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2012-01-10; City Council; 20780; TURRO RESIDENCE
CITY OF CARLSBAD - AGENDA BILL 14 AB# MTG. DEPT. 20,780 1/10/12 CED Turro Residence CDP 05-48 DEPT. DIRECTOR CITYATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council hold a public hearing and ADOPT Resolution No. 2012-011 APPROVING a determination that the Turro Residence project Is prohibited from operating a vacation rental located at 5143 Shore Drive in the Mello II Segment of the Local Coastal Program and Local Facilities Management Zone 3. ITEM EXPLANATION: Project Application(s) Administrative Approvals Planning Commission City Council CDP 05-48 RA X RA = Recommended Approval X = Final City decision-making authority ^ - requires Coastal Commission approval On November 2, 2011, the Planning Commission approved (6-0-1, Commissioner Siekmann absent) Resolution No. 6835, interpreting specific use conditions of approval found in Planning Commission Resolution No. 6031 (Coastal Development Permit No. CDP 05-48) determining that the project was operating as a vacation rental and that the project is prohibited from operating a vacation rental located at 5143 Shore Drive. At the hearing, the applicant and applicant's representative gave statements regarding the project history and use of the property. Two parties spoke on behalf of Mr. Turro and three persons spoke in opposition to the project and the use of properties as vacation rentals in general. A full disclosure of the Planning Commission's actions and a complete project description and staff analysis of the proposed project are included in the attached minutes and Planning Commission staff report. The Planning Commission and Staff are recommending approval ofthe determination that the project has operated as a vacation rental use and that the use of the property as a vacation rental is prohibited per the conditions of the project's original approval. FISCAL IMPACT: Costs associated with the project are related to the legal services retained by the City of Carlsbad City Attorney's Office and sufficient budget is available. DEPARTMENT CONTACT: Van Lynch 760-602-4613 van.lvnch(a)carlsbadca.qov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED • • • CONTINUED TO DATE SPECIFIC • CONTINUED TO DATE UNKNOWN • RETURNED TO STAFF • OTHER-SEE MINUTES • Page 2 ENVIRONMENTAL IMPACT: CEQA exemptions (Class 21) exempts actions by regulatory agencies to enforce or revoke a lease, permit, or license, certificate, or other entitlement for use issued, adopted, or prescribed by the regulatory agency or enforcement of a law, general rule, standard, or objective, administered or adopted by the regulatory agency. A Notice of exemption will be filed by the Planning Director. EXHIBITS: 1. City Council Resolution No. 2012-011 2. Location Map 3. Planning Commission Resolution No. 6835 4. Planning Commission Staff Report, dated November 2, 2011 5. Excerpts of Draft Planning Commission Minutes, dated November 2, 2011. 6. Correspondence submitted at the November 2, 2011 Planning Commission hearing. 1 RESOLUTION NO. 2012-011 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A DETERMINATION 3 THAT THE TURRO RESIDENCE PROJECT IS PROHIBITED FROM OPERATING A VACATION RENTAL LOCATED AT 5143 4 SHORE DRIVE IN THE MELLO II SEGMENT OF THE LOCAL COASTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT 5 ZONE 3. CASE NAME: TURRO RESIDENCE 6 CASE NO: CDP 05-48 7 The City Council of the City of Carisbad, California, does hereby resolve as follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. That the above recitations are true and correct WHEREAS, pursuant to the provisions of the Municipal Code, the Planning Commission did, on November 2, 2011, hold a duly noticed public hearing as prescribed by law to recommend an interpretation of specific use conditions of approval found in Planning Commission Resolution No. 6031 for Coastal Development Permit 05-48 and determine that the project is prohibited from operating a vacation rental; and WHEREAS, the Planning Commission approved Planning Commission Resolution No. 6835; recommending that the City Council find that the project is prohibited from operating a vacation rental located at 5143 Shore Drive; and WHEREAS, the City Council of the City of Carisbad, on the 10* day of January, 2012, held a duly noticed public hearing to consider adoption of City Council Resolution No. 2012-011; and WHEREAS, at said public 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 Coastal Development Permit 05-48. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council ofthe City of Carisbad as follows: 26 2. That the recommendation of the Planning Commission for the determination that the project is prohibited from operating a vacation rental located at 5143 27 Shore Drive is adopted and approved, and that the findings of the Planning Commission contained in Planning Commission Resolution No. 6835 on file with the City Clerk and 28 incorporated herein by reference, are the findings of the City Council. EXHIBIT 2 NOT TO SCALE SITEMAP Turro Residence CDP 05-48 EXHIBIT 3 5 9 10 11 12 PLANNING COMMISSION RESOLUTION NO. 6835 1 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, INTERPRETING SPECIFIC USE CONDITIONS FOUND IN PLANNING 4 COMMISSION RESOLUTION NO. 6031 DETERMINING THAT THE PROJECT IS PROHIBITED FROM OPERATING A VACATION RENTAL LOCATED AT 5143 SHORE DRIVE IN 6 THE MELLO II SEGMENT OF THE LOCAL COASTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE 7 3. CASE NAME: TURRO RESIDENCE ^ CASE NO: CDP 05-48 WHEREAS, The City of Carlsbad on account of its own motion did direct the Carlsbad City Planning Commission to hold a hearing to determine if Coastal Development Permit 05-48 granted to Paul Turro "Owner," is being used as a "vacation rental" as specified in 13 the project conditions on real property in the City of Carlsbad described as: 14 Parcel 1: ^ ^ Lot 14 of Terramar Unit No. 1, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 2696, filed in the Office of the County Recorder of San Diego 17 County, September 6,1950. 18 Parcel 2: 19 That portion of Lot "H" of Rancho Agua Hedionda, in the 20 County of San Diego, State of California, according to Partition Map thereof No. 823, filed in the Office of the County 21 Recorder of San Diego County, November 16, 1896, described as follows: 22 Beginning at the Southwesterly corner of Lot 14 of Terramar Unit No. 1, in the County of San Diego, State of California, 24 according to Map thereof No. 2696, filed in the Office of the County Recorder of San Diego County, September 6, 1950; 25 thence South 59°21'20" West to a portion of a point on the Mean High Tide Line of the Pacific Ocean; thence 26 Northeasterly along said Mean High Tide Line to a point which bears South 59'*21'10" West from the Northwesterly corner of said Lot 14; thence North 59°21'10" East to the 28 Northwesterly corner of said Lot 14; thence South 23°03'10' East, 60.53 feet to the Point of Beginning. ("the Property"); and ^ 8 9 10 11 12 WHEREAS, on March 15th, 2006, the Planning Commission approved CDP 05- 48 subject to the findings and conditions stated in Planning Commission Resolution 6031; and WHEREAS, the Planning Commission did, on November 2, 2011, hold a duly noticed public hearing as prescribed by law to consider said request; and 6 WHEREAS, at said public hearing, upon hearing and considering all testimony 7 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to the Coastal Development Permit. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad, as follows: A) That the above recitations are true and correct. 13 B) That based on the evidence presented at the public hearing, the Commission DETERMINES that the property is being operated as a "vacation rental" and 14 RECOMMENDS APPROVAL of Planning Commission Resolution No. 6835, based on the following finding: 15 Findings: 17 1. While there is no definition in the zoning ordinance of the term "vacation rental", the term has a common usage applied to short term rentals (less than 30 days)in 18 which a residence is put to a commercial use by an owner who does/does not occupy the property or rents it as a single family home, but rather offers it for rental by ^ ^ persons seeking a vacation stay. Condition 13 of Planning Commission Resolution 2Q No. 6031 prohibits the use of the subject property as a "vacation rentaL 21 22 23 24 25 26 27 28 PC RESO NO. 6835 -2- "7 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, Califomia, held on November 2, 2011, by the following vote, to wit: AYES: NOES: Chairperson L'Heureux, Commissioners Arnold, Black, Nygaard, Scully and Schumacher ABSENT: Commissioner Siekmann ABSTAIN: STEPHEN''mP" L'HEUREUX, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6835 -3-8 EXHIBIT 4 The City of CARLSBAD Planning Division A REPORT TO THE PLANNING COMMISSION Single Family Coastal Development Permit Item No. i 2 P.C. AGENDA OF: November 2, 2011 Application complete date: N/A Project Planner: Van Lynch Project Engineer: N/A SUBJECT: CDP 05-48 - TURRO RESIDENCE - A request for a recommendation interpreting specific use conditions found in Planning Commission Resolution No. 6031 determining that the project is prohibited from operating a vacation rental located at 5143 Shore Drive in the Mello II Segment ofthe Local Coastal Program and Local Facilities Management Zone 3. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 6835 RECOMMENDING APPROVAL of a determination that the project, under Planning Commission Resolution No. 6031, is prohibited from operating a vacation rental based upon the findings and subject to the conditions contained therein. II. INTRODUCTION This item is a request for a Planning Commission interpretation of Resolution No. 6031 that approved Coastal Development Permit 05-48 that specifically states that no "vacation rentals" are allowed as a condition of approval. In March, 2006, the Planning Commission approved the expansion of a single family residence located at 5143 Shore Drive with a condition that prohibited "vacation rentals" at the location. Specifically, Condition No. 17 of Plarming Commission Resolution No. 6031 prohibits the use of the single family residence for vacation rentals or multi-family units. The property owner has repeatedly used the property for vacation rentals stimulating numerous neighbor complaints and code enforcement actions. Therefore staff is recommending that the Planning Commission find that its Resolution granted the Coastal Development Permit with the restriction that the property not be used as a "vacation rental." III. PROJECT DESCRIPTION AND BACKGROUND Proiect Site/Setting: The .32-acre, R-1 zoned single family residential lot is located at 5143 Shore Drive, west of Carlsbad Boulevard and south of Cannon Road, as shown on the attached location map. In March of the 2006, the Plarming Commission approved Coastal Development Permit 05-48 to enable the project applicant (Paul Turro) to substantially expand his single-family home to add three more bedrooms; over 1,460 square feet of first and second fioor area; and demolish 46 square feet of first floor area. In approving the Coastal Development Permit in 2006, the Planning Commission adopted Resolution No. 6031 (attached) which contain the conditions of 9 CDP 05-48 - TURRO RESIDENCE November 2, 2011 Page 2 approval for the project. Specifically, the Commission added three conditions intended to limit business usage of the home as follows: 13. The project is located in the Rl Zone, and the intent and purpose of this zone is for the development of one-family dwelling units. Per the City of Carlsbad's Municipal Code Section 21.04.125, a one-family dwelling is defined as "a detached building designed exclusively for occupancy by one family and containing one dwelling unit." This project is approved subject to the condition that the dwelling unit be for one-family occupancy and cannot be used for vacation rentals or multi-family units. 14. This project is approved subject to the condition that no kitchen facilities will be added to any areas that have been approved with this project. Per the City of Carlsbad's Municipal Code Section 21.04.200 "kitchen means any room or portion of a room used or intended or designed to be used for cooking or the preparation of food." 15. This project is approved subject to the condition that no plumbing or kitchen facilities, including 220 Volt wiring, will be installed in any areas that have been approved with this project, {emphasis added.) The conditions of approval listed above were intended to ensure that the use of the property is limited to traditional single family home usage since the size of the home and the nature of the improvements suggested that the owner intended to use it for a multi-family or commercial use. Condition No. 14 prohibits separate kitchen facilities. Condition No. 15 prohibits the addition of certain types of plumbing facilities that would allow this portion of the single family home to be used as a separate residence. Finally, Condition No. 13 specifically states that the property shall not be used for "vacation rentals" or "multi-family vmits." The property ovmer has repeatedly used the property for vacation rentals stimulating numerous neighbor complaints and code enforcement actions and therefore staff is recorrmiending that the Planning Conmiission find that the use of the property, in this maimer, is in violation of the conditions of approval of the Coastal Development Permit and that the project be remanded to the City Attomey's Office for fiirther action. IV. ANALYSIS Under the Carlsbad Zoning Ordinance, the Plarming Commission is given the initial authority to interpret classifications of particular uses under the Carlsbad Zoning Ordinance. Section 21.53.040 (Clarification of Ambiguity) states as follows: 21.53.040- Clarification of ambiguity. If ambiguity arises conceming the appropriate classification of a particular use within the meaning and intent of this title, or if ambiguity exists with respect to matters of height, yard requirements, area requirements or zone boundaries, as set forth in this title and as they may pertain to vinforeseen circumstances, including technological changes in processing of materials, it shall be the duty of the 10 CDP 05-48 - TURRO RESIDENCE November 2, 2011 Page 3 planning commission to ascertain all pertinent facts and by resolution of record set forth its findings and its interpretations, and such resolution shall be forwarded to the city council and, if approved by resolution of the city council, thereafter such interpretation shall govem. (Ord. 9804 § 5 (part), 1986; Ord. 9060 § 1502) (emphasis added.) The Planning Commission reviews the record applicable to the matter and develops a recommendation. The process does not require a public hearing, but oral and written evidence should be taken from interested parties. Once an interpretation is made by the Planning Commission, a recommendation is forwarded to the City Council for final determination. An opportunity to comment was given to the owner of the property and his representative's comments are attached. Staff is requesting an interpretation regarding the actual uses of the property in question because of complaints from the neighborhood and code enforcement activity surrounding the usage of the site under the 2006 Coastal Development Permit. The property is alleged to have been used for short-term rentals commonly knovra as "vacation rentals". It has also apparently been used for certain special event activities such as large scale weddings and other social events. These special event activities were apparently conducted as commercial operations rather than personal activities of the owner or a long-term tenant. The property has been advertised for commercial uses on the intemet. Since the Carlsbad zoning ordinance does not define "vacation rentals" a question has arisen about the interpretation of the language in the 2006 resolution and the ability of staff to enforce these measures through code enforcement. The Planning Staff is seeking an interpretation of the particular use allowed for this property under the use restrictions of the Coastal Development Permit and the underlying Single Family Zone. While this agenda item is not a code enforcement matter, the reason for the interpretation is to determine whether the potential uses that the property may be used for are legal under its current Coastal Development Permit and allowed in the single family zone. COASTAL DEVELOPMENT PERMIT "VACATION RENTAL" RESTRICTIONS While the Carlsbad Zoning Code does not specifically mention "vacation rentals" as either a permitted or prohibited use in the single family zone. Planning Commission Resolution No. 6031 specifically prohibits "vacation rentals" at 5143 Shore Drive. As can be seen from the Intemet Advertisements for the property, the owner is holding the property out to the public as a "vacation rental". Planning staff concludes that condition number 13 of Resolution No. 6031 has been repeatedly violated on an ongoing basis from the inception of completion of the project approved in the 2006 Coastal Development Permit and this violation is enforceable. The condition was never appealed by the applicant and has never been amended by further action of the Planning Commission. While there is no definition in the zoning ordinance of the term "vacation rental", the term has a common usage applied to short term rentals in which the residence is put to a commercial use by an ovmer who does not occupy the property or rent it as a single family home, but rather offers it for rental by persons seeking a vacation stay. The property ovmer uses the term "vacation rental" in his advertisements making his intentions and his violation clear and unambiguous. CDP 05-48 - TURRO RESIDENCE November 2, 2011 Page 4 In the case of this property, the property ovmer does not have a business license and has paid transient occupancy tax (TOT) under the Revenue and Finance title of the Carlsbad Municipal Code. The payment of TOT was for his "vacation rental" of the property. Both the TOT Ordinance and the Business License Chapters do not allow the payment of these fees to legalize an illegal use. (Carlsbad Municipal Code Sections 3.12.060(4), 5.04.100 & 5.04.110.) Coastal Development Permit Analysis The "vacation rental" restriction was specifically placed in the Permit to prevent the type of dismption to the neighborhood as has been seen by the types of complaints generated. From the other restrictions discussed above that were placed on the property in 2006, it is apparent, that the Planning Commission was concerned about the overall size of the expansion and the potential for abuse of the Single Family Zoning Designation that has occurred since the approval of the Permit. Specifically, the restrictions on creating multi-family units or a vacation rental appear to be an attempt to prevent this property from being used for commercial purposes as a six bedroom vacation rental. Also, it is apparent from the actual conditions that the Planning Commission was concemed about the property ovmer dividing the six bedroom home into smaller units that could be separately rented. It is recommended that the Planning Commission look to the plain language and meaning of Condition No. 13 of the 2006 Resolution granting the Permit. It specifically outlaws a "vacation rental" at this location. While there is no definition of "vacation rental" in the Zoning Code, one would assume that the Planning Commission applied an ordinary and commonplace meaning to the term. In any event, the property owner has consistently advertised the property on the intemet as a vacation rental, has rented the property out for special events, has not obtained a business license, and has paid Transient Occupancy Tax applicable to commercial uses. The restriction imposed by the Planning Commission in Condition No. 13 of Resolution No. 6031 is valid. No appeal was ever taken from the decision to restrict the property in this manner. In order to challenge the condition of a permit, a party must appeal the offending condition in a timely manner and cannot sit on his rights. Under the Local Coastal Program, an applicant has appeal rights from the Planning Commission to the City Council. If the applicant is not satisfied with the City Council result, he must appeal to the Califomia Coastal Commission itself in order to exhaust his administrative remedies. The conditions imposed by Resolution No. 6031 were accepted by the applicant and were binding upon him, as acknowledged in Condition No. 1: "If any of the following conditions fail to occur; or if they are, by their terms, to be 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 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 or a successor in interest by the City's approval of this Coastal Development Permit" of the same resolution. No appeal was taken to the conditions and, no one in the City unaware of the conditions had the authority to waive the conditions imposed by the Planning Commission. The conditions are valid and the only issue is for the Planning Commission's IZ CDP 05-48 - TURRO RESIDENCE November 2, 2011 Page 5 determination as to whether Resolutions No. 6031 and its restriction on vacation rentals is to be interpreted to restrict vacation rentals under the Coastal Development Permit. V. ENVIRONMENTAL REVIEW CEQA exemptions (Class 21) exempts actions by regulatory agencies to enforce or revoke a lease, permit, or license, certificate, or other entitlement for use issued, adopted, or prescribed by the regulatory agency or enforcement of a law, general rule, standard, or objective, administered or adopted by the regulatory agency. A Notice of Exemption will be filed by the Planning Director upon project approval. ATTACHMENTS: 1. Planning Commission Resolution No. 6835 2. Location Map 3. Planning Commission Resolution No. 6031 4. Original CDP 05-48 staff report (without attachments) 5. Excerpt of Planning Commission minutes, March 15, 2006 6. List of Code Violation cases 7. Special event and intemet ads 8. Transit Occupancy Tax receipt 9. Letter from Gregory M. Post, with attachments, dated October 19, 2011 10. Original CDP 05-48 Reduced Exhibits "A" - "H" \2D SITE MAP NOT TO SCALE Turro Residence CDP 05-48 8 25 28 WHEREAS, Farshid Mohseni, "Developer," has filed a verified application vnth ^ PLANNING COMMISSION RESOLUTION NO. 6031 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, APPROVING COASTAL DEVELOPMENT PERMIT CDP 05-48 TO ALLOW FOR THE ^ ADDITION OF 1,460 SQUARE-FEET OF FIRST AND SECOND 5 FLOOR AREA AND THE DEMOLITION OF 46 SQUARE-FEET OF FIRST FLOOR AREA TO AN EXISTING SINGLE-FAMILY 6 RESIDENCE ON PROPERTY GENERALLY LOCATED AT 5143 SHORE DRIVE WITHIN THE COASTAL COMMISSION 7 APPEAL AREA OF THE MELLO H SEGMENT OF THE COASTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE 3. 