HomeMy WebLinkAbout2018-03-27; City Council; ; Adopt a Resolution Denying the Appeal of Durkin Lot 24 LLC and upholding the Planning Commission's Determination that an auto body and repair shop use proposed at 5817 DrMarch 27, 2018 Item #9 Page 1 of 56
CA Review ~
CIT Y CO UN CIL
Staff Report
Meeting Date
To:
From:
Staff Contact:
Subject:
Project Name:
Project No.:
March 27, 2018
Mayor and City Council
Kevin Crawford, City Manager
Greg Fisher, Associate Planner
greg.fisher@carlsbadca.gov or 760-602-4629
Adopt a Resolution Denying the Appeal of Durkin Lot 24 LLC and
upholding the Planning Commission's Determination that an auto body
and repair shop use proposed at 5817 Dryden Place and within Local
Facilities Management Zone 5 is not a more conforming use than the
existing use, and is a prohibited use in the Carlsbad Airport Centre
Specific Plan (SP 181(Hn.
DURKIN CAC LOT 24 LLC APPEAL
PCD 2017-0001 (DEV2017-0120)
Recommended Action
That the City Council Adopt a Resolution denying the appeal of Durkin Lot 24 LLC and upholding
the Planning Commission's determination that an auto body and repa!r shop use is not a more
conforming use than the existing office/industrial use, and is a prohibited use in the Carlsbad
Airport Centre (CAC) Specific Plan (SP 181(H)) based on the findings contained therein.
Executive Summary
Durkin CAC Lot 24 LLC (applicant and appellant) is seeking approval of a change in use at 5817
Dryden Place to an auto body and repair shop pursuant to Carlsbad Municipal Code (CMC)
Section 21.48.070(e) (Nonconforming nonresidential uses). The City Planner's determination
was that the requested change in use is not more conforming than the existing office/industrial
use, nor is it an allowed use under the CAC Specific Plan. Durkin CAC Lot 24 LLC appealed the
determination to the Planning Commission. After considering the appeal, the Planning
Commission denied the appeal and upheld the City Planner's determination. Durkin CAC Lot 24
LLC then appealed the Planning Commission's action to the City Council.
Discussion
Durkin CAC Lot 24 LLC is the owner of property located on the north side of Dryden Place, west
of Palomar Oaks Way, at 5817 Dryden Place (Lot 24) within the CAC Specific Plan Area 1. The
owner is seeking approval of a change in use on CAC Lot 24 to an auto body and repair shop
pursuant to CMC Section 21.48.070(e) (Nonconforming nonresidential uses). The property was
permitted and developed for an office/industrial use with an allowed occupancy limit of 100
persons. The use became a nonconforming use with the 2010 adoption of an amended
McClellan-Palomar Airport Land Use Compatibility Plan (ALUCP), which placed the property in
Safety Zone 1 of the Runway Protection Zone and no longer allowed office/industrial uses. The
City Planner issued a determination on May 30, 2017, that the requested change in use is not
\
March 27, 2018 Item #9 Page 2 of 56
more conforming than the existing use, nor is an auto body and repair shop allowed under the
CAC Specific Plan. On June 7, 2017, Durkin CAC Lot 24 LLC appealed the City Planner's decision
to the Planning Commission in the manner prescribed by CMC Section 21.54.140. The Planning
Commission considered the appeal on November 15, 2017. After considering the appeal, the
Planning Commission adopted Planning Commission Resolution No. 7274 (6-0, Black absent},
denying the appeal and upholding the City Planner's determination that an auto body and
repair shop use is not a more conforming use than the existing use, and is a prohibited use in
the CAC Specific Plan (SP 181(H}}.
As the attached minutes indicate, the Planning Commissioners considered a variety of reasons in
making their determination:
• The use is clearly not allowed under the ALUCP or the CAC Specific Plan.
• The applicant could propose a use that is more compatible with the ALUCP and the CAC
Specific Plan.
• There are other locations where the use is permitted within industrially zoned sites.
• The City Planner did not misinterpret the evidence that was before him or abuse his
discretion.
On November 27, 2017, Durkin CAC Lot 24 LLC filed an appeal of the Planning Commission's
action to the City Council, The appeal states that the Planning Commission's determination was
an abuse of discretion by denying the appeal and making erroneous findings and legal
conclusions because: 1) The proposed ·use is more conforming because the human occupancy
is less. The evidence is that the non-conformity is high human occupancy, and the proposed
change will reduce this non-conformity; 2} The current use is non-conforming under the CAC
Specific Plan. In 2012, the City amended all of its plans to conform to the ALUCP, therefore
what is inconsistent with the ALUCP is equally inconsistent with any Specific Plan; 3} The
proposed use is neither specifically excluded or prohibited under the CAC Specific Plan. More
precisely, it is excluded from the list of specifically permitted uses while nonetheless remaining
consistent with the generally described uses; and 4) The proposed change would not "make"
the property non-conforming under both plans. Since both the current use and the proposed
use are non-conforming as a matter of law under the CAC Specific Plan, the change to auto
body and repair would not make the property non-conforming under both plans; the property
is non-conforming under both plans whether the change is made or not.
Standard of Review for Appeals
Carlsbad Municipal Code (CMC) Section 21.54.150 outlines procedures for appeals of Planning
Commission decisions, and states:
Grounds for appeal shall be limited to the following: that there was an error or abuse of
discretion on the part of the planning commission in that the decision was not supported
by the facts presented to the planning commission prior to the decision being appealed;
or that there was not a fair and impartial hearing.
