allowed to occur subject to discussions with the biologist. In some cases, in larger projects, plywood walls have been constructed as mitigation for sensitive species onsite. Commissioner Montgomery asked about the specified oaks not being designated as a mitigation measure. Mr. Westman stated the nuttal scrub oak on the site is not a significant collection that needs preservation. Vice Chairperson L'Heureux asked if the applicant wished to address the Commission on any of the issues raised. Hossein Zommorrodi, 7801 Mission Center Court, San Diego, Civil Engineer for the project, stated he has every confidence that the Commission is addressing the issues very accurately and he questioned the true motive of the attorneys at the last minute. Vice Chairperson L'Heureux closed public testimony on Agenda Item 1. Planning Commission Minutes Octobers, 2010 Page6 DISCUSSION Commissioner Montgomery stated that the subdivision's redesign makes it a better project. As far as the HMP issues, he believes it is a mapping error and it is unfortunate that it was included in the preserve area; however, he is still concerned about the project. Commissioner Schumacher stated he satisfied with the process the city has followed with CEQA and with the HMP. He believes it is a mapping error; and he would like to add a minute motion for the additional piece of sidewalk so that the construction of that sidewalk could be aligned with the construction of the project. Commissioner Baker stated she can support the project. She stated the Commission and staff have both done their due diligence on vetting all the issues with this project. Commissioner Baker stated she can support the project as well as the suggestion for the additional sidewalk. Commissioner Dominguez stated he can also support the project and concurred with his fellow Commissioners. Commissioner Nygaard commented she too can support the project. She also concurred with her fellow Commissioners. With regard to the sidewalk as suggested by Commissioner Schumacher, she can also support a minute motion. Vice Chairperson L'Heureux stated he has a problem with this project as it is designed as 7 separate lots as opposed to one coordinated project. He stated he is very concerned for the neighbors and that there will be too much of an impact to tine existing, surrounding neighborhood. Vice Chairperson L'Heureux stated he sees this is an infill project and therefore it should be handled with more sensitivity from the Commission. For those reasons, he cannot support the project. MOTION ACTION: Motion by Commissioner Nygaard, and duly seconded, that the Planning Commission review the information provided by the applicant and that the Planning Commission adopt Planning Commission Resolution No. 6669 recommending adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and adopt Planning Commission Resolutions No. 6670 and 6671 recommending approval of General Plan Amendment GPA 09-08 and Zone Change ZC 09-09, and ADOPT Planning Commission Resolutions No. 6672, 6674, and 6675 approving Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Plan HMP 09-10, based on the findings and subject to the conditions contained therein including the errata sheet, the replacement of the new exhibit, and the change in the brow ditch. VOTE: 5-1 AYES: Commissioner Baker, Commissioner Dominguez, Commissioner Montgomery, Commissioner Nygaard, and Commissioner Schumacher NOES: Vice Chairperson L'Heureux ABSENT: Chairperson Douglas ABSTAIN: None \\5 Planning Commission Minutes October 6,2010 Page 7 MINUTE MOTION ACTION: Motion by Commissioner Nygaard, and duly seconded, that the Planning Commission recommend that the piece of missing sidewalk on the south side of El Fuerte Street, west of Cacatua Street be added to the City's Capital Improvement Program. This segment should have a priority as it is the only missing segment of a school route to the La Costa Meadows Elementary School. VOTE: 6-0 AYES: Vice Chairperson L'Heureux, Commissioner Baker, Commissioner Dominguez, Commissioner Montgomery, Commissioner Nygaard, and Commissioner Schumacher NOES: None ABSENT: Chairperson Douglas ABSTAIN: None Vice Chairperson L'Heureux closed the public hearing on Agenda Item 1 and asked Mr. Neu to introduce the next item. 2. V 10-01 - PALOMAR COMMONS - A request for approval of a Variance to the Sign Ordinance (CMC Chapter 21.41) to exceed the letter height and sign area allowances for a recently approved commercial building located at the southwest corner of Palomar Airport Road and El Camino Real in Local Facilities Management Zone 5. Mr. Neu introduced Agenda Item 2 and stated Senior Planner Van Lynch would make the Staff presentation. Vice Chairperson L'Heureux asked if the applicant wished to continue with only 6 Commissioners present. The applicant stated yes. Vice Chairperson L'Heureux opened the public hearing on Agenda Item 2. Mr. Lynch gave a brief presentation and stated he would be available to answer any questions. Vice Chairperson L'Heureux asked if there were any questions of Staff. Seeing none, he asked if the applicant wished to make a presentation. Bill Hofman, Hofman Planning and Engineering, 3152 Lionshead Avenue, Carlsbad, stated the Lowe's gave a brief presentation and stated he would be available to answer any questions. Mr. Hofman introduced Pari Holliday, Site Development Manager for Lowe's, 1530 Faraday Avenue, who also gave a brief presentation and stated she would be available to answer questions. Vice Chairperson L'Heureux asked if there were any further questions of Staff. Ms. Mobaldi stated that at the last hearing for this project, two of the Commissioners were opposed to the project. At that time, Ms. Mobaldi advised those Commissioners that they could not vote on the variance for the sign; however, she has since reconsidered that advice. If the Commissioners can be objective and can review the sign variance request independently of the project now that it has been approved by City Council, those two Commissioners can vote on this request. Vice Chairperson L'Heureux asked if there were any members of the audience who wished to speak on the item. Seeing none, he opened and closed public testimony. DISCUSSION Commissioner Montgomery stated he can support the project. EXHIBIT 7 fofcsfio Ntfuw jAittefe, AUsforsevv/ ^ 6<«3 fiwr /C«^v^ K^/wt-f 2 S^M fr^t-Kg**-- U*of Carisbad APPEAL FORM /// 1^,1 (We) appeal the decision of the to the Carlsbad City Council. Date of Decision you are appealing:.2-0 / 0 Subject of Appeal: BE SPECIFIC Examples: if the action is a City Engineer's Decision, please say so. If a project has multiple elements, (such as a General Plan Amendment, Negative Declaration, Specific Plan, etc.) please list them ail. If you only want to appeal a part of the whole action, please state that here. TJi^, A ,-->f '"* I "'- 1~ •*" fl /«y»^i.r>i *i C cxi^;/S Sin-* ff^ O^-tot @e-*al*±.« st (,(,70 L L 7 1 • Reason(s) for Appeal: • Please Note • Failure to specify a reason may result in denial of the appeal, and you will be limited to the grounds stated here when presenting your appeal. BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local laws, plans, or policy? >e-e_ k=- Lau) (y-iro* p a J'T-A f-k s SIGNATUREf2tle,f-t- 6V '. fir A.'4ft(»»ft / C'w NAME (please print) f j ^L DATE PHONE NO. S4._ ADDRESS: Street Name & Number (SvlslW _ C fi 5 2.0Q J City,State,Zip Code 1 200 Carlsbad Village Drive • Carlsbad, California 92008-1989 • (619)434-2808 REASONS FOR APPEAL: EL FUERTE VIEW EXHIBIT A 1. The City has improperly limited the scope of environmental review for this Project. This Project is in violation of the MHCP and HMP and the correct procedures for processing a plan amendment have not been followed. A current EIR must be prepared for the Project. Reference is made to the attached letter dated October 6, 2010 from Coast Law Group. 2. The City has ignored the appreciable harm to adjacent property owners from developer's proposed major excavations in a known existing historical landslide area. The developer's proposed mitigation measures are manifestly insufficient to eliminate a demonstrable landslide risk, especially in context with the recent landslides at the La Costa de Marbella property in Carlsbad or the Arroyo Avenue properties in Oceanside. Based on the developer's complete lack of financial depth, in event of a landslide or other land subsidence, and should the City refuse to impose long term insurance by the developer, the affected properties will have no other recourse but to look to the City for indemnity. 3. The City has not adequately addressed and mitigated the potential environmental, traffic, noise, health, safety, visual blight, and attractive nuisance considerations for this development which will involve substantial "cut and fill" grading operations over an extended period and will likely result in graded pads lying in undeveloped condition for a extended period due to market conditions. 4. The City has wholly ignored the developer's refusal to respect the private Covenants, Conditions, and Restrictions ("CCRs") which encumber the subject parcel. The City must require the developer to submit its development plans to the Architectural Review Committee for review and approval. Appellants recognize and respect the owner/developer's right to develop the subject parcel. However, the development of this parcel cannot be to the detriment of the affected property owners' existing rights. The City must require the developer to sufficiently address and mitigate all the pertinent concerns, including cooperation with the Architectural Review Committee. 1140 South Coast Hwy 101 Encinitas, CA 92024 Te! 760-942-8505 Fax 760-942-8515 www.coastlawgroup.com January 11,2011 Christer Westman, AICP Senior Planner Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: El Fuerte View Project Via Electronic Mail Christer.Westman@ca rlsbadca.gov Coastal Environmental Rights Foundation City Council Appeal Hearing - Jan. 1 1 , 201 1 h\Muh .1 Ofllli.\Jl\ CITY OF CARLSBADCITY CLERK'S OFFICE Dear Mr. Westman: Coast Law Group LLP represents the interests of the Coastal Environmental Rights Foundation (CERF) with respect to the City's review of the above-referenced project (the Project) and the pending appeal before the City Council (the Appeal). As previously noted, CERF is a nonprofit organization established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents. Thank you for the continued opportunity to participate in the review process. We previously submitted comments on the Mitigated Negative Declaration (MND), and the Project's failure to comply with both the Multiple Habitat Conservation Program (MHCP) and the Carlsbad Habitat Management Plan (HMP). In that regard, we reiterate the points raised in our October 6, 2010 comment letter, a copy of which is attached hereto and incorporated herein by reference. We also respectfully submit the following comments in response to the City's continued defense of the Project, and to further address the failure to adequately review the Project under the California Environmental Quality Act (CEQA), the resulting failure to prepare an EIR, and the City's abuse of discretion in processing the HMP amendment. 1.Hardline Preserve and HMP Amendment. As a preliminary matter, we take issue with the City's claim at the October 6 hearing that the HMP is simply "an agreement between the City and the wildlife agencies" and "that if anyone knows what was contemplated by the Implementation Agreement, it is the two parties that made the Agreement not necessarily some outside third party." (Planning Comm. Oct. 6, 2010 minutes, p. 3). As the City is aware, the HMP is intended to preserve habitat diversity and protect sensitive biological resources within the City in compliance with both the federal and state Endangered Species Acts. These are matters of significant public concern, and the right to ensure the HMP is properly being implemented is not so limited in scope or review. a.Violation of HMP Amendment Procedures Moreover, even if we were to accept the City's position, the City has not complied with the express conditions imposed by the U.S. Fish & Wildlife Service (FWS) and Department of Fish & Game for processing a minor amendment in this case. As noted in our prior comment letter, Carlsbad City Council El Fuerte View Project Jan.11,2011 Page 2 while both agencies have informally suggested via email that it may be appropriate "to process a Minor Amendment" for the site, they have expressly conditioned that concurrence on the requirement that there be "no-net-loss of overall preserve." (See August 12 and 23,2010 emails from FWS and DFG, respectively). And although both the City and the applicant have apparently been aware of the purported "mapping error" for over seven years, (see June 12, 2003, Dudek biological report, p. 17), the City has yet to "identify other areas within the city that will be the replacement habitat." (Planning Comm. Oct. 6, 2010 minutes, p. 4). The wildlife agencies imposed the foregoing conditions because they must be satisfied before the HMP amendment can be processed: "Minor adjustments to hardline boundaries that result in no net loss of the duality or quantity of habitat are allowed if processed as a Minor Amendment through an Equivalency Finding." (Biological Guidelines, p. 19, citing HMP p. E-3; Implementing Agreement Section 20, p. 29; emphasis added). Given the ongoing delays in identifying replacement sites, the City's claim that it will address the issue at some indeterminate point in the future is entirely insufficient. In addition, for purposes of CEQA review, potentially viable replacement sites must be discussed and evaluated in an EIR to satisfy the minimum statutory requirements of public disclosure and informed decision-making. The current review process is therefore legally deficient. b. Abuse of Discretion in Treatment of Hardline Preserve Area As the City is aware, the Project site was originally included in the HMP's hardline preserve area because of its biological value. Indeed, hardline areas are specifically designated as "lands that will be conserved and managed" because of "their value to biological resources." (MHCP, p. 3-2; Guidelines for Biological Studies (Biological Guidelines), p. 4). Although the City contends the site was included due to a "mapping error," that does not change the substantive determination that was made in designating the site as part of the hardline preserve in the first place. In other words, regardless of any procedural errors claimed to be at issue, the site was originally included in the hardline preserve area for a reason. For instance, the FWS itself has determined that "potential habitat for the coastal California gnatcatcher. . . occurs on site, contrary to evidence provided in the [applicant's] Biological Resources Technical Report." (See Oct. 6, 2009 FWS letter, p. 3). Remarkably, in purporting to evaluate Project impacts under CEQA, the City now claims the site was mistakenly identified as a hardline preserve area and is merely an "infill lot" that has been "previously graded" and does not have significant biological value. (See e.g. Agenda Bill, p. 1; MND, p. 21; Planning Comm. Oct. 6, 2010 minutes, p. 5). In support of this position, the City further claims that this "is not a situation where something was intended to be a hardline preserve." (Planning Comm. Oct. 6, 2010 minutes, p. 4). The City has treated the property accordingly in finding a lack of potentially significant impacts. At the same time, however, in determining whether the applicant has complied with its mitigation requirements, the City has concluded that the site does contain sufficiently valuable biological resources to constitute hardline preserve area. In that regard, Staff has confirmed that the "newly created open space" will be "identified in the HMP as a hardline preserve area." (Planning Comm. Sept. 1, 2010 minutes, p. 7). The City has apparently taken this position because, "The City agreed that the development footprint would be used to ultimately establish the revision to the hardline boundary." (BTR, Dudek, March 2005, p. 20; emphasis added). Carlsbad City Council El Fuerte View Project Jan.11,2011 Page 3 The failure to recognize the site as hardline preserve area for purposes of evaluating Project impacts constitutes an abuse of discretion. Based on the City's own prior representations, a substantial portion of the site is being designated as hardline preserve area and Project impacts should have been reviewed accordingly. The City's failure to recognize this point has resulted in deficient environmental review. For instance, although the HMP sets forth detailed "adjacency standards" to reduce impacts inherently caused by projects located in close proximity to neighboring preserve areas, the MND fails to discuss or evaluate the Project's compliance with those standards. These issues are further discussed below. 