9 CASE NAME: TURRO RESIDENCE CASE NO: CDP 05-48 10 " 11 j 2 the City of Carlsbad regarding property ovmed by Paul Turro, "Owner," described as 13 Parcel 1: 14 Lot 14 of Terramar Unit No. 1, in the City of Carlsbad, County ^ ^ of San Diego, State of Califomia, according to Map thereof No. 2696, filed in the Office of the County Recorder of San Diego 15 County, September 6,1950. 17 Parcel 2: That portion of Lot "H" of Rancho Agua Hediona, in the 29 County of San Diego, State of California, according to Partition Map thereof No. 823, filed in the Office of the County 20 Recorder of San Diego County, November 16, 1896, described as follows: 21 22 Beginning at the Southwesterly comer of Lot 14 of Terramar Unit No. 1, in the County of San Diego, State of California, 23 according to Map thereof No. 2696, filed in the Office of the County Recorder of San Diego County, September 6, 1950; 24 thence South 59*'21'20'' West to a portion of a point on the Mean High Tide Line of the Pacific Ocean; thence Northeasterly along said Mean High Tide Line to a point 26 which bears South 59"21'10'' West from the Northwesterly comer of said Lot 14; thence North 59''21'10" East to the 27 Northwesterly comer of said Lot 14; thence South 23°03'10" East, 60.53 feet to the Point of Beginning. ("the Property"); and 15 WHEREAS, said verified application constitutes a request for a Coastal Development Permit as shovm on Exhibits "A" - "H" dated March 15, 2006, on file in the Planning Department, TURRO RESIDENCE - CDP 05-48, as provided by Chapter 21.201.040 ofthe Carlsbad Municipal Code; and 6 WHEREAS, the Planning Commission did, on the 15th day of March 2006, hold 7 a duly noticed public hearing as prescribed by law to consider said request; and g WHEREAS, at said public hearing, upon hearing and considering all testimony 9 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 10 ^ ^ relating to the CDP. j2 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 13 Commission of the City of Carlsbad as follows: 1^ A) That the foregoing recitations are true and correct. B) That based on the evidence presented at the public hearing, the Conunission 16 APPROVES TURRO RESIDENCE - CDP 05-48 based on the following findings and subject to the following conditions: 17 18 22 26 Fundings; 1. That the proposed development is in conformance with the Certified Local Coastal Program and all applicable policies in that the site is designated for single-family 20 residential development and the development consists of an addition to an existing two-story, single-family residence on a .32 acre lot. The development is consistent 21 with the Mello II land use designation of RLM/OS; no agricultural activities, sensitive resources, geological instability, flood hazard or vertical coastal access opportunities exist onsite and the development does not obstmct views of the 23 coastline as seen from public lands or public right-of-way or otherwise damage the visual beauty ofthe coastal zone. 24 The proposal is in conformity with the public access and recreation policies of Chapter 3 25 of the Coastal Act in that the property is located adjacent to the shore, however, there are no opportunities for vertical coastal access or recreational activities from the subject site. There are existing pubhc beach access points located to the north and 27 south of the site and a private beach access for Terra Mar residents on Shore Drive, just north of the project site. Therefore, the project will not interfere with the 28 public's right to physical access to the sea. PC RESO NO. 6031 5 3. The project is consistent with the provisions of the Coastal Resource Protection Overlay 2 Zone (Chapter 21.203 of the Zoning Ordinance) in that the project will adhere to the City's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, Standard 3 Urban Storm Water Mitigation Plan (SUSMP) and Jurisdictional Urban Runoff Management Program (JURMP) to avoid increased urban run off, pollutants and soil ^ erosion. No development is proposed in areas of steep slopes and no native vegetation is located on the subject property and the site is not located in an area prone to landslides, or susceptible to accelerated erosion, floods or liquefaction. The new addition will be 6 constructed on the east side of the existing residence and will not be adjacent to any steep slopes. 7 4. The project is consistent with the provisions of the Coastal Shoreline Development ^ Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the project will provide g the public with the right of lateral access to a minimum of twenty-five feet of dry sandy beach at all times of the year. 10 5. That the Planning Director has determined that the project belongs to a class of projects 11 that the State Secretary for Resources has found do not have a significant impact on the environment, and it is therefore categorically exempt from the requirement for the ^2 preparation of environmental documents pursuant to Section 15301(e) (addition to an 22 existing single-family residence) of the state CEQA Guidelines. In making this determination, the Planning Director has found that the exceptions listed in Section 14 15300.2 of the state CEQA Guidelines do not apply to this project. 15 6. The project is not located in the Coastal Agricultural Overlay Zone, according to Map X of the Land Use Plan, certified September 1990, and therefore, is not subject to the ^6 provisions of the Coastal Agriculture Overlay Zone (Chapter 21.202 of die Zoning Ordinance). 2g 7. The project is consistent with the City-Wide Facilities and Improvements Plan, the Local Facilities Management Plan for Zone 3 and all City public facility policies and 19 ordinances. The project includes elements or has been conditioned to construct or provide funding to ensure that all facilities and improvements regarding: sewer collection 20 and treatment; water; drainage; circulation; fire; schools; parks and other recreational 22 facilities; libraries; govemment administrative facilities; and open space, related to the project will be installed to serve new development prior to or concurrent with need. 22 Specifically, 23 A. The project has been conditioned to provide proof from the Carlsbad Unified School District that the project has satisfied its obligation for school facilities. 25 B. The Public Facility fee is required to be paid by Council Policy No. 17 and will be collected prior to the issuance of a building permit. 26 8. The Planning Commission has reviewed each of the exactions imposed on the Developer 27 contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to this project, and the extent and the degree of exaction is in rough proportionality to the impact caused by the project. PC RESO NO. 6031 -3- 28 8 ^ Conditions; 2 Note: Unless otherwise specified herein, all conditions shall be satisfied prior to issuance of a 3 building permit. 4 1. If any of the following conditions fail to occur; or if they are, by their terms, to be J 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 6 revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke or fiuther condition all certificates of occupancy 7 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 9 or a successor in interest by the City's approval of this Coastal Development Permit. 10 2. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the Coastal Development Permit documents, as necessary to make them internally consistent and in conformity with the final action on the project. 22 Development shall occur substantially as shown on the approved Exhibits. Any proposed development different fi"om this approval, shall require an amendment to this approval. 13 3. Developer shall comply with all applicable provisions of federal, state, and local laws and 14 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 16 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 Govemment Code Section 17 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. 19 5. Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold 20 harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, fi^om and against any and all liabilities, losses, damages, demands, claims 21 and costs, including court costs and attomey's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Coastal Development Pennit, (b) City's approval or issuance of any permit or action, whether discretionary or non- 23 discretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including 24 without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until 25 all legal proceedings have been concluded and continues even if the City's approval is not 26 validated. 27 6. Prior to the issuance of a building permit, the applicant shall comply with the Coastal Shoreline Development Overlay Zone (Chapter 21.204 of the Zoning 28 Ordinance), and dedicate a lateral access to a mimmum of twenty-five feet of dry PC RESO NO. 6031 -4- 22 ^ sandy beach at all times of the year to the California Coastal Commission or their 2 designee as agreed to with the Califomia Coastal Commission, 3 7. Developer shall submit to the Planning Director a reproducible 24" x 36" mylar copy of ^ the Site Plan reflecting the conditions approved by the final decision making body. ^ 8. Prior to the issuance of a building permit, the Developer shall provide proof to the Director from the Carlsbad Unified School District that this project has satisfied its 6 obligation to provide school facilities. 7 9. This project shall comply with all conditions and mitigation measures, which are required g as part of the Zone 3 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. 9 10. Building permits will not be issued for this project unless the local agency providing 10 water and sewer services to the project provides written certification to the City that adequate water service and sewer facilities, respectively, are available to the project at the time of the application for the building permit, and that water and sewer capacity and 22 facilities will continue to be available until the time of occupancy. 13 11. The applicant shall apply for and be issued building permits for this project within two (2) years of approval or this Coastal Development Permit wall expire unless extended 14 per Section 21.201.210 of the Zoning Ordinance. ^ ^ 12. Prior to the issuance of the Coastal Development Permit, Developer shall submit to the 16 City a Notice of Restriction to be filed in the office of the County Recorder, subject to the satisfaction of the Plaiming Director, notifying all interested parties and successors in 17 interest that the City of Carlsbad has issued a Coastal Development Pennit by Resolution No. 6031 on the property. Said Notice of Restriction shall note the property description, location of the file containing complete project details and all conditions of 19 approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The Planning Director has the authority to execute and record an amendment 20 to the notice, which modifies or terminates seiid notice upon a showing of good cause by the Developer or successor in interest, II 18 21 22 13. The project is located in the Rl Zone, and the intent and purpose of this zone is for the development of one-family dwelling units. Per the City of Carlsbad's Municipal 23 Code Section 21.04.125 a one-family dwelling is defined as "a detached building designed exclusively for occupancy by one family and containing one dwelling unit." 24 This project is approved subject to the condition that the dwelling unit be for one- family occupancy and cannot be used for vacation rentals or multi-family units. 26 14. This project is approved subject to the condition that no kitchen facilities will be added to any areas that have been approved with this project. Per the City of 27 Carlsbad's Municipal Code Section 21.04.200 "kitchen means any room or portion of a room used or intended or designed to be used for cooking or the preparation of 28 food." PC RESO NO. 6031 ^ IS. This project is approved subject to the condition that no plumbing for kitchen 2 facilities, including 220 Volt wiring, will be installed in any areas that have been approved with this project 3 4 5 Engineering 16. Prior to hauling dirt or constmction materials to or from any proposed construction site within this project. Developer shall apply for and obtain approval fi-om, the City Engineer 6 for the proposed haul route. 17. Prior to issuance of any building permit, Developer shall comply with the requirements of 7 the City's anti-graffiti program for wall treatments if and when such a program is formally established by the City. Code Reminders; 10 18. Approval of this request shall not excuse compliance with all applicable sections of the Zoning Ordinance and all other applicable City ordinances in effect at time of building 11 permit issuance, except as otherwise specifically provided herein. 19. Premise identification (addresses) shall be provided consistent with Carlsbad Municipal Code Section 18.04.320. 12 13 14 NOTICE ^ ^ Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, 16 reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions." 17 You have 90 days from date of final approval to protest imposition of these fees/exactions. If ^ ^ you protest them, you must follow the protest procedure set forth in Govemment Code Section 29 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely 20 follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. 21 22 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, 23 zoning, grading or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a 24 NOTICE similar to this, or as to which the statute of limitations has previously otherwise 2^ expired. 26 27 28 PC RESO NO. 6031 -6- 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 the 15th day of March 2006, by the following vote, to wit: AYES: Chairperson Montgomery, Commissioners Baker, Cardosa, Heineman, Segall, and Whitton NOES: Commissioner Dominguez ABSENT: MARTELL B. MONT(|PMERY,Mirperson CARLSBAD PLANNING COMMISSION ATTEST: DONNEU Assistant Planning Director PC RESO NO. 6031 Zl The City of CARLSBAD Planning Department A REPORT TO THE PLANNING COMMISSION Single Family Coastal Development Permit Item No. P.C. AGENDA OF: March 15, 2006 Application complete date: January 10, 2006 Project Planner: Pam Drew Project Engineer: Taniya Barrows SUBJECT: CDP 05-48 - TURRO RESIDENCE - Request for approval of a Coastal Development Permit to allow for the addition of 1,460 square-feet of first and second floor area and the demolition of 46 square-feet of first floor area to an existing single-family residence located at 5143 Shore Drive within the Coastal Commission appeal area of the Mello II Segment of the Local Coastal Program and Local Facilities Management Zone 3. I. RECOMMENDATION That the Planning Commission ADOPT Plarming Commission Resolution No. 6031 APPROVING Coastal Development Permit CDP 05-48 based upon the findings and subject to the conditions contained therein. IL INTRODUCTION Pursuant to Section 21.201.060 of the Carisbad Municipal Code, the improvement to a single family home of greater than 10% of intemal floor area on property located between the sea and the first public roadway paralleling the sea within the City's Coastal Zone requires the processing and approval of a Coastal Development Permit (CDP). The CDP application was reviewed for consistency with Local Coastal Program (LCP) policies and implementation. There are no unresolved issues. The staff recommendation for approval with conditions is supported by the analysis as follows. III. PROJECT DESCRIPTION AND BACKGROUND Project Site/Setting: The .32-acre lot is located at 5143 Shore Drive, west of Carlsbad Boulevard and south of Cannon Road, as shown on the attached location map. Topographically, from east to west, the lot includes a flat building pad that transitions into a steep coastal bluff slope. The eastem half of the site is currently developed with a two-story, single-family residence. The westem half of the lot includes hardscape (patio and stairs) in addition to a granite retaining wall over the coastal bluff slope. The lot is located within the appeal area of the Mello II Segment of the Coastal Zone and any final decision of the City of Carlsbad is appealable to or by the Califomia Coastal Commission. CDP 05-48 - TURRO RESIDENCE March 15,2006 Page 2 Proposed Residential Constmction: The applicant is proposing to constmct 1,460 square-feet of first and second floor additions and the demolition of 46 square-feet of first floor area to an existing two-story, single-family residence. The additions include first and second floor bedrooms with bathrooms and fireplaces at the southeast comer of the lot and two bedrooms with a bathroom, fireplace, study and wet bar at the northeast comer of the lot above the existing garage. In addition, a 147 square-foot sun deck is proposed at the south elevation between the existing residence and the proposed addition. The 46 square-feet of area to be removed is below the proposed sun deck at the south elevation. The stmcture would be constmcted with a stucco finish, wood window shutters and tile roof to match the existing residence. This project does not have to comply with City Council Policy 44 - Neighborhood Architectural Design Guidelines - because the addition does not increase the useable living area by more than 40%. No improvements are proposed to the westem half of the lot. Proposed Grading: A grading permit will not be required for this project. Impact on Coastal Resources: The development is an addition to an existing two-story, single- family residence on a previously developed lot; no agricultural activities, sensitive resources, geological instability, flood hazard or vertical coastal access opportunities exist onsite and the development does not obstmct views of the coastline as seen from public lands or public right- of-way or otherwise damage the visual beauty of the coastal zone. IV. ANALYSIS As shovm on the Coastal Development Compliance Table below, the proposed development is in compliance with all applicable regulations. Building permits may be issued subject to the conditions contained in Planning Commission Resolution No. 6031. COASTAL DEVELOPMENT COMPLIANCE TABLE LCP Land Use Plan RLM/OS (Residential Low-Medium Density and Open Space) * General Plan RLM/OS (Residential Low-Medium Density and Open Space) Zoning R-1 Grading Permit Required No Hillside Development Permit Required No Native Vegetation Impacts No STANDARD REQUIRED/ALLOWED PROPOSED Front Yard Setback 20 Feet 20 Feet Side/Rear Yard Setback 6 Feet /12 Feet 6 Feet /125 Feet Max Building Height 30 Feet 24 Feet 7 Inches Lot Coverage 40% 21% * The westem portion of the site, including the coastal bluff, is designated Open Space (OS). CDP 05-48 - TURRO RESIDENCE March 15,2006 Page 3 Letters of Opposition to the Proposed Project: Staff has received two form letters signed by the applicant's neighbors in opposition to the proposed additions (see attachment). The neighbor's concems are that the applicant will rent out the additional bedrooms and create a multi-family residence instead of the allowed single-family residence. In addition, the neighbors are concemed that additional tenants would increase the need for on street parking and thus reduce the parking to the neighborhood creating a nuisance. Review of Required Coastal Findings 1. Conformance with the Certified Local Coastal Program and all applicable policies. The project is located in the Mello II Local Coastal Program Segment. The project proposes an addition to a two-story, single-family residence in an area designated for single-family development. The subject site has an LCP Land Use Plan designation of RLM/OS (Residential Low-Medium Density and Open Space; 0-4.0 du/ac), which allows for 3.2 dwelling units per acre at the Growth Management Control Point. The OS General Plan designation applies to the coastal bluff portion of the site and no development is proposed within this area. The proposed addition to the existing single- family residence is consistent with the land use type and density regulations for the property. The proposed addition to the two-story, single-family residence would be consistent with the surrounding development of one and two-story single-family stmctures. The two- story addition will not obstmct views of the coastline as seen from public lands or the public right-of-way since a second-story, to the west of the proposed addition, already exists, nor otherwise damage the visual beauty of the coastal zone. No agricultural uses currentiy exist on the site, nor are there any sensitive resources located on the property. The proposed addition to the existing residence is not located in an area of knovm geologic instability or flood hazard. No public opportunities for vertical coastal shoreline access are available from the subject site. The residentially designated site is not suited for water-oriented recreation activities. 