March 27, 2018 Item #9 Page 3 of 56
Section 21.54.150 goes on to state that the City Council's consideration is "de novo" (or "like
new") but limits the consideration to "only the evidence presented to the Planning Commission
for consideration in the determination or decision being appealed." Thus, no new information
may be considered by the City Council that was not presented to the Planning Commission. The
City Council may uphold, modify or overturn the Planning Commission's decision, or may remand
the item back to the Planning Commission with direction for further proceedings.
Options
There are two options presented for the City Council to consider in deciding what action to take
on the appeal:
Option 1 {Recommended Action):
Adopt a resolution denying the appeal and upholding the Planning Commission's decision to
approve PCD 2017-0001.
The City Council could·deny the appeal ~nd uphold the Planning Commission's approval based
on the findings made by the Planning Commission, and a determination that the Planni11g
Commission did not err or commit an "abuse of discretion" in making their decision, and that
the hearing was "fair and impartial." This action would not allow the applicant to receive
approval to change the use from office/industrial to an auto.body and repair shop through
the submittal of tenant improvement plans.
Option 2
Adopt a resolution upholding the appeal and denying PCD 2017-0001, thereby overturning
the Planning Commission's decision to approve PCD 2017-0001.
The City Council cou ld decide to uphold the appeal and overturn the Planning Commission's
approval if the findings are justified. This action would need to be based on findings that the
appellants met the burden of proof to show that there was either "an error or abuse of
discretion" by the Planning Commission because their "decision was not supported by the
facts presented to" them, or thatthe hearing was not "fair and impartial." This action would
require the City Council to make a finding either that the proposed auto body and repair shop
is more consistent with the CAC Specific Plan that the existing use, or that the CMC Section
21.48.070(E) overrides the Specific Plan's prohibited uses.
If the City Council takes this action, environmental review would need to be conducted and a
resolution would need to be brought back at a future meeting.
In consideration of the analysis provided above, staff is recommending that the City Council
approve the resolution as presented in Exhibit 1.
Fiscal Analysis
No fiscal impact to the city has been identified as a result from the City Council's determination.
March 27, 2018 Item #9 Page 4 of 56
Next Steps
The City Council's action on this request is final.
Environmental Evaluation (CEQA)
Pursuant to Section 15270 of the CEQA Guidelines, CEQA does not apply to projects which a
public agency rejects or disapproves.
Climate Action Plan Consistency
The project consists of a determination that an "auto body and repair shop" is not a more
conforming use than the existing office/industrial use. No physical construction will occur as a
result of the project; therefore, the project is not subject to the Climate Action Plan.
Public Notification
Determinations of use by the City Planner in accordance with Carlsbad Municipal Code (CMC)
Section 21.34.020.C do not include any noticing. Per CMC Section 21.54.140, appeals are to be
noticed in the same manner as the original action. Therefore, no public noticing to surrounding
property owners was required for the appeal.
Exhibits
1. City Council Resolution
2. Location Map
3. Planning Commission Resolution No. 7274, dated November 15, 2017
4. Planning Commission Staff Report, dated November 15, 2017
5. Planning Commission Minutes, dated November 15, 2017
6. Durkin Lot 24 LLC Appeal Letter, filed November 27, 2017
March 27, 2018 Item #9 Page 5 of 56
RESOLUTION NO. 2018-046
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, DENYING THE APPEAL OF DURKIN CAC LOT 24 LLC AND
UPHOLDING THE PLANNING COMMISSION'S DETERMINATION THAT AN
AUTO BODY AND REPAIR SHOP USE PROPOSED AT 5817 DRYDEN PLACE AND
WITHIN LOCAL FACILITIES MANAGEMENT ZONE 5 IS NOT A MORE
CONFORMING USE THAN THE EXISTING OFFICE/INDUSTRIAL USE, AND IS A
PROHIBITED USE IN THE CARLSBAD AIRPORT CENTRE SPECIFIC PLAN (SP
181(H)).
CASE NAME:
CASE NO.:
DURKIN CAC LOT 24 LLC APPEAL
PCD 2017-0001 (DEV2017-0120)
WHEREAS, the City Council of the City of Carlsbad, California has determined that
pursuant to the provisions of the Municipal Code, the Planning Commission did, on November 15, 2017,
hold a meeting as prescribed by law to consider an appeal of the City Planner's determination that an
auto body and repair shop use is not a more conforming use than the existing office/industrial use, and
is a prohibited use in the Carlsbad Airport Centre Specific Plan (SP 181(H)); and
WHEREAS, the Planning Commission determined that there was not an error or abuse
of discretion on the part of the City Planner in the determination that an auto body and repair shop
use is not a more conforming use than the existing office/industrial use, and is not a permitted use in
the Carlsbad Airport Centre Specific Plan (SP 181(H)); and
WHEREAS, the Planning Commission voted 6-0 (Black absent) to deny the appeal and
uphold the City Planner's determination; and
WHEREAS, on November 27, 2017, the appellant, Durkin CAC Lot 24 LLC, timely filed an
appeal with the City as provided pursuant to Chapter 21.54 of the Carlsbad Municipal Code; and
WHEREAS, on February 13, 2018, the City Council held a meeting as prescribed by law
to consider the appeal of the Planning Commission's determination that an auto body and repair shop
use is not a more conforming use than the existing office/industrial use, and is not a permitted use in
the Carlsbad Airport Centre Specific Plan (SP 181{H)); and
WHEREAS, at said meeting, upon hearing and considering all testimony and arguments,
if any, of all persons desiring to be heard, said City Council considered all factors relating to the appeal.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California,
as follows:
1. That the above recitations are true and correct.
March 27, 2018 Item #9 Page 6 of 56
2. That the appeal of the Planning Commission's decision is denied and that the findings
contained in Planning Commission Resolution No. 7274 on file in the City Clerk's office
and incorporated herein by reference are the findings and conditions of the City Council.