2. Biological Impacts a. Edge Effects It is of course well recognized that development projects may cause significant short and long- term environmental impacts to neighboring habitat areas. These impacts, generally referred to as "edge effects," threaten "the ecological integrity, recreational experience, aesthetic quality, public investment, and safety operations" of preserved areas.1 The HMP specifically contemplates and addresses these issues as follows: "The HMP will result in an urban wildlife preserve system in which conserved habitat areas are adjacent to development of various types. In order to prevent negative effects of either area on the other, these adjacency standards must be addressed in the planning of any development/ habitat interface." (HMP, p. F-16; emphasis added). The HMP adjacency standards address fire management, erosion control, landscaping restrictions, noise and lighting impacts, pets and other domestic animals, and invasive species control. Notably, the applicant's own prior biological studies state that "impacts to vegetation communities primarily would result from adverse 'edge effects.'" (See e.g. Dudek BTR, March 2005, p. 24). And although the regulations apply to "all projects that occur next to a hardline preserve or an undeveloped portion of a Standards Area that might be conserved in the future" (Biological Guidelines, p. 42), the City's review has not addressed the HMP's standards or the significant edge impacts that will be caused by the Project. Here, there is no question that grading and development of the proposed residential lots will have edge effects on the neighboring preserve area with respect to noise, lighting, dust, erosion, runoff and other effects outlined in the HMP. Moreover, project impacts will be particularly significant in this case, as the eastern portion of the property has acted as a buffer from existing development, both residential and transportation-based. This buffer has served to reduce edge effects on the more sensitive biological areas to the west. As a result of the Project's encroachment into this buffer area, edge effects will further encroach into the open space area, and will impact more sensitive and valuable habitat. The loss of these buffer characteristics constitutes a significant environmental impact under CEQA. Similarly, any proposal to postpone evaluation of these issues to a later date will constitute improper deferral of mitigation under established CEQA case law. See Sundstrom v. County of Mendocino (1988) 202 Cal.App. 3d 296; Endangered Habitats League, Inc. v. Rutter Development Company, Inc. (2005) 131 Cal.App.4th 777, 794. See Urban Edge Effects and Their Relationship with the Natural Environment, Cal. State Parks, (Sept. 2000), p. 2, available at http://www.parks.ca.gov/pages/21280/files/urbanedge.pdf. Carlsbad City Council El Fuerte View Project Jan.11,2011 Page 4 b. California Gnatcatcher and Nuttal's Scrub Oak For the reasons specified in our prior comment letter, the MND fails to adequately evaluate and mitigate impacts to the California Gnatcatcher. The postponement of review to the construction stage constitutes improper deferral of environmental review. And as previously indicated, the MND does not call for any specific mitigation measures in the event the species is found to be on-site. Adequate protections must be discussed in the MND and included as conditions of Project approval. Specifically with respect to Nuttal's Scrub Oak, the applicant's own biological surveys note that approximately 270 individuals are present on site. The Project will result in significant impacts to this community. Indeed, the June 2003 report expressly states, "Impacts to Nutall's scrub oak are typically considered significant." (June 12, 2003, Dudek biological report, p. 16; emphasis added). Notably, this statement has been omitted from the March 2005 version of the report, the operative study relied on by the City in evaluating Project impacts. (See and compare Dudek BTR, March 2005, p. 27). The transplantation of Nuttall Scrub Oak is a viable mitigation measure and was previously raised by FWS. Given the failure to mitigate this impact, the Project will result in significant environmental impacts and an EIR must be prepared. 3. Noise Impacts As discussed in greater detail in our prior comment letter, the MND fails to review or evaluate noise impacts that will result from development of the individual lots. We have now confirmed that the 2003 noise study (the only noise study that has been prepared for the Project) does not address Project impacts to the surrounding neighborhood and preserve area. This constitutes a fundamental defect under CEQA that must be cured before the Project can be approved. 4. Grading and Geological Impacts The MND fails to sufficiently evaluate potential grading and geological impacts. Indeed, even though slope instability concerns have now been well documented, the MND simply finds in a conclusory fashion that any resulting impacts will be less than significant. The City must prepare a full EIR to adequately address this issue, including an evaluation of Project alternatives that would avoid these impacts altogether. 5. Conclusion For the reasons explained above and in our October 6 comment letter, the Project will result in a number of significant environmental impacts under CEQA. The City's failure to prepare an EIR constitutes an abuse of discretion. Further, the Project is in violation of the MHCP and HMP, and the procedures for processing a plan amendment have not been followed. Based on the foregoing, the Project cannot be legally approved as proposed and we respectfully request that the Council grant the Appeal. Thank you for your time and consideration of the above. Sincerely, COAST LAW GROUP LLP Ross M: Camppell Marco A. Gjanzalez Co A.si LA' 1140 South Coast Hwy 101 Encinitas, CA 92024 Tei 760-942-8505 Fax 760-942-8515 www.coastlawgroup.com October 6, 2010 Christer Westman, AICP Senior Planner Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: El Fuerte View Project Via Electronic Mail Christer.Westman@carlsbadca.gov Coastal Environmental Rights Foundation Planning Commission Hearing - Oct. 6, 2010 JAN ] 1 2011 Dear Mr. Westman: Coast Law Group LLP represents the interests of the Coastal Environmental Rights Foundation (CERF) with respect to the City's review of the above-referenced project (the Project). CERF is a nonprofit organization established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents. Thank you for the opportunity to participate in the review process. In anticipation of the Planning Commission's consideration of the Project at its Octobers, 2010 hearing, we submit the following comments on the Mitigated Negative Declaration (MND), and the Project's failure to comply with both the Multiple Habitat Conservation Program (MHCP) and the Carlsbad Habitat Management Program (HMP). Because the City has engaged in deficient environmental review under the California Environmental Quality Act (CEQA) and because the findings necessary to issue an HMP amendment simply cannot be made, the Project cannot be legally approved as proposed. Further, given the environmental sensitivity of the subject site and surrounding area, a MND is entirely inappropriate for this Project. The proposed mitigation measures do not reduce the impacts to a level of insignificance. Indeed, the MND is nothing more than an initial study checklist, and fails to identify and investigate a number of potentially significant impacts. As detailed below, the City must require the preparation of a full environmental impact report (EIR) under CEQA's "fair argument" standard, as there is no question that the Project "may" have a significant impact on the environment. (Pub. Res. Code § 21080). 1. Improper Baseline Condition As a preliminary matter, the City has adopted an inappropriate baseline for conducting CEQA review. Notwithstanding the property's inclusion in the HMP as a hardline preserve area, the applicant has destroyed sensitive vegetation and disturbed portions of the site on a regular basis. The HMP expressly prohibits any such activity, and an applicant cannot be permitted to benefit from its own violations of the HMP or otherwise gain from its unregulated destruction of protected habitat. Nonetheless, the MND purports to credit the applicant's misconduct by finding less than significant impacts based on the same degraded conditions that the applicant Carlsbad Planning Commission El Fuerte View Project October 6, 2010 Page 2 itself has deliberately caused. For obvious policy reasons, the Project must be reviewed based on the environmental conditions that existed prior to the applicant's degradation of the property, and the baseline conditions applied in the MND cannot serve as an appropriate benchmark for environmental review. Further, unless and until an HMP amendment (minor or otherwise) is finalized, the City cannot allow any further degradation of the site. As the City is aware, it has an ongoing duty to enforce the anti-degradation policies set forth in the HMP, which will continue to apply to the Project absent a valid amendment. The continued failure to enforce those restrictions will only further allow the applicant to circumvent the environmental review process and reduce its mitigation obligations.1 It is entirely disingenuous and circular to allow the degradation of HMP protected habitat and to then subsequently authorize development on the site based on a claim that the habitat lacks biological value. 2. The Fair Argument Standard In order for the City to rely on an MND to analyze the Project, all potential impacts caused by the Project must be avoided or mitigated "to a point where clearly no significant effect on the environment would occur." (Pub. Res. Code § 21080(c)(2); emphasis added). If any portion of the Project may have a significant impact, an EIR must be prepared. (CEQA Guidelines §15063(b)(1)). As a corollary, an MND will only be upheld when there is no credible evidence that the project may have a significant environmental impact. (Quail Botanical Gardens Found, v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602). CEQA requires the preparation of an EIR "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 75 (emphasis added)). "Substantial evidence... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions may also be reached." (CEQA Guidelines §15384). Here, as detailed below, this standard has been met as the Project clearly "may" result in significant impacts to biological resources, including the coastal California gnatcatcher and its habitat. Because the Project will also result in significant noise, aesthetic, and geological impacts, an EIR must be prepared. 3. Biological Resources a. Removal of the Site from the Hardline Preserve will Result in Significant Environmental Impacts. As the City is aware, the HMP establishes hardline preserve areas as a mechanism for ensuring that highly valuable biological resources will be adequately protected. Indeed, these areas have been specifically designated as "lands that will be conserved and managed" because of "their value to biological resources." (MHCP, p. 3-2; Guidelines for Biological Studies (Biological Guidelines), p. 4). These values clearly apply to the Project site, as the U.S. Fish & Wildlife Service (FWS) has "determined that potential habitat for the coastal California 1 Indeed, to the extent the City authorized or had knowledge of the applicant's activities, the City is potentially subject to a citizen suit enforcement action under the Endangered Species Act for negligently or intentionally allowing the degradation of hardline preserve habitat. Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 3 gnatcatcher. . . occurs on site, contrary to evidenced provided in the Biological Resources Technical Report." (See Oct. 6, 2009 FWS letter, p. 3). And as noted in the HMP itself, "[d]irect impacts to the Gnatcatcher could result from the loss of coastal sage scrub habitat used for nesting and foraging by Gnatcatchers." (HMP, App. C., p. C-40). Moreover, it has now been well documented that residents in the area have observed the species on-site. Given the express purposes of the MCHP and HMP in regulating take and protecting sensitive environmental resources, any amendment calling for the removal of hardline preserve from the HMP constitutes a significant environmental impact under CEQA. Because those valuable resources will no longer be protected from development (including viable gnatcatcher habitat in this case), there is no question that the removal of hardline preserve area from the HMP "may" result in significant biological impacts. For this reason alone, approval of the Project will constitute an abuse of discretion. b. Violation of HMP Amendment Procedures and Improper Segmentation of Environmental Review. Further, contrary to the findings made in the MND, the Project will result in significant land use and planning impacts, as the City and applicant have not complied with the procedural requirements for processing an HMP amendment. The City's regulatory guidelines provide that "[m]inor adjustments to hardline boundaries that result in no net loss of the duality or Quantity of habitat are allowed if processed as a Minor Amendment through an Equivalency Finding." (Biological Guidelines, p. 19, citing HMP p. E-3; IA Section 20, p. 29; emphasis added). By the same token, the "[rjemoval of lands from conserved areas, or reconfiguration of hardline areas resulting in a decrease of acreage or quality of habitat, shall constitute a Major Amendment to the HMP." (HMP, p. E-4; emphasis added). Here, the equivalency finding cannot be made because replacement preserve site(s) have not yet been identified or evaluated. The City generally states that the offset issue will be reconciled at some indeterminate point in the future as part of the process of addressing "overall City HMP conservation levels rather than a site or project level conservation." (MND, p. 12). Any approval of the Project on this basis will constitute an abuse of discretion, as the "equivalency" finding simply cannot be made when the site(s) to be annexed to the hardline preserve have never been evaluated during the review process. Indeed, because this critical piece of information is missing, it is impossible to evaluate whether the hardline amendment will result in a net loss of the quantity or quality of the removed habitat. For instance, the equivalency finding cannot be made unless the replacement habitat has the potential to support the California gnatcatcher, as this determination has been made by the FWS with respect to the El Fuerte site. (See Oct. 6, 2009 FWS letter, p. 3). Moreover, "Projects that change the Hardline Preserve require official Agency approval prior to HMP compliance determination (i.e., Equivalency Findings)." (Biological Guidelines, p. 9; emphasis added). Here, although the FWS and Department of Fish & Game have informally suggested via email that it may be appropriate "to process a Minor Amendment" for the site, they have expressly conditioned that concurrence on the requirement that there be "no-net-loss of overall preserve." (See August 12 and 23,2010 emails from FWS and DFG, respectively). Notably, the agencies have not yet found that this requirement has been met. Again, such a determination cannot be made until site-specific replacement habitat is identified and substantively evaluated. Given these procedural defects, the application must be processed as a Major Amendment under the HMP. (See HMP, p. E-4, providing that "removal of lands from Carlsbad Planning Commission El Fuerte View Project October 6, 2010 Page 4 conserved areas" must be processed as a Major Amendment).2 Because the City and applicant have not complied with the express procedural requirements for amending the HMP, the Project cannot legally be approved. Further, the MND is deficient because it fails to identify significant land use and planning impacts resulting from the Project's inconsistencies with the MHCP and HMP. The