2. Conformance with public access and recreation policies of Chapter 3 of the Coastal Act. The property is located adjacent to the shore, however, there are no opportunities for vertical coastal access or recreational activities from the subject site. There are existing public beach access points located to the north and south of the site and a private beach access for Terra Mar residents available on Shore Drive, just to the north of the project site. Therefore, the project will not interfere with the public's right to physical access to the sea. 3. Coastal Overlay Zones. The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone (Chapter 21.203 of the Zoning Ordinance) in that the project will adhere to the City's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, Standard CDP 05-48 - TURRO RESIDENCE March 15,2006 Page 4 Urban Storm Water Mitigation Plan (SUSMP) and Jurisdictional Urban Runoff Management Program (JURMP) to avoid increased urban mn off, pollutants and soil erosion. No development is proposed in areas of steep slopes (coastal bluff) and no native vegetation is located on the subject property. The site is not located in an area prone to landslides, or susceptible to accelerated erosion, floods or liquefaction. In addition, the project is consistent with the provisions of the Coastal Shoreline Development Overlay Zone (Chapter 21.204 of the Zoning Ordinance) in that the project has been conditioned to provide the public with the right of lateral access to a minimum of twenty-five feet of dry sandy beach at all times of the year. The new addition will be constmcted on the east side of the existing residence and will not be adjacent to any steep slopes. V. ENVIRONMENTAL REVIEW This project is exempt from CEQA per the exemption listed below: (1) Section 15301(e) of CEQA exemptions (Class 1) exempts additions to existing single-family residences from environmental review. A Notice of Exemption will be filed by the Planning Director upon project approval. ATTACHMENTS: 1. Planning Commission Resolution No. 6031 2. Location Map 3. Disclosure Form 4. Background Data Sheet 5. Local Facilities Impact Assessment Form 6. Letters of Opposition from the Neighbors 7. Reduced Exhibits "A" - "H" 8. Full Size Exhibits "A" - "H" dated March 15, 2006 Planning Commission Minutes March 15, 2006 Page 8 ACTION: Motion by Commissioner Baker, and duly seconded, that Planning Commission adopt Planning Commission Resolution No. 6038 approving a retroactive 10-year extension of CUP 94-10 based upon the findings and subject to the conditions contained therein including the errata sheet approving the project in perpetuity. VOTE: 7-0 AYES: Chairperson Montgomery, Commissioners Baker, Cardosa, Dominguez, Heineman, Segall, and Whitton NOES: None ABSENT; None Chairperson Montgomery closed the public hearing on Item 3 and asked Mr. Neu to introduce the next Item. 4. CDP 05-48 - TURRO RESIDENCE - Request for approval of a Coastal Development Permit to allow for the addition of 1,460 square feet of first and second floor area and the demolition of 46 square feet of first floor area to an existing single-family residence located at 5143 Shore Drive within the Coastal Commission appeal area of the Mello II Segment of the Local Coastal Program and Local Facilities Management Zone 3. Mr. Neu introduced Item 4 and stated Assistant Planner Pam Drew would make the Staff presentation. Chairperson Montgomery opened the public hearing on Item 4. Ms. Drew made a brief presentation on the project and stated she would be available to answer any questions. Chairperson Montgomery asked if there were any questions of Staff. Commissioner Baker asked for Staff to indicate on the exhibit where the modifications to the existing home would be. Ms. Drew directed the Commission's attention to the exhibit and described where the modifications would be. Commissioner Baker inquired about the rental policy as well as the parking requirements for a second dwelling unit. Ms. Drew stated a second dwelling unit is allowed in the R-1 Zone. This project is in the R-1 Zone and it would be allowed above the existing garage with an additional 640 square feet of floor space with its own entrance. The off-street parking would be allowed to be in the driveway as long as the garage is set back 20 feet. This project has that requirement. Commissioner Segall asked if the existing garage Is a two-car garage. Ms. Drew stated that was correct. Commissioner Segall asked if additional access points are being removed from the proposed project. Ms. Drew stated that the original plans submitted with the project showed entryways for the upstairs and for the unit on the south; however, Staff requested that those be removed. Ms. Drew stated the cun-ent proposal shows only one entrance which is through the front door. Commissioner Whitton asked if the front door enters into the house or into a courtyard. Ms. Drew stated the entrance is into a courtyard with the front door inside that courtyard. Chairperson Montgomery asked if the zoning for the area on Shore Drive is R-1. Ms. Drew stated that was correct. Chairperson Montgomery inquired if this applicant applied for a second dwelling unit. Ms. Drew stated this project is a single-family home and a second dwelling unit was never a part of the proposal. Chairperson Montgomery asked if Staff discouraged the additional entryways and stainways so that the project remains a single-family home and to discourage a second dwelling unit. Ms. Drew commented that Staff wanted to ensure that it had the appearance of and was actually a single-family residence. Commissioner Whitton asked if access to the additional rooms was available through the courtyard. Ms. Drew stated that there is no access through the courtyard and people would have to go through the house to get to the proposed rooms. Chairperson Montgomery asked if the applicant wished to make a presentation. 2(p Planning Commission Minutes March 15, 2006 Page 9 Farshid Mohseni, the applicant's architect, 12605 Prego Court, San Diego, made a brief presentation and stated he would be available to answer any questions. Chairperson Montgomery asked if there were any questions of the applicant. Seeing none, he asked if there were any members of the audience who wished to speak on the item. Chairperson Montgomery opened public testimony on the item. Alice Brown, 5157 Shore Drive, Carlsbad, stated she would like assurances that the proposed rooms would not be rented out, that a fence between her property and the proposed project would be replaced because of termites, and asked if the existing wall will be torn down and replaced with the remodel. Randy Smith, 5154 Shore Drive, Carisbad, stated he is concerned about the additional rooms being rented out, causing additional cars to be parked on the street. Commissioner Segall asked how many cars are typically parked on the street. Mr. Smith stated that there are usually 5 to 6 cars parked in the street with 2 or 3 of those cars parked in front of his house and that this happens throughout the year. Commissioner Dominguez inquired if the applicant's garage is utilized for vehicles or for storage. Mr. Smith stated that the garage on the south side is used for the applicant's vehicle and the other garage is used for storage only. Roger Williams, 5118 Shore Drive, Carlsbad, commented that this home is not a single-family residence like all the other homes on the street. Rob Coury, 5136 Shore Drive, Carlsbad, commented that this proposed project is really a multi-family residence and not a single-family residence and, therefore, the Commission should be considering it as such. Lily Coury, 5136 Shore Drive, Carisbad, commented that the owner of the proposed project is not out of the country as the architect represented. She commented that one of the renters told her that the remodel was being done to make more room for four renters in the home. Chairperson Montgomery asked if there were any other members of the audience who wished to speak on the item. Seeing none, he closed public testimony on the item. Chairperson Montgomery asked the applicant's representative to respond to the issues raised during public testimony. Mr. Mohseni commented that to his knowledge the owner of the property, Mr. Turo, is out of the country. As for the number of the renters in the house, Mr. Mohseni stated that there is only one other person in the house that is not a member of Mr. Turro's family. Mr. Mohseni further stated that there is only one entrance into the house. Commissioner Baker asked Mr. Mohseni to address the issues regarding the setback line with the garages, the fence, and the storage of materials while the house is under construction. Mr. Mohseni stated the southern portion ofthe courtyard will be demolished so that area will be used as a storage area while the new part of the house is built. Commissioner Baker asked if the existing garage will remain where it is with the proposed rooms being built on top of it. Mr. Mohseni stated that was con-ect and It will not be encroaching in the setback. Commissioner Baker asked Mr. Mohseni to respond to the issue regarding the rotting fence. Mr. Mohseni stated that if the fence is on Mr. Turro's property, then he would be responsible for having it replaced. It is not presently part of the proposed addition. Commissioner Segall inquired about the total number of bedrooms there are. Mr. Mohseni stated there will be 3 bedrooms added to the second floor and a living room being added to first floor. There are 3 existing bedrooms and one of those will be demolished. There will be a total of 6 bedrooms after the remodel. Commissioner Segall asked how many renters there are living in the house. Mr. Mohseni stated that there is 1 person who rents a room there. Planning Commission Minutes March 15, 2006 Page 10 Commissioner Cardosa asked for clarification regarding how many rooms are used for offices. Mr. Mohseni stated that one of the proposed rooms will be used as Mr. Tun-o's office. Commissioner Cardosa asked how many of the existing bedrooms are occupied. Mr. Mohseni stated that 2 bedrooms are occupied and the other bedroom is being used as an office. Commissioner Segall asked if there is a large counter with a sink proposed on the second floor. Mr. Mohseni stated it is a 12-foot-long wet bar that will be in the hallway. Commissioner Segall commented that his concern is that the area could be turned into a kitchen at a later date. Mr. Mohseni stated that he is not putting in any 220 electrical lines or natural gas lines in that area and the area is only 5-foot wide. Commissioner Dominguez asked if Mr. Tun-o has any other residences. Mr. Mohseni stated he is not aware of any other properties. Commissioner Dominguez asked if Mr. Mohseni is aware of any other renters and if Mr. Mohseni was aware of how long the current renter had been at this house. Mr. Mohseni commented that he is not aware of other renters and that the cunrent renter has been there about 3 years. Chairperson Montgomery asked Staff to respond to any issues raised by the public speakers. Ms. Drew explained that the proposed wall did originally have a gate on it, which has now been removed from the proposal. Commissioner Baker inquired what the ailes are for renting rooms in the R-1 zone. Mr. Neu stated that the code does allow a one-family dwelling, but it does also say a family can be defined as a group of people who could t>e unrelated living within the same house. This does create more parking-related issues when a group of people living within the same house are adults. Mr. Neu stated that there is a condition for the project which states it is a single-family residence within a single-family zone. There is not a way for the City to legally restrict the dwelling unit to not be occupied by multiple adults. The definition of family allows that. Ms. Mobaldi concurred with Mr. Neu and stated there are cases which show that people living in a single-family home do not necessarily have to be related. Likewise, people are allowed to park on a public street, and as long as they are legally parked and not parked in the same location for more than 72 hours, there are no restrictions for parking on a public street. Commissioner Baker asked if there would be a conflict if the area above the garage would allow a second dwelling unit which could then be rented out. Ms. Mobaldi stated that a second dwelling unit could be rented out without any restrictions as long as it is not being used to satisfy an affordable housing requirement. She stated that the concern of the neighbors seems to be the number of different individuals that could be renters on the property. Ms, Mobaldi stated that there is no legal restriction based on what she has heard from the hearing. Commissioner Baker asked if there is anything that the Commission can do to satisfy the neighbors' concerns and approve the project. Ms. Mobaldi commented that Staff has already asked the applicant to make modifications to the plan that would discourage the type of use the neighbors are concerned about. The findings for the Coastal Development Permit are not related to the types of issues being raised here except for the extent that it is an allowable use within the zone and Staff has done everything possible so that it is designed to discourage the uses the neighbors are concerned about. Commissioner Heineman asked if a second dwelling unit needs to have a separate kitchen and separate entrance. Ms. Mobaldi stated that if the applicant applied for a second dwelling unit, a separate entrance would have been required. Commissioner Whitton asked what would happen if a kitchen were added to the second floor. Ms. Mobaldi defen-ed to Mr. Neu and stated that because there are two kitchens in a dwelling does not necessarily change the status of a single-family dwelling. Mr. Neu stated that one of the definitions addresses the issue of what constitutes a single-family residence and, typically, by the time a second kitchen is added, if it were not a second dwelling unit, it becomes a duplex or close to a multiple dwelling, which would then not be in conformance with the zoning that says it needs to be a single-family dwelling. Commissioner Whitton asked if a condition could be added to restrict it so that no plumbing is added to facilitate the installation of a kitchen at some further time. Mr. Neu stated it could be added; however, it would be quite redundant because it is a normal practice during building planchecks to make sure that there is not a second kitchen being added so that it did not become more than a single-family dwelling. Ms. Mobaldi concurred with Mr. Neu and stated that Condition No. 13 already indicates that 2 kitchens are prohibited in a single-family dwelling, and this is a single-family dwelling. 256 Planning Commission Minutes March 15, 2006 Page 11 Commissioner Segall asked if the project could be continued so that the homeowner could be present at a hearing. Ms. Mobaldi stated that a continuance could be requested, but it cannot be mandated that the homeowner appear as long as there is a representative present. Commissioner Segall inquired if he could make a finding that he cannot make a decision because of a lack of information without hearing from the homeowner. Ms. Mobaldi stated that the issue is the design of the unit and the Planning Commission is limited in what it can do within the confines of the project as it is proposed. Staff has attempted to do what it can. Commissioner Segall asked if a finding could be made that there is not enough onsite parking for a 6-bedroom, 2-car garage house. Ms. Mobaldi stated that she has not heard anything to indicate that the project is not In compliance with the standards and she is assuming that a 6-bedroom, 2-car garage home is allowed, in which case it is not appropriate to deny the application based on that because it complies with the standards set forth in the municipal code. Commissioner Cardosa asked if there is any part of the code that indicates how many cars are allowed with a single-family home in an R-1 zone. Mr. Neu stated there is no maximum, but the code does specify that there needs to be at least a two-car garage and it does specify the dimensions of that garage. Commissioner Cardosa commented that he is having a hard time justifying two adults living in a house and there are 5 to 6 cars parked on the street for that house. Mr. Neu explained that the permit before the Commission is a Coastal Development Permit, and the findings that go with that permit pertain to the coastal resources and the impacts to the coastal bluff. At the same time. Staff is looking for compliance with zoning standards, but there is difficulty in determining how the units will be used and it is very difficult for Staff to control that. Commissioner Dominguez inquired if obtaining a declaration from the applicant stating that he does not plan on using the home for any reason other than what the application represents. Ms. Mobaldi stated that it is not appropriate to require that from the applicant. Commissioner Dominguez asked Staff what the total number of bathrooms would be after the remodel. Ms. Drew responded that there would be 6 bedrooms and 6 bathrooms. Commissioner Dominguez reminded the Commission that this project is appealable to the Coastal Commission. Chairperson Montgomery asked if there were any further questions of Staff. Commissioner Segall asked what prohibits the applicant from creating separate access points at a later date. Mr. Neu stated that from an enforcement standpoint, it is basically the creation of a second kitchen that gives the City solid grounds for enforcement. It is not necessarily illegal to have multiple doors or access points. The applicant, through working with Staff to address some of those concerns, agreed to modify the plans to eliminate multiple access points. Staffs intention was that by having everyone entering through the house. It would act as a deterrent for people renting as if it were an apartment with multiple access points. Commissioner Baker asked if the lack of multiple access points creates any safety concerns with the Fire Department. Ms. Drew stated that Fire Prevention did review the plans and did not have any comments. Mr. Neu commented that if the project is approved, that during the building plancheck phase the building code compliance staff would determine if the project meets all the exiting requirements of the building code. It Is possible that if it was determined that additional access points were needed that it would have to be added to comply with the building code. Chairperson Montgomery asked Mr. Neu what recourse the residents of Shore Drive have If they see evidence of the property being misused and not compatible with the area. Mr. Neu commented that the residents would be able to contact the City's Code Enforcement Department. If there are people in there renting for less than 30 days each, that would be easier for Staff to enforce; however, if there are long- term renters that are there for months or years at a time, that Is permitted. DISCUSSION Commissioner Whitton commented that he understands what the property owner is trying to do but is concerned based on hearing the public testimony. He further commented that he would like a restriction added to Condition No. 13 stating that no cooking facilities of any type be added in the additional rooms. Commissioner Segall concurred with Commissioner Whitton. He feels that this is not a single-family home but cannot make any findings to deny the project. 