3. That this action is final the date this resolution is adopted by the City Council. The
provision of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial
Review" shall apply:
"NOTICE TO APPLICANT"
The time within which judicial review of this decision must be sought is governed by
Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by
Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the
appropriate court not later than the ninetieth day following the date on which this decision becomes
final; however, if within ten days after the decision becomes final a request for the record is filed with
a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time
within which such petition may be filed in court is extended to not later than the thirtieth day following
the date on which the record is either personally delivered or mailed to the party, or his attorney of
record, if he has one. A written request for the preparation of the record of the proceedings shall be
filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA, 92008.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 27th day of March, 2018, by the following vote, to wit:
AYES:
NOES:
ABSENT:
M. Hall, K. Blackburn, C. Schumacher, M. Packard.
None.
M. Schumacher.
(SEAL)
March 27, 2018 Item #9 Page 7 of 56
NOT TO SCALE
SITE MAP
Durkin CAC Lot 24 LLC Appeal
PCD 2017-0001
EXHIBIT 2
PALOMAR
AIRPORT
March 27, 2018 Item #9 Page 8 of 56
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EXHIBIT 3
PLANNING COMMISSION RESOLUTION NO. 7274
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, DENYING THE APPEAL OF DURKIN CAC LOT 24
LLC AND DETERMINING THAT AN AUTO BODY AND REPAIR SHOP USE
PROPOSED AT 5817 DRYDEN PLACE AND WITHIN LOCAL FACILITIES
MANAGEMENT ZONE 5 IS NOT A MORE CONFORMING USE THAN THE
EXISTING USE, AND IS A PROHIBITED USE IN THE CARLSBAD AIRPORT
CENTRE SPECIFIC PLAN (SP 181(H)).
CASE NAME: DURKIN CAC LOT 24 APPEAL
CASE NO: PCD 2017-0001 (DEV2017-0120)
WHEREAS, Freeland, McKinley & McKinley, "Applicant's Representative," has filed a
verified appeal application with the City of Carlsbad regarding property owned by Durkin CAC Lot 24 LLC,
"Owner," described as
Lot 24 of Carlsbad Tract No. 81-46 Unit No. 1, in the City of Carlsbad,
County of San Diego, State of California, according to map thereof no.
11287, filed in the Office of the County Recorder of San Diego County
on July 16, 1985
("the Property"); and
WHEREAS, said verified application constitutes an appeal of the City Planner's decision
and a request for a Planning Commission Determination on file in the Planning Division, DURKIN CAC LOT
24 APPEAL-PCD 2017-0001, as provided in Chapter 21.54 of the Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did on November 17, 2017, consider said request;
and
WHEREAS, at said hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Commission considered all factors relating to the Planning
Commission Determination.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of
Carlsbad as follows:
A)
B)
That the foregoing recitations are true and correct.
That based on the evidence presented at the hearing, the Commission DENIES DURKIN
CAC LOT 24 APPEAL -PCD 2017-0001 based on the following findings and subject to the
following conditions:
March 27, 2018 Item #9 Page 9 of 56
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Findings:
1.
2.
That an auto body and repair shop, a prospective use proposed at 5817 Dryden Place, is not a
more conforming use than the existing office/industrial use. The current use of the property is
generally allowed in Area 1 of the Specific Plan. However, it is nonconforming in its particular
location under the McClellan-Palomar Airport Land Use Compatibility Plan (ALUCP} as the
property is located in Safety Zone 1 and is an "incompatible" use pursuant to the ALUCP. The
proposed auto body and repair shop is specifically excluded under the Specific Plan. A change
to auto body and repair would make the property nonconforming in both plans.
That the proposed auto body and repair shop use is not consistent with the intent and purpose
of the Carlsbad Airport Centre Specific Plan because it is expressly prohibited in Area 1 of the
Carlsbad Airport Centre Specific Plan (SP 181(H)).
NOTICE TO APPLICANT
An appeal of this decision to the City Council must be filed with the City Clerk at 1200 Carlsbad Village
Drive, Carlsbad, California, 92008, within ten {10) calendar days of the date of the Planning Commission's
decision. Pursuant to Carlsbad Municipal Code Chapter 21.54, section 21.54.150, the appeal must be in
writing and state the reason{s) for the appeal. The City Council must make a determination on the appeal
prior to any judicial review.
PC RESO NO. 7274 -2-
March 27, 2018 Item #9 Page 10 of 56
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of
the City of Carlsbad, California, held on November 15, 2017, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Chairperson Segall, Commissioners Anderson, Goyarts, Montgomery,
Rodman and Siekmann
Commissioner Black
JEFF SEGALL, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
City Planner
PC RESO NO. 7274 -3-
March 27, 2018 Item #9 Page 11 of 56
The City of Carlsbad Planning Division EXHIBIT 4
A REPORT TO THE PLANNING COMMISSION
Item No. G)
P.C. AGENDA OF: November 15, 2017
Application complete date: N/A
Project Planner: Greg Fisher
Project Engineer: N/ A
SUBJECT: PCD 2017-0001 (DEV2017-0120)-DURKIN CAC LOT 24 LLC APPEAL-Request to grant an
appeal of the City Planner's denial of a change of use based on a determination that an
auto body and repair shop use proposed to be located at 5817 Dryden Place within Local
Facilities Management Zone 5 is not a more conforming use than the existing use, and is
not permitted in the Carlsbad Airport Centre Specific Plan (SP 181(H)).