City's review of the Project is further deficient because the failure to identify replacement habitat as part of the CEQA review process has resulted in the improper segmentation and deferral of environmental review. Because the completion of that process has been deferred to an undetermined date through the City's de facto amendment process, the full impacts of the HMP amendment cannot be known. By engaging in this piecemeal review of the Project, the City has circumvented CEQA's fundamental goals of providing for informed decision-making and full public disclosure. c. Deficient Analysis and Discussion of Biological Impacts The Project does not comply with the impact analysis and mitigation standards set forth in the City's own Guidelines for Biological Studies (Sept. 30, 2008, the "Biological Guidelines"). The Biological Guidelines "were developed to provide the biological standard for processing HMP permits" and set forth the procedures to be followed in demonstrating "compliance with the HMP, MHCP, and CEQA." (Biological Guidelines, p. 1). They are further intended to "ensure that an adequate environmental impact analysis is conducted using the appropriate biological data, and that HMP-compliant mitigation is incorporated into project design and permit conditions." (Id.; emphasis added). "All development projects and fuel modification activities in the city shall comply with [the Guidelines]." (Id. at p. 18; emphasis added). First, the MND is deficient because the City's review of the Project is not based on an adequate biological survey. The Biological Guidelines state that biological surveys "must be recent to be used for a project impact analysis." To be considered "recent," surveys should be "no more than one year old" where, as here, the City and applicant presume that a species such as the gnatcatcher is absent. (See Biological Guidelines, p. 32). To meet minium survey standards applicable to the gnatcatcher, the review must be conducted between February 15 and August 30, must consist of three separate surveys, and the surveys must be at least seven days apart. (Id., p. 25). Here, a biological survey was prepared in October 2005, and an amended "impact analysis" was prepared in May 2009. (MND, p. 33). These studies have not bee included in the Staff Report and it is unclear whether they meet the separate site-visit requirements set forth above. In any event, they are outdated and do not provide an adequate basis for evaluating project impacts under CEQA.3 "Within Carlsbad, the number of existing coastal California Gnatcatcher Similarly, the requisite findings set forth in Section 20.1 of the Implementing Agreement cannot be made. For instance, the amendment will result in operations, impacts and take not contemplated under the original HMP, as the property was designated for full protection under the hardline standards set forth in the MHCP and HMP. 3 The failure to conduct necessary studies renders it more likely the fair argument standard will be met and an EIR will be required. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 311.) It is not the public's duty to prepare the proper studies. (Id.) Carlsbad Planning Commission El Fuerte View Project October 6, 2010 Page 5 pairs fluctuates seasonally and from year to year, based on weather, fires and a number of other factors." (HMP, App. C., p. C-40; emphasis added). Because the gnatcatcher constitutes a "high priority as a preserve planning species and conservation target" (MHCP, p. 3-7), the Project must be reviewed based on current biological surveys that satisfy the minimum gnatcatcher standards set forth in the Biological Guidelines. Indeed, identification of impacts and consideration of feasible mitigation measures prior to project approval are the very cornerstones of CEQA law. (Sundstrom v. County ofMendocino (1988) 202 Cal. App. 3d 296, 306-07). Because the City's own "biological standard for processing HMP permits" has not been satisfied, the Project must be denied. d. Deficient Analysis and Implementation of Mitigation Measures Per the City's own review standards, "CEQA documentation must outline impact mitigation with enough detail to illustrate how they will reduce impacts to a level below significant, and satisfy HMP and CEQA requirements." (Biological Guidelines, p. 34). Indeed, "when a mitigated negative declaration is proposed, it is particularly important that the study fully describe the mitigation measures and explain how they will avoid the project's potential impacts." 1 Kostka & Zischke, Practice under the California Environmental Quality Act (Cont.Ed.Bar 2004) § 6.18, p. 266 (emphasis added). Here, the MND fails to identify how proposed mitigation measures will actually reduce Project impacts. For instance, the MND purports to mitigate impacts to gnatcatchers as follows: "Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy on site." (MND, p. 34). First, as noted above, it is improper to defer these studies to a later date, as they are necessary to allow the public and the Commission to understand the scope of Project impacts in the first place. Second, and equally problematic, the measure is deficient because it fails to identify what steps must be undertaken in the event gnatcatchers are identified on site. Simply conducting a survey will not protect species found to be on site. Because the MND fails to specify "how this will reduce impacts" it fails to comply with CEQA and the HMP.4 Further, the MND must be recirculated, as "any necessary mitigation measures must be specifically set forth at the time of publication of a mitigated negative declaration in advance of the City's adoption of it." (Quail Botanical Gardens, supra, at 1606 fn. 4). The proposed measures for mitigating impacts to raptors are likewise deficient. The MND states that if construction activities are to occur during the raptor nesting season, the applicant shall hire a qualified biologist who shall determine if birds are present on or near the site prior to construction. The MND further provides that "[n]ests that are detected within the proposed impact areas shall be avoided until nesting is completed." (MND, p. 34). Again, however, the foregoing does not meet the minimum standards set forth in the Biological Guidelines. The Guidelines state, "Surveys will also be conducted by a qualified biologist in appropriate habitat for nesting raptors and migratory birds (including, but not limited to the least 4 The measure is further deficient because it does not incorporate the minimum gnatcatcher survey requirements specified above. (See also Biological Guidelines, p. 41, specifying additional gnatcatcher survey requirements). Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 6 Bell's vireo) and within an additional 500-ft survey buffer within three days of construction." (Biological Guidelines, p. 41). "If nests of listed birds, migratory birds, raptors, or other sensitive species are located, they will be fenced with a protective buffer of at least 500 feet from active nests of listed species, and 300 feet from other sensitive bird species. All construction activity will be prohibited within this area." (Id.; emphasis added). The MND is deficient because the proposed mitigation measures do not meet these standards. Further, the City previously identified the presence of Nuttall's scrub oak on the Project site. The FSW has indicated that the MND should specify whether the oaks will be salvaged and, if so, how they will be salvaged. (See FSW October 6, 2009 letter). In response, the City has indicated that "efforts can be made to salvage those plants impacted by the development of the site through transplantation as a condition of approval." (City October 9, 2009 letter to FSW). However, the transplantation of Nuttall Scrub Oak is not identified as a mitigation measure in the MND, nor does it appear to have been included as a project condition. Given the failure to mitigate this impact, the Project will result in significant environmental impacts under CEQA and an EIR must be prepared. 4. Noise and Traffic Impacts The MND states that a noise study was conducted in 2003 "to determine what external noise sources may impact the development." (MND, p. 23). As a preliminary matter, the study is entirely outdated. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 409 (an inadequate or unsupported study is entitled to no judicial deference)). Further, the foregoing stands the environmental review process squarely on its head, as the review process is intended to evaluate the Project's impacts on the environment and surrounding uses rather than the other way around. In that regard, the MND fails to adequately discuss potential noise impacts on biological resources and neighboring property owners. For instance, the Project will require 12,596 cubic yards of export. (Sept. 1, 2010 Staff Report, p. 6). Yet the MND fails to evaluate potential noise and traffic impacts resulting from the individual truck loads that will be necessary to haul the material. In addition, the MND fails to evaluate short-term construction impacts and associated noise levels both within the preserve and at neighboring properties. 5. Grading and Geological Impacts As the City is aware, the applicant's own engineers have identified potential areas of instability on the Project site. This issue has not been adequately addressed in the MND, and the City has failed to consider appropriate mitigation measures as a result. For instance, the MND does consider or evaluate potential slope stability impacts to neighboring properties. Further, because the City improperly prepared an MND for this Project, it has failed to consider Project alternatives that would avoid these impacts altogether, including alternatives with a lesser number of developable lots. The MND also fails to adequately consider the potential for short- term vibrational impacts resulting from construction. 6. Aesthetic Impacts The MND states that the Project will not result in significant impacts to aesthetics because "the area does not have significant value as a scenic resource." (MND, p. 6). However, views from Cacatua Street will clearly be impacted, as the proposed Project will interfere with views of the preserve and surrounding valley to the west. The Project will result in significant aesthetic Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 7 impacts, and the MND's findings to the contrary are not supported by substantial evidence. 7. Conclusion As discussed above, the Project will result in a number of significant environmental impacts under CEQA. Because the fair argument standard has clearly been met, an EIR must be prepared for the Project. By failing to adequately evaluate Project impacts in a comprehensive EIR (and by improperly segmenting the review process by deferring the identification and evaluation of replacement preserve habitat), the City has improperly limited the scope of environmental review. Further, the Project is in violation of the MHCP and HMP, and the procedures for processing a plan amendment have not been followed. Based on the foregoing, the Project is not legally defensible and certification of the MND will constitute an abuse of discretion. Thank you for your time and consideration of the above. Sincerely, COAST LAW GROUP LLP foss Ivf Campbell Marco A. Gprtzalez EL FUERTE VIEW TENTATIVE MAP APPROVAL OF 4 LOTS IN 1982 ATTACHMENTS: JAM - 5 2011 CITY OF CARLSBAD CITY CLERK'S OFFICE 1. Application from owner G. M. Hamsayeh (owner in 1982, currently first trust deed holder) 2. Staff Report date September 8, 1982 3. G. M. Hamsayeh title policy dated May 28, 1982 4. Plat Map of Property Development I s 1i i I ? I 1 1 \ I \ \ \ \ . tf • ; J%lnm.JL I V /" REQU DZone Change P General Plan Amendment ^Tentative Tract Map 'ji^Plamed Unit Development D Major Condoininium Permit. D Minor Condominiurfi Permit D Master Plan .D Major Condominium Conversion ; ink i i v ^5SM®M1^MB EST Flj JAN, -5. 2011 [LI D Precise Dev =lqf nent Plan U Specif 1C PI in ' — r^'/riTtm QRAHi— i ^, • . •« i C*U i Ur L/nnLODnUUSxte Develq OTentp^tM^Ep(s<'S OFFICE D Conditional' User Permit D Variance K D Planning Conmission Determination D Special Use Permit; : : : :D Administrative Variance • Complete Description of project (attach additional sheets if necessary) Proposed planned unit development utilizing the existing pad grades as mush as possible. •••'•': ••"•.:•' ' • • "'We are proposing 4 lots with a private street and common area. * Location of Project South side 'of El • Fuerte Sireet_, West of C< , • .. . .... 1 . Legal Description (complete) Lot 552, La Costa 'Meadows, Unit No. '3r 'Mcti :LcatuasStreet., G 3p ci ;" ' '" '•"; ' ' - .;"•.• '• ' '. ' 1 NO. 7076. • • : :•'" : ' " ' .' ' ' ' •• ; : Zone General Plan R-l-75 ....... Residential Assessors Parcel Number I::.'-:-::.:;'.:-;' 215-370—28 ::::::::::::::::::: . Existing Land Use : Pregraded Pad, Vacant . . . . : Proposed Zone Proposed General Plan Site Acreage R-l-75- Residential :. 3.902 Acres :: . ' . . . . . •.'.•'. .''.'•'• . . . 'Owner :' ' ' ' , ",'-!. '' ''•':-,, Name (Print or Type) G.M. Ramsay eh and P. A. Ardeshiri Mailing Address 2245 La' Amatista • City and State Zip Telephone Del Mar, Calif. 92014 714-755-8672 I CERTIFY THAT I AM THE IJSGAL OWNER AND THAT ALL .THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE MEST OF MY KNOVJLEDGE *f^ijjji' ?Sjj •ijiii^?; ^ Lata Application deceived ; ' Staff ..Assigned; :' • .:'. '":'•••"V_—..:.._'"iy''~-';/";::::';' : -• • ^k.£2iiS& A"-Xfc;i;::, ;-:-. ,..;.--; . „.,.;,;;..:;.,: ; Applicant Name (Print or Type) G.M. Hamsayeh and P. A. Ardeshiri Maildjig Address 22:45" La Amatista , . City and State Zip Telephone Del Mar, Calif . 92014 714-755-8672 I CERTIFY THAT I AM aHE OWNER'S REPRESEWnVE AND THAT ALL -THE ABOV&, INFORMATION IS TRUE AND CORRECT TO THE EES^OF MJT KNOWLEDGE 1 : FeesrfiReceived:;; ^f| >r::;:v!;:';;,;;:.-| . Case Nuniber. •:-'".^.^:.^..\^'.:../ '••.;.-- •';";>•..•, •." '.,j .. .. I STAFF REPORT -30Ujos.Ma3ioAJ.io GVaSlUVOdOAJJO noz 5 - NVP pft? DATE: September 8, 1982 TO: Planning Commission FROM: Land Use Planning Division SUBJECT: CT 82-13/PUD-43 - HAMSAYEH/ARDESHIRI - Request for approval of a tentative tract map and planned unit development to create four single-family lots on the south side of El Fuerte Street, 140 feet west of Cacatua Street. This area is zoned R-1-7500. This item was continued from the August 11, 1982 meeting because the applicant was not present to answer questions about future development of the project. During this period, staff has further reviewed the project and requests the addition of the following conditions: 1) The grading for this project is defined as "controlled grading" by Section 11.06.170(a) of the Carlsbad Municipal Code. Grading shall be performed,under the observation of a civil engineer whose responsibility it shall be to coordinate site inspection and testing to insure compliance of the work with the approved grading plan, submit required reports to the City Engineer and verify compliance with Chapter 11.06 of the Carlsbad Municipal Code. 2) The developer shall submit a recent soils report insuring stability of all existing and proposed slopes within this project. Calculations and recommendations to adequately control sluffing and slope stability shall be incorporated within the grading plan to be approved by the City Engineer prior to final map approval 3) The developer shall install sidewalks along all public street frontages in conformance with City of Carlsbad Standards prior to occupancy of any buildings. Also, staff requests that Condition No. 20 be omitted from the final Resolution. PK:bw 9/8/82 Attachment APPLICATION SUBMITTAL DATE: June 18y 1982 STAFF REPORT DATE: August 11, 1982 TO: Planning Commission FROM: Planning Department SUBJECT: CT 82-13/PUD-43 - HAMSAYEH/ARDESHIRI - Request for approval of a tentative tract map and planned unit development to create four single-family lots on the south side of El Fuerte Street, 140 feet west of Cacatua Street. This area is zoned R-1-7500. I. PROJECT DESCRIPTION The applicant is requesting approval of a tentative tract map and Planned Unit Development on a 3.9 acre parcel located as described above. The intent is to create four single-family lots and one steeply sloping common lot, all serviced by a 325 foot long private drive. The site slopes steeply down to the street except for the build- ing pad areas which were roughly graded several years ago. The property wQjild_qe_neralj.v be Considered a. hard to develop si€€T~ SurroundTng properties' consTst of ^single-family residences on 7500 square foot lots. II. ANALYSIS Planning Issues 1. Is the site physically suitable for the proposed develop- ment? 2. Does the project satisfy all design criteria and development standards required by the P.O. Ordinance? 