2f\ Planning Commission Minutes March 15, 2006 Page 12 Commissioner Heineman stated he concurs with his fellow Commissioners. He does not like the project, but he does not know what can be done about it. Commissioner Dominguez stated that he agrees with his fellow Commissioners. Commissioner Cardosa commented that he feels the property owner has a right to expand his home as he sees fit but feels it is very unclear what the homeowner's intentions are. Commissioner Baker stated that she is sympathetic to the neightrars but does not see any reason for the Commission to deny the project. Chairperson Montgomery slated he concurs with his fellow Commissioners. He asked the applicant to convey the neighbors and the Commissions concerns to the property owner. Chairperson Montgomery suggested that the two-car garage actually be used as a two-car garage. Commissioner Baker asked if a condition could be added that requires the tenants to park in the driveway. Ms. Mobaldi stated that cannot be legally required. Commissioner Baker asked if a neighborhood could create CC&Rs after the fact. Ms. Mobaldi stated she did not know how that could be accomplished. Commissioner Dominguez asked if it could be conditioned that the owner remove the grass portions of the driveway as part of the approval along with precluding 220 service on the second floor so that there are some assurances that when building inspectors look at the building, those stubs are not installed. Ms. Mobaldi gave the definition of a kitchen from the Code, and stated she does feel it is appropriate to add a condition to preclude 220 service on the second floor except as to any kitchen facilities. She does not feel it appropriate to require the owner to remove the grass area from the driveway because it is unrelated to the findings before the Commission and would not guarantee that occupants would park in the driveway in any event. MOTION ACTION: Motion by Commissioner Baker, and duly seconded, that Planning Commission adopt Planning Commission Resolution No. 6031 approving Coastal Development Permit CDP 05-48 based upon the findings and subject to the conditions contained therein including an addition to Condition No. 13 that would prohibit 220 electrical or kitchen facilities on the second fioor or any of the additional rooms. VOTE: 6-1 AYES: Chairperson Montgomery, Commissioners Baker, Cardosa, Heineman, Segall, and Whitton NOES: Commissioner Dominguez ABSENT: None Ms. Mobaldi indicated to the members of the audience that the Commission's decision is appealable to City Council and that appeal needs to be filed with the City Clerk's Office within 10 days. Chairperson Montgomery closed the public hearing on Item 4. RECESS Chairperson Montgomery called for a one-minute recess at 9:03. MEETING CALLED TO ORDER Chairperson Montgomery called the meeting to order at 9:05. Chairperson Montgomery asked Mr. Neu to introduce the next item. 30 A/pro's for 5143 SHORE BR in CARLSBAD SI 43 SHORE DR CARLSBAD Level 1 Level 2 Level 3 Nuntbei {Type CB931225 iRAD C8re214$ iRESpNTL C8070163 ' iELEC Sub Type | Stalut RAO I RNAL I RNAL TFINAL^ IAPPROVED COP0504e I COP •REG IAPPROVED D/030519 iCVIQL O/080714 ICVIOL CV100273 jCViOL CV1M1336 _ jCyiOL D/lToSIS iCVIOL iaOSED CLOSED ! CLOSED IOPEN' i'ao"SED Date Name 07/25/1930 07/27/2006 01/19/2007 0G/0T/2CO6 10/13/2005 MOHSENI FARSHID TURRO^PAULJ GRAHAMJSRE CONSTRJJCrfON fuRROPAUL" "' 06/12/2006 08/18/2008 06/01/2010 07/13/2010 07/15/2011 MOHSENI FARSHID TURRO PAUL'J TURRO PAUL J TURRO PAUL J " TURRO PAUL J PAUL TURRO Record; 1 of 10 SeleclSlieetNam«Uker'l"lW ^N2>« 14 I andFraction = ^ Filters; i Status: I Select MuKWesIc Make Set F Show Address AtlKhmetits X~ Backstop T~ Type;! 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DMS g^HansenS IFA57i i^logoIwtJ] g_ l^crosofl Ontne B ^CarlsbadDream Vte Romantic on the Sand SD Beach... • S| " S • - SSI - Paoe • Contact the La Resideiiza Villa Villa Owner Dr. Paul Turro turro (gjaol.com VilJa: -t (760) 431-2202 Cell: -rl (760) 802-2296 Owner of La Residenza House Manager Rebecca Rice rebeccaricechefg'gmail.com Villa; -1 (-60) 43S-2847 Cell: ^1 (858) 220-6958 Executive chef of La Residenza 0 I Map I Sat I Tei | Eailh | : ±1 o Address; u £3i2..Sbsa.fir It -f ^ Internet fej 1 Gcogfe - 3Z Floor Man .Gallery- Virtual Tear , Caie»<Jar Rei-iewi OssMSki .\jnenities our Beautifiil Villa has to Offer .Amenities I Private Chef/Bartender 3 Gorgeou-s kitchen 3 Granite Counters 4. i Stainless .Appliances 5. • Refrigerator 6. Microwave Dishwasher 8. Toaster 9 - Coffee Maker 10. • Coffee Grinder II Blender 12 Daily Maid Service Li«ng & Outdoor 1. • f Grand Li\ iiig room seats 10 comfortably 2. * 50" Flat-screen T\' 3. * Dining Room can accommodate 20 4. * Bedrooms vrith private batlis. lu-xurious linens, antiques, desks, fireplaces, and seating areas. 5. # Flat Screen T\'/DVD in most bedi-ooms 6. * Courtyard ^dth dinii:^ area and fireplace 7. * Beachfront Patio with lounge chairs and dining area 8. * Balconies galore 9. * Fire-pit overlooking ocean 10. "k. Gas Barbeque 11 t ,Sterpn h .*:rjp.-^kprs Activities 1. « Beach 2. * Ocean 3. * S\^Tinming,' Surfins 4. * Boating 5. ,; Fishing 6. * Water Spoils 7. *• Restaurants 8. it Shopping Centers 9. * Outlet ilalls 10. * Boutique Shopping 11. * Movie Theaters 12. * Golf -Attractions 1. Disneyland (i hour) 2. it San Diego Zoo (40 rain) ©Internet *^ - <<5.100% 35 <4^^^^ CITY OF ^ CARLSBAD Finance Department www.carisbadca.gov I, Colette Wengenroth, Finance Manager with the City of Carlsbad, am the record keeper for Transient Occupancy Taxes and the Carlsbad Tovirism Business Improvement District assessments. Per the attached letter of October 26, 2010, Dr. Paul Turro stated that BeachfrontOnly.com was responsible for remitting Transient Occupancy Taxes, except on one occasion when he rented the home out himself From November 2009 through September 2011, $16,513 has been paid in Transient Occupancy Taxes and Carlsbad Tourism Business Improvement District assessments. //•;?// Signature Date Finance Department 1635 Faraday Ave. I Carlsbad, CA 92008 I 760-602-2430 I 760-602-8553 fax q . . Paul Turro 5143 Shore Drive. • Carlsbad, CA 92008 760.802.2296 (mobile) turro@aol.com October 26, 2010 City of Carlsbad Finance Dept. 1635 Faraday Ave. Carlsbad, CA 92008 RE: T.O.T. on 5143 Shore Drive vacation rental Dear Colette: I called you recently regarding your letter dated Sept. 23, 2010. As I told you, BeaclifrontOnly.com handles the marketing of my rental home. They have collected and paid you the T.O.T. for every rental - you stated that this was not a problem and you would note that in my file. I recently rented separately from BeachfrontOnly.com to a friend for 3 days in September. Enclosed is the T.O.T. for their stay. Please contact me with any questions: Thank&jou^ Dr. Paul Turn 35 City of Carlsbad Faraday Center Faraday Cashiering OQI 1030501-4 10/29/2010 98 Mon, Nov 01, 2010 11:56 AM Receipt Ref Nbr: R1030501-4/0001 TOT - TOT Tran Ref Nbr; 103050104 0001 0001 Name: PAUL TURRO Amount: 1 1 $524,00 Item Subtotal; $524,00 Item Total: $524.00 1 ITEM(S) TOTAL; $524,00 Check (Chk# 1017) $524,00 Total Received: $524,00 Have a nice day! m*****+**+**CUSTOHb'R COPY************* 3^ CITY OF CARLSBAD TRANSIENT OCCUPANCY TAX AND CARLSBAD TOURISM BUSINESS IMPROVEMENT DISTRICT RETURN NAME OF BUSINESS: • BUSINESS: [BUSINESS ™| Q^^Q j^^/ye^ MAILING ADDRESS- -ts^ 6m s^m^ ^^^^^ MONTH ENDED: 1. NUMBER OF AVAILABLE EOgMS^ . ^ FOR THE MONTH OF: fn E mBEK. 2. NUMBER OF TRANSIENT OCCUPIED ROOMS FOR THE MONTH OF: /SO IS 3. TRANSIENT RENT RECEIPTS FOR THE MONTH OF: 4. CTBID ASSESSMENT (multiply line 2 by $1.00): 5. TRANSIENT TAX (multiply line 3 by 10%): 6. PENALTY (10% if payment is made after due date): 7. PENALTY (10% for delinquency beyond 30 days): 8. INTEREST (1 -1/2% per month from date of delinquency): 9. TOTAL BALANCE DUE (Line 4, Line 5, Line 6. Line 7 & Line 8) hiereby certify that this retum has been examined by me and to the best of my knowledge and belief it is a tnje, correct and complete statement made in compliance with the provisions of the Carlsbad Municipal Code. Print Namj Signatun Date: Telephone: MAKE CHECK OR MONEY ORDER PAYABLE TO: CITY OF CARLSBAD MAIL REMITTANCE TO: Finance Department, 1635 Faraday Ave., Carlsbad, CA 92008 37 THE BROTHERS II LLC O8-10 5143 SHORE DR. CARLSBAD, CA 9200&-4347 3222 1017 Ql D CHASE O JPMcwvan Oiw* Bank, NA. r y^ -rTTT ^ . ************************************ 3t GREGORY M. POST Attorney at Law ^ / / 700 Garden View Court, Suite 201 G ^ / Encinitas, CA 92024 ^ gmpost@sbcglobal.net "^mMnlP (760) 942-3008 ^^^r%^ Ms. Debbie Fountain Housing and Neighborhood Services Director City of Carlsbad 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2397 RE: 5143 SHORE DRIVE Dear Ms. Fountain: October 19,2011 I am in receipt of your letter dated October 12,2011, which was received in my office on Saturday, October 15,2011. As I stated \n my letter to you dated September 12,2011, my client and I saw no reason to meet with you with what you claimed would be an attempt to resolve the "outstanding issues" regarding my client's property and compliance with P.C. Resolution No. 6031, having told us lliat: A) the parties could not use any statements made during the meeting against the other party in any future enforcement action; B) that you have already determined that my client is continuing to use his property in a manner that's inconsistent with the requirements of the Planning Commission; and C) that even though the Planning Commission has yet to determine the meaning of the language in P.C. Resolution 6031 regarding its prohibition of "vacation rentals", you state flatly that my client is continuing to use his premises for vacation rentals on a regular basis and also using it for weddings and other major events. Why would anyone agree to meet with you and your staff to discuss the resolution of open issues and determine the meaning of "vacation rentals" in Resolution 6031, when you have aheady stated flatly that my client continues to violate the "vacation rentals" prohibition? This comment coming from the City staff is very odd considering the fact that Mr. Foss stated that the City doesn't even have a definition in its Code as to what constitutes a "vacation rental". How can one be deemed to be in violation of something which the City itself hasn't even defined? Furthermore, in a letter to my client dated July 14,2010, my client was explicitly instructed to "maintain his property as a vacation rental." as the remedy for complying with the City's regulations. My client and I want to know what the protocol is for the planning commission hearing. If it is being placed on the agenda for a public meeting on November 2,2011, we want to receive written notice of the time and location that this matter is being heard, how much time is allotted to each person vwshing to speak to the agenda item, when and how the planning commission's decisions are made (i.e. do they make their determination that evening, or do they take it under submission and theu render a decision in writing subsequently), what is the appeal procedure should a party wish to appeal the decision to the City Council, and what remedy exactly are you seeking? We definitely want all of the foUovmg documents enclosed in the packet of documents presented to the Planning Commission for consideration: 1) The 3/15/06 Planning Commission Resolution No. 6031. 2) The 8/27/08 and the 9/1/08 notes firom Dr. Turro's close family fi-iend to Dr. Turro informing him of the hateful slurs Dr. Turro's neighbors immediately to the south of his property (the Browns) said to her. 3) The 9/11/08 letter from Dr. Turro's assistant, Alice Duquesne, to Ed Davidson thanking him for touring Dr. Turro's home and dispelling the allegation that he was operating a bed and breakfast, and also informing him that the "vacation rental" laws had changed. 4) The 7/13/10 e-mail from Jason Jackowski to Will Foss. 5) The 7/13/10 e-mail fi-om Will Foss to Jason Jackowski 6) The 7/14/10 letter fi'om Scott Rudinger to Dr. Turro. 7) The 7/23/10 letter fi-om Dr. Turro to Scott Rudinger. 8) The 8/6/10 e-mails to Will Foss from Dr. Turro. 9) The 9/23/10 letter from me to Will Foss. 10) The 11/17/10 letter from me to Will Foss. 11) The 12/28/10 letter from Will Foss to me. 12) The 1/14/11 letter from me to Will Foss. 13) The 8/29/11 letter from Debbie Fountain to Dr. Turro. 14) The 9/12/11 letter from me to Debbie Foimtain. 15) The 10/12/11 letter from Debbie Fountain to me. 16) This letter from me to you, Debbie Foxmtain, dated 10/17/11. It was not very long after acquiring his home on Shore Drive in 1988, that my client. Dr. Paul Turro, who is gay, began receiving anti-gay slurs from some of his neighbors, and most particularly from his "neighbors" the Browns, who own the residence adjacent to my client's property immediately to the south. Over first several years of ownership a number of acts of vandalism occurred to my client's property and the property of his fiiends and relatives, as well. Such vandalism included putting nails into their car tires, and printing derogatory remarks on the windows of their cars if the cars were dusty. Various neighbors, but particularly Mr. Brown, made it clear that my client, his relatives, and his fiiends were not welcome. As a practical matter. Dr. Turro knew that unless he could actually catch someone in the act of vandalism there really wasn't much the police can do, so filing a police report would just be a waste of time for both himself and the police. As a result. Dr. Turro just had to endure it. In March of2006 my client was issued a permit to remodel his home pursuant to Planning Conmiission Resolution No. 6031. (See Exhibit "1"). Item #13 stated in part that "this project is approved subject to the condition that the dwelling unit be for one- family occupancy and cannot be used for vacation rentals or multi-family units." My cUent was told that this provision, and all of the other provisions, was the law at that time and therefore fully agreed to the contents of the resolution. 40 Dr. Turro remodeled his property and built it out in accordance with the provisions of the permit and received final approval and his certificate of occupancy. Meanwhile, the anti- gay slurs and vandalism continued. Two years later, in the fall of 2008, a family fiiend and a roommate were verbally assaulted not once, but twice, by Mr. Brown. His fiiend was so shocked, offended, and hurt by these terrible slurs that had been directed at her and Dr. Turro's roommate that she wrote them down verbatim and gave them to Dr. Turro when he came in from work (See Exhibit "2"). These slurs were simultaneously followed with an allegation lodged with the City that Dr. Turro was running a "bed and breakfast" in violation of the zoning. On September 5, 2008, Code Enforcement Officer, Ed Davidson, sent a letter to Dr. Turro informing him that a complaint had been received that he was operating a "bed and breakfast" and that he would be out soon to determine whether or not such a violation existed, and if there had been a violation, to see that such violation had ceased. Mr. Davidson subsequently came out to the property, completed his inspection, and determined that my client was not operating a "bed and breakfast". In other words, the Browns' allegations were false. It was at this meeting my client was informed that the laws regarding "vacation rentals" that had existed when his permit had been issued in 2006 had since been changed, and that the current law had no provision regarding vacation rentals. If the rentals were for less than 30 days you still had to pay a TOT, but that was all. On September 11,2008, my client's assistant, Alice Duquesne, sent Mr. Davidson a letter thanking him for visiting Dr. Turro's home and dispelling the allegation that he was operating a "bed and breakfast". She also thanked him for clarifying the guidelines on vacation rentals. Being informed by an officer of the City of Carlsbad that the law was now changed, and being given the current guidelines on vacation rentals. Dr. Turro concluded that the provision regarding "vacation rentals" was no longer applicable (See Exhibit "3"). Thereafter, the Browns complained that my client was holding weddings and/or receptions in his home, alleging that he isn't permitted to do so. On July 13,2010 in e- mails between City employees Will Foss and Jason Jackowski it was specifically stated by Mr. Jackowski that "I see that the area for 5143 Shore Dr. is zoned residential- tourist." (which confirms not only that the laws had changed, but also that Dr. Turro's home was ui a zone specifically designated residential-tourist), and then asked Mr. Foss whether this special zoning allowed for weddings and/or receptions. Mr. Foss responded by saymg that the City will notify the homeowner that using a residence primarily for weddings is not a residential use. He then said "This strategy worked with the Levyland case." (See Exhibits "4" & "5"). On July 14,2010, in response to complaints that Dr. Turro was advertising his property on a website as a wedding venue. Code Enforcement Officer Scott Rudinger sent a letter to Dr. Turro informing him that an investigation had been conducted and that advertising HI and using his property for a wedding venue was in violation of the city's Home Occupation provisions and must cease. He then stated: "Correction Required: Maintain the property as a vacation rental or residence only, consistent with a residential neighborhood use. Please include in the vacation rental policies provided to your guests, a reminder that peace and quiet is a right that must be shared with all residents of the Terra Mar neighborhood. It would be helpful to remind your short term renters that activities of many vacationers may at times conflict with neighbors on a work'Weekschedule." PLEASE NOTE: The Code Enforcement Officer for the City of Carlsbad specifjcallv instructed my client to maintain the property as a vacation rental, and additionally provided suggested provisions to include in the vacation rental policies provided to his guests. (See Exhibit "6") On July 23,2010, my client wrote Scott Rudinger informing him that he had been out of town when the Mr. Rudinger's July 14* letter had arrived, but wanted to let Mr. Ruduiger know that he would no longer permit his home to be used for weddings/receptions and that he would remove his home from the wedding venue website. (See Exhibit "7"). Dr. Turro had also informed Mr. Foss ia an e-mail on or about August 6*, that he was removing his property from websites ads for weddings/receptions, but that he wanted to specifically inform Mr. Foss that he had one wedding reception that had already been booked months earlier, and that the party threatened to sue Dr. Turro if he tried to cancel the wedding reception at such a late date. He wanted Mr. Foss to know tiiis so that Mr. Foss would afready be aware that this one booking was going to occur after my client's removal of his property from the wedding/reception websites. (See Exhibit "8") In August of 2010, however, Mr. Foss called and asked my client if he could just drop by for an informal discussion of a matter regarding his property. My client was leaving for London in just a day or two, but he went in to see Mr. Foss he was confronted by not only Mr. Foss, but also by Debbie Foimtain and a police officer, presented with a copy of the Permit and Resolution 6031, and repeatedly asked to comment on the "vacation rentals" provision. Dr. Turro felt as though he invited to meet with Mr, Foss under false pretenses and stated to Mr. Foss that if he had known that they were meeting to analyze the legal meanings of terms in documents that he would have brought his attomey. Ms. Fountain then stated that she was going to submit the "vacation rental" provision in Resolution 6031 to the city attomey for an interpretation, since she wasn't sure whether the 6031 resolution or the current vacation rental laws would take precedence, and said that she'd get back to Dr. Turro once she had obtained an opinion. (Please note that to date my client has never received a copy of the city attomey's opinion, as she had promised). Debbie Fountain also suggested that Dr. Turro attempt to meet with Mrs. Brown to try and work tilings out, and Dr. Turro took her suggestion and went to see Mrs. Brown. He also notified Mr. Foss that he was going to see the Browns, and asked Mr. Foss to let Ms. Fountain know that he was going over to see them. Unfortunately, his meeting with the Browns did no good whatsoever. Finally, Mr. Foss alleged that Dr. Turro had breached his promise to remove the property from wedding websites. This allegation was made despite Dr. Turro having specifically notified Mr. Foss of the one remaining wedding reception that he could not back out of at that late date (see Exhibit "8" above), and the fact that Dr. Turro had contacted Mr. Foss for guidance since this last remaining party threatened to sue Dr. Turro for breach of contract if he did not proceed with the wedding reception. No one from Mr. Foss's office ever responded, so Dr. Turro felt he had done ail he could do to inform Mr. Foss and ask for his guidance, and decided that rather than being sued, he would proceed with this last reception, (see Exhibit "8"above). Thereafter, when this last reception was about to take place, the Browns complained again to the City. I called and spoke with Mr. Foss on September 16,2010 regarding this matter, and then sent a letter to Mr. Foss dated September 23,2010. In it I reminded Mr. Foss once again of the fact that my client had specifically notified him of this one remaining event after removing his property as a weddmg venue from wedding/reception websites. (See Exhibit "9") Subsequently, Mr. Foss called Dr. Turro asking for a meeting with him. I responded to Mr. Foss in a letter dated November 17,2010 stating that we would be glad to meet with him provided that we were told what we would be discussing, how long the meeting would take, who would be present, and what documents would be reviewed. I also asked for a copy of "all" permits issued in the years around the 2006 permit issued to Dr. Turro to residents in his neighborhood. I wanted to see whether the "vacation rentals" restriction that appeared in my client's permit was also included in everyone else's pemiit requirements, or whether my client was the only one that had this restriction. (See Exhibit "10") Over six weeks later, on December 28,2010, Mr. Foss finally responded with the information