I. RECOMMENDATION
That the Planning Commission APPROVE Planning Commission Resolution No. 7274, DENYING the appeal
of Durkin CAC Lot 24 LLC, denying the requested change of use, and determining that an auto body and
repair shop is not a more conforming use than the existing use and is prohibited in the Carlsbad Airport
Centre Specific Plan (SP 181(H)) based on the findings contained therein.
II. PROJECT DESCRIPTION AND BACKGROUND .
Durkin CAC Lot 24 LLC (applicant and appellant) is the owner of property located on the north side of
Dryden Place, west of Palomar Oaks Way, at 5817 Dryden Place (Lot 24) within the Carlsbad Airport Centre
(CAC) Specific Plan Area 1. The owner is seeking approval of a change in use on CAC Lot 24 to an auto
body and repair shop per Carlsbad Municipal Code (CMC) Section 21.48.070(e) (Nonconforming
nonresidential uses). The property was permitted and developed for an office/industrial use with an
allowed occupancy limit of 100 persons. The use became a nonconforming use with the 2010 adoption
of an amended Airport Land Use Compatibility Plan (ALUCP), which placed the property in Safety Zone 1
of the Runway Protection Zone.
On March 7, 2017, the applicant's legal representative (Freeland, McKinley & McKinley, Attorneys at Law)
formally requested a change in use on Lot 24 and met with staff to discuss the request on March 21, 2017.
The applicant's representative provided supplemental material in the form of a letter to the City Planner
and Assistant City Attorney on March 30, 2017. The City Planner denied the change in use in a letter dated
May 30, 2017. The City Planner's determination was that the requested change in use is not more
conforming than the existing use, nor is it allowed under the CAC Specific Plan. On June 7, 2017, Durkin
CAC Lot 24 LLC appealed the City Planner's decision to the Planning Commission in the manner prescribed
by CMC Section 21.54.140.
The purpose of this action is to consider the appeal of the City Planner's denial of the requested change
in use based on a determination that an "auto body and repair shop" is not a more conforming use than
the existing office/industrial use. The proposed use is a General Commercial use and is prohibited within
Area 1 of the CAC Specific Plan. The proposed use is also nonconforming under the ALUCP. The Planning
Commission Determination (PCD) is a vehicle to forward to the Planning Commission those matters which
are independent of planning applications and projects.
March 27, 2018 Item #9 Page 12 of 56
PCD 2017-0001 (DEV2017-0120)-DURKIN CAC LOT 24 LLC APPEAL
November 15, 2017
Pa e 2
Ill. ANALYSIS
The proposed request is subject to the following regulations:
Planned Industrial (P-M} Zone Applicability
The CAC Specific Plan implements the Planned Industrial (P-M) zoning of the site, but is more stringent
than the P-M zone. The P-M zone provisions only apply to subjects that are not specifically addressed in
the Specific Plan. In this case, the proposed use (auto repair) is specifically addressed in the CAC Specific
Plan, so the uses listed in the Planned Industrial (P-M) zone do not apply.
Carlsbad Airport Centre Specific Plan (SP 181(H))
Durkin CAC Lot 24 LLC is requesting approval of a change in use per CMC Section 21.48.070(e). Under this
section the City Planner may approve a change in a nonconforming nonresidential use to a use that is
permitted in the zone in which the subject property is located, or to a use that is more conforming. As
noted previously, the applicable zone is the Planned Industrial (P-M) zone, but the CAC Specific Plan takes
precedence over the Planned Industrial (P-M) zone. The CAC Specific Plan's purpose and intent to create
an industrial complex is implemented in part through the Specific Plan's list of permitted uses. This
particular site is subject to the permitted uses in Area 1 of the Specific Plan which allows office/industrial
uses in general. Area 1 does not list auto body and repair shop as an allowed use; to the contrary, the
Specific Plan specifically excludes automobile and truck repair within the permitted uses for Area 1 as
shown below:
Service industries or those industries providing a service as opposed to the manufacture of a
specific product, such as the repair and maintenance of appliances or component parts, tooling,
printers, testing shops, small machine shops, shops engaged in the repair, maintenance and
servicing of such items, excluding automobile and truck repair, and excluding equipment rental
yards.
Because the Specific Plan specifically excludes automobile repair, the use is not consistent with the
purpose and intent of the Specific Plan and the City Planner was unable to support the proposed use. An
excerpt of the Specific Plan identifying the permitted uses in Area 1 is attached.
McClellan-Palomar Airport Land Use Compatibility Plan (ALUCP}
As previously discussed, the existing use became a nonconforming use with the 2010 adoption of an
amended ALUCP, which placed the property in Safety Zone 1 of the Runway Protection Zone. For the
purpose of ALUCP, the fundamental measure of risk exposure for people on the ground in the event of an
aircraft accident is the number of people per acre concentrated in areas most susceptible to aircraft
accidents. This measure is the chief determinant of whether particular types of nonresidential
development are designated as "incompatible," "conditionally compatible," or "compatible." The
maximum acceptable intensity of proposed development within Safety Zone 1 is O (zero) people per acre.
Accordingly, the current office/industrial use with an allowed occupancy of 100 persons is a legal
nonconforming use and "incompatible" as the ALUCP now prohibits people and buildings in the Runway
Protection Zone. Furthermore, the proposed auto body and repair shop use is also "incompatible" and
nonconforming in Safety Zone 1.