3. Is the project compatible with surrounding development? III. DISCUSSION TJxis__agp_lication is__one^of_J:he firs_t__to be reviewed subject to " e~liew]j> . D . C-rdinance^ Although the T .~D. Ordinance is not yet in effect, it has been approved by the City Council and will be effective shortly (August 20, 1928). Staff is recommending that if the Planning Commission approves this project, that the approval documents be brought back at the next regularly scheduled Planning Commission meeting (August 25, 1982), at which time the new P.D. Ordinance will be in effect. A ma^or int^nt^gfthe^ p . p_. Ordinance is to encourage development serisJJiive to the topography of the site and one which minimizes alteration of the land. The subject site slopes steeply (100 foot elevation difference) from the southern property line (rear of lot) to the northern (street). There is one fairly level area of the site which has previously been graded. As shown on Exhibit "A", this is the pad area upon which the eventual single- family structures are proposed. The steeply sloping majority of the site, except for erosion control features, will remain in its existing state. The project, as proposed, satisfies all design criteria and development standards of the P.D. Ordinance and also complies with the Design Guidelines Manual, adopted as part of the new Planned Development Ordinance. The four lots, the smallest of which is 7500 square feet, are to be served by a 24 foot wide private drive. This drive will eliminate the possibility of multi-access points along El Fuerte Street, which is designated as a secondary arterial in the general plan. No common recreation facilities have, been included. However, the units will have private recreation areas in compliance with the P.D. Ordinance. Also, no required recreational vehicle storage space is recommended for this project. A condition to require one guest parking space on each lot has been included. This project is compatible with the surrounding area (all single- family in nature), is sensitive to the site, and is an appropri- ate type of development for this property. IV. ENVIRONMENTAL REVIEW The Planning Director has determined that this project will not have a significant impact upon the environment and, therefore, has issued a Negative Declaration on July 27, 1982. V. RECOMMENDATION It is recommended that the Planning Commission approve the Negative Declaration issued by the Planning Director and direct staff to return Resolution No. 1994, approving of CT 82-13/ PUD-43, based on the findings and subject to the conditions contained therein. -2- ATTACHMENTS 1. PC Resolution No. 1994 2. Location Map 3. Background Data Sheet 4. Disclosure Form 5. Environmental Documents 6. Exhibit "A", dated July 15, 1982 PJK:kb 7/28/82 -3- L 0 to A TIO M CHORL1TO ST CASE MO. CT82-13/PUD-43 r.AMTHAMSAYEH/ARDESHIRI V3C1N1TY MAP BACKGROUND DATA SHEET CASE NO: CT 82-13/PUD-43 APPLICANT: Hamsayeh/Ardeshiri REQUEST AND LOCATION: Tentative tract map and planned unit development to subdivide 3.902 acres into 4 single-family lots and private street LEGAL DESCRIPTION: Lot 552 of La Costa Meadows No. 3 accordingly to Map 7076 filed October 6, 1971 Assessors Parcel Number: 215-370-28 Acres 3.902 Proposed No. of Lots/Units 4 GENERAL PLAN AND ZONING Land Use Designation RLM Density Allowed 0-4 Density Proposed N/A Existing Zone R-1-7500 Proposed Zone N/A Surrounding Zoning and Land Use: Zoning Land Use Site R-1-7500 SPD North R-1-7500 SPD South R-1-7500 SFD East R-1-7500 SPD West P.C. Vacant PUBLIC FACILITIES School District San Dieguito Water Carlsbad Sewer Leucadia EDU's Public Facilities Fee Agreement, dated May 28, 1982 ENVIRONMENTAL IMPACT ASSESSMENT X Negative Declaration, issued July 27, 1982 iransamenca II Title Services , FIRST RATE SERVICE AT A FAIR PRICE ® FITiC vlA'l - 5 2 i CITY OF CARLSBAD CITY CLERK'S OFFICE HAHSAYEH 2249 LA AHE8TJTA RGAB DEL MAR CA <?2®14 . 7SS-8&72 O2 COPIES c/« TA i3«02* Ol OCR ESCROW TITLE PROPERTY (PLEASE CALIFORNIA CLIflMT 'S ; HAHSAYETT mmm® smmmm m ft POUSY ar TSTU: iJW^ftKCC, rsfiKs^iocft nrtsmem m$y t&m* H»T i? is i«^«^ TO 1.3^, *$ ^osi: TO K Kms, « or M MIC mx&,UKO TITIC wwmiw wmm smsm fm mm r nm mmm. mtmmm csr&c m &TESCIT i-H£Kw %x£iK*ncg se? rtisrH, ijcyai-s SWDKT im mm m m mm® w &&w r m effta, IIEK gsXST s«a^ m mm® m ^ »se O»TBI ism « sstimmm m siiFiifinixs or HY 3iJ?RCfOTS 1! «iKM@(tt TKE&T8? 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TAXES' a lien, not y»t dua For Fiscal Yaar: |TE«: A. 01 COUMTY TAXES* as For Fiscal Yaaf: First XnvttlUwnt: *6&t,fS * PAIB ®*cond In*t«iim*ntt H4&^fa - PAID Land Valua: Account N0« : Coda Area No. : O9O63 iransameriaa Title Services * FIRST RATE SERVICE AT A FAIR PRICE ITEM: i, EASEMENT FILED MAP* an* incident* «li«r*t0, Parpott: SEMER AND BRAfNASE Aff«ct«: AS SHOWN OH SAID §US0J¥tSGN HAf 7076. ITEM; S. LACK Or RIGHTS s* *cc««t feo and **•««* tfc» £«felie stT**ti taitf having b*«n rel inquiflhsd fey the provisions Qf the dedication «tat*m»nt 4« shown on tfcs filad map of *«id sufadivision, FQ«Affectf : THAT PORTION OF LOT SS2 ITEH: 3. AN OFFER ANU THE REJECTION OF SAfB OFFER SUBJECT TO THE PROVISIONS OF SECTION 66477, a OF THE ®OVER*8«NT COBE OF THE STATE OF CALIFORNIA FOR THE DEDICATION THAT PORTION OF SAI0 LOT SSS &£S!$NATE8 "PORTION OF LOT 9Sa RESERVED FOR FUTURE STREET" i WHICH PROVIDES THAT A RSJECTEfc OFFER OF DEDICATION SHALL REMAIN OPEN AN0 SUBJECT TO FUTURE ACCEPTANCE BY THE COUNTY OF SAN BIEOO. /^*~~~^*> I TEH: 4. COVENANTS* CONDITIONS ANB RESTRICTIONS! omitting ftstri«tio««* if &a«ad on raca, color, religion or national origin* «« contain«d in £x*cut«<l .fey: LA COSTA LANS COMPAKVr AN ILLINOIS CORPORATION Official R«cw<f«; CJCTOBER 4* i«?7i Containing Hort$ag«« Prot*etion Cl*«*«: YES Containing Expire** for#*it«r* «t» t*»v*t**io«; NO I TEH; 4,01 SAIB COVENAWTSr CSN0ITEONS AN& RESTRICTIONS ref trtnc* iti <l**d« 0«t*tf: HAY 8* 1972 R*coi»tf*tft Official R*cot- 4*; No.; HAY 1972 PAOE 3 =ff iransamenca — 111 Title Services * FIRST RATE SERVICE AT A FAIR PRICE " ITEM: 3*B€EI? OF TRUST for the original aswunfc *fm&m balou?/ 4tuf *f*$ etfetr ««ount» * under Original Amount: *63<OQO. OO B*t*<f: HAV 7* 1972 R»eor4«fif* Official R*€Of<fa: «A¥ 14, 1972 Series /Instrument No.: i23%S3 Tru*t«r: gDWA«0 8. i/OHMSOW AND ^OYCE D.T. JQKflSmi, f^USBAND ANO WIFE, AS JQINT TENANTS Trwtfe**: TITLE tNSURAICC AMO TRi^T CO^ANY, A CALIFC3SMIA CORPORATION LA COSTA LAND COHPANY, AN ILLINOIS CORPORATION JTEH: S»01 ASSIGNMENT of the &ene#ici<al interest arid at said Daerf ef tru*t instrumant: ««corda«i, Official R«eor<!*: HA¥ t&, Ser i*«/Instru«iant No.: ISS2S4 A*sign*t: UNITED STATES NATIONAL BANK, A MATIOHAL iAWIf^t ASSOCIATION ITE«: 3.02 ASSIGNMENT of tha bana^iciai interest unrfer said De^d of tru^t Official R»€»r«ls; ^^.V 12* 1972 Ho*: 179443 As«ign*»: .. THE TRySTSeS' OF CENTRAL STATESi SOimCAST AND AREAS PENSION FUNS PAGE 4 iransameriGa — I Title Services , FIRST RATE SERVICE AT A FAIR PRICE® 6. 8EE& QF TRUST for tht original «<R8««t shoyn feelou?/ and «ng othar amounts * under fch* Or ig in*! Amount : *S7i 150 0at«d: JUNE 28, If 79 R*e«r«i««i< Official R#cord»: jyi,¥ i3. if 79 PAR HAD A. AR0ESHIRI 8AQHGOLESTANI, HUSBAND AN5 WIF£ Trw*t««: FZftST AHgRICA TITLE IftiSWANCe SE^rANY, A Bsrt«fici«ry: EDMARS 8. JOHNSON ANB ^Y6t B. T. <$»**8Gfe!« HUS8AM0 AMD WIFE, AS aOINT TEftTANTS IK THE mi m ms pmiaiKi^v ®mi mm mm & KCCSS it miffis st ft&ssxswrs ru nmmm iw mmm m&w torn* mm m mm or six SIHTKS PSIDR is nc MEmm m SHORT TERM RATE DOES MOT APFLY PAQ€ CHORLITO CACATUA ST. .TV MAP 7076 - LA COSTA MEADOwS UNIT NO. 3 - LOTS CARLSBAD Office of the City Attorney wvvvv. c a r! s b a d ca. go v January 20, 2011 Goshtasb Hamsayeh Sent via email address realtorgus@hotmail.com Re: El Fuerte View Appeal Dear Mr. Hamsayeh: Your message to the Mayor and City Council members of Wednesday, January 12, 2011 was given to me yesterday for response. Your letter will be made part of the administrative record and I am sending a copy of it to the City Clerk so it may be included. However, the public hearing portion of these proceedings were closed by the Mayor and no member of the public may address the City Council unless the proceedings are reopened by the Mayor or a majority of the Council. The City Council meeting of Tuesday, January 25, 2011 is intended for deliberations by it without further argument, evidence or input from the public. Should you have any questions regarding the above, please do not hesitate to contact me. /rn c:Mayor and City Council City Clerk City Manager Very truly yours, RONALD R. BALL City Attorney Date: Distribution: City Clerk Aest. City Clerk Deputy Clerk Book City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008 760-434-2891 760-434-8367 fax KJra From: Goshtasb Hamsayeh [realiorgus@hoimail.com] Serst:' Wednesday, January 12, 2011 4:22 PM To: Council Internet Email Subject: FW: El Fuerte View Attachments: ~static~bg_wreathsblue_1 .jpg Honourable Mayor and Council members, I sincerely apologise for my failure to deliver my prepared speech Yesterday,instead on hearing untrue statements from the Neighbors for whole evening,! forgot my message, so please read my prepared speech,This is what I had in mind and I would appreciate your kind consideration of the truth that I am presenting. We had no intention of Just complaining about money,It is not Money,it was an opportunity of lifetime that we missed because of the City's mistake and the time wasted in correcting that HMP error. The project was well prepared by experts with over ten months of hard work and completely submited in June of 2004. With this prompt timing we would have Started the project in 2005 and probably would have sold all homes sold by early part of 2007 when the Market was at its peak and loans were in abundance. Something that the city should think and not pass a remark like people lost money in stocks, so what? We don't gamble we clearly calculate our risks and invest accordingly.We have earned money, old fashioned way and not by Gambling. Since I am on the subject I would like to answer some of the concerns raised at the close of the Hearing. Alga road near the El Camino Real end has several homes with drive way exits,so also the South end of EIFuerte has similar situation and in my 32 years of driving these roads never seen one accident.The Multi driveway plan was suggested by the neighbors to help us design homes with lowered elevation and that is what we did and Planning Commision approved it. As for the pictures that they showed of Land slide is not from our project.To augment findings of our Geologist and soil engineers City got a third party review and they also confirmed what our engineer had said. Lastly,we had two official meetings in your Faraday Office with the neighbors and everytimewe respected their views and spent more time and money to satisfy them. It is not fair that for City's mistake we wait years to get that HMP mistake corrected and for city's oversight of the illegal Pool and SPA constructions in those homes on the Ridge,we put bonds.What nerve those neighbors have to ask for guarantee to protect their illegal construction. We have done our best to satisfy these neighbors. As I have proven my capacity as developer builder you should help us to finish this project too. Thanks, Gus Hamsayeh Honorable Mayor,City Council Members and the City officials and the Staff My name is Gus Hamsayefa, thanks for the opportunity you have given ine to speak. I owned this lot since 1979 when I also began working with the city of Carlsbad on 8 homes at the corner of Alga and Santa Isabel Street.Totally I have built Five projects which is 24 homes in all successfully all completed and sold in LaCosta alone. Besides these I built several more homes in Cities of San Diego and Encinitas. In 1998 when I sold 12 homes in La costa, called Casa Del sol J and my partners lost over $400,000 and I did not have Credit to develop this land, which led to my selling this lot in 2003 to Nataliya and Michael. 1 don't know if Council knows the hardship and expenses we had. When Nataliya and Michael could not put more money I decided to help them and with my experience I have brought this project to this stage for your kind approval. It took over ten months for current owners to prepare all kinds of reports mat the City usually needs to complete the application package and it was in June 2004 city accepted it for review,since it was zoned R7500.After a several months some how without anybody's knowledge,including the City planners,the Owners,and the various consultants working on this project,Nataliya and Michael found to their surprise that the lot was declared as hardline preserve.On investigations by the City,The City of Carlsbad declared it was a Mapping error and has to be corrected. For this the Owners lost a lot of time that was spent by waiting for the Wildlife agencies and the City to resolve the HMP mapping error. Because of this delay all the Meters of various consultants, engineers,architect,Real Estate Taxes, Mortgages,etc. were billing hundreds of thousands of Dollars to Nataliya and Michael who had to sell their home not only in USA but in UKRAINE to pay their bills. I need to emphsize,please note the application was submitted to the City before the HMP was adopted erroneously and there was no conversation at any point in this regard. The Owners, for no fault of theirs lost hundreds of thousands of dollrs and missed a good Market for selling this development in 2005-2006. After a significant discussion and a couple of years of delay,the staff approved Six lot subdivision with a private street,in place of 7 lots as proposed by the Owners.The neighbors raised their objection to this design as these lots-were higher than the lots across the EL FUERTE street,as a result according to them,the new neighbors will look into their backyards,really a rediculous excuse.So just to satisfy these neighbors, Owners spent one year of valuable time and thousands more to Redraw the plans cutting the elevations by 4 to 10 feet and made the project look similar to the surrounding homes with driveways in front facing the street,also cutting down the Square footage of two homes to allow 20 ft of easement instead of 10 feet over the existing Drains( New requirement).Plus this new plan offers over 50% of the lot as Open Space (Over 2 Acres);With all these done,Still we are facing additional delays and roadblocks by the neighbors who seem to be never satisfied. It all started by Bob Latin in 1999, Bob as he is, put up a Fence down the slope and attached over 5000SF of this project to his home ,also at the same time cut down five 20 to 25 feet tall trees as they were blocking his view Jim bradlev's father had fenced over 4000Sf of this lot and so the other five neighbors.!! took me months J had to spend thousands of Dollars with attorneys to mate Bob apologise^-o back to I'd;; property Mae, Also I got statements signed by Bradley and bis neighbor to go back to their property line whenever, I ask them to do so. I did, all through Lawyers and I have all the documents and photographs to prove... It is this Vendetta on part of these two neighbors that led to forming an illegitimate HOA.I don't think people who signed for this HOA know anything about this Confrontation and their intentions to keep the land that they have added illegally. You should know that Even $1000 for the appeal was paid personally by Bob Lattin. So finally here we are, we have provided two totally approved plans,one even considring the neighbors wishes,all meeting total requirements of the General plan and the Zoning • ordinances,spending hundreds of thousands of Dollars and over Seven years of suffering anxiety, running aroud.etc.We have done everything the City Staff has asked us and even the neighbors .What more we can do? We have followed all of the right procedures as required by the City and Environmental review agencies,so we beg the Council to deny the appeal.The City Council can feel confident in agrreing with their planning Commission in approving the General Plan amendment and the Zone Change. I am hopeful that this will add another project to my other successful projects with the City of Carlsbad. Robin Nuschy From: Ron Ball Sent: Monday, January 24, 2011 2:13 PM To: Robin Nuschy Subject: FW: New Information re: El Fuerte View Ownership Attachments: RealistReport.html; EFV Ownership .pdf Please print and file with agenda bill. CARLSBAD Office of the City Attorney L<r~\ Ronald R. Ball City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008 T: 760-434-2891 F: 760-434-8367 ron.ball@carlsbadca.Rov CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipients) and may contain information protected by the attorney client privilege, the attorney work product doctrine or other applicable privileges or confidentiality laws or regulations. If you are not an intended recioient, you may not. review, use, copy, disclose or distribute this message or any of the information contained in this message to anyone, if you are not the intended recipient, please contact the sender by reply email and destroy all copies of this message and any attachments. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege. From: Anne Estes [mailto:anne.estes@att.net1 Sent: Monday, January 24, 2011 9:11 AM To: Ron Ball; Council Internet Email Cc: Don Neu; Christer Westman Subject: New Information re: El Fuerte View Ownership Anne Estes 2825 Esturion Street, Carlsbad, CA 92009 760-579-0167 January 24, 2011 Ronald R. Ball, City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: El Fuerte View Ownership Dear Mr. Ball: Since the close of public testimony, new information has come to light regarding the owners of the subject property, namely that the condo they own and live in is in foreclosure. We have just learned that a "Notice of Trustee Sale" on their condo was recorded on November 29, 2010. The lien holder can, at any time, have the Trustee's Sale and take title to the property 21 days after that date. You may recall, we pointed out in our public testimony that the same owners are in default on taxes and mortgage payments on the El Fuerte View property. As we stated in the public hearing, the homeowners whose properties are most at risk from the development will have no recourse in the likely event of damage. After the Trustee's Sale, we will not have an address for the owners. In addition, we are attaching documentation of the changes in ownership of the El Fuerte View property. As you can see, since its purchase by Goshtasb "Gus" Hamsayeh in 1993, ownership has changed nine times, often with no compensation, and among family members. We believe this information to be relevant to the pending decision of the City Council regarding our appeal of the Planning Commission's decision to approve the initiation of the permitting process on the property in question, and we respectfully request that the information be submitted to the Council for their consideration. Sincerely, Anne Estes, Robert W. Lattin, Jim Bradley La Costa Meadows No. 3 Homeowners Association Architectural Committee Attachments: Notice of Trustee Sale, Los Angeles County Recorder's office; Ownership History 1993 - 2008 Realist Page 1 of 3 Prepared For Bob Lattin Prepared By Bob Lattin Property Detail Report 13617 Valeric St#C £,*:-.[ Cl^ff , ^ff jl W* Van Nuys, CA 91 405-2739 \* ^-Va^o ;* /; " * .>'"^H»i Los Angeles County * %u~*jT" Owner Info: Owner Name Owner Phone Tax Billing Address Tax Billing City & State Tax Billing Zip Location Info: Tract Number Subdivision Zoning Census Tract Tax Info: Tax ID : Tax Year : Annual Tax : Assessment Year : Orlova Nataliya Tax Billing Zip+4 2739 (818)387-8025 Recording Date 09/07/1995 13617 ValerioSt#c Annual Tax $1,169 Van Nuys CA County Use Code Condominium 91405 Universal Land Use Condominium 32354 School District Los Angeles 32354 Map Coordinates 532-C4 Lar3 Carrier Route C014 1271.01 2328-035-027 Total Assessment : $82,356 2010 % Improv : 80% $1,169 Tax Area : 13 2010 Legal Description : Tr=32354 Condominium Unit 22 file://C:\Documents and Settings\rnusc\Local SettingsYTemporary Internet Files\Content.O... 1/24/2011 Realist Page 2 of 3 Land Assessment : $16,468 Improved Assessment : $65,888 Characteristics: Cooling Type Lot Acres Garage Type Roof Material Condition Exterior Total Rooms Pool Full Baths Effective Year Built Condo Amenities Water Sewer Central .0412 Built-in Wood Shake Average Stucco 5 Pool 2 1976 Community Pool, Rec Room Public Public Service Last Market Sale: Recording Date : 09/07/1995 Sale Price : $64,000 Document No : 1461770 Deed Type : Grant Deed Sales History: Recording Date 05/17/2007 03/08/2006 Sale Price Nominal Y Y Sale/Tax Stamp Type Partial Partial Buyer Name Orlova Nataliya Shmidt Michael Buyer Name 2 Orlova Nataliya Seller Name Shmidt Michael Shmidt Michael Document No 1208518 496224 Document Type Interspousal Deed Quit Claim Deed Transfer Mortgage History: Lot Number Heat Type Lot Sq Ft Building Sq Ft Stories Quality Total Units Bedrooms Total Baths Year Built Fireplaces Other Rooms Equipment Owner Name Seller Price Per Sq Ft 11/13/2001 Y Unknown 1 Central 1794.672 1,034 2 Average 1 2 2 1976 1 Dining Room Range Hood, Disposal, Energy Efficient Items Orlova Nataliya Shavartsberg Leonid & Yev $61.90 I 09/07/1995 $64,000 I Full Shmidt Michael 2001 Shmidt Michael Trust ! ' I Shmidt Michael Shavartsberg 2165322 Leonid & Yev 1461770 Trustee's Deed Grant Deed (Transfer) Mortgage Date Mortgage Amt Mortgage Lender Mortgage Type Borrower 1 12/07/2005 $255,200 Citibank West Fsb Conventional 04/14/2004 $172,000 Citibank West Fsb Conventional 04/16/2003 $130,000 Citibank West Fsb Conventional Shmidt Michael Trust Shmidt Michael Trust Shmidt Michael Trust Foreclosure History: Document Type : Notice Of Trustee's Notice Of Default Default Date Foreclosure Filing Date Recording Date Document Number Sale 11/29/2010 11/29/2010 1725728 08/25/2010 08/25/2010 08/26/2010 1193361 file://C:VDocuments and Settings\rnuscYLocal SettingsYTemporary Internet FilesXContent.O... 1/24/2011 Realist Page 3 of 3 Default Amount : Final Judgement Amount : $266,820 Original Doc Date : 12/07/2005 Original Doc Number : 2994149 $3,241 12/07/2005 2994149 Courtesy of Robert Lattin Sandicor The data within this reporl is compiled by CoreLogic from public and private sources, I! desired, the accuracy of the data contained herein can be independently verified by trie recipient of (his report with the applicabie county or municipality. file://C:\Documents and Settings\rnusc\Local SettingsYTemporary Internet FilesXContent.O... 1/24/2011 iSupport;%*Home [-M^PmtrVnW^'^j^PiJtl pfefjT Printable Report 1 Excel Export I New Search Owner Name ORLOVA,NATALIYA Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Typ« Second Loan Amount Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Type Second Loan Amount Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type . ->' Interest Rate Type Deed Type- Second Loan Amount Buyer / Borrower Parcel Number / Property Tax ID 215-370-28-00 Site Address EL FUERTE ST CARLSBAD, CA 92009 Property History Transaction 1 KHOSRAVI,FARHAD E BAHRAMSHAHRY,RAS SELLER December 29, 1993 $75,000 (Full) Re-Sale 0000882717 [Q] $67,500 Conventional Fixed $0 Transaction 2 HAMSAYEH,GOSHTASB M ETAL HAMSAYEH.GOSHTASB M ETAL October 10, 1997 Re-Sale 0000505665 (JJj $0 Quit Claim $0 Transaction 3 HAMSAYEH,GOSHTASE M ETAL KHOSRAVI,FARHAD EDWARD SOUTHLAND TITLE June 22, 1999 Re-Sale 00004352S6 [5] $0 Transaction 4 FIAHERJY,)EANNE L Mall Address 13617 VALERIO ST UNIT* C VAN NUYS,CA 91405-2739 hUp:/Avw3,dataquick.com/view/viewreports.aspx?Rnd=].468050717 1/15/2011 View Reports Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Type Second Loan Amount Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Type Second Loan Amount Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Type Second Loan Amount Buyer / Borrower Seller Name Lender Name Title Company Transfer Date Transfer Value Transaction Type Document Number Multiple/Portion First Loan Amount Loan Type Interest Rate Type Deed Type Second Loan Amount Buyer / Borrower FLAGSTAR BANK FSB Juns 3, 2002 Re-Finance / Equity 0000457912 [[i] $5,000 Conventional Fixed Deed of Trust $0 Transaction 5 HAMSAYEH/BAGHGOLESTANIJR HAMSAYEH,JENNIFER G CHICAGO TITLE August 6, 2003 Re-Sale 0000943508(2] $0 Quit Claim $0 Transaction 6 SHMIDT,MICHAEL & NATALIYA HAMSAYEH/BAGHGOLESTANIJR LASALLE BANK TRUSTEE CHICAGO TITLE August 6, 2003 $1,150,000 (Full) Re-Sale 0000943509[g] $500,000 Convantional Fixed $150,000 Transaction 7 SHMIDT,MICHAEL HAMSAYEH GOSHTASB M TRUST CHICAGO TITLE July 29, 2005 Re-Finance / Equity OOC0549982 [g] $600,000 Conventional Fixed Deed of Trust $0 Transaction 8 SHMIDT.MICHAEl http://ww3.dataquick.com/view/viewreports.aspx?Rnd=l 468050717 1/15/2011 View Reports Seller Name SHMIDT.MICHAEL Lender Name GOSHTAS6 M - Title Company Transfer Date June 27, 2008 Transfer Value Transaction Type Re-Finance / Equity Document Number 0000346860 [01 Multiple/Portion First Loan Amount $600,000 Loan Type Conventional Interest Rate Type Fixed Deed Type Quitclaim Second Loan Amount $0 Transaction 9 Buyer / Borrower ORLOVA,NATALIYA Seller Name SHMIDT,MICHAEL Lender Name Title Company Transfer Date December 15, 2008 Transfer Value Transaction Type Re-Sale Document Number 0000636702 [Q] Multiple/Portion First Loan Amount $0 Loan Type Interest Rate Type Deed Type Second Loan Amount $0 © 2003 DataQuick Information Systems This information is compiled from public documents and is not guaranteed. http://w\v3.dataquick.comyview/viewrepoits.aspx?Rnd=1468050717 1/15/2011 Lorraine Wood From: Gary Barberio Sent: Tuesday, January 25, 201 1 5:05 PM To: Lisa Hildabrand; John Coates; Ron Ball Cc: Sheila Cobian; Lorraine Wood; Robin Nuschy Subject: Info Requested by CC for El Fuerte View Appeal Attachments: Existing ADT El Fuerte.docx Please find attached traffic count data for El Fuerte Street and La Costa Avenue -this info was requested during the CC briefings yesterday (Item No. 5 on tonight's CC Agenda). Thanks - GTB CARLSBAD Gary T. Barberio Community & Economic Development Director City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-7314 (760) 602-2710 off (760) 602-8560 fax Gary.Barberio@ carlsbadca.gov ExistinR APT (2010) Buildout APT (2030) El Fuerte St. 3,382 5,000 Single Lane in both Directions (between Poinsettia Lane & Alga Road) La Costa Ave. 15,371 18,200 Double Lanes in Both Directions (between Viejo Castilla & Calle Madero) Both are Secondary Arterials: Capacity = 10,000 - 20,000 ADT Both have 64' Curb to Curb width within an 84' Right of Way NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN to you, because your interest may be affected, 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, November 30, 2010, to consider an appeal of the Planning Commission's approval of Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Management Permit HMP 09-10 and recommendation to adopt a Mitigated Negative Declaration and approve General Plan Amendment GPA 09-8 and Zone Change ZC 09-09 to consider adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, and approval of General Plan Amendment (GPA 09-08) and Zone Change (ZC 09-09) on property generally located south of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6 and more particularly described as: Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 7076, filed in the Office of the County Recorder of San Diego County, October 16, 1971. Whereas, on October 6, 2010 the City of Carlsbad Planning Commission voted 5-1 to recommend adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; recommend approval of a General Plan Amendment and Zone Change to designate an open space preservation lot as Open Space; and approve a Tentative Tract Map, a Hillside Development Permit and a Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven single family homes and one (1) 1.56 acre open space lot, on property generally located south of El Fuerte Street and north of Cacatua Street in Local Facilities Management Zone 6. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available after November 24, 2010. If you have any questions, please contact Christer Westman in the Planning Division at (760) 602-4614 or christer.westman@carlsbadca.gov. If you challenge the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, General Plan Amendment, Zone Change, Tentative Tract Map, Hillside Development Permit, and/or the Habitat Management Permit 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, Attn: City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or prior to the public hearing. CASE FILE: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 CASE NAME: EL FUERTE VIEW PUBLISH: November 20, 2010 CITY OF CARLSBAD CITY COUNCIL \ SITEMAP NOT TO SCALE El Fuerte View GPA 09-08 / ZC 09-09 / CT 04-13 HDP 04-06/HMP 09-10 easy reel Use Avery® TE MPLATE 5160®Paper mbirutuon ineei j for Easy Peel Feature^IAVERY®5160« CARLSBAD UNIF SCHOOL DIST 6225 EL CAMINO REAL CARLSBAD CA 92011 SAN MARCOS SCHOOL DISTRICT STE 250 255 PICO AVE SAN MARCOS CA 92069 ENCINITAS SCHOOL DISTRICT 101 RANCHO SANTA FE RD ENCINITAS CA 92024 SAN DIEGUITO SCHOOL DISTRICT 701 ENCINITAS BLVD ENCINITAS CA 92024 LEUCADIA WASTE WATER DIST TIM JOCHEN 1960 LA COSTA AVE CARLSBAD CA 92009 OLIVENHAIN WATER DISTRICT 1966OLIVENHAINRD ENCINITAS CA 92024 CITY OF ENCINITAS 505 S VULCAN AV ENCINITAS CA 92024 CITY OF SAN MARCOS 1 CIVIC CENTER DR SAN MARCOS CA 92069-2949 CITY OF OCEANSIDE 300 NORTH COAST HWY OCEANSIDE CA 92054 CITY OF VISTA 600 EUCALYPTUS AVE VISTA CA 92084 VALLECITOS WATER DISTRICT 201 VALLECITOS DE ORO SAN MARCOS CA 92069 I.P.U.A. SCHOOL OF PUBLIC ADMIN AND URBAN STUDIES SAN DIEGO STATE UNIVERSITY SAN DIEGO CA 92182-4505 CALIF DEPT OF FISH & GAME 4949 VIEW RIDGE AV SAN DIEGO CA 92123 REGIONAL WATER QUALITY STE 100 9174 SKY PARK CT SAN DIEGO CA 92123-4340 SD COUNTY PLANNING STEB 5201 RUFFIN RD SAN DIEGO CA 92123 LAFCO 1600 PACIFIC HWY SAN DIEGO CA 92101 AIR POLLUTION CONTROL DISTRICT 10124 OLD GROVE RD SAN DIEGO CA 92131 SANDAG STE 800 401 B STREET SAN DIEGO CA 92101 U.S. FISH & WILDLIFE 601 CHIDDEN VALLEY RD CARLSBAD CA 92011 CA COASTAL COMMISSK STE 103 7575 METROPOLITAN DR SANLBtEGO 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 ROSS CAMPBELL COAST LAW GROUP LLP 1140 S COAST HWY 101 ENCINITAS CA 92024 JIM BRADLEY 2824 CACATUA ST CARLSBAD CA 92009 LA COSTA MEADOWS UNIT 3 ARCHITECTURAL REVIEW COMMITTEE C/0 ROBERT LATTIN 2848 CACATUA ST CARLSBAD CA 92009 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 Etiquettes faciles a peler Utilisez le gabarit AVERY® 5160®Sens de chargement Consultez la feuille d'instruction www.avery.com 1-800-GO-AVERY wui yg Rec#: 1 APN: 215-030-13-00 Homeowners Ponderosa Country 23382 Mill CreeK Dr Ste 120 Laguna Hills, CA 92653-1697 APN: 215-350-58-00Rec#: 2 Gary Gross 2752 Unicornio St Carlsbad, CA 92009-5335 APN: 215-350-59-00Rec#: 3 Ronald Lee 2756 Unicornio St Carlsbad, CA 92009-5335 Rec#: 4 APN: 215-350-66-00 Remsen Douglas B Jr Trust 2786 Unicornio St Carlsbad, CA 92009-5335 Rec#: 5 APN: 215-350-67-00 Nadezhda Vitchev 2782 Unicornio St Carlsbad, CA 92009-5335 Rec#: 6 APN: 215-350-68-00 Jeffery Nason 2778 Unicornio St Carlsbad, CA 92009-5335 Rec#: 7 APN: 215-350-69-00 Harvey Raben 2774 Unicornio St Carlsbad, CA 92009-5335 Rec#: 8 APN: 215-350-70-00 McNaughton Living Trust PO Box 928408 San Diego, CA 92192-8408 Rec#: 9 APN: 215-350-71-00 Susan Schweiker 5763 Galloway PI Bonsall, CA 92003-3802 Rec#: 10 APN: 215-350-72-00 Mark Omalley 2762 Unicornio St Carlsbad, CA 92009-5335 Rec#: 11 APN: 215-350-73-00 Metta Joseph A & Kathleen M Trust 2758 Unicornio St Carlsbad, CA 92009-5335 Rec#: 12 APN: 215-350-74-00 Marvista li At La Costa Maintenance Corp 411 Ivy St San Diego, CA 92101-2108 Rec#: 13 K Leeper 2142 Cambridge Ave Cardiff, CA 92007-1803 APN: 215-360-01-00 Rec#: 14 APN: 215-360-03-00 William Angel 8300 Utica Ave Rch Cucamonga, CA 91730-3879 Rec#: 15 APN: 215-360-04-00 William Angel _.