regarding the meeting that I had requested, and also provided two permits (neither of which contained the vacation-rental restriction). He stated that Dr. Turro's property was not in the residential-tourist zone (directly contradicting his own staff member's statement that it was in the residential-tourist zone). Furthermore, Mr. Foss did not confirm whether these were all of the pemiits issued around that time, nor would he indicate whether the "vacation rentals" provision appeared in any other permit in the neighborhood. (See Exhibit "11") This raised a very serious question clearly—^why was my client's permit the only one containing such a restriction? Were the neighbors' bigoted remarks that they didn't want "your kind" in the neighborhood being carried out indirectiy through a selective, discriminatory appUcation of a restriction to his permit alone? If not, then why didn't the vacation rental restriction appear in everyone's permit? All that my client is asking for is to be treated the same as everyone else. Either the restriction applies to everyone hi the neighborhood, or it should not be applied to anyone. Yet my client is being dragged into the Planning Commission for violations of the "vacation rental" provision, while his next door neighbor adjacent to him to the north is renting out his property to vacation renters today. q3 On January 14,2011 I responded to Mr. Foss indicating that we are ready and willing to meet with him and the individuals he wanted present, and that we too wanted two specific Carlsbad employees to attend (Pam Drew who knows about the bigotry of the neighbors, and Ed Davidson who told my client about the changes in the vacation rental laws), and asked for some specific dates and times to select from for the meeting. (See Exhibit "12") EIGHT MONTHS elapsed witiiout a word from tiie City. Then on August 29,2011, Debbie Fountain wrote to my client asking for a meeting to resolve outstanding issues regarding my client's property. No mention of inviting the two individuals we had specifically requested was made. Furthermore, despite telling my client eight months earlier that she was unsure of how the city attomey would interpret the scope and application of the "vacation rentals" restriction in Resolution 6031 and the current mles that the City put in place around 2008 (and which my client was explicitly instmcted to follow by Code Enforcement Officer Scott Rudinger in his July 14,2010 letter to my client (see pgs. 3 & 4 and Exhibit "6" above), Ms. Fountain says that outside counsel "remains of the opinion" that my client continues to use his property in a manner inconsistent with the requirements ofthe Planning Commission. In one breath she says that she wants to see if the issues could be resolved, but in the next breath declares that it has already been detennined that my client had been continuing to violate resolution 6031 provision against vacation-rentals. (See Exhibit "13") I responded on September 12,2011 that we could see no reason why we should meet since she had already decided that my client was in violation of the resolution by continuing to use his property for wedding/receptions and vacation rentals. This declaration was made as if it was a fact, when the truth of the matter is tiiat my client has not pemiitted his property to be used for weddings/receptions for over a year, that his property was removed from all such websites and that my client no longer rents his property for vacation rentals either. I also pointed out that it is difficult to see how one can be declared to be in violation of a resolution restricting the use of one's property for "vacation rentals", when the City has no definition of what constitutes a "vacation rental" in its code. How can one be in violation of something that the City itself hasn't even defined in tiie first place? (See Exhibit "14") Debbie Fountain then sent me a letter dated October 12,2011 informing my client and me that she intends to put the question of the scope of the resolution's prohibition on the Planning Commission's agenda for November 2,2011. (See Exhibit "15") It is to this letter tiiat I am responduig witii this letter dated October 19,2011. (Exhibit "16") Please include all of the documentation I have requested to the Commission, and just to be sure that all of the requested documentation is included, I have enclosed a copy of each of said documents for your office to copy and include in the packet to be distributed to each Planning Commissioner. L^Gfeeop/M., 9 10 11 12 28 1 PLANNING COMMISSION RESOLUTION NO. 6031 ^ A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CriY OF CARLSBAD, CALIFORNIA, APPROVING COASTAL DEVELOPMENT PERMIT CDP 05-48 TO ALLOW FOR THE 4 ADDITION OF 1,460 SQUARE-FEET OF FIRST AND SECOND FLOOR AREA AND THE DEMOLmON OF 46 SQUARE-FEET OF FIRST FLOOR AREA TO AN EXISTING SINGLE-FAMILY RESIDENCE ON PROPERTY CffiNERALLY LOCATED AT 5143 SHORE DRIVE WTTHIN THE COASTAL 7 COMMISSION APPEAL AREA OF IHE MELLO H SEGMENT OF THE COASTAL PROGRAM AND LOCAL FACILITIES ^ MANAGEMENT ZONE 3. CASE NAME: TURRO RESIDENCE CASE NO.: CDP 05-48 WHEREAS, Farshid Mohseni, "Developer," has filed a verified application with the City of Carlsbad regarding property owned by Paul Turro, "Owner," described as 13 Parcel 1: 14 Lot 14 of Terramar Unit No. 1, in the City of Carlsbad, County of San Diego, State of Califomia, according to Map thereof No. 15 2696, ffled in the Office of the County Recorder of San Diego County, September 6,1950. 17 Parcel 2: 18 That portion of Lot "H" of Rancho Agua Hediona, in the County of San Diego, State of Califomia, according to Partition Map thereof No. 823, ffled in the Office of the County Recorder of San Diego County, November 16,1896, described as follows: 19 20 21 . Begmnmg at the Southwesteriy comer of Lot 14 of Terramar 22 Unit No. 1, m the County of San Diego, State of California, according to Map thereof No. 2696, ffled in the Office of the County Recorder of San Diego County, September 6, 1950; 24 j thence South 59*21'20'' West to a portion of a point on the Mean High Tide Line of the Pacific Ocean; thence 25 Northeasteriy along said Mean High Tide Line to a point which bears South 59»21'10'' West from the Northwesterly comer of said Lot 14; thence North 59°21'10'' East to the 27 Northwesterly comer of said Lot 14; thence South 23"03'10'' East, 60.53 feet to the Point of Beginning. ("the Property"); and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, said verified application constitutes a request for a Coastal Development Permit as shown on Exhibits "A" - "H" dated March 15, 2006, on file in the Planning Department, TURRO RESIDENCE - CDP 05-48, as provided by Chapter 21.201.040 of the Carlsbad Municipal Code; and WHEREAS, the Planning Commission did, on the 15th day of March 2006, hold a duly noticed public hearing as presaibed by law to consider said request; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered aU factors relating to the CDP. NOW, THEREFORE, BE TT HEREBY RESOLVED by the Planning Commission of the City of Carisbad as follows: A) That the foregoing recitations are trae and correct. B) That based on the evidence presented at the public hearing, the Commission APPROVES TURRO RESIDENCE - CDP 05-48 based on tiie following findings and subject to the following conditions: Findings: 1. That the proposed development is in conformance with the Certified Local Coastal Program and all applicable policies in that the site is designated for sin^e-famify residential development and the development consists of an addition to an existing two-story, single-family residence on a .32 acre lot. The development is consistent with the Mdio H land use designation of RLM/OS; no agricultural activities, sensitive resources, geological instability, flood hazard or vertical coastal access opportunities exist onsite and the development does not obstmct views of the coastline as seen from public lands or public right-of-way or otherwise damage the visual beauty of the coastal zone. The proposal is in conformity with the public access and recreation poUcies of Chapter 3 ofthe Coastal Act in that the pmperty is located adjacent to the shore, however, there are no opportunities for vertical coastal access or recreational activities from the subject site. There are existing public beach access points located to the north and south of the site and a private beach access for Terra Mar residents on Shore Drive, just north of the pmject site. Therefore, the project will not interfere with the public's right to physical access to the sea. 5 1 3. The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone (Chapter 21.203 of the Zoning Ordinance) in that the project will adhere to the City's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, Standard Urban 3 Stonn Water Mitigation Plan (SUSMP) and Jurisdictional Uri)an Runoff Management Program (JURMP) to avoid increased urban run ofl^ pollutants and soil erosion. No 4 development is proposed in areas of steep slopes and no native vegetation is located on the subject property and the site is not located in an area prone to landslides, or susceptible to accelerated erosion, floods or liquefaction. The new addition will be 6 constracted on the east side of the existing residence and will not be adjacent to any steep slopes. 7 4. The project is consistent with the provisions of the Coastal Shoreline Development * Overlay Zone (Chapter 21.204 ofthe Zomng Ordinance) in that the project will provide g the public with the right of lateral access to a minimum of twenty-five feet of dry sandy beach at all times of the year. 5. That the Planning Director has determined that the project belongs to a class of projects 11 that the State Secretary for Resources has found do not have a significant impact on the environment, and it is therefore categorically exempt from the requirement for the 12 preparation of environmental documents pursuant to Section 15301(e) (addition to an existing single-family residence) of the state CEQA Guidelines. In making this determination, the Planning Director has found that the exceptions listed in Section 14 15300.2 ofthe state CEQA Guidelines do not apply to this project. 15 6. The project is not located in the Coastal Agricultural Overlay Zone, according to Map X of tile Land Use Plan, certified September 1990, and therefore, is not subject to the 1^ provisions of the Coastal Agriculture Overlay Zone (Chapter 21.202 of the Zoning Ordinance). Ig 7. The project is consistent with the City-Wide Facilities and Improvements Plan, the Local Facilities Management Plan for Zone 3 and all City public facility policies and ordinances. 19 The project includes elements or has been conditioned to constract or provide fiinding to ensure that all fecilities and imfM-ovements regarding: sewer collection and treatment; 20 water, drainage; circulation; fire; schools; parks and other recreational facilities; libraries; govemment administrative facilities; and open space, related to the project will be installed to serve new development prior to or concurrent with need. Specifically, 21 22 A The project has bem conditioned to provide proof from the Carlsbad Unified 23 School District that the project has satisfied its obligation for school facilities. 24 g xjje Public Facility fee is required to be paid by Council Policy No. 17 and will be 25 collected prior to the issuance of a building pennit. 25 8. The Planning Conunission has reviewed each of the exactions imposed on the Developar contained in this resolution, and hereby finds, in this case, that the exactions are imposed 27 to mitigate impacts caused by or reasonably related to this project, and the extent and the degree of ©taction is in rough proportionality to the impact caused by the project. 28 Conditions: m 1 2 Note: Unless otherwise specified herein, all conditions shall be satisfied prior to issuance of a building permit. 3 1. If any of the following conditions fail to occur; or if they are, by their tenns, to be 4 implemented and maintained over time, if any of such conditions fail to be so in^lemented and maintained according to their tenns, the City shall have tiie right to revoke or modify ^ all approvals herein granted; deny or fiirther condition issuance of all fiiture building 6 permit^ deny, revoke or fiuther condition all certificates of occupancy issued under tiie authority of approvals herein granted; record a notice of violation on tiie property title; 7 institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in ^ interest by the City's approval of this Coastal Development Permit 9 2. Staff is authorized and directed to make, or require the Developer to make, all corrections 10 and modifications to the Coastal Development Permit documents, as necessary to make them internally consistent and in conformity with the final action on the project. 11 Development shall occur substantially as shown on the approved Exhibits. Any proposed development different from this approval, shall require an amendment to this approval. 13 3. Developer shall comply with all applicable provisions of federal, state, and local laws and regulations in effect at the time of buUdiftg permit issuance. 14 4. If any condition for constraction of any public improvements or facilities, or the payment 15 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 Govemment Code Section 66020. If any such condition is determined to be invalid this approval shall be invalid 17 unless the City Council determines that the project without the condition complies with all requirements of law. 18 19 5. Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold harmless tiie City of Carlsbad, its Council members, officers, employees, agents, and 20 representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attomey's fees incurred by the City arising, directly or 21 indirectiy, from (a) City's approval and issuance of this Coastal Devdopment Permit, (b) City's approval or issuance of any permit or action, whetha- discretionary or non- discretionary, in connection with the use contemplated h«-em, and (c) 23 Developer/Operator's installation and operation ofthe facility permitted hereby, including without limitation, any and all liabilities arising from the emission by tiie facility of 24 dedromagnetic fields or otiier energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the City's approval is not 25 validated. 6. Prior to the issuance of a building permit, the appUcant shall comply with the 27 Coastal Shoreline Devdopment Overiay Zone (Chapter 21.204 of the Zoning Ordinance), and dedicate a lateral access to a minimum of twenty-five feet of dry 28 sandy beach at afl times of the year to the Califomia Coastal Commission or their designee as agreed to with the Califomia Coastal Commission. 1 Developer shall submit to the Planning Director a reproducible 24" x 36" mylar copy of the Site Plan reflecting the conditions approved by the final decision making body. 8. Prior to the issuance of a building permit, the Developer shall provide proof to the 4 Director from the Carlsbad Unified School District that tiiis project has satisfied its 5 obligation to provide school fecilities. 6 9. This project shall comply with all conditions and mitigation measures, which are required as part ofthe Zone 3 Local Facilities Management Plan and any amendments made to that 7 Plan prior to the issuance of building permits. ^ 10. Building permits will not be issued for this project unless the local agency providing water 9 and sewer services to the project provides written certification to the City that adequate water service and sewer fadlities, respectively, are available to the project at the time of 10 the application for the building permit, and that water and SCWCT capacity and facilities will continue to be available until the time of occupancy. 11 11. The applicant shall apply for and be issued buildmg permits for this project within two (2) years of approval or this Coastal Development Permit will expire unless extended per 13 Section 21.201.210 ofthe Zoning Ordinance. 12 14 12. Prior to the issuance ofthe Coastal Development Permit, Developer shall submit to the Cify a Notice of Restiiction to be filed in the office of the Coimty Recorder, subject to the 15 satisfaction ofthe Planning Director, notifying all interested parties and successors in 16 interest tiiat tiie City of Carlsbad has issued a Coastal Development Permit by Resolution No. 6031 on tiie property. Said Notice of Restiiction shall note the property 17 description, location ofthe file containing complete project details and all corfditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of 18 Restriction. The Planning Director has the authority to execute and record an amendment to the notice, which modifies or terminates said notice upon a shovwng of good cause by the Developer or successor in interest. 19 20 13. The project is located in the Rl Zone, and the intent and purpose of thb zone is for 21 the development of one-family dwelling units. Per the City of Carlsbad's Municipal Code Section 21.04.125 a one-family dweUing is defined as "a detached buflding designed exdusively for occupancy by one famfly and containing one dweUing unit." This pmject is approved subject to the condition that the dweUing unit be for one- family occupancy and cannot be used for vacation rentate or multi-famUy units. 23 24 14. This project is approved subject to the condition that no kitchen facUities wUl be 25 added to any areas that have been approved with this project Per the City of Carlsbad's Municipal Code Section 21.04.200 ""kitchen means any room or portion of a room used or intended or designed to be used for cooking or the preparation of 26 27 food." 28 ^ 15. This project is approved subject to the condition that no plumbing for kitchen 2 faciUties, including 220 Volt wiring, wiU be instaUed in any areas that have been approved with this project 3 4 5 8 9 21 22 Engineering 16. Prior to hauling dirt or constraction materials to or from any proposed constraction site within this project. Developer shall apply for and obtain approval from, the City Engineer g for the proposed haul route. 17. Prior to issuance of any building permit. Developer shall comply with the requirements of 7 the City's anti-graflBti program for wall treatments if and when such a program is formally established by the City. Code Reminders: 10 18. Approval of this request shall not excuse compliance with all applicable sections of the Zoning Ordinance and all other applicable City ordinances in effect at tune of building 11 permit issuance, except as otherwise specifically provided herein. 19. Premise identification (addresses) shall be provided consistent with Carlsbad Municipal 23 Code Section 18.04.320, 14 NOTICE ^ ^ Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, 16 reservations, or other exactions hereafter collectively referred to for convenience as fees/exactions.' 17 You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Govemment Code Section 19 66020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carisbad Municipal Code Section 3.32.030. Failure to timely 20 follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition. You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, 23 zoning, grading or oth«- similar application processing or service fees in connection with tiiis project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a 24 NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. 