March 27, 2018 Item #9 Page 13 of 56
PCD 2017-0001 {DEV2017-0120} -DURKIN CAC LOT 24 LLC APPEAL
November 15, 2017
Pa e 3
Appeal of City Planner's Determination
Durkin CAC Lot 24 LLC feels that the City Planner's determination was in error for the following reasons
that are further detailed in the attached appeal form. The appellant's positions are summarized below,
along with a staff response:
A. The City Planner made a material error of fact in assuming that the existing actual occupancy of the
30,000 square foot office/industrial building was only 1 to 2 people, whereas the existing building was
designed to and accommodates at least 80 people.
Staff's position is that a reduction of allowable occupancy is not the only way to analyze
nonconformity. The current use of the property is generally allowed in Area 1 of the Specific Plan.
However, it is nonconforming in its particular location under the ALUCP. The proposed auto body and
repair shop is specifically excluded under the Specific Plan. A change to auto body and repair would
make the property nonconforming in both plans. Furthermore, the ALUCP points out that an auto
repair shop is classified in high hazard group H-4 under the Building Code. This classification is given
to buildings and structures containing materials that are health hazards, such as corrosives, highly
toxic materials and toxic materials. Conversely, the existing office/industrial use is designated as B/F-
1/S-1 (Business/Factory Industrial/Storage) under the Building Code per the ALUCP and is not a high
hazard use. Although the Fire Safety Risk Analysis indicates that life safety risk would be reduced with
the change in use, the fact remains that the proposed use is incompatible and nonconforming under
the ALUCP.
B. The City Planner made an erroneous legal conclusion that the current use is conforming under the
Specific Plan, but nonconforming under the ALUCP. The Specific Pla,n is obsolete to the extent it
conflicts with the ALUCP as incorporated in the General Plan, and therefore any consistency with an
obsolete Specific Plan is irrelevant.
Staff's position is that the City Planner's reference to the existing use as a "conforming" use was in
general terms, as a use that is allowed in Area 1 of the Specific Plan. Auto body and repair is not a
conforming use because it is expressly excluded in the Specific Plan. Moreover, to the extent that the
Specific Plan has been superseded by the ALUCP with regard to uses for this particular site within Area
1 as argued by the appellant, the Specific Plan has also been superseded by the ALUCP with respect
to uses that are incompatible and nonconforming in Safety Zone 1 of the Runway Protection Zone.
Auto body and repair is not a compatible or conforming use in Safety Zone 1. Furthermore, as the
appellant also notes, the General Plan has incorporated the ALUCP. To the extent that a use is
nonconforming with the ALUCP, the use is inherently inconsistent with General Plan Policy 2-P.37,
McClellan-Palomar Airport, which states that new uses located in the Airport Influence Area must be
compatible or conditionally compatible with ALUCP land use compatibility policies with respect to
safety and other criteria. In this particular case, Policy 2-P.37 supersedes the City Planner's authority
in CMC Section 21.48.070{e).
Based on the above analysis, staff's position is that a change in use from office/industrial to an auto body
and repair shop cannot be approved.
IV. ENVIRONMENTAL REVIEW
Pursuant to Section 15270 of the CEQA Guidelines, CEQA does not apply to projects which a public agency
rejects or disapproves.
March 27, 2018 Item #9 Page 14 of 56
PCD 2017-0001 (DEV2017-0120) -DURKIN CAC LOT 24 LLC APPEAL
November 15, 2017
Pa e 4
ATTACHMENTS:
1. Planning Commission Resolution No. 7274
2. Location Map
3. Disclosure Statement
4. Specific Plan 181 Land Use Plan map exhibit
5. Excerpt of Carlsbad Airport Centre Specific Plan, Section Ill, Permitted Uses
6. March 7, 2017, letter from Freeland McKinley & McKinley
7. March 30, 2017, letter from Freeland McKinley & McKinley
8. May 30, 2017, letter from Planning Division to Freeland McKinley & McKinley
9. June 7, 2017, Attachment "1" appeal justification form Freeland McKinley & McKinley
10. June 7, 2017, letter from Freeland McKinley & McKinley
11. Fire Safety Risk Analysis Summary prepared by Wildfire Information Consulting
March 27, 2018 Item #9 Page 15 of 56
SITE MAP
• N
NOT TO SCALE
Durkin CAC Lot 24 LLC Appeal
PCD 2017-0001
ATTACHMENT 2
PALOMAR
AIRPORT
March 27, 2018 Item #9 Page 16 of 56
DISCLOSURE STATEMENT
P-1(A)
ATTACHMENT 3
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
Applicant's statement or disclosure of certain ownership interests on all applications which will
require discretionary action on the part of the City Council or any appointed Board, Commission
or Committee.
The following information MUST be disclosed at the time of application submittal. Your project
cannot be reviewed until this information is completed. Please print.
Note:
Person is defined as "Any individual, firm, co-partnership, joint venture, association, social club, fraternal
organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county,
city municipality, district or other political subdivision or any other group or combination acting as a unit."
Agents may sign this document; however, the legal name and entity of the applicant and property owner
must be provided below.
1. APPLICANT (Not the applicant's agent)
2.
P-1 (A)
Provide the COMPLETE. LEGAL names and addresses of ALL persons having a
financial interest in the application. If the applicant includes a corporation or partnership,
include the names, titles, addresses of all individuals owning more than 10% of the
shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE
INDICATE NON-APPLICABLE (NIA) IN THE SPACE BELOW. If a publicly-owned
corporation, include the names, titles, and addresses of the corporate officers. (A
separate page may be attached if necessary.)