-- 8300 Utica Ave__^--" RchCwearfionga, CA 91730-3879 Rec#: 16 APN: 215-360-05-00 William Angel __ __ 8300 Utica Ave____-- ~~ Bch-€aC§rnbng7, CA 91730-3879 Rec#: 17 APN: 215-360-25-01 Robert Ralston 2824 Unicornio St Carlsbad, CA 92009-4422 Rec#: 18 APN: 215-360-25-02 David Palmer 2824 Unicornio St Apt B Carlsbad, CA 92009-4423 Rec#: 19 APN: 215-360-25-03 Alejandro Morales 2824 Unicornio St Apt C Carlsbad, CA 92009-4423 Rec#: 20 APN: 215-360-25-04 Gallo Adeline Trust 2824 Unicornio St Apt D Carlsbad, CA 92009-4424 label size r x 4".:ompMtiblewitri Avery:t>l6l/0l6! '.te format?.1} mm * !i!2;riincompatiblegvei:Aveiy':"'>ifri/oi(: 1-9 1-9/I-9 1-S.3 AJ8/\v i uf x „ (. BZIS |9qe| Rec#: 21 -APN: 215-360-25-05 Ralston Family Trust 2824 Unicornio St Apt E Carlsbad, CA S2009-4424 APN: 215-360-25-06Rec#: 22 Edith Say 2826 Unicornio St Apt A Carlsbad, CA 92009-4426 Rec#: 23 APN: 215-360-25-07 Kubota Jack Y Family Trust B 536 Meridian Way Carlsbad, CA 92011-5400 Rec#: 24 APN: 215-360-25-08 Dean Deangelis 2826 Unicornio St Apt C Carlsbad, CA 92009-4427 Rec#: 25 APN: 215-360-25-09 Rosemary Goehner 2826 Unicornio St Apt D Carlsbad, CA 92009-4427 APN: 215-360-30-00Rec#: 26 Brian Lobo 2956 Emerald PI Carlsbad, CA 92009-4412 APN: 215-360-31-00Rec#: 27 Sean Obrien 2958 Emerald PI Carlsbad, CA 92009-4412 APN: 215-360-32-00Rec#: 28 James Smith 2960 Emerald PI Carlsbad, CA 92009-4412 Rec#: 29 APN: 215-360-33-00 Redsun Susan D Separate Property Trust 6 Sandy Knl Trabuco Canyon, CA 92679-5209 Rec#: 30 APN: 215-360-46-00 Andrew Varhola 2944 Hawks Eye PI Carlsbad, CA 92009-4453 APN: 215-360-47-00Rec#: 31 Lloyd Tucker 2948 Hawks Eye PI Carlsbad, CA 92009-4453 Rec#: 32 APN: 215-360-48-00 Albert Delgado 2950 Hawks Eye PI Carlsbad, CA 92009-4453 Rec#: 33 APN: 215-360-49-00 Dean Williams PO Box 502672 San Diego, CA 92150-2672 Rec#: 34 APN: 215-361-01-00 Jacquelyn Hulse 2910 Pearl PI Carlsbad, CA 92009-4429 Rec#: 35 APN: 215-361-02-00 Devitt Barbara A S Trust 2912 Pearl PI Carlsbad, CA 92009-4429 Rec#: 36 APN: 215-361-03-00 Michael Oneill 2914 Pearl PI Carlsbad, CA 92009-4429 Rec#: 37 APN: 215-361-04-00 David Readman 2916 Pearl PI Carlsbad, CA 92009-4429 Rec#: 38 APN: 215-361-05-00 Carlton-rettenberger Sieglinde M Living Trust 2918 Pearl PI Carlsbad, CA 92009-4429 APN: 215-361-06-00Rec#: 39 Kunio Abe 2920 Pearl PI Carlsbad, CA 92009-4429 APN: 215-361-07-00Rec#: 40 Ann Segarini 2922 Zircon PI Carlsbad, CA 92009-4414 STAPES MM WH r >; r '.-.omi.i'rtiblfi wth Avery' ^ 161/8161 de format ^5 muix 'H2 mm compatible a»«c A'/ery '51fit/8!6t l-ym/l-y l-b'© Ajyn\/ UHAB aiqiieauiuu LULU £\)\. x uiiu gg IEUIJOJ ap 1-9IS/19t9©AJ9AV i|l|M 8|qpduioo,,t?x „(. az.is |aqB| Rec#: 41 -APN: 215-361-08-00 Marc Buksbaum 2924 Zircon PI Carlsbad, CA 92009-4414 Rec#: 42 APN: 215-361-09-00 Wayne Ageno 2926 Zircon PI Carlsbad, CA 92009-4414 .APN: 215-361-10-00Rec#: 43 Grant Lupo 2928 Zircon PI Carlsbad, CA 92009-4414 Rec#: 44 APN: 215-361-11-00 George Todorov 2930 Zircon PI Carlsbad, CA 92009-4414 Rec#: 45 -APN: 215-361-12-00 Deby Williams 830 Point Of The Pines Dr Colorado Springs, CO 80919-8140 APN: 215-361-13-00Rec#: 46 Jun Han 2934 Garnet PI Carlsbad, CA 92009-4413 >\PN: 215-361-14-00Rec#: 47 Drew Efimoff 2936 Garnet PI Carlsbad, CA 92009-4413 Rec#: 48 APN: 215-361-15-00 Christopher Liao 2938 Garnet PI Carlsbad, CA 92009-4413 Rec#: 49 /APN: 215-361-16-00 Michael Graven 2940 Garnet PI Carlsbad, CA 92009-4413 Rec#: 50 APN: 215-361-17-00 Hollee Oberholzer 2942 Garnet PI Carlsbad, CA 92009-4413 Rec#: 51 APN: 215-361-18-00 La Costa 21 L L C 26440 La Alameda Ste 370 Mission Viejo, CA 92691-6363 Rec#: 52 APN: 215-361-19-00 La Costa 21 L L C 26440 Missicjj-VtejGTCA 92691-6363 Rec#: 53 APN: 215-361-20-00 La Costa 21 L L C 26440 La Alameda 92691-6363 Rec#: 54 APN: 215-361-21-Ofl La Costa 21 LLC 26440 La Alameg>-Ste 370 MissioruVtefSTCA 92691-6363 Rec#: 55 APN: 215-370-02-00 Brian Malloy 428 N Laventure Rd Mount Vernon, WA 98273-3515 Rec#: 56 APN: 215-370-03-00 Boyd Clarence & Mary A Trs 2812 Cacatua St Carlsbad, CA 92009-4401 APN: 215-370-04-00Rec#: 57 Brian Fenlon 2816 Cacatua St Carlsbad, CA 92009-4401 Rec#: 58 APN: 215-370-05-00 English Family Trust 2820 Cacatua St Carlsbad, CA 92009-4401 Rec#: 59 APN: 215-370-06JJ Family Trus' *siT 92009-4401 Rec#: 60 APN: 215-370-07-00 Alex Dobrovodsky 12250TuliptreeCir Riverside, CA 92503-9742 STAPLES"label size I" x 4:| uoinpytible with Avery "51 til/8!61 ftiquelte (Je format 25 mm x HJ2 'inn compatible aver; Avery ;\5I61/8161 l-at-H/ 1-9 l-^s /ua«v ' L9I.8/I-9I.S9AJ9AV x uioi yg ;BIUJOJ yu ay x^ 9Z]S |9qe| Rec#: 61 /APN: 215-370-08-00 Michael Slator 2832 Cacatua St Carlsbad, CA 92009-4401 Rec#: 62 APN: 215-370-09-00 Althouse Family Living Trust 2836 Cacatua St Carlsbad, CA 92009-4401 Rec#: 63 APN: 215-370-10-00 Charles Marshall 2840 Cacatua St Carlsbad, CA 92009-4401 APN: 215-370-11-00Rec#: 64 Alters Trust 2844 Cacatua St Carlsbad, CA 92009-4401 Rec#: 65 APN: 215-370-12-00 Lattin Robert W Trust 2848 Cacatua St Carlsbad, CA 92009-4401 Rec#: 66 APN: 215-370-13-00 Richard Weston 2852 Cacatua St Carlsbad, CA 92009-4401 Rec#: 67 APN: 215-370-14-00 Mark Anderson 2854 Cacatua St Carlsbad, CA 92009-4401 Rec#: 68 APN: 215-370-15-00 Sarnecky George & Mary Trust 2856 Cacatua St Carlsbad, CA 92009-4401 Rec#: 69 APN: 215-370-16-00 Joseph Nicosia 2861 Cacatua St Carlsbad, CA 92009-4402 Rec#: 70 APN: 215-370-17-00 Craig Hogencamp 2859 Cacatua St Carlsbad, CA 92009-4402 Rec#: 71 APN: 215-370-18-00 Matthew Wallace 2857 Cacatua St Carlsbad, CA 92009-4402 Rec#: 72 APN: 215-370-19-00 Perez Family Trust 2855 Cacatua St Carlsbad, CA 92009-4402 Rec#: 73 APN: 215-370-20-00 Richard Kalish 2853 Cacatua St Carlsbad, CA 92009-4402 Rec#: 74 APN: 215-370-21-00 Laflin-smith Trust 2849 Cacatua St Carlsbad, CA 92009-4402 Rec#: 75 APN: 215-370-22-00 Gurprit Cheema 2845 Cacatua St Carlsbad, CA 92009-4402 Rec#: 76 APN: 215-370-23-00 Harloff John & Sherrie Family Trust 2841 Cacatua St Carlsbad, CA 92009-4402 Rec#: 77 APN: 215-370-24-00 Sanders Family Trust 2837 Cacatua St Carlsbad, CA 92009-4402 Rec#: 78 APN: 215-370-25-00 Michael Daniels 2833 Cacatua St Carlsbad, CA 92009-4402 Rec#: 79 APN: 215-370-26-00 David Honda 2821 Cacatua St Carlsbad, CA 92009-4402 Rec#: 80 APN: 215-370-27-00 Bjorn Deboer 2811 Cacatua St Carlsbad, CA 92009-4402 4"nin;iMtihlewithAverv'-'.':)!o1/)j161 'O? .Tim compatible .•tveo.'V.i^-y ""5H5KSI6I LUUI 6d\.x LULU gg }BUUO} 8p apnDiy 9|qiiedai03 ,,f x „ \. az\s |9qe| Rec#: 81 /APN: 215-370-28-00 Nataliya Orlova 13617 Valeric St Unit C Van Nuys, CA 91405-2739 Rec#: 82 APN: 215-370-29-01 Deanna Dubs 2806 Cacatua St Apt A Carlsbad, CA 92009-4433 Rec#: 83 Michele Barrios 2048 Vera Ln Escondido, CA 92026-1634 215-370-29-02 APN: 215-370-29-03Rec#: 84 Dennis Dyer 508 Orpheus Ave Encinitas, CA 92024-2658 Rec#: 85 APN: 215-370-29-04 Debbie Kemmerer 2804 Cacatua St Apt A Carlsbad, CA 92009-4456 Rec#: 86 APN: 215-370-29-05 Eleanor Guendert 2804 Cacatua St Apt B Carlsbad, CA 92009-4456 Rec#: 87 APN: 215-370-29-06 Herbert Tribino 8586 Crescent Dr Los Angeles, OA 90046-1805 Rec#: 88 APN: 215-380-01-00 Fred Asuncion 2902 Cacatua St Carlsbad, CA 92009-4403 Rec#: 89 APN: 215-380-02-00 Patricia Langowski 2849 Esturion St Carlsbad, CA 92009-4418 Rec#: 90 APN: 215-380-03-00 Hensley Living Trust 2841 Esturion St Carlsbad, CA 92009-4418 Rec#: 91 A.PN: 215-380-04-00 Black Family Trust 2833 Esturion St Carlsbad, CA 92009-4418 Rec#: 92 APN: 215-380-05-00 Estes Family Trust 2825 Esturion St Carlsbad, CA 92009-4418 Rec#: 93 APN: 215-380-06-00 Timothy Austin 2819 Esturion St Carlsbad, CA 92009-4418 Rec#: 94 APN: 215-380-07-00 Samuel Gazzo 2813 Esturion St Carlsbad, CA 92009-4418 Rec#: 95 APN: 215-380-08-00 Nargiz Makhsudova PO Box501305 San Diego, CA 92150-1305 APN: 215-380-09-00Rec#: 96 David Orr 2805 Esturion St Carlsbad, CA 92009-4418 Rec#: 97 APN: 215-380-10-00 Oday Kathleen C Revocable Trust 2801 Esturion St Carlsbad, CA 92009-4418 Rec#: 98 APN: 215-380-11-00 Donna Johnson 6325 Chorlito St Carlsbad, CA 92009 APN: 215-380-12-00Rec#: 99 David Collett 6640 Surf Crest St Carlsbad, CA 92011-2643 Rec#: 100 APN: 215-380-13-00 Salour Michael M Living Trust 6311 Chorlito St Carlsbad, CA 92009-4409 STAPtES*label size 1" v> 4" compatible with Avery' 51ii!/8161 dfi fonnot ?!) rnrnx 102 mm compatible avac Avery '516!/fil61 UHAB aiqpauiuu uiua <>\)i x LUUU 93 leiUJOj 9p 8pnD!l3 M ;)|qpdiuoo ..t? x ,,i am |gqe| Rec#: 101 /APN: 215-380-14-00 Marty Marion POBox 13051 Carlsbad, CA 92013 Rec#: 102 APN: 215-380-15-00 Millennial Renaissance 1996 Trust PO Box 953 Ross, CA 94957-0953 Rec#: 103 APN: 215-380-16-00 Stephen Boney 1820Oceanside Blvd Oceanside, CA 92054-3452 Rec#: 104 APN: 215-380-17-00 Michael Hurt 2802 Esturion St Carlsbad, CA 92009-4417 Rec#: 105 APN: 215-380-18-00 Daniel Upton 2806 Esturion Ct Carlsbad, CA 92009-4415 Rec#: 106 APN: 215-380-19-00 Evan Kinsella 2810 Esturion Ct Carlsbad, CA 92009-4415 Rec#: 107 APN: 215-380-20-00 Berry Diane Trust 2814 Esturion Ct Carlsbad, CA 92009-4415 Rec#: 108 APN: 215-380-21-00 Ray Tilt 2818 Esturion Ct Carlsbad, CA 92009-4415 Rec#: 109 APN: 215-380-22-00 James Hinkley 2822 Esturion PI Carlsbad, CA 92009-4416 Rec#: 110 APN: 215-380-23-00 Guthrie David R & Julia Trust 2826 Esturion PI Carlsbad, CA 92009-4416 Rec#: 111 APN: 215-380-24-00 James Rosenfield 2830 Esturion PI Carlsbad, CA 92009-4416 Rec#: 112 APN: 215-380-25-00 Richard Wong 2834 Esturion PI Carlsbad, CA 92009-4416 Rec#: 113 APN: 215-380-26-00 Paul Smit 2840 Esturion PI Carlsbad, CA 92009-4416 Rec#: 114 APN: 215-380-27-00 Jerome Jaspersen 2844 Esturion PI Carlsbad, CA 92009-4416 Rec#: 115 APN: 215-380-28-00 Snyder Family Trust 2848 Esturion St Carlsbad, CA 92009-4417 Rec#: 116 APN: 215-380-29-00 Revocable 2003 Trust 2852 Esturion St Carlsbad, CA 92009-4417 Rec#: 117 APN: 215-380-30-00 Bank Of New York, 1757 Tapo Canyon Rd # SVW-88 Simi Valley, CA 93063-3391 Rec#: 118 APN: 215-390-04-00 Goforth Paul F Trust 3012XanaWay Carlsbad, CA 92009-4448 Rec#: 119 APN: 215-390-05-00 Drew Jimenez 3014XanaWay Carlsbad, CA 92009-4448 Rec#: 120 APN: 215-390-06-00 Huffman William M Hi & Cherie H Trs 3016XanaWay Carlsbad, CA 92009-4448 !abelsize r x i'<;:)rHpatiblewithAvery'--5i6l/8lB1 'le format 2r> mm x Sn2 mm compatible ;ivec Avory ''5161/8161 W i-H/l-9l.y uiui <$\. x LULU gg IEUUOJ. ap spnuiig (.919/191. gft Rec#: 121 Daniel Sarnarin 2921 Cacatua Si Carlsbad, CA 92009-4404 215-390-15-00 Rec#: 122 APN: 215-390-16-00 Hyung Yang 2915 Cacatua St Carlsbad, CA 92009-4404 Rec#: 123 APN: 215-390-17-00 Robert Winston 2909 Cacatua Si Carlsbad, CA 92009-4404 Rec#: 124 APN: 215-390-18-00 Mark Cramer 12148 Chancery Station Cir Reston, VA 20190-5801 Rec#: 125 /APN: 215-390-19-00 Allen Stein 2717 Seville BN/d Apt 13204 Clearwater, FL 33764-1172 Rec#: 126 APN: 215-390-20-00 Nancy Carlin 2910CapazoCt Carlsbad, CA 92009-4407 Rec#: 127 APN: 215-541-05-00 Griffin Ziegler Family Living Trust 2710 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 128 APN: 215-541-06-00 Michael Farr 2712 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 129 APN: 215-541-07-00 James Rueckl 2714 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 130 APN: 215-541-08-00 Edward Krall 2716 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 131 APN: 215-541-09-00 Griffith Family Trust 2718 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 132 APN: 215-541-10-00 Irene Tsutsui 2720 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 133 APN: 215-541-11-00 Alaka Ellen M Tr 2722 La Golondrina St Carlsbad, CA 92009-4324 Rec#: 134 APN: 215-541-12-00 Olson Eric W & Lucille A Trs 110 Kilkenny Or Cardiff, CA 92007-2115 Rec#: 135 APN: 215-541-13-00 Phillip Cacheris 6426 Chiriqui Ln Carlsbad, CA 92009-4316 Rec#: 136 APN: 215-541-14-00 Karle Johnson 6428 Chiriqui Ln Carlsbad, CA 92009-4316 Rec#: 137 APN: 215-541-15-00 Walter F Felber Trust, 6430 Chiriqui Ln Carlsbad, CA 92009-4316 Rec#: 138 APN: 215-541-16-00 Takenori Muraoka 6432 Chiriqui Ln Carlsbad, CA 92009-4316 Rec#: 139 APN: 215-541-17-00 6434 Chiriqui Lane Lie, 6434 Chiriqui Ln Carlsbad, CA 92009-4316 Rec#: 140 APN: 215-541-18-00 Angela Fuller 6436 Chiriqui Ln Carlsbad, CA 92009-4316 STAPLES*label size 1" x 4" compatible with Avery :5161/8161 i|» format ?<> mm x !02 mm compatible awn Avi-ry "5161/3161 l-y m/l-y (-Vie "Jsny utfAt: a|i)!|KUUJUJ uiw <;u|. A uiui y^ JKUJJUJ au I-9I-8/I-91.SQ AJ9AV i|J!M BiqiiEdwoo <(fr x ,,i gzis |aqe| Rec#: 141 APN: 215-541-19-00 Olsen 2004 Trust 2725 Socorro Ln Carlsbad, CA Q2009-4336 Rec#: 142 APN: 215-541-20-00 Matthew Salas 2723 Socorro Ln Carlsbad, CA 92009-4336 Rec#: 143 APN: 215-541-21-00 Gavin Patrick J & Keene Judith L Revocable Living Trust 2721 Socorro Ln Carlsbad, CA 92009-4336 Rec#: 144 APN: 215-542-01-00 Carro Family Trust 6428 El Perico Ln Carlsbad, CA 92009-4310 Rec#: 145 APN: 215-542-02-00 L Sweatte Family 2713 La Golondrina St Carlsbad, CA 92009-4326 Rec#: 146 APN: 215-542-03-00 Curt Schoeppner 2715 La Golondrina St Carlsbad, CA 92009-4326 Rec#: 147 APN: 215-542-04-00 Howard J Grunloh 2717 La Golondrina St Carlsbad, CA 92009-4326 Rec#: 148 APN: 215-542-05-00 Peter Braemer 2719 La Golondrina St Carlsbad, CA 92009-4326 Rec#: 149 APN: 215-542-06-00 Harry Cesena 2721 La Golondrina St Carlsbad, CA 92009-4326 Rec#: 150 APN: 215-542-07-00 Wayne Battenberg 2722 Socorro Ln Carlsbad, CA 92009-4335 Rec#: 151 APN: 215-542-08-00 Raymond Smith 2720 Socorro Ln Carlsbad, CA 92009-4335 Rec#: 152 APN: 215-542-09-00 Rene Grossrieder 1611 S Melrose Dr # 166 Vista, CA 92081-5407 Rec#: 153 APN: 215-542-10-00 Scholl Cathy Trust 2716 Socorro Ln Carlsbad, CA 92009-4335 Rec#: 154 APN: 215-542-11-00 Nicholas Fulbright 2714 Socorro Ln Carlsbad, CA 92009-4335 Rec#: 155 APN: 215-542-13-00 Carol Meeks 6432 El Perico Ln Carlsbad, CA 92009-4310 Rec#: 156 APN: 215-542-14-00 Martin Jackson 6430 El Perico Ln Carlsbad, CA 92009-4310 Rec#: 157 APN: 215-543-01-00 Kenneth Lynch 2717 Socorro Ln Carlsbad, CA 92009-4334 Rec#: 158 APN: 215-543-02-00 Montgomery Chrystine E Trust 2715 Socorro Ln Carlsbad, CA 92009-4334 Rec#: 159 APN: 222-662-07-00 Bryan Devore 2829 Carrillo Way Carlsbad, CA 92009-3028 Rec#: 160 APN: 222-662-08-00 Brian Pollok 2825 Carrillo Way Carlsbad, CA 92009-3028 ^nelspe t"x '!e format V5 m with Avety fil|5]6i/8161 1-9I-8/I-91-S0 AJ9A\/ 39AB eiqpaiuu L9 1.8/1-9 1-9© AJSAV iffi LULU ^\. x uiw gg }Biiuoj ap Rec#: 161 APN: 222-662-09-00 Terry Thomas 2821 Carrillo Way Carlsbad, CA 92009-3028 Rec#: 162 APN: 222-662-10-00 Philip Scarfo 2817 Carrillo Way Carlsbad, CA 92009-3028 Rec#: 163 APN: 222-662-11-00 Birgitte Atme 2813 Carrillo Way Carlsbad, CA 92009-3028 Rec#: 164 APN: 222-662-14-00 Peter Wooif 2801 Carrillo Way Carlsbad, CA 92009-3028 Rec#: 165 APN: 222-662-26-00 Master Rancho Carrillo 2237 Faraday Ave # 100 Carlsbad, CA 92008-7209 Rec#: 166 APN: 222-662-31-00 Pacific Enterprises PO Box 2573 Carlsbad, CA 92018-2573 Rec#: 167 APN: 222-662-32-00 Douglas Groset 2805 Carrillo Way Carlsbad, CA 92009-3028 label size 1" ;•; V etiquette tie format?!? HUM xmipaiiblewith Avery :5161/8I61 ; i02 nun compatible avec Avsry' :5i6!/3161 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 North County Times Formerly known as the Blade-Citizen and The Times- Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: November 20th, 2010 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Escondido, California This 20th, of Novembep2010 Proo Jane Allshouse NORTH COUNTY TIMES Legal Advertising NOTICE IS HEflEBY^lWNTo you, because your interest may be affect- ed, that the City Council of the City of- Carlsbad will hold a public hearing at the Council Chambers, 1200 Carls- bad Village Drive, Carlsbad, Califor- nia, at 6:00 p.m. on Tuesday, No- vember 30, 2010, to consider an ap- peal of the Planning Commission's approval of Tentative Tract Map CT 04-13, Hillside Development Permit HDP 04-06 and Habitat Manage- ment Permit HMP 09-10 and recom- mendation to adopt a Mitigated Neg- ative Declaration and approve Gen- eral Plan Amendment GPA 09-? and Zone Change ZC 09-09 to consider. adoption of a Mitigated Negative Declaration and Mitigation Monitor- ing and Reporting Program, and ap- proval of General Plan Amendment (GPA 09-08) and Zone Change (ZC 09-09) on property generally located south of El Puerto Street and north of Cacatua Street in Local Facilities Management Zone 6 and more par- ticularly described as: Lot 552 of La Costa Meadows Unit 3 in the City of Carlsbad, County of San Diego, State of California, ac- cording to Map thereof No. 7076, filed in the Office of the County Re- corder of San Diego County, October, 16, 1971. Whereas, x>n October 6, 2010 the City .of Carlsbad Planning Commis- sion voted 5-1 to repommend adop- tion of a Mitigated Negative Declara- tion and Mitigation Monitoring and Reporting Program; recommend ap- proval of a General Plan. Amendment and Zone Change to designate an open space preservation lot as Open Space; and approve a Tentative Tract Map, a Hillside Development Permit and a Habitat Management Plan Permit for the subdivision and grading of a 3.91-acre site into seven (7) single-family residential lots for the future development of seven sin- gle family homes and one (1) 1.56 acre open space lot, on property. Generally located south of El Fuerte treet and north of Cacatua Street in Local Facilities Management Zone 6. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available, after November 24,2010., If you have any questions, please contact Christer Westman in the Planning Division at 760-602-4614 or christer.westman- ©carlsbadca.aov. If you challenge the Mitigated Nega- tive Declaration and Mitigation Moni- toring and Reporting Program, Gen- eral Plan Amendment, Zone Change, Tentative Tract Map, Hillside Devel- opment Permit, and/or the Habitat Management Permit 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, Attn: City Clerk's Office, 1200 Carls- bad Village Drive, Carlsbad, CA 92008, at or prior to the public hearing. CASE FILE: GPA 09-08/ZC 09-09/CT 04-13/HDP 04-06/HMP 09-10 CASE NAME: EL FUERTE VIEW PUB: November 20, 2010 2276589 CITY OF CARLSBAD CITY COUNCIL Donna Heraty From: Donna Heraty Sent: Monday, October 18, 2010 9:47 AM To: Lisa Hildabrand; Ron Ball; Don Neu; Michele Masterson Cc: Gary Barberio; Jane Mobaldi; Karen Kundtz; Sherry Freisinger Subject: Planning Commission Appeal Attachments: Appeal of El Fuerte View.pdf Hi All, Attached Planning Commission Appeal re El Fuerte View. Donna. CARLSBAD Donna Heraty Deputy City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 www.carlsbadca.gov P: 760-434-2808 F: 760-720-6917 donna.heraty@carlsbadca.gov Please consider the environment before printing this e-mail O**vo AVfc>*<?e6C, \<-<we^ tf^r^Mz S^TM fr«OSc>\ae^~City of Carfsbad Office of the City Clerk I (We) appeal the decision of the to the Carlsbad City Council. APPEAL FORM PIff / A r /I 0 W\-5 5 f T Date of Decision you are appealing: /& I & / '2-0 f °Icl Subject of Appeal: BE SPECIFIC Examples: if the action is a City Engineer's Decision, please say so. If a project has multiple elements, (such as a General Plan Amendment, Negative Declaration, Specific Plan, etc.) please list them all. If you only want to appeal a part of the whole action, please state that here. rtsi,s> f, Lo/M/Ti/$s/a«^ *?rr ' k-»g- c\ -' 0 .U •/-, 0 ^ /T/ft . Reason(s) for Appeal: • Please Note • Failure to specify a reason may result in denial of the appeal, and you will be limited to the grounds stated here when presenting your appeal. BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local laws, plans, or policy? T o LaiA) O-y-\r O<A f2- SIGNATURE NAME (please print) /0/lf j 2-<7 | p DATE <T>' 01 PHONE NO. ADDRESS: Street Name & Number (SWsW/ Cft _ 9 City,State,Zip Code 12OO Carlsbad Village Drive • Carlsbad, California 92008-1989 • (619)434-2808 REASONS FOR APPEAL: EL FUERTE VIEW EXHIBIT A 1. The City has improperly limited the scope of environmental review for this Project. This Project is in violation of the MHCP and HMP and the correct procedures for processing a plan amendment have not been followed. A current EIR must be prepared for the Project. Reference is made to the attached letter dated October 6, 2010 from Coast Law Group. 2. The City has ignored the appreciable harm to adjacent property owners from developer's proposed major excavations in a known existing historical landslide area. The developer's proposed mitigation measures are manifestly insufficient to eliminate a demonstrable landslide risk, especially in context with the recent landslides at the La Costa de Marbella property in Carlsbad or the Arroyo Avenue properties in Oceanside. Based on the developer's complete lack of financial depth, in event of a landslide or other land subsidence, and should the City refuse to impose long term insurance by the developer, the affected properties will have no other recourse but to look to the City for indemnity. 3. The City has not adequately addressed and mitigated the potential environmental, traffic, noise, health, safety, visual blight, and attractive nuisance considerations for this development which will involve substantial "cut and fill" grading operations over an extended period and will likely result in graded pads lying in undeveloped condition for a extended period due to market conditions. 4. The City has wholly ignored the developer's refusal to respect the private Covenants, Conditions, and Restrictions ("CCRs") which encumber the subject parcel. The City must require the developer to submit its development plans to the Architectural Review Committee for review and approval. Appellants recognize and respect the owner/developer's right to develop the subject parcel. However, the development of this parcel cannot be to the detriment of the affected property owners' existing rights. The City must require the developer to sufficiently address and mitigate all the pertinent concerns, including cooperation with the Architectural Review Committee. CLG COAST LAW GROUP i 1140 South Coast Hwy 101 Encinitas, CA 92024 760-942-8505 760-942-8515 Octobers, 2010 ChristerWestman, AICP Via Electronic Mail Senior Planner Christer.Westman@cartsbadca.gov Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: El Fuerte View Project Coastal Environmental Rights Foundation Planning Commission Hearing - Oct. 6, 2010 Dear Mr. Westman: Coast Law Group LLP represents the interests of the Coastal Environmental Rights Foundation (CERF) with respect to the City's review of the above-referenced project (the Project). CERF is a nonprofit organization established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents. Thank you for the opportunity to participate in the review process. In anticipation of the Planning Commission's consideration of the Project at its October 6, 2010 hearing, we submit the following comments on the Mitigated Negative Declaration (MND), and the Project's failure to comply with both the Multiple Habitat Conservation Program (MHCP) and the Carlsbad Habitat Management Program (HMP). Because the City has engaged in deficient environmental review under the California Environmental Quality Act (CEQA) and because the findings necessary to issue an HMP amendment simply cannot be made, the Project cannot be legally approved as proposed. Further, given the environmental sensitivity of the subject site and surrounding area, a MND is entirely inappropriate for this Project. The proposed mitigation measures do not reduce the impacts to a level of insignificance. Indeed, the MND is nothing more than an initial study checklist, and fails to identify and investigate a number of potentially significant impacts. As detailed below, the City must require the preparation of a full environmental impact report (EIR) under CEQA's "fair argument" standard, as there is no question that the Project "may" have a significant impact on the environment. (Pub. Res. Code § 21080). 1. Improper Baseline Condition As a preliminary matter, the City has adopted an inappropriate baseline for conducting CEQA review. Notwithstanding the property's inclusion in the HMP as a hardline preserve area, the applicant has destroyed sensitive vegetation and disturbed portions of the site on a regular basis. The HMP expressly prohibits any such activity, and an applicant cannot be permitted to benefit from its own violations of the HMP or otherwise gain from its unregulated destruction of protected habitat. Nonetheless, the MND purports to credit the applicant's misconduct by finding less than significant impacts based on the same degraded conditions that the applicant Carlsbad Planning Commission El Fuerte View Project October 6, 2010 Page 2 itself has deliberately caused. For obvious policy reasons, the Project must be reviewed based on the environmental conditions that existed prior to the applicant's degradation of the property, and the baseline conditions applied in the MND cannot serve as an appropriate benchmark for environmental review. Further, unless and until an HMP amendment (minor or otherwise) is finalized, the City cannot allow any further degradation of the site. As the City is aware, it has an ongoing duty to enforce the anti-degradation policies set forth in the HMP, which will continue to apply to the Project absent a valid amendment. The continued failure to enforce those restrictions will only further allow the applicant to circumvent the environmental review process and reduce its mitigation obligations.1 It is entirely disingenuous and circular to allow the degradation of HMP protected habitat and to then subsequently authorize development on the site based on a claim that the habitat lacks biological value. 2. The Fair Argument Standard In order for the City to rely on an MND to analyze the Project, all potential impacts caused by the Project must be avoided or mitigated "to a point where clearly no significant effect on the environment would occur." (Pub. Res. Code § 21080(c)(2); emphasis added). If any portion of the Project may have a significant impact, an EIR must be prepared. (CEQA Guidelines §15063(b)(1)). As a corollary, an MND will only be upheld when there is no credible evidence that the project may have a significant environmental impact. (Quail Botanical Gardens Found, v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602). CEQA requires the preparation of an EIR "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 75 (emphasis added)). "Substantial evidence... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions may also be reached." (CEQA Guidelines §15384). Here, as detailed below, this standard has been met as the Project clearly "may" result in significant impacts to biological resources, including the coastal California gnatcatcher and its habitat. Because the Project will also result in significant noise, aesthetic, and geological impacts, an EIR must be prepared. 3. Biological Resources a. Removal of the Site from the Hardline Preserve will Result in Significant Environmental Impacts. As the City is aware, the HMP establishes hardline preserve areas as a mechanism for ensuring that highly valuable biological resources will be adequately protected. Indeed, these areas have been specifically designated as "lands that will be conserved and managed" because of "their value to biological resources." (MHCP, p. 3-2; Guidelines for Biological Studies (Biological Guidelines), p. 4). These values clearly apply to the Project site, as the U.S. Fish & Wildlife Service (FWS) has "determined that potential habitat for the coastal California 1 Indeed, to the extent the City authorized or had knowledge of the applicant's activities, the City is potentially subject to a citizen suit enforcement action under the Endangered Species Act for negligently or intentionally allowing the degradation of hardline preserve habitat. Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 3 gnatcatcher. . . occurs on site, contrary to evidenced provided in the Biological Resources Technical Report." (See Oct. 6, 2009 FWS letter, p. 3). And as noted in the HMP itself, "[djirect impacts to the Gnatcatcher could result from the loss of coastal sage scrub habitat used for nesting and foraging by Gnatcatchers." (HMP, App. C., p. C-40). Moreover, it has now been well documented that residents in the area have observed the species on-site. Given the express purposes of the MCHP and HMP in regulating take and protecting sensitive environmental resources, any amendment calling for the removal of hardline preserve from the HMP constitutes a significant environmental impact under CEQA. Because those valuable resources will no longer be protected from development (including viable gnatcatcher habitat in this case), there is no question that the removal of hardline preserve area from the HMP "may" result in significant biological impacts. For this reason alone, approval of the Project will constitute an abuse of discretion. b. Violation of HMP Amendment Procedures and Improper Segmentation of Environmental Review. Further, contrary to the findings made in the MND, the Project will result in significant land use and planning impacts, as the City and applicant have not complied with the procedural requirements for processing an HMP amendment. The City's regulatory guidelines provide that "[m]inor adjustments to hardline boundaries that result in no net loss of the quality or quantity of habitat are allowed if processed as a Minor Amendment through an Equivalency Finding." (Biological Guidelines, p. 19, citing HMP p. E-3; IA Section 20, p. 29; emphasis added). By the same token, the "[rjemoval of lands from conserved areas, or reconfiguration of hardline areas resulting in a decrease of acreage or quality of habitat, shall constitute a Major Amendment to the HMP." (HMP, p. E-4; emphasis added). Here, the equivalency finding cannot be made because replacement preserve site(s) have not yet been identified or evaluated. The City generally states that the offset issue will be reconciled at some indeterminate point in the future as part of the process of addressing "overall City HMP conservation levels rather than a site or project level conservation." (MND, p. 12). Any approval of the Project on this basis will constitute an abuse of discretion, as the "equivalency" finding simply cannot be made when the site(s) to be annexed to the hardline preserve have never been evaluated during the review process. Indeed, because this critical piece of information is missing, it is impossible to evaluate whether the hardline amendment will result in a net loss of the quantity or quality of the removed habitat. For instance, the equivalency finding cannot be made unless the replacement habitat has the potential to support the California gnatcatcher, as this determination has been made by the FWS with respect to the El Fuerte site. (See Oct. 6, 2009 FWS letter, p. 3). Moreover, "Projects that change the Hardline Preserve require official Agency approval prior to HMP compliance determination (i.e., Equivalency Findings)." (Biological Guidelines, p. 9; emphasis added). Here, although the FWS and Department of Fish & Game have informally suggested via email that it may be appropriate "to process a Minor Amendment" for the site, they have expressly conditioned that concurrence on the requirement that there be "no-net-loss of overall preserve." (See August 12 and 23,2010 emails from FWS and DFG, respectively). Notably, the agencies have not yet found that this requirement has been met. Again, such a determination cannot be made until site-specific replacement habitat is identified and substantively evaluated. Given these procedural defects, the application must be processed as a Major Amendment under the HMP. (See HMP, p. E-4, providing that "removal of lands from Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 4 conserved areas" must be processed as a Major Amendment).2 Because the City and applicant have not complied with the express procedural requirements for amending the HMP, the Project cannot legally be approved. Further, the MND is deficient because it fails to identify significant land use and planning impacts resulting from the Project's inconsistencies with the MHCP and HMP. The City's review of the Project is further deficient because the failure to identify replacement habitat as part of the CEQA review process has resulted in the improper segmentation and deferral of environmental review. Because the completion of that process has been deferred to an undetermined date through the City's cte facto amendment process, the full impacts of the HMP amendment cannot be known. By engaging in this piecemeal review of the Project, the City has circumvented CEQA's fundamental goals of providing for informed decision-making and full public disclosure. c. Deficient Analysis and Discussion of Biological Impacts The Project does not comply with the impact analysis and mitigation standards set forth in the City's own Guidelines for Biological Studies (Sept. 30, 2008, the "Biological Guidelines"). The Biological Guidelines "were developed to provide the biological standard for processing HMP permits" and set forth the procedures to be followed in demonstrating "compliance with the HMP, MHCP, and CEQA." (Biological Guidelines, p. 1). They are further intended to "ensure that an adequate environmental impact analysis is conducted using the appropriate biological data, and that HMP-compliant mitigation is incorporated into project design and permit conditions." (Id.] emphasis added). "All development projects and fuel modification activities in the city shall comply with [the Guidelines]." (Id. at p. 18; emphasis added). First, the MND is deficient because the City's review of the Project is not based on an adequate biological survey. The Biological Guidelines state that biological surveys "must be recent to be used for a project impact analysis." To be considered "recent," surveys should be "no more than one year old" where, as here, the City and applicant presume that a species such as the gnatcatcher is absent. (See Biological Guidelines, p. 32). To meet minium survey standards applicable to the gnatcatcher, the review must be conducted between February 15 and August 30, must consist of three separate surveys, and the surveys must be at least seven days apart. (Id., p. 25). Here, a biological survey was prepared in October 2005, and an amended "impact analysis" was prepared in May 2009. (MND, p. 33). These studies have not bee included in the Staff Report and it is unclear whether they meet the separate site-visit requirements set forth above. In any event, they are outdated and do not provide an adequate basis for evaluating project impacts under CEQA.3 "Within Carlsbad, the number of existing coastal California Gnatcatcher 2 Similarly, the requisite findings set forth in Section 20.1 of the Implementing Agreement cannot be made. For instance, the amendment will result in operations, impacts and take not contemplated under the original HMP, as the property was designated for full protection under the hardline standards set forth in the MHCP and HMP. 3 The failure to conduct necessary studies renders it more likely the fair argument standard will be met and an EIR will be required. (Sundstrom v. County ofMendocino (1988) 202 Cat. App. 3d 296, 311.) It is not the public's duty to prepare the proper studies. (Id.) Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 5 pairs fluctuates seasonally and from year to year, based on weather, fires and a number of other factors." (HMP, App. C., p. C-40; emphasis added). Because the gnatcatcher constitutes a "high priority as a preserve planning species and conservation target" (MHCP, p. 3-7), the Project must be reviewed based on current biological surveys that satisfy the minimum gnatcatcher standards set forth in the Biological Guidelines. Indeed, identification of impacts and consideration of feasible mitigation measures prior to project approval are the very cornerstones of CEQA law. (Sundstrom v. County ofMendocino (1988) 202 Cal. App. 3d 296, 306-07). Because the City's own "biological standard for processing HMP permits" has not been satisfied, the Project must be denied. d. Deficient Analysis and Implementation of Mitigation Measures Per the City's own review standards, "CEQA documentation must outline impact mitigation with enough detail to illustrate how they will reduce impacts to a level below significant, and satisfy HMP and CEQA requirements." (Biological Guidelines, p. 34). Indeed, "when a mitigated negative declaration is proposed, it is particularly important that the study fully describe the mitigation measures and explain how they will avoid the project's potential impacts." 1 Kostka & Zischke, Practice under the California Environmental Quality Act (Cont.Ed.Bar 2004) § 6.18, p. 266 (emphasis added). Here, the MND fails to identify how proposed mitigation measures will actually reduce Project impacts. For instance, the MND purports to mitigate impacts to gnatcatchers as follows: "Prior to construction, focused protocol surveys for the gnatcatcher shall be conducted to determine occupancy on site." (MND, p. 34). First, as noted above, it is improper to defer these studies to a later date, as they are necessary to allow the public and the Commission to understand the scope of Project impacts in the first place. Second, and equally problematic, the measure is deficient because it fails to identify what steps must be undertaken in the event gnatcatchers are identified on site. Simply conducting a survey will not protect species found to be on site. Because the MND fails to specify "how this will reduce impacts" it fails to comply with CEQA and the HMP.4 Further, the MND must be recirculated, as "any necessary mitigation measures must be specifically set forth at the time of publication of a mitigated negative declaration in advance of the City's adoption of it." (Quail Botanical Gardens, supra, at 1606 fn. 4). The proposed measures for mitigating impacts to raptors are likewise deficient. The MND states that if construction activities are to occur during the raptor nesting season, the applicant shall hire a qualified biologist who shall determine if birds are present on or near the site prior to construction. The MND further provides that "[n]ests that are detected within the proposed impact areas shall be avoided until nesting is completed." (MND, p. 34). Again, however, the foregoing does not meet the minimum standards set forth in the Biological Guidelines. The Guidelines state, "Surveys will also be conducted by a qualified biologist in appropriate habitat for nesting raptors and migratory birds (including, but not limited to the least The measure is further deficient because it does not incorporate the minimum gnatcatcher survey requirements specified above. (See also Biological Guidelines, p. 41, specifying additional gnatcatcher survey requirements). Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 6 Bell's vireo) and within an additional 500-ft survey buffer within three days of construction." (Biological Guidelines, p. 41). "If nests of listed birds, migratory birds, raptors, or other sensitive species are located, they will be fenced with a protective buffer of at least 500 feet from active nests of listed species, and 300 feet from other sensitive bird species. All construction activity will be prohibited within this area." (Id.; emphasis added). The MND is deficient because the proposed mitigation measures do not meet these standards. Further, the City previously identified the presence of Nuttall's scrub oak on the Project site. The FSW has indicated that the MND should specify whether the oaks will be salvaged and, if so, how they will be salvaged. (See FSW October 6, 2009 letter). In response, the City has indicated that "efforts can be made to salvage those plants impacted by the development of the site through transplantation as a condition of approval." (City October 9, 2009 letter to FSW). However, the transplantation of Nuttall Scrub Oak is not identified as a mitigation measure in the MND, nor does it appear to have been included as a project condition. Given the failure to mitigate this impact, the Project will result in significant environmental impacts under CEQA and an EIR must be prepared. 4. Noise and Traffic Impacts The MND states that a noise study was conducted in 2003 "to determine what external noise sources may impact the development." (MND, p. 23). As a preliminary matter, the study is entirely outdated. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 409 (an inadequate or unsupported study is entitled to no judicial deference)). Further, the foregoing stands the environmental review process squarely on its head, as the review process is intended to evaluate the Project's impacts on the environment and surrounding uses rather than the other way around. In that regard, the MND fails to adequately discuss potential noise impacts on biological resources and neighboring property owners. For instance, the Project will require 12,596 cubic yards of export. (Sept. 1, 2010 Staff Report, p. 6). Yet the MND fails to evaluate potential noise and traffic impacts resulting from the individual truck loads that will be necessary to haul the material. In addition, the MND fails to evaluate short-term construction impacts and associated noise levels both within the preserve and at neighboring properties. 5. Grading and Geological Impacts As the City is aware, the applicant's own engineers have identified potential areas of instability on the Project site. This issue has not been adequately addressed in the MND, and the City has failed to consider appropriate mitigation measures as a result. For instance, the MND does consider or evaluate potential slope stability impacts to neighboring properties. Further, because the City improperly prepared an MND for this Project, it has failed to consider Project alternatives that would avoid these impacts altogether, including alternatives with a lesser number of developable lots. The MND also fails to adequately consider the potential for short- term vibrational impacts resulting from construction. 6. Aesthetic Impacts The MND states that the Project will not result in significant impacts to aesthetics because "the area does not have significant value as a scenic resource." (MND, p. 6). However, views from Cacatua Street will clearly be impacted, as the proposed Project will interfere with views of the preserve and surrounding valley to the west. The Project will result in significant aesthetic Carlsbad Planning Commission El Fuerte View Project Octobers, 2010 Page 7 impacts, and the MND's findings to the contrary are not supported by substantial evidence. 7. Conclusion As discussed above, the Project will result in a number of significant environmental impacts under CEQA. Because the fair argument standard has clearly been met, an EIR must be prepared for the Project. By failing to adequately evaluate Project impacts in a comprehensive EIR (and by improperly segmenting the review process by deferring the identification and evaluation of replacement preserve habitat), the City has improperly limited the scope of environmental review. Further, the Project is in violation of the MHCP and HMP, and the procedures for processing a plan amendment have not been followed. Based on the foregoing, the Project is not legally defensible and certification of the MND will constitute an abuse of discretion. Thank you for your time and consideration of the above. Sincerely, COAST LAW GROUP LLP <£•— v <^~~~~—/Ross Ivt. Campbell Marco A. Gprizalez CITY OF CARLSBAD 1635 FARADAY AVENUE CARLSBAD, CALIFORNIA 92008 Cashier: (760) 602-2401 Water Utility Billing: (760) 602-2420 REC'D FROM O c -4-i DATE IP I%l0l £> ACCOUNT NO. Col 32JO <f€V3 -t__x — j _ DESCRIPTION C^P^QjUUt. Q fO 1 fl^H^vW^W^ ^ y ' ' ^ ' / ^S NOT VALID UNLESS VALIDATED BY TOTAL AMOUNT i /> 060 —~ ' © Printed on recycled paper ROBERT W LATTIN (760) 918-0180 2848CACATUAST.CARLSBAD, CA 92009-4401 JAYTOTHE. ORDER OF_ BANK OF AMERICARANCHO-ENCINITAS BRANCH »1182 1340 ENCINITAS BOULEVARD ENCINITAS, CA 92024 (760) 630-3220 FOR 610 16-66/1220 $ rDOLLARS VALUED CUSTOMER SINCE 25 YEARS i: 1 2 EQOO&G. n: oe, ID-" i IB 2 1-" i El Fuerte View Appeal of Planning Commission Approvals Pending City Council Actions: GPA 09-08/ZC 09-09 Planning Commission Approvals: CT 04-13/HDP 04-06/HMP 09-10 EL FUERT E S T ALGA RDUNICORNIO ST CACATU A S T CARRILLO WY ESTURION S T SOCORRO LN RANCHO CORTES LA GOLONDRINA S T BASALTO STXANA W Y CHIRIQUI LNCHORLITO STPASEO LAZO MOONSTONE PLPEARL PLGARNET PL EM E R A L D P L EL FUERTE ST 0 400200 Feet GPA 09-08 / ZC 09-09 / CT 04-13 PUD 04-11 / HDP 04-06 / HMPP 09-10 El Fuerte View El Fuerte View •3.91 Acres •7 Single Family Lots –10,764 sq.ft. –15,010 sq.ft. •1 Open Space Lot –1.96 Acres Tentative Map Land Use Revision El Fuerte View •Summary of Points of Appeal –The City is in violation of the HMP and procedures for processing a plan amendment –There is geotechnical instability and the City refuses to impose a long term insurance condition –The City has not adequately addressed and mitigated environmental impacts –The City has not required the applicant to submit plans for review by the La Costa Meadows Unit 3 Architectural review Committee El Fuerte View •Summary of Points of Appeal –The City is in violation of the HMP and procedures for processing a plan amendment •Mapping of site as existing hardline was done in error •Process outlined in Implementing Agreement –(following Appendix F; HMP; Section 20.1(2)) •Written agreement by U.S.F.W.S. and C.D.F.G. El Fuerte View •Summary of Points of Appeal –There is geotechnical instability and the City refuses to impose a long term insurance condition •Professional Geotechnical Studies submitted and reviewed by City and independent third party professionals •Conditioned to post sufficient security to complete grading per approved plans El Fuerte View •Summary of Points of Appeal –The City has not adequately addressed and mitigated environmental impacts •Biological Studies submitted in June 2003, May 2004, March 2005, October 2005, January 2006, and updated analysis submitted in May 2009 •No Federal or State listed plants •No Sensitive animal species El Fuerte View •Summary of Points of Appeal –The City has not adequately addressed and mitigated environmental impacts •Noise impacts of a Single Family Residential project on the single family residential neighborhood •Edge effects on existing hardline to the north El Fuerte View •Summary of Points of Appeal –The City has not required the applicant to submit plans for review by the La Costa Meadows Unit 3 Architectural review Committee •The City does not have the authority or obligation to enforce an agreement between private parties El Fuerte View Staff Recommendation: •Adopt Resolution No. 2011-006 –Deny the appeal and uphold Planning Commission approval of CT 04-13/HDP/04-06/HMP 09-10 •Adopt Resolution No. 2011-007 adopting the Mitigated Negative Declaration and approving GPA 09-08 •Introduce Ordinance No. CS-116 approving ZC 09-09 Historical Land Use Map Tentative Map (previous) Appeal of Planning Commission Decision to Approve “El Fuerte View” `Potential damage to adjacent properties from major excavations in a known historical landslide area.`Inadequate mitigation of potential damage`Inadequate mitigation of potential damage from cut & fill grading.`The developer has ignored the Covenants`The developer has ignored the Covenants, Conditions & Restrictions that encumber the parcel.`A current EIR has not been prepared. The view looks West. The house is on the corner of El Fuerte and Chorlito. Bressi Ranch and the Pacific Ocean are in the distance.View from a View from a CacatuaCacatua BackyardBackyard `The developer’s own engineers identified areas of potential instabilityGl l i h ff f`Geology consultant questions the effects of the cut proposed for a 12 foot high crib wall`Planning Department requires additional review of slope stability before permittingreview of slope stability before permitting Backyard across Cacatua from the homes facing the proposed development. Soil Movement from the Top of the Hill… Soil Movement from the Top of the Hill… Backyard across El Fuerte from the planned development. …To the Bottom of the Hill.…To the Bottom of the Hill. Fence borders El Fuerte at the toe of the hill.Sinking HillsideSinking Hillside `Three proposed home sites too close to existing homes abovehomes above`Owner should post abondorre-a bond or re-configure the plan `Established in 1971`Three representatives elected to form an A hi l C i i 2006Architectural Committee in 2006`236 property owners`128 valid ballots`128 valid ballots`City & property owner notified of formation by certified mailby certified mail`Legal & documented `City “…is not in the position to enforce CC&Rs…”`Architectural Committee has enforcement authority which includes restriction of viewsauthority, which includes restriction of views `1971- CC&Rs recorded1972Pt`2004- Property designated“hardline`1972-Property purchased by G. Hamsayehdesignated hardlinepreserve” in Habitat Management Plan2006Pl i`1982- Planning Commission approves plan for 4 home sites`2006-Planning Department receives plan for 9 home sites`2003- Property purchased by NataliyaOrlova(1sttrust deed `2010- Planning Department receives plan for 6 home sites; (held by G. Hamsayeh)later revised to 7 home sites `Site is unsuitable for the development as planned`Development is poorly scaled to the siteSifibji iif`Specific objection to proximity of Easternmost home sites to existing homes`Specific objection to preparing the pads`Specific objection to preparing the pads before plans for homes are submitted`Noise mitigation measures forCacatua`Noise mitigation measures for Cacatuaproperties but not Esturion properties `Property purchased for $1,150,000, 8/6/2003`Reassessed for $450,000, 12/31/2008Mh4 i i`More than 4 years in arrears in property taxes`More than 2 years delinquent in mortgage payments on a $600 000 mortgagepayments on a $600,000 mortgage`No sale of vacant lots in 92009 since 2007*`*San Diego Realtors Association `Return to the 1982 plan for 4 home sites`Owner provide bond for potential damage to existing dwellingsOidld i`Owner provide landscape screening to mitigate sound `Owner provide replacement trees`Owner provide replacement trees`City install stop signs at Cacatua`City require a new EIR`City require a new EIR`Alternative: City buy the property