25 26 27 28 S3 1 2 3 4 5 6 NOES: 7 ABSENT: ABSTAIN: PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on the 15th day of March 2006, by the following vote, to wit: AYES: ATTEST: 10 MARTELL B. MONTGOMERY, Chairperson CARLSBAD PLANNING COMMISSION 11 12 13 14 DONNEU J ^ Assistant Planning Director 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOD^ _, _ 4X/ rmf ^ ^ ^^^^ ^ ^ AJfy^ B.. ^Mi^W^' Odi^^i^ ^^^^ ejiw f (S^i^, ' 53 -in in Scott Rudinger From: Will Foss Sent: Tuesday, July 13, 2010 10:38 AM Jo- Jason Jackowski Cc- Christine Wauschek; Scott Rudinger Subject: RE: Citizen's Complaint on Shore Dr. This is'an ongoing problem with a legal vacation rental use that is expanded to the maximum limit by advertising the use to include the wedding venue. The Levyland vacation rental and the one on Ocean come to mind. I had asked Mrs. Brown who lives next store to document the disturbances by calling PD. When I write the notice of violation, I need confirmation that the house is being used as a wedding venue specifically. I have had the property owner say the renter's" just happened to be having a wedding that weekend. Residential homes have weddings in the back yard on occasion " We will notify the owner that using the house grjmarijy forweddings is not a residential use. Unfortunately we do need to document the neighborho6d disturbance that this activity is creating. Can you send the police report for our code case file. The owner Mr. Turro, will communicate through his attorney. The Browns have also retained an attorney, Mr. Macgurn. My admin staffer is on vacation this week, but we will draft the letter to Mr. Turro ASAP requiring that he remove the wedding reference from the website. This strategy worked with the Levyland case. Thanks, Will Scott, Would you open a case and revise the letter we sent to Levyland. From: Jason Jackowski I ^// Sent: Tuesday, July 13, 2010 9:53 AM 7^ To: Will f=oss Subject: Citizen's Complaint on Shore Dr. Will, I'm trying to mediate a complaint regarding several noise disturbances being generated from 5143 Shore Drive. We responded to the house three times this past weekend. Apparently the owners are renting out the unit for use as a wedding venue and are holding weddings and receptions there throughout the summer. Last summer we worked a similar complaint regarding a house on Ocean St. that was doing the same thing. I forget who we worked with m your office but the area was determined to be zoned residential and prohibited this type of activity so we were able to shut them down. 1 see that the area for 5143 Shore Dr. is zonedxesidential-tourist. Do you know if this would also prohibit them from advertising the home for use as a weddiHg^r reception or other large gathering venue? They advertise the home on Shore Dr. at www.beachfrontonlv.com and state: ni iP «5AN DIPfSO VACATION RENTALS AWAIT YOU IN OCEANSIDE, CARLSBAD, & ENCINITAS, WHERE BEACHES EX^EN^^^^ FOR F AM ILYVAC ATIONS. REUNIONS, ROMANTIC GETAWAYS, AND CORPORATE RETREATS Our Beachfront Vacation Rentals are perfect for Intimate vacations with your family, large get-togeth^, a tip with^^ wish to take a family vacation and spend your days playing In the sand, or a romantic escape spending your days relaxing on the shore and watching the sunset at night, we have a perfect beach vacation rental home for you. Any help you can offer would be appreciated. Thanks, Jason £p CARLSBAD xsa^ Police Department Sergeant Jason Jackowski Carlsbad Police Department Community Services Division City of Carlsbad 2560 Orion Way Carlsbad, CA 92008 www.ca risbadca .gov P: 760-931-2172 lason.iackowski@carlsbadca.gov 57 City of Carlsbad Code Enforcement NOTICE Code Violation July 14, 2010 MR. TURRO 5143 SHORE'DRIVE CARLSBAD CA 92008-4347 Dear Property Owner: We have received several complaints about the property located at 5143 Shore Dr. According to our records, you are the owner of that property. In response to these complaints, an investigation was conducted. It was determined that you are maintaining a website advertising this property as a wedding venue. These wedding events have occurred with increased frequency and do not appear to be incidental to the vacation rental. This commercial activity is occurring in a residential zone in violation ofthe city's Home Occupation provisions. Correction Required: Maintain the property as a vacation rental or residence only, consistent with a residential neighborhood use. Please include in the vacation rental policies provided to your guests, a reminder that peace and quiet is a right that must be shared with ali residents of the Terra Mar neighborhood. It would be helpful to remind your short term renters that activities of many vacationers may at times conflict with neighbors on a work-weel< schedule. The City of Carlsbad does expect owners of vacation property to respect their neighbor's right to peace and quiet and manage their property accordingly. Please remove any reference on your website to the use of this property as a wedding venue. The property must be maintained in full compliance with all applicable city codes. Full compliance is anticipated in this matter. Please call me at 602-2785 if you have any questions. Thanl< you in advance for your cooperation. Sincerely, Scott Rudinger Code Enforcement Officer SR:CW enclosure —- - July 23,2010 Mr. Scott Rudinger Code Enforcement City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-7314 Dear Scott, I am in receipt of your notice of Code Violation dated July 14,2010. Thank you for making me aware of this issue. Please be assured that it is my intention to always be in Ml Gomplianee vwth all city, state and federal codes. 1 am the owner of 5143 Shore Drive. 1 live there and also rent it out as a vacation rental. My cook and her husband live on site and are present during all rentals. This assures me that my home is being watched and cared for and allov^s monitoring of all phases of my vacation rentals. On July 7-11,2010 a Mr. Mark Littie. a pilot for Southwest airhne, rented my home. He had a wedding at the house and no charge or additional fee was added to his daily rate for the wedding. I&istine my live-in cook, informed me that we had complaints from the neighbors due to noise. I asked her to call the Carlsbad Police in an attempt to improve this situation. She was given the name of a police liaison and she called him on Monday July 12. Since he was on vacation, she spoke to him the nejd; day and found out that we could not have weddings at the rental. That day July 13'*'. we ceased allowing vacation renters to have weddings at the vacation rental. Toward-*at end. we immediately altered our websites to state that we no longer allow weddings. The website you sent in your letter belongs to BeachFront Only. We also e-mailed them that day, putting them on notice that vacation renters could not have weddings at our vacation rental and I have enclosed a copy for your records. Kristine also hand delivered a letter to my neighbors, the Brown's, on that day, in the hope of making the situation better. I have also enclosed a copy of that letter. , ^ ^ , . I did not receive your letter of July 14.2010 until July IZ-^. due to being away on vacation. However, the moment Kristine found out from Sergeant Jackowski that we could not have weddings, we took action. We addressed this matter on July 13* aday before your letter ofjuly 14,2010. I wish to be and remain ill full compliance with aU applicable aty codes. Please do not hesitate to call me, at 760-802-2296, if you have any questions or if there is any further action you wish me to take. Thank you for your input and guidance on this matter. Sincerely. Dr. Paul Turn) Compose 8/6/10 10:40 AM Dear Will, Heito. I hope all is doing great with you and your job. Last week I sent you Emails from my September vacation renter, Nanette and Tim, a older couple who was is renting my home for a few days with their families and also having a small, quiet afternoon wedding. In short, I told them they could not have a wedding at my house. Tim said he spoke to Janine and Christine in your office and that they found out that they could have a small quiet wedding. They called me this morning and said they were going ahead with their plans. They are an older wonderful couple and I didn't know what to say to them. The last time I spoke to you and requested a meeting to clear up all confusion you said you would get back to me by the end of this week. I spoke to my cook/employee at my house and she said our neighbors are having parties this entire week and she sees no problem With Nanette and Tim's party. I asked her to please go speak to the Brown's and ain it past them. She said she went to speak to them but they were not home and intends to speak to them today. Could you please call me today because I have to get back to Tim and Nanette today. I do not know what to say to them and they have let me know that I can not legally stop them. I spoke to Christine in your office today and left a message with Scott. Thank you for your time and please be assured that I will do everything I can for a peaceful solution to this problem. ^e^t regards, Dr. Paul Turro Augusts, 2010 760-802-2296 http://mall.aol.com/32360-lll/aol-l/en-us/mafl/ComposeMessage.aspx?Ws_popup=true Page lof 1 Re: September 18 Wedding 8/6/10 10:08 AM From: Nannette Lawrence <nannette.lawrence@gmail.com> To: turro@aol.com Subject: Re: September 18 Wedding Date: Fri, Jul 30, 2010 3:05 pm Paul, What a relief to hear from you. I will have less anxiety this weekend! Thank you for staying in contact even though you are still working on this. Tim spoke with Janine and Christine. We will look forward to hearing from you next week. Best, Nannette On Fri, Jul 30, 2010 at 2:39 PM, <turro(a>aol.com> wrote: Dear Nanette, I have had numerous conversations this week with the City of Carlsbad and the Police department. They said they will meet with me next week after they meet with the Carlsbad City Attorney. I will contact you immediately after that meeting. Do you know the persons name at the City who gave you this information? That would help me in my discussions with the City. Yours truly. Dr. Paul Turro Original Message From: Nannette Lawrence <nannette.lawrence@qmail.com> To: Paul Turro <turro@aol.com> Sent: Fri, Jul 23, 2010 4:09 pm Subject: Re: September 18 Wedding We were told that the violation was of the noise ordinance. They also said that they sent you a letter asking you to stop advertising the villa as a wedding venue in hopes that would take care of the noise problem. Legally, you can host weddings there, they would just like for you to not host them in an effort to keep the noise in the neighborhood down. We just spoke with them again and they confirmed that if we rent the villa we can have a wedding there. The only problem would be if we did not adhere to the noise ordnance, which we will do. Again, you have our assurance that we will adhere to the ordinances and our event will be a positive experience for ail of us. On Fri, Jul 23, 2010 at 4:42 PM, Paul Turro <turro@aol.com> wrote: I received a letter of code violation from the Carlsbad police on July 14 and was told to cease all weddings, that I am in violation of the zoning ordinance. I am consulting my lawyer as we speak answering the complaint. ittp://mail.aoLcom/32360-lll/aol-l/en-us/mail/PrintMessage.aspx Page 1 of 2 GREGORY M. POST Attorney at Law 700 Garden View Court, Suite 201 G Encinitas, CA 92024 gmpost@sbcglobal.net (760) 942-3008 Mr. Will Foss City of Carlsbad Code Enforcement 1635 Faraday Ave. Carlsbad, CA 92008 September 23,2010 RE: 5143 Shore Drive Carlsbad, CA 92008 Dear Mr. Foss: First of all, I want to thank you for speaking with me on September 16,2010. It was most appreciated. Upon his retum from London, I met with my client to discuss both the specific issue of immediate concem related to the use of his property as a wedding venue, and also the broader issues of concem related to neighborhood relations, perceptions and communication in general. With respect to the specific issue regarding use of his property as a wedding venue. Dr. Turro wanted me to confirm again that he has given specific instructions to the website host that his property will no longer be available as a wedding venue in any manner whatsoever. He was distressed, however, that he had not received a response from your office to a rather urgent e-mail that he had sent to you dated August 6*. In that e-mail he had confirmed that an older couple (with whom he had a written agreement months before to allow them to hold a small family wedding in his home in September) had apparently contacted Janine and Christine in your offices and had been told that there was no ordinance preventing a wedding from being held in his home. So when Dr. Turro called them and sought to cancel the wedding event, tiiey proceeded to inform him that they had spoken to the City of Carlsbad, and that they would take legal action if necessary to prevent him from canceling. Dr. Turro's e-mail confirmed his dilemma, informed your offices of this one remaining event in September, and sought input as to how he mi^t best respond to this couple. While the dilemma surrounding the event itself is now moot (the event itself now having past), the implication that he had proceeded to hold "still one more wedding", after saying that no more weddings would be held, was inaccurate. He met his one remaining contractual obligation that had been entered into prior to receiving the July 14,2010 letter from Code Enforcement, and his e-mails in early August had informed your office of this one remaining event, and had asked for input from your office regarding this dilemma. It is important to Dr. Turro that the record be set straight—^i.e. that he has and will continue to honor his pledge that his property will no longer be available to any party for a wedding venue. With regard to the issue as a whole. Dr. Turro understands the multi-faceted dynamics of this matter, and apprecisAes that there is a wide variety of viewpoints as to how it all should be resolved. There is no question that it is going to take time for good neighborhood relations to be restored. However, Dr. Turro firmly believes that this can be accomplished if both sides recognize the importance of open, consistent communication with each other, become more tolerant of each other's viewpoints, and try to cooperate more with each other as everyone works through these very difficult economic times. Sincerely, ^ TegemM. Post 4/0 GREGORY M. POST Attorney at Law 700 Garden View Court, Suite 201 G Encinitas, CA 92024 gm.post@sbcglobal.net (760) 942-3008 Mr. Will Foss City of Carlsbad Code Enforcement 1635 Faraday Ave. November 17,2010 Carlsbad, CA 92008 RE: 5143 Shore Drive Carlsbad, CA 92008 Dear Mr. Foss: I .eeived a call ftom m, client Pad T~^™ "^l^^ ^^eated «> me regarding this matter. Before we can schedule any .eeSng «i<^^»-^rtrmf ^eT^ is following questions reganiing P^^l^^^^oCbeln invited, and/or who will pui^se of the meeti^~^d^h& ev^^^^ Connmssion Resolution 6031 is i^'^^^^ZtJ^ of residential-tourist zoning response whether the current ""«If^°"^l^S«s your department's intent to ™ll continue to be appUed tx. my chent s °' ^'f ™ply the wording in the permit issued m Mamh of2006, Also, please consider fl^s letter . a fo^^^en^^^^^^^^ meeting can take place, so that my client will have adequate time to review each of such other permits and/or resolutions containmg such language (if any such permits and/or resolutions exist). Naturally, if there are no otiier permits and/or resolutions that contain the same or sunilar language referenced above, please confirm in your letter of response tiiat none of tiie other properties on Shore Drive (otiier tiian my client's property) contain tiie same and/or similar language in tiieir buildmg permits and/or Planning Commission resolutions. Lastiy, please provide us with a definition of what constitutes a "vacation rental". Upon receiving your written response to my letter (and copies ofthe permits and/or resolutions issued for any other properties on Shore Drive, if any, that contain tiie same and/or similar language as set forth above), my client and I will make every reasonable effort to meet with you in your offices. I look forward to your prompt response. Sincerely, / V (CARLSBAD Community & Economic Development www.carlsbadca.gov December 28, 2010 GREGORY M. POST, ESQ. ATTORNEY AT LAW 700 GARDEN VIEW COURT, SUITE 201 G ENCINITAS, CALIFORNIA 92024 Re: 5143 Shore Drive Dear Mr. Post: I am in receipt of your letter of November 17, 2010 regarding the activity at 5143 Shore Drive, Carlsbad, California. The purpose of the proposed meeting is to discuss Mr. Turro's vacation rentals and special events activities at 5143 Shore Drive, Carlsbad. On the City's behalf, the meeting will be attended by the Building & Code Enforcement Manager (myself). Community & Economic Development Director, Gary Barberio, Housing & Neighborhood Services Director, Debbie Fountain, City Planner, Don Neu and a representative from the City Attorney's Office. I anticipate that the meeting will last about an hour. The discussions will focus on the fact that Mr. Turro appears to be operating a vacation rental business from his residence on Shore Drive, in violation of Condition No. 13 of his coastal development permit approval (CDP 05-48, PC Resolution No. 6031). A copy of that CDP will be available for review at the meeting, along with the Carlsbad Municipal Code, records of code enforcement activity at the residence and web site postings pertaining to the residence. Please be advised that the residence is not located in the residential-tourist zone as your letter suggests, but rather in the R-1 one-family residential zone. The CDP conditions are controlling with regard to the residence since they are more restrictive than the Carlsbad Municipal Code and were specifically imposed by the Planning Commission when Mr. Turro's CDP was approved. I have enclosed copies of CDP's for other properties located on Shore Drive as you requested. Neither of these other properties has a similar condition prohibiting vacation rentals or multi-family units. Code Enforcement Division ^ .i/nr I- r.,., A (-.^^ir^k^w rA Q-)nna-7^i/i T 7fin-Kn:?-77n^ F 7fin-fi02-8560 69 <C*5>^ CITY OF ViCARLSBAD Community & Economic Development www.carlsbadca.gov The Carlsbad Municipal Code does not include a definition of "vacation rental". However, it does require the payment of transient occupancy taxes for transient stays of thirty (30) consecutive calendar days or less. (Carlsbad Municipal Code Chapter 3.12). In any event, your client is advertising the use ofthe residence for "vacation rentals". I look forward to meeting with you and your client in the hopes that he will agree to discontinue all prohibited activities at the residence so that it will not be necessary for the City to take enforcement action. I will contact you and your client in the near future to set a time and date to discuss this matter further. Thank you for your anticipated cooperation. Sincerely, WILL FOBS Building & Code Enforcement Manager WF/jh Enclosures Code Enforcement Division 1635 Faraday Avenue, Carlsbad, CA 92008-7314 T 760-602-2703 F 760-602-8560 ® GREGORY M. POST Attorney at Law 700 Garden View Court, Suite 201 G Encinitas, CA 92024 gmpost@sbcglobal.net (760) 942-3008 Mr. Will Foss City of Carlsbad Code Enforcement 1635 Faraday Ave. Carlsbad, CA 92008 RE: 5143 Shore Drive Carlsbad, CA 92008 Dear Mr. Foss: January 14,2011 TTiank you for your letter dated December 28,2010, responding to the questions raised in my letter to you dated November 17,2010 regarding your request for a meeting at your office. Upon my client retuming from a trip out of the state, I was able to discuss your December 28* letter with him. It is our imderstanding that the proposed meeting would be about an hour in duration, and that the purpose of the meeting is solely to discuss what you have described as my client's "vacation rentals and special events activities" at his home on Shore Drive. If, however, there is no definition of "vacation rental" in the Carlsbad Municipal Code (as you confirmed in your letter of December 28'*'), what exactiy are we going to be discussing? Please note that my client has consistently complied with the requiremetit to pay T.O.T. for transient stays of 30 consecutive days or less, so that isn't even at issue. Therefore, if fiirther clarification could be provided as to what the true purpose ofthe proposed meeting is, it would be most helpfiil. Your providing the names and tities of the individuals who would be attending the meeting was greatly appreciated, and assuming that a definitive purpose warranting the proposed meeting can be set forth, we would request the presence of two other Carlsbad employees in addition to the ones described in your letter. One is Pam Drew, the Carlsbad Assistant Planner during my cUent's remodel. The other is Ed Davidson, the Carlsbad Enforcement Officer who met with Dr. Turro in his home on September 10, 2008. We would request that he bring his notes from that meeting wherein he went over the vacation rental guidelines undo- which my client was permitted to use his premises. That would only increase the attendance from seven to nine, which would still be a very manageable size for a productive meeting. In your letter dated December 28^, you stated that in my November 17* letter that I "incorrectly suggest" that my client's residence is "located in the residential-tourist zone", and that in fact it is located in an R-1 one-family residential zone. Unfortunately, your conclusion is completely misplaced. The fact is that one of your employees, a Mr. Jason Jackowski to be specific, declared to you in writing in July of 2010 that, "the area for 5143 Shore Dr. is zoned residential-tourist". I will be glad to provide confirmation of this information when we eventually meet in person, if that would be helpful in clarLfying the source and accuracy of that declarative statement. Since there now apparentiy seems to be a question within Carlsbad staff as to just "what is" and "what is not" considered to be the "residential-tourist zone", it would be tremendously helpfiil in clearing this matter up ahead of our meeting if you could send us an aerial or plot map of Carlsbad, with the exact "residential-tourist zone" within the city limits of Carlsbad interlineated in red. While it was greatly appreciated that you provided us with copies of pemiits for two parcels on Shore Drive (5067 and 5136), and confirmed that neither pemiit contained any language prohibiting vacation rentals or multi-family units, the enclosure of copies of those two permits was not responsive to my question. What I had specifically requested was a copy of all permits for all of the properties anywhere on Shore Drive that SpecificaUy contained the same language thai appeared in my client's Coastal Development Permit, i.e.: "This project is approved subject to the condition that the dwellmg unit be for one- family occupancy and cannot be used for vacation rentals or multi-family units." While I'm sure that there must be many more permits that have been issued fiom 2005 to the present than just those two permits that you copied for my review, is it an accurate statement that there were no pemiits issued from 2005 to the present that contained the same or substantially similar language (as set forth above) as was included in the pemiit issued to my client? If there were no other pemiits issued with the same restrictive language described above, then we want to know what the real reason was that my client was the only one singled out vdth such a restriction in his permit If, on the other hand, tiiere are other permits issued between 2005 and the present that contain such a restriction, then I once again request that we be provided copies of only those pemiits that were issued to Shore Drive property owners that contained such language. If there are none, then please so state. We look forward to your prompt response, and we welcome some suggested altemative times and dates when all of the city employees designated above would be able to meet with me and my client. Sincereh •egoiy^yPost f C' CITY OF VXARLSBAD Housing & Neighborhood Services www.carlsbadca.gov August 29, 2011 Dr. Paul Turro 5143 Shore Drive Carlsbad, CA 92008 Mr. Gregory Post, Esq. Attomey at Law 700 Garden View Court, Ste. 201 G Encinitas, CA 92024 Re: CDP 05-48 - 5143 Shore Drive (CompUance with Planning Commission ("P.C") Resolution No. 6031) Dear Dr. Turro and Mr. Post: The purpose of this correspondence is an attempt to schedule a meeting to resolve the outstanding issues regarding the above-referenced property. City staff and outside legal counsel would like to meet witii you and/or representatives to attempt to gain compliance with P.C. Resolution No. 6031. The meeting would be a settlement meeting in which the parties could not use any statements made during the meeting against the other party in any future enforcement action consistent with the restrictions under the Califomia Evidence Code. Staff has retained outside counsel to review the matter and remains of the opinion that your location continues to be used in a maimer inconsistent with the requirements of the Planning Commission. If the parties are unable to reach an agreement or a meeting cannot be scheduled, staff intends to bring the matter before the Planning Commission for an interpretation xmder Carlsbad Municipal Code section 21.53.040 before November 1, 2011. The purpose of a Planning Commission review would be to determine the meaning ofthe language of P.C. Resolution No. 6031 regarding its prohibition of "vacation rentals." Even though there is no business license for the location, this residence is advertised and used as a vacation rental on a regular basis. In addition, weddings and other major events have been held at the location in the past. All of these activities disrupt the neighborhood and numerous complaints have been received over the years. 