Person M. 1 c:.H-·1\-€. '-· --~.}.L\ ti.. L 1 "--1 :~/*2aft "' 1 c....f tl\.-t;L.-C-A·N .E:i
Tftle ___ H_e._· -"""--'-13,_is,-..:.(1._.-. ______ _
Address S"&\'1 iJR:7 ~ 17,> .. +ce:
L/'r--fl.....t-j, .f3./~
OWNER (Not the owner's agent)
Provide the COMPLETE, LEGAL names and addresses of ALL persons having any
ownership interest in the property involved. Also, provide the nature of the legal
ownership (i.e., partnership, tenants in common, non-profit, corporation, etc.). If the
ownership includes a corporation or partnership. include the names, titles, addresses of
alt individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE
THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE
SPACE BELOW. If a publicly-owned corporation, include the names, titles, and
addresses of the corporate officers. (A separate page may be attached if necessary.)
Person __________ _ Corp/Part, ___________ ___
Title ___________ _ Title --------------
Address ----------Address ____________ _
Page 1 of 2 Revised 07/10
March 27, 2018 Item #9 Page 17 of 56
3. NON-PROFIT ORGANIZATION OR TRUST
If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust,
list the names and addresses of ANY person serving as an officer or director of the non-
profit organization or as trustee or beneficiary of the.
Non Profit/Trust'----"--------Non Profit/Trust _________ _
Title _____ ~------Title _____________ _
Address Address ----------------------
4. Have you had more than $500 worth of business transacted with any member of City
staff, Boards, Commissions, Committees and/or Council within the past twelve (12)
months?
D Yes [j No If yes, please indicate person(s): __________ _
NOTE: Attach additional sheets if necessary.
I certify that all the above information is true and correct to the best of my knowledge.
~ ..... ~. ,. -, \~ Io] 'L.d 11.-
Si(Jnatureofownrate
~··
Signature of applicant/date
Print or type name of owner Print or type name of applicant
Signature of owner/applicant's agent if applicable/date
Print or type name of owner/applicant's agent
P-1 (A) Page 2 of 2 Revised 07/1 O
March 27, 2018Item #9 Page 18 of 56'rj"
!-z LU ~
I u s
w
0
"" .,,-~-
PHASE 3 .,,.,, \.,
/
/
/
lRE}.-:OVE)) //
/
/ / /
/
/ /
~1'.&1'f,"ATH
RE$Tf;:1CTED VSE ZONE\.
HowesWelleF &Associates
LARD USE fll\NIUHG /\NO E!Hil11£EltlflG
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FIGURE 7
CARLSBAD AIRPORT CENTRE
SPECIFIC PLAN 181 (H)
LAND USE PLAN
CITY OF CARLSBAD
'l ,.
LEGEND D AREA1
Im AREA2
-, -PHASE UNE
NOTE
SP-ECV~L ',.A,'iOS::APS\'.G C-"t CJ,.MUf} \'ln:.t.
RC'BlE ,i P.AlOMA;,'=i; o,-,,,~s '·,NAY
March 27, 2018 Item #9 Page 19 of 56
ATTACHMENT 5
SP 181H
111. PERMITTED USES
A. AREA 1
Area 1 is designated for light and medium industrial uses, research and development
uses, industrial support and service uses, and business and professional office uses, provided that
such uses are confined within a building or buildings and do not. contribute excess noise, dust, smoke,
vibration, odor or toxic or noxious matter to the surrounding environment nor contain a high hazard
potential. Uses permitted in the Carlsbad Airport Centre will not produce any of the following:
1. Noise in excess of 70 decibels (American Standard for noise level meters):
a. For a cumulative period of more than 30 minutes in any hour; or
b. Plus 5 decibels for a cumulative period of more than 15 minutes in any
hour; or
c. Plus 1 O decibels for a cumulative period of more than 5 minutes in any
hour; or
d. Plus 15 decibels for a cumulative period of more than 1 minute In any
hour; or
e. , Plus 20 decibels for any period of time;
2. Vibration, heat, glare, or electrical disturbances beyond the boundaries of the
site;
3. Air pollution detectable by the human senses without the aid of instruments,
beyond the boundaries of the site;
4. Emissions which endanger human health which can cause damage to animats,
vegetation or property, or which can cause spilling at any point beyond the
boundaries of the site;
5. Odor detectable by the human senses without aid of instruments beyond the
boundaries of the site.
All wastes discharged into the wastewater discharge system will meet City standards.
All uses shall conform to the general development concepts for a high-quality business
park, with all standards and restrictions established by this plan and with CC&Rs.
6
March 27, 2018 Item #9 Page 20 of 56
SP 181H
Specifically, the following uses are permitted in Area 1:
1. Uses primarily engaged in research activities, including research
manufacturing such as, but not limited to, the following:
a. Biochemical;
b. Chemical;
c. Electronics;
d. Film and photography;
e. Medical and dental;
f. Metallurgy;
g. Pharmaceutical;
h. X-ray.
2. Manufacture, research assembly, testing and repair of components, devices,
equipment and systems, a~d parts and components of the following:
a. Coils,.tubes, semi-conductors;
b. Communication, navigation, guidance and control equipment;
c. Data processing equipment, including computer software;
d. Glass edging and silvering equipment;
e. Graphics and art equipment;
f. Metering equipment;
g. Radio and television equipment;
h. Photographic equipment;
L Radar, infrared and ultraviolet equipment;
j. Optical devices and equipment;
k. Filling and labeling machinery.