2965 Roosevelt Street, Ste. B, Carlsbad, CA 92008-2397 T 760-434-2810 F 760-720-2037 ® The prohibition under P.C. Resolution No. 6031 was never appealed and remains a binding commitment upon this property. It prohibits short-term "vacation" rentals ofthe property. No activity inconsistent with the requirements of this resolution may occur. The property in question is located in a single family zone. This zoning designation is the most restiictive in tiie City. (Carlsbad Municipal Code section 21.05.020.) It limits uses to those found in the permitted use category for R-1. (Carlsbad Municipal Code section 21.10;020.) A "Vacation rental" is not a permitted use listed in the use tables referenced by tiiis section. In addition, the current use of your property also violates tiie home occupation requirements of tiie zoning code. (Carlsbad Municipal Code section 21.10.040.) Your vacation rental use is a primary use which has employees on premises; receives pickups and deliveries; disrupts the neighborhood; eliminates required off-street parking; and utilizes more than 20% ofthe combined total floor area. All of tiiese factors require staff to act on this matter. The independent review has confirmed staffs position on this matter. Please contact Debbie Fountain, Housing and Neighborhood Services Director within the next 14 days to arrange a meeting time for appropriate staff and outside legal counsel to meet with you to discuss immediate resolution of this matter. If a meeting cannot be arranged during this time period, staff intends to proceed to the Planning Commission for an interpretation as soon as it can be placed on the Planning Commission agenda. If you any questions regarding any of the above-mentioned matters, please feel free to contact me at (760) 434-2935 or debbie.fountain@carlsbadca.gov. jincerely. Debbie Fountain Housing and Neighborhood Services Director cc: James P. Lough, Esq. GREGORY M. POST Attorney at Law 700 Garden View Court, Suite 201 G Encinitas, CA 92024 gmpost@sbcglobal.net (760) 942-3008 Ms. Debbie Fountain Housing and Neighborhood Services Director City of Carlsbad 2965 Roosevelt Stieet, Suite B Carlsbad, CA 92008-2397 RE: 5143 SHORE DRIVE Dear Ms, Fountain: September 12,2011 Thank you for your letter dated August 29,2011, which arrived at my office on September 2,2011. On behalf of my client. Dr. Paul Turro, I am responduig to the statements set out in your letter and would like to have all responses directed to my attention with a copy provided to Dr. Turro at his home address set forth above. In the first paragraph of your letter you state that you are attempting to schedule a meeting to "resolve the outstanding issues" regarding my client's property, and to "attempt to gain compliance with P.C. Resolution No. 6031". This paragraph implies that the City has been making repeated unilateral efforts to meet to resolve outstanding issues, but that we have been unwilling to meet. If you would review your files, however, you would find that on two separate occasions we have agreed to meet with representatives of the City. On November 17,20101 wrote a letter to Will Foss responding to his request to have my client come in to meet with him in his office without even indicating to my client what issues Mr. Foss wished to meet to discuss. We clearly indicated that we would be willing to meet, but first we wanted to know exactiy what topics we were going to be discussing, who would be present at the meeting, how long Mr. Foss anticipate the meeting wotild last, what documents, if any, we would be reviewing, and also requested delivery of certain documents, as well as a definition of certain terminology being used by the City of Carlsbad. Six weeks later we received a letter of response from Mr. Foss dated December 28,2010. While acknowledging that the Carlsbad City Code does not have a definition of "vacation rental", Mr. Foss proceeded to indicate that he wanted to meet with us in hopes that my client "will ^ree to discontinue all prohibited activities at tiie residence" so that it would not be necessary for the City to take enforcement action. The only violation that he alleges my client made was that my client was advertising the use of his residence for "vacation rentals" on a website, and noted that transient occupancy taxes for transient stays of 30 consecutive calendar days or less had to be paid. In my letter to Mr. Foss dated January 14,2011,1 again asked "if there is no definition of "vacation rental" in the Carlsbad Municipal Code what exactly are we going to be discussing?" I also pointed out that my client has always promptly paid T.O.T. for transient stays of 30 consecutive days or less, so that isn't even an issue. In that letter, we also asked that in addition to the named individuals that Mr. Foss wanted to have attend the meeting, we wanted two additional individuals to be in attendance, as well. I asked again for "aU" of the permits issued during the same time period as the permit issued to my client... not just "selective" copies of "selected" pemiits. Once again, we clearly stated that if the individuals we also wanted to be present at the meeting would be included, and if we were provided with copies of the permits as previously requested, we would be very willing to meet with Mr. Foss and his associates. We received absolutely no response whatsoever to my January 14,2011 letter to Mr. Foss. Now, over eight months later, however, we suddenly receive your letter dated August 29,2011 requesting a meeting with us to determine the meaning of P.C. Resolution 6031 regarding its prohibition of "vacation rentals". Allegedly we would all be working together to "detemiine the meaning" of 6031 as it relates to "vacation rentals", (which the city code has not defined), yet you immediately declare that my client has allegedly been using the property as a "vacation rental" in violation of the code. You then proceed to set out one allegation after another of what you claim to be my client's non-compliance with 6031 and other City code provisions. If you are declaring yourself to be judge, jury and executioner, what possible reason could you have to want to schedule a meeting with us other than posturing on paper so that you'll look good before going to the Planning Commission. Why else would you also insist that none of the statements made during the proposed meeting could be used in any future actions by either party. If you had bothered to investigate first, you would immediately note that several months ago my client removed his home from the vacation rental websites, and that it is no longer available for any vacation rentals of any kind whatsoever. You would also have noted, had you taken the time to look at your files before writing your August 29,2011 letter, that there have been no neighbors' noise complaints or disruptions for over a year. Therefore, we do not see any need to meet witii you or your staff, as tiie issue of alleged vacation rental violations is now moot. Since my client is not now making his property available for vacation rentals or rentals of any other kind (such as weddings), there is absolutely no issue to bring before the Planning Commission either. However, if you persist in taking this matter—^which is now moot— to the Planning Commission, then please be advised that my client will pursue such legal action as necessary to protect himself from the selective and discriminatory enforcement of the City's codes and ordinances. <^ t0k> Cl T Y O F ViCARLSBAD Housing & Neighborhood Services www.carlsbadca.gov October 12, 2011 Gregory M. Post Attomey at Law 700 Garden View Court, Ste. 201 G Encinitas, CA 92024 Re: 5143 Shore Drive Dear Mr. Post: Thank you for your letter dated September 12, 2011, which was received in my office on September 19, 2011. Based on your correspondence, the City understands that you do not intend to meet with City staff prior to setting this matter before the Planning Commission for interpretation of the Coastal Development Permit. Staff will be setting the matter for Planning Commission review at its November 2, 2011 meeting. If you wish to supply information to be shared with the Planning Commission, please deliver it to my office by no later than October 21,2011. The purpose of the original letter from my office was not to rehash your claims regarding staff conduct. Rather, after consulting with outside legal counsel, the letter discussed staffs intent to take this matter before the Planning Commission to make sure that its interpretation of your client's Coastal Development Pennit is consistent with the intent of the Planning Commission. It was hoped that we could meet and discuss this matter prior to the meeting to see if we could reach a mutual understanding between Mr. Turro and the City. Your claims of discriminatory enforcement notwithstanding, staff believes that the intent of the Coastal Development Permit is clear and prohibits vacation rentals. Your client has consistently used the property for this purpose and, regardless of its present use, it is important to clarify this issue considering the past conduct of your client and the numerous complaints received of illegal usage of the property. For staff, the question is the scope of the Coastal Development Permit's prohibition. Your client did not appeal the determination that his expansion of the footprint of the property came with restrictions on its use to prevent disruption of the local neighborhood. Had your client objected to the language in the Coastal Development Permit on this issue, this issue would have been resolved when the permit was issued. / ^ 2965 Roosevelt Street, Ste. B, Carisbad, CA 92008-2397 T 760-434-2810 F 760-720-2037 ® 5143 Shore Drive October 12,2011 Page 2 As stated above, since you do not wish to meet prior to the setting of the Planning Commission hearing on this subject, please provide us with any written information for us to include in our staff report regarding this matter no later than October 21 st. Thank you for your prompt attention to this matter. incigrely, Debbie Fountain, Housing and Neighborhood Services Director cc: Paul Tmro James P. Lough / II si !; • s V If I! n it PROJBCT SITE TDRBO RESIDENCE CARLSBAP, CALIFOSNIA fwea.1. LorMdPTVMHwiMrwMiwcnYtfrcMJBWcaHrrepMi Dcao^ n-Aic CP cMJPomA Mcovwo TO iw iwnop HO aH» SMnBMtSTA-fECPCMJKmAAecaVWTOfMniTUN wpwupwes S / TE PWgJB&T DATA inB«w oJOAeweswrflMioaw 2a*c w FUWCMMMnoH IW>VO« HMUMIMI LM M*An tnrf Cfwn triMcK*- atBt^v-e^ f9amaef<r mcwmmPwuwHr- wnsr kVABmeM WiLcWatgLflTCgyBW 040 MM SP) BoanwLtfreMRMe OJW OMiP) pfwpo»L0re9ve<Me 0.301 OMzirf TfFB or eflMsnwnoH Trmv.iMi nAig> HOH- •I'MP.uaim N»«eR£ppANcMaa 3 PLOOR PLAN >n£A StMMMVr • EMSTMaHNHnwnce s^ar TOTAL AREA 5;20 SF INPBX TO PRAWINaa A« (PHDtnAiKnjW, A-* nofirrt-AW.... >(-7 AA«n0w«3eeTWN>... SITE AABNCr SBRVIceS KAICK AdBtcr. carlibad SCHOOL PISmiCT. CarMod AaCNCY APPROVAL PLAN piL£ NO. PM ra«mjN0 PROLBCT IN mo w-1220 COASTAL peVBjOPh«Nr SUBMtlTAi. DATE . KWWySOOS YICINITT MAP PACIFIC OCEAN Farshid Mohseni Architect laeoB PneaoCt. San Di^» Calit, naiao (8SS> 722-8710 Turro RESIDENCE 5143 Shore Dr. Oallf. 92008 Permit Phase Not For Construcion COASTAL DEVEIXffMENT PEFSJVinr CDP 05-48 Site plan Title Sheet A-1 i! 1 !• •I 1 I! il [ J •Mm. J III '11 ^.^M— v^^'iQi*^ I lExIsting Structure ~A^r UPP£/fFlOO/f PIAA/ 0O i Arctiitect PrepoCt, Sao aaen Oaot. aeiao <86^ 722-S7-IO Turro RESIDENCE 5143 Shore Dr. Permit Pliase Not For Construcion CX>ASTAL DEVELOPMENT CDP 05-48 f Upper Floor Plan A-3 J 9 ll ij !! !i li II i il ff OOF PLAN ROOF PITCH 5 I 12 Farshid Mohseni Architect 1 aeos Pnepo ct, San Dlugn, Oalff, agl30 (Se8> 722-e710 Turro RESIDENCE 5143 Shore Dr. Calif- 9200S Pennit Phase Not For Construcion COASTAL DEVEUOPMENT PERivirr CDP 05-48 f Roof Plan A-4 J 1 I :^ ll i-ii !i I ii i st it il -V I! ' •' SECTION "B' SECTION T" EAST ELEVATION SECTION "E" Farshid Mohseni Architect 1 aeos Prepo ct. Sao DteBu Oalit. aeiao (86^ 722-S71 O Turro RESIDENCE 5143 Shore Dr. Ca.llf. 92008 Permit Phase Not For Construcion COASTAL DEVELOPMENT PEFtMIT CDP 05-48 I Sections Elevations A-5 J ££l|ll/^llliy^lllt^ SECTION V ROOF PITCH NORTH ELEVATION COASTAL DEVELOPMENT PERis/irr CDP 05-48 Architect IggOS PneaoCt. San CMpn Callt, aei30 (aesi 72a-s7io Turro RESIDENCE 5143 Shore Dr. Ca.llf. 92008 Permit Phase Not For Construcion A-6 J ll ij il !• •I !i ii si il ii SOUTH ELEVATION SECTION 'P' Faishid Mohseni Architect IgSOS PreaoCt, San aapa Callt, agiao (8S^ 722-B710 Turro RESIDENCE 5143 Shore Dr. Calif. 92008 Permit Phase Not For Construcion COASTAL DEVELOPMENT PERJvinr CDP 05-48 J Sections Elevations A-7 J If ii 88 I' If 'I 8 I ll i i !l ii I ^8 A/£ / a //B O ff H O O D S/T£ P L A CORK UW OP 9H0M nt Giur>»iK SCNX o EXBTIS SdlMCr WEST ELEVATION Faishid Mohseni Architect laeos Preao ot. San DIaoft Calif. 0ei3D <86S> 722-S71 O Turro RESIDENCE 5143 Shore Dr. Oeillf. 92008 Permil Phase Not For Construcion COASTAL DEVEUM*MENT PER.Iv«T CDP 05-48 (Neighborhood Site plan West Elevation A-8 LouNSBERY FERGUSON ALTONA & PEAK LLP ATTORNEYS AT LAW 960 Canterbury Place, Suite 300 OF COUNSEL: Escondido, Califomia 92025-3870 JAMES P. LOUGH Telephone (760)743-1201 GARTH O. REID Facsimile (760) 743-9926 www.LFAP.com SPECIAL COUNSEL: JOHN W.WITT MEMORANDUM TO: Honorable Members of the Carlsbad Planning Commission FROM: James P. Lough, Special Counsel DATE: October 26, 2011 SUBJECT: CDP No. 05-48 (Turro Residence) - Interpretation of Planning Commission Resolution No. 6031 The purpose of this memo is to discuss the main issues raised in Attachment 9 of the Staff Report from Gregory Post, attomey for Mr. Turro. Mr. Turro's legal counsel raises two main legal objections to the proceedings before the Plaiming Commission. First, the letter claims that a series of interactions with Code Enforcement staff prevents the City from enforcing Resolution No. 6031 with regard to Condition No. 13 related to restrictions on vacation rentals. The second issue is a claim of discriminatory enforcement alleging that Mr. Turro is treated differently than other similarly situated people. After revievsdng these allegations, it is the opinion of this office that neither claim impacts the Planning Commission's ability to interpret its own resolution regarding the type of usage under zoning title granted with the issuance of Coastal Development Permit No. 05-48. Estoppel The claim raised by Mr. Turro's attomey that staff knew and approved of the vacation rental usage is based on the doctrine of "estoppel." Estoppel is found when a govemmental entity intentionally misleads a party that leads them to engage in inappropriate conduct. The Califomia Supreme Court has established the elements necessary to prove an estoppel claim as follows: Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. {Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) {emphasis added.) CDP No. 5-48 LOUNSBERY FERGUSON ALTONA & PEAK LLP October 26, 2011 Page 2 In this case, the party to be estopped from enforcing the law would be the City of Carlsbad. Mr. Turro's counsel alleges only staff was aware of the true facts regarding the vacation rental issue and intended Mr. Turro to act upon those facts. The claim is that Mr. Turro was misled as to the nature of the allowed use of the property by Code Enforcement staff. The third and fourth parts of the "estoppel" test are important elements that are missing in this claim. The injured party must be able to show that they were ignorant of the "tme state of facts" and "must rely upon the (wrongful) conduct to his injury." Here, the interactions between staff and Mr. Turro, or his representatives, were after the issuance of the Coastal Development Permit prohibiting vacation rentals at his property's location. The staff contacts were based upon complaints from the public and advertisements showing that the Turro residence was being rented out as a vacation rental. From the emails that are attached to the Staff Report, it is apparent that Mr. Turro had already engaged in the conduct at issue (renting a vacation rental in apparent violation of the conditions of the Coastal Development Permit) when staff made its contact. In other words, Mr. Turro was not ignorant of the tme state of the facts in that his representative was present when the Resolution was issued by the Commission; he received a copy of the Permit with the restriction; and he did not appeal the restriction. A party can only be misled if the did not know the tme nature of the facts, which were hidden by the offending actor. Here, Mr. Turro was aware of the vacation rental restriction and, proceeded to use the property as a vacation rental despite this knowledge. Furthermore, he never appealed the use restriction. For the purposes of this hearing, the issue of estoppel deals with conduct that occurred after the Resolution was adopted by the Planning Commission. This hearing item is intended to elicit from the Commission its interpretation of the restriction on the use of the property as a vacation rental before the interactions discussed in the attomey's letter. Under the Zoning Code, the Planning Commission is empowered to make interpretations regarding establishment of uses under the Zoning Title. Actions to issue Coastal Development Permits are authorized under the Zoning Title and the restrictions contained in any permit goveming the use of property are subject to subsequent interpretation by the Planning Commission. The Planning Commission has been asked to interpret its condition limiting the use of the property it enacted prior to any interactions between the property owner and City staff. Therefore, the "estoppel" issue raised by Mr. Post does not impact the Planning Commission's interpretation of its own Resolution limiting the use of the property. In conclusion, even if the estoppel argument can be raised by Mr. Turro, an interpretation review is not the appropriate forum to raise these questions. In any event, the fact that Mr. Turro was aware of the vacation restriction when he received his permit from the Planning Commission demonstrates that the estoppel argument is not an impediment to this proceeding. Discriminatory Enforcement The second main claim raised by Mr. Post, on behalf of Mr. Turro, is that the actions of Code Enforcement to attempt to enforce the vacation rental restrictions amount to discriminatory enforcement against Mr. Turro. Based on the facts and circumstances before the Commission, it ol CDP No. 5-48 LOUNSBERY FERGUSON ALTONA & PEAK LLP October 26, 2011 Page 3 is apparent that a discriminatory enforcement claim is not a bar to the Plarming Commission interpreting the intent of Resolution No. 6031. Discriminatory enforcement is a constitutionally-based claim. It is found when a person is treated differently in a code enforcement action because of a type of classification that he belongs. For instance, when a person is singled out and treated less favorably than others similarly situated on account of race. (i.e. Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988).) Under the Carlsbad Municipal Code, the Planning Commission is tasked with interpreting its own decisions and legislative enactments to determine whether a particular use is allowed under the Zoning Title. From the record, it appears the singular ground for placing the restriction on the Turro residence was the size of the expansion. The property in question was increased from three to six bedrooms under the requested Coastal Development Permit. Mr. Turro was singled out based on the size of the project and its potential impact on the neighborhood rather than any other documented reason. As such, a discriminatory enforcement claim cannot stand. Cities are allowed to make zoning distinctions on a case-by-case basis. A vacation rental is a home occupation as defined in the municipal code. (Carlsbad Municipal Code section 21.10.040.) Under this section, there are numerous restrictions on home occupations that might otherwise be allowed in a residential zone. One restriction that may be pertinent to this issue is the requirement that a home occupation not cause external effect that is inconsistent with the residential zone or dismpts the neighborhood. (CMC section 21.10.040 (A)(8).) Doubling the number of bedrooms to six raises a legitimate concem of extemal impacts on the neighborhood from a vacation rental. The limitations placed upon this property by this Commission restricting multi-family and/or vacation rental uses appears to address this home occupation restriction. Without evidence of a contrary motive, a restriction must be taken as a legitimate exercise of Planning Commission authority. In conclusion, this is an interpretation request ofthe Planning Commission and not an enforcement hearing. The action is not being taken to revoke the Coastal Development Permit. In that respect, it is not an enforcement action. Second, no steps were taken by Mr. Turro to appeal the restriction at the time of its issuance. Therefore, he has failed to exhaust his administrative remedies, including any challenges on the underlying validity of the restriction. Finally, neither the claims of discriminatory enforcement or estoppel prevent the Planning Commission from interpreting its own use restrictions. EXHIBIT 5 Planning Commission Minutes November 2, 2011 Page 4 2. CDP 05-48 - TURRO RESIDENCE - A request for a recommendation interpreting specific use conditions found in Planning Commission Resolution No. 6031 determining that the project is prohibited from operating a vacation rental located at 5143 Shore Drive in the Mello II Segment of the Local Coastal Program and Local Facilities Management Zone 3, Mr, Neu introduced Agenda Item 2 and stated Senior Planner Van Lynch would make the Staff presentation. Commissioner Siekmann stated that because she lives just outside the sphere of influence for the project and in 2010, she signed a petition to get the City to pass an ordinance prohibiting vacation rentals. She stated that she made the determination that she would not be able to be fair and unbiased in the hearing for this project. Commissioner Siekmann recused herself from the dais. 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. Chairperson L'Heureux asked if there were any questions of Staff, Commissioner Arnold asked if the home is currently being used as a vacation rental, Mr, Lynch stated not to his knowledge; however, it is currently being used as a sober living home. Commissioner Arnold asked if that use is in violation the City's Municipal Code, Mr, Lynch stated that use is allowed pursuant to state law. Chairperson L'Heureux asked if there were any further questions of Staff, Seeing none, he asked if the permittee, or his representative, wished to make a presentation, Gregory Post, 700 Garden View Court Suite 201G, Encinitas, representing Mr, Turro, gave a brief presentation and stated he would be available to answer any questions. Commissioner Arnold stated the home was not used as a vacation rental until 2008 which is two years after the original approval, Mr, Post clarified that Mr, Turro started using the home as a vacation rental in 2009, Commissioner Arnold asked why the house was remodeled with so many bedrooms, Mr. Post stated that Mr, Turro has a large family and many friends so he wanted a large house. Commissioner Arnold asked if Mr, Turro intended to use the house privately as a residence, Mr. Post stated that was Mr, Turro's intent. Commissioner Scully inquired as to why Mr, Turro never appealed the permit at issuance, Mr, Post stated that he respectfully disagrees with the analysis that was done. When the permit was issued it was not to be used as a vacation rental. He was told that was the law and he was complying with that for 3 years, Mr, Post stated that it was not until late 2008 that the first complaint was received that Mr, Turro was using his property as a bed and breakfast which turned out to be false, Mr, Turro was told by the Code Enforcement Officer that the law had changed and he could use his property as a vacation rental and he would have to pay the transient occupancy tax, Mr, Turro then started using his property as a vacation rental, Mr, Neu clarified that part of the confusion is that the Code Enforcement Officers were not aware of the special condition placed on this permit so they were trying to treat it in a more general way, Paul Turro, 5143 Shore Drive, Carlsbad, stated he has always tried to follow the law and to be a good person. He stated that he purchased the property in 1988, and in 1991 did the first remodel of the home. In 2006, he did the second remodel, Mr, Turro stated he never intended to use his house a vacation rental. He wanted his family to move in. In 2008, he stated he moved his elderly aunt and two cousins into the house, Mr, Turro stated he received a complaint at that time that he was operating a bed and breakfast, A Code Enforcement Officer was sent to investigate the complaint. The Code Enforcement Officer noted that the home was not being used as a bed and breakfast, Mr, Turro stated that he told the Code Enforcement Officer that he will always comply with the law and he would never have a vacation rental because it was against the law at which time he was told the law had changed, Mr, Turro further Planning Commission Minutes November 2, 2011 Page 5 stated that he sent a letter to the City of Carlsbad to confirm what he was told by the Code Enforcement Officer, In the summer of 2009, he had a vacation rental for four weeks. In 2010, there was a complaint that one of the renters held a wedding at the property. He stated that he received a letter which stated he was to stop holding weddings at the house but that he could continue to use the house as a vacation rental, Mr, Turro stated he ceased having weddings at the house and continued using it as a vacation rental. He wrote a letter to the City stating he would be in compliance and would do whatever he was asked by the City, A month later, he had a meeting with Will Foss and Debbie Fountain to see if there was anything that could be done to help the situation with his neighbors, Mr, Turro stated it was at that time that Mr, Foss showed him the restriction on his permit. He stated he was unaware of the restriction, Mr, Turro further stated that this past summer, he was confused as to what to do, he removed it from the vacation rental ads, he moved into the property, Mr, Turro stated that he always meant to be compliant with ali the rules, and he never rented out the property as a vacation rental until he was told by 2 Code Enforcement Officers that he could. When he was showed the restriction, Mr, Foss and Ms, Fountain never stated they would have to get an interpretation, and he never received anything stating he was in violation of the conditions of approval. He never appealed the permit in 2006 because he said vacation rentals were against the law and there would be nothing to appeal. He stated he had no intention to use the property as a vacation rental and therefore had no reason to appeal it, Mr. Turro stated he does live there now and there have not been any complaints for over a year. He will always want to be compliant with the law and will do whatever the Commission decides, Mr, Turro stated that he should be able to sell his house without this restriction like all his neighbors. Commissioner Schumacher asked Mr, Turro to address the intended next use of the house, Mr, Turro stated that he is about helping people and if someone wanted to move in so to help maintain his or her sobriety, he would allow that. Mr, Turro stated that he will live at the house and he will live there full-time. Chairperson L'Heureux asked if there were any members of the audience who wished to speak on the item, Susan and Charles Harris, 5115 Shore Drive, Carlsbad, stated they have never had any issues with Mr, Turro or with any noise or disturbances from the house. They restated and reconfirmed that they have no issues with Mr, Turro, Liz Carnes, 4435 Highland Drive, Carlsbad, stated her support of Mr, Turro, Alice Brown, 5157 Shore Drive, Carlsbad, stated her opposition regarding the permit, Ms. Brown has lived in her house for 58 years. She stated the neighborhood has always been a family oriented neighborhood, and R-1 single family residence neighborhood, and Mr, Turro knew that when he purchased his home in 1988, Ms, Brown stated the plans for the remodel originally included private entrances and stairways into each room. The Planning Commission at the time asked for a couple of the outside doors and lights to be removed from the plans, Ms, Brown stated that at the time, the neighbors were already concerned with Mr, Turro as he was abusing his privilege as a single family resident on a daily basis because he was renting rooms to tenants. At the March 15, 2006 Planning Commission meeting, Mr, Turro was not present and the Commission had many questions regarding the intended use of the addition. The permit was subsequently granted with restrictions and vacation rentals were prohibited, Ms, Brown stated that it is true Mr, Turro had family staying in the residence in 2000 and 2008, but he has had short term vacation rentals ever since therefore violating his permit, Ms, Brown commented that Mr, Turro's elaborate webpages wil! verify this information. Ms, Brown stated that Mr, Turro does receive mail at this address but he is an absentee owner, Ms, Brown commented that the noise, traffic, parking, trash, and the liability to surrounding homes has increased with the house being used as a vacation rental, Ms, Brown further commented that the web advertising for the intended use of a sober living home shows eight bathrooms and seven bedrooms instead of the approved seven bathrooms and six bedrooms. She asked the Commission to consider the violation of Mr, Turro's permit, Hope Smith, 5154 Shore Drive, read a tetter from Jeff Woolson, 5345 Los Robles, Carlsbad, who was unable to attend the meeting. The letter stated that the problems on Shore Drive have been going on for far too long, Mr, Turro's home has always had multiple occupants. Parking in the driveway of this house is not allowed by the owner. Some of the vehicles would not move off the street for weeks at a time. Parking spaces on Shore Drive have always been very limited. With the second remodel in 2006, the oi Planning Commission Minutes November 2, 2011 Page 6 short term vacation rentals began, employing a staff, a full-time gardener, and a full-time housekeeper. The house is violating the permit approved in 2006 and the permit needs to be revoked. Commissioner Arnold asked Ms, Smith if she knew for a fact that vacation rentals were occurring at the home before 2009, Ms. Smith stated no but there have always been multiple occupants in the residence, Jonnie Johnson, 5400 El Arbol, Carlsbad, currently on the board of the Terramar Association, asked the Commission to look at the larger issue of vacation rentals within the city. The use of single family homes as vacation rentals has been a long time issue in her neighborhood. Commissioner Black asked if Ms, Johnson brought the issues forward to Code Enforcement, Ms, Johnson stated no. Commissioner Scully asked what areas the Terramar Association covers, Ms, Johnson stated the association is a volunteer association and they do not have any CC&Rs, 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, James Lough, Special Counsel for the City, gave a brief presentation and stated he would be available to answer any questions. Commissioner Nygaard asked about the previous comments from Code Enforcement that vacation rentals were allowed and the impact it may or may not have on the Commission's decision tonight, Mr, Lough stated that it does not have an impact as to whether or not the Coastal Development Permit had a condition in it for vacation rentals. Commissioner Nygaard asked if what is before the Commission now is to decide what the intention of the Planning Commission in 2006 when the condition was placed on the Coastal Development Permit, Mr, Lough stated that was correct, DISCUSSION Commissioner Nygaard stated what is before the Commission is the intent of what was before the Planning Commission when the permit was issued. She stated she can support the item. Commissioner Arnold stated there is a much bigger issue that needs to be addressed. The issue before the Commission tonight is very clear cut and stated he can support the resolution. Commissioner Black stated he concurs with the two issues before the Commission tonight and can vote in favor of the item. Commissioner Scully stated the previous Commission's intent was very clear and she agrees with her fellow Commissioners, Commissioner Scully stated she can support the item. Commissioner Schumacher stated it is clear from the meeting minutes from March 2006 the Commission's concerns at that time. He can support the item. Chairperson L'Heureux stated he can also support the request from Staff. a Planning Commission Minutes November 2, 2011 Page 7 MOTION ACTION: Motion by Commissioner Schumacher, and duly seconded, that the Planning Commission adopt Planning Commission Resolution No, 6835 recommending approval of a determination that the project, under Planning Commission Resolution No, 6031, is prohibited from operating a vacation rental based upon the findings and subject to the conditions contained therein, VOTE: 6-0-1 AYES; Chairperson L'Heureux, Commissioner Arnold, Commissioner Black, Commissioner Nygaard, Commissioner Scully, and Commissioner Schumacher, NOES: None ABSENT: Commissioner Siekmann ABSTAIN: None Chairperson L'Heureux closed the public hearing on Agenda Item 2 and thanked Staff for their presentations. Commissioner Siekmann returned to the dais, COMMISSION COMMENTS None, PLANNING DIRECTOR COMMENTS Mr. Neu reminded the Commission that the November 16, 2011 meeting has been canceled. He also commented that the Election of Officers will be an item on the December 7, 2011 agenda. CITY ATTORNEY COMMENTS None, ADJOURNMENT By proper motion, the Regular Meeting ofthe Planning Commission of November 2, 2011, was adjourned at 7:20 p.m. DON NEU Planning Director Bridget Desmarais Minutes Clerk October 31,2011 Planning Commission City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: Residential Zoning Laws in Terramar Dear Planning Commission: Unfortunately I am unable to attend the hearing on Wednesday due to business travel however, I wish for this letter to be read aloud at tiie meeting. I want to register my support of the Planning Commission in the enforcement of existing zoning laws witJiin our community, including tiie abolishment of short-term rental in R-1 zoning areas. As any member of the planning department staff will tell you, the subject of zoning is typically covered in year one of any Urban Planning degree. The concept is one that has been adopted by every civilized countiy in the world. Quite simply, by definition, the primary purpose of zoning is to segregate uses that are thought to be incompatible. In practice, zoning is used to prevent new development from interfering with existing residents or businesses and to preserve the "character" of a community. Terramar is a community of approximately 259 homes that is designated R-1 zoning. Short-term rental is not compatible with 95% of all the residents that call Terramar tiieir full time home. By statute, tuming a house into a hotel is not allowed. The potential impact of allovdng even one home to vary from this zoning would rip at the very fabric of our community. It is, inconceivable to me how a person could be so selfish as to want to jeopardize our community with such a use. The naked greed of one homeowner to burden this community with having to defend itself against such a self-centered, monejonaking venture is morally irreprehensible and he should be ashamed of himself. I haye been a professional in the commercial real estate field for 21 years, but it doesn't take an expert to understand the importance of enforcing existing zoning laws. I urge the City of Carlsbad to use every resource available to thwart the self-centered efforts ofthe ,few at the expense of the many. Thank you for your support of tiie family community. Best regards, Jeff Woolson Full Time Terramar resident since 1993 n EXHIBIT 6 To the members ofthe Planning Commission, My name is Dan Walsh, I am the current president ofthe Terramar Association, A voluntary association of homeowners living in the delvelopment known as Terramar. I'm sorry I could not attend this meeting, I just got out of the hospital after some serious surgery, and am confined to my home for now. We have a very close relationship with our members, friends, and neighbors. We look out for each other in many ways on a daily basis. It is something that has been lost in the hustle bustle of today's fast paced lifestyle, but happily a neighborhood like ours still exists. For the most part, the 266 lots in Terramar are in a R-1 zoning classification. A few of our neighbors have added "mother in law" units or small rental units on their property, these are for long term tenants, some who have lived here almost 20 years. Because we are a unique beach community with small streets, limited parking, limited beach access and are basically families living their lives day to day as "normally" as possible, when we are visited by beachgoers looking for an enjoyable day at the beach, our streets become parking lots and trash receptacles for what gets left behind by those that don't have the consideration to pack out what they bring in. We accept the influx of these visitors, they have as much right to enjoy the beach as our residents do, and we "get that". BUT our concern is that the spread of "short term" or transient rentals of less than 30 days will totally change our neighborhood, and NOT In a good way. Same would go for allowing ANY rental to have more occupants than the local infrastructure— parking, traffic levels, etc.—could handle. For example, one of the homes on Shore drive has 6 bedrooms, but only enough onsite parking for 3 vehicles. If alt six bedrooms are rented out to couples, each with 2 cars, you can see that up to 9 vehicles would need to find a place to park on an already crowded street. Where does the overflow go? Not much room on Carlsbad Blvd—north end of Los Robles is already saturated with streetside parked vehicles, same for El Arbol Drive—^this Is just one of the actual logistics that presents itself as a problem, and no one has been able to come up with a good solution yet. I would ask that you really consider keeping R-1 properties just that, homes that were meant to be occupied full time by families living their lives in our beautiful city. Thank you for your time. Sincerely, Dan Walsh President, Terramar Association Turro ResidenceCDP 05‐48 Location MapS H O R E D R C A R L S B A D B L History•In 2006, CDP for 1,460 sq. ft. expansion to existing residence.•Planning Commission concerns:–Use of property as rental–Number of bedrooms–Conversion of wet bar to kitchen Planning Commission Resolution 6031•Condition No. 13–This project is approved subject to the condition that the dwelling unit be for one‐family occupancy and cannot be used for vacation rentals or multi‐family units. Planning Commission Resolution 6031•Condition No. 14 –This project is approved subject to the condition that no kitchen facilities will be added to any areas that have been approved with this project. Per the City of Carlsbad’s Municipal Code Section 21.04.200 “kitchen means any room or portion of a room used or intended or designed to be used for cooking or the preparation of food.” Planning Commission Resolution 6031•Condition No. 15–This project is approved subject to the condition that no plumbing or kitchen facilities, including 220 Volt wiring, will be installed in any areas that have been approved with this project. Vacation rental•Short term use of property (< 30 days)•A vacation rental is a fully furnished property, such as a condominium, townhome or single‐family‐style home.•Rental property for a designated period of time. Many rent on nightly basis similar to hotel rooms, although the more prevalent vacation rental industry practice is typically weekly rentals. (www.vacationrentalscommunity.com) Determination•Definition of Vacation Rental•Was the project being operated as a vacation rental? Recommendation•City Council adopt Resolution 2012‐011(CDP 05‐48)