3. Light manufacturing, processing, and/or assembly of the following or similar
products:
a. Food products;
b. Apparel and finish products from textile products;
C. Lumber and wood products;
d. Furniture and fixture products;
e. Chemical and allied products;
f. Plastic and rubber products;
g. Stone, clay, and glass products;
h . Fabricated metal products; ..,.
7
March 27, 2018 Item #9 Page 21 of 56
SP 181H
i. Professional, scientific, controlling, photographic, and optical products
or equipment.
4. Service industries or those industries providing a service as opposed to the
manufacture of a specific product, such as the repair and maintenance of
appliances or component parts, tooling, printers, testing shops, small machine
shops, shops engaged in the repair, maintenance and servicing of such items,
excluding automobile and truck repair, and excluding equipment rental yards.
5. Industries engaged in the distribution and/or storage or warehousing of
products similar to·those listed in other permitted uses in this group.
6. Construction industries such as general contractors, electrical contractors,
plumbing contractors, etc., and their accessory and incidental office uses.
7. Blueprinting, photostatting, photo-engraving, printing, publishing, and
bookbinding.
8. Administrative and professional offices, . limited to a) offices which are
associated with any permitted industrial use or b) offices which do not attract
nor are primarily dependent upon business customers visiting the office.
Permitted offices include, but are not limited to, corporate offices, regional
offices, general offices, and such professional offices as accountants, .
attorneys, engineers, architects, and planners. · Prohibited offices include, but
are not limited to, banks and financial institutions, medical and dental offices,
employment agencies, real estate agencies, and travel agencies.
9. Employee cafeteria, cafe, restaurant, or auditorium accessory with and
incidental to a permitted use (intended primarily for the express use of those
persons employed at the firm or use where such incidental use is applied).
10. Accessory uses and structures when related and incidental to a permitted use
such as, but not limited to, food preparation, food service, and eating facilities.
11. Education Facilities, Other as defined in Section 21.04.137 of the Zoning
Ordinance subject to a Minor Conditional Use Permit and where the facility is
for adult students (18 years and older) exclusively, and is located entirely
outside of the Flight Activity Zone and entirely outside of the 65 dB CNEL noise
contour (as shown in the Comprehensive Land Use Plan for the McClellan-
Palomar Airport, dated October 2004), or where the use is located partially or
entirely between the 60 dB CNEL and the 65 dB CNEL noise contours if
8
March 27, 2018 Item #9 Page 22 of 56
SP 181H
interior noise levels are attenuated to 45 dB CNEL (as verified through a site
specific acoustical study).
g
March 27, 2018 Item #9 Page 23 of 56
\i. d Ex.. i--4 1 ..2, t ·r B
FREEL1 _A._ND MCKIN.LEY ,.& MCK1.1'JLEY
Steven A. McKinley*
Karen G. McKinley
. _ Ian W. McKinley.
Ryan 0. McKinley
* Also admitted in Nevada
SENT VIA MESSENGER
March 7, 2017
Mr. Don Neu
Planning Director
City of Carlsbad
ATTORNEYS AT LAW
402 W. Broadway, Ste. 1815
San Diego, Ca. 92101
Tel. (619) 297-3170
Fax. (619) 255-2853
Re: Carlsbad Airpmt Centre Lot 24: Decrease in Intensity of Non-Conformity
ATTACHMENT 6
4760 S. Pecos Rd.
Suite 103
Las Vegas, 1'.'V 89017
This is an application for approval, pursuant to Municipal Code Section 21.48.070. '"E. ",
of a change in a legal non-conforming use to a use that is more conforming. Specifically, it is
requested that the current approved use of office/industrial be changed to allow a more
conforming use of auto body and repair for the above described property.
This request is made under the authority of Section 21.48.070, which authorizes the
planner to approve such a change in use when the change will decrease the intensity of the non-
conformity. That section reads as follows:
"Change of Use. A nonconfonning nonresidential use may be changed to a use
that is pennitted in the zone in which the subject property is located, or may be
changed to a use that is more c01iforming, subject to approvalofthe city planner
and the issuance of a business license."
As you can see from the foregoing, there are two distinct instances in which the city
planner can approve a change in use. The first is where the change is to another use permitted
within the zone. The second is where the change is simply to a use which is more conforming. It
is this second authorization for change in use that applies in this case. Lot 24 was originally
permitted for office/industrial use with an occupancy load of up to 100 people. (PIP 00-04(A)
Carlsbad Airport Centre Lot 24). At the time it was approved in 2002, the property was not
designated by the ALUCP as a runway protection zone, and the approved use wa:s not
inconsistent, from a safety standpoint, with the ALU CP. The building was constructed in 2 004 in
accordance with the planned industrial permit and has since been used for its approved use of
office/industrial with an occupancy load ofup to 100 people.
But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway
Protection Zone, and it was reclassified as Safety Zone I, with an allowed occupancy load of
''zero". People and buildings are basically prohibited in this zone. It is a matter of safety for
people on the ground. (2010 ALUCP, p. 3-28, 29).
(619) 297-3170 • Freeland, McKinley, & McI{in!ey • 402 W. Broadway, San Diego, CA 92101
Page 1 of3
March 27, 2018 Item #9 Page 24 of 56
Subsequent to the 2010 ALUCP amendment, the City incorporated it into its General
Plan, and provided that all uses would be consistent with the ALUCP absent a City override.
(See, Qeneral Plan, Policy Statements 2-P.37, P. 38, pg. 2-44). Moreover, the General Plan
provides that it prevails over any inconsistency in the zoning code or map, (See, pg. 2-29,
General Plan). ·
Accordingly, the cun-entoffice/industrial use with an allowed occupancy of 100 people is
a legal non-conforming use. It was legal and conforming when it began, but it became non-
conforming in 2010 with the adoption of the new ALUCP, which prohibits people and buildings
in the Runway Protection Zone.
Right now, the intensity of the non-conformity is most accurately measured by the
number of people allowed by reason of the legal non-conforming use. That number is 100
people, and that is the number of people at risk of an aviation related accident as things stand
today, and as things will stand for the useful life of the building 100 years into the future. The
risk of an accident over that period of time cannot be discounted. However, it is legal to use the
building now for 100 people, and that will be the case forever absent an approved change of use
to a lower occupancy.
Earlier last year, Mr. Durkin made application to the City for a specific plan amendment
to accommodate a change in use from office/industrial to auto body and repair. But, as shovvn
above, a specific plan amendment is unneeded because the non-conforming use zoning ordinance
authorizes the city planner to approve any change in use, whether authorized by the applicable
zone or not, so long as the change results, as is the case here, in a reduction in the degree of non-
conformity.
The previous application for a specific plan amendment was submitted to the ALUC for a
consistency detennination. The ALUC staff specifically noted in response that the proposed
change in use would reduce the non-conformity. But because it was proposed as an amendment
to the specific plan, ALUC staff analyzed it as if the legal non-conforming use provisions of the
ALUCP were inapplicable. Once it is clear that it is being treated as a reduction in a non-
confom1ity, as opposed to an amendment to a specific plan, not only does the ALUC objection
disappear, ALUC review is not even triggered. (PUC Section 21676 (b) (referral to the ALUC
for consistency detennination on non-general plan land use actions is not required once City
General Plan found to be consistent).
Mr. Durkin's proposed change in use to auto body and repair will result in a substantial
reduction of life-safety risk to the benefit of everyone, including the City and the Airport. His
proposal to change the use to auto body and repair will reduce the allowed number of people
from I 00 to 30. This reduction in the number of people allowed can only be achieved by this
change in use. It results in a 70% reduction in the overall risk to life and safety. From a City
planning point of view, this is a golden opportunity to reduce a non-conformity and thereby
preserve and protect the public health and welfare.
In support of this change, Mr. Durkin has commissioned a Fire And Safety Risk Analysis
by a well-recognized and highly regarded fire safety expert, and this report is enclosed with this
(619) 297-3170 • Freeland, McKinley, & McKinley • 402 W. Broadway, San Diego, CA 92101.
Page 2 of 3
March 27, 2018 Item #9 Page 25 of 56
letter. The report conclusively shows that the life-safety risk is reduced by 70% by changing the
use to automotive. As more fully discussed and analyzed in the report, automotive use does NOT
result in-any increase in life-safety risk from factors such as automotive· fluids and paints. In the
event of an aviation accident the controlling factor exposing people to risk is the flammability of
the on-board aviation fuel, and that factor remains the same under both the existing use and the
proposed change in use.
Accordingly, while other safety variables remain the same, the change in use will reduce
the primary risk factor addressed by the AL UCP, and with which both the airport and the City
are properly concemed. That overriding risk factor is the number of people on the ground. Mr.
Durkin asks that the City lower the life safety risk associated with the current legal non-
conforming use by granting a change in use that will decrease the life safety risk by fully 70%.
Such a change in use reduces the degree of non-conformity by the same 70%, since the non-
conformity relates to the risk to the safety of the lives of the people on the ground.
Moreover, such a change in use will serve a vital business need currently unmet within
the City limits. The City rightfully can take pride that it is home to a thriving auto dealership
community, but that community is in desperate need ofthis very facility to accommodate the
service demands of its clientele. To keep Carlsbad's auto dealership community vibrant and
thriving into the foreseeable future, the City must take care to make available conveniently
located land upon which high end auto dealers can meet the ever-increasing demand for auto
body and repair services, and this change in use will serve that heretofore unmet need.
It is respectfully therefore requested that the city planner approve a change of use that
reduces the degree of non-conformity, and allow a fully enclosed auto body and repair use within
the existing building envelope, with no resulting change in the exterior building or aesthetics.
Very Truly Yours,
LEY
(619) 297-3170 • Freeland, McKinley, & McKinley • 402 W. Broadway,,Sao Diego, Ci\ 92Hll
Page 3 of 3
March 27, 2018 Item #9 Page 26 of 56
FREELA.LiD MCICTl\JLEY .& MCK.l.t·>!·LEY
Steven A. McKinley*
Karen G. McKinley
Ian W. McKipl.ey
Ryan 0. McKinley
* Also admitted in Nevada
SENT VIA FED EX
March 30, 2017
Mr.DonNeu
Planning Director
City of Carlsbad
1635 Faraday Ave.
Carlsbad, Ca. 92008
Mr.Ron Kemp
Assistant City Attorney
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, Ca. 92008
ATTORNEYS AT LAW
402 W. Broadway, Ste. 18 J 5
San Diego, Ca. 92101
Tel. (619) 297-3170
, Fax. (619) 255-2S53
Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity ofNon-Conformity
Dear Mssrs. Kemp and Neu;
ATTACHMENT 7
4760 S. Pecos Rel
Suite 103
Las Vegas, NV 89017
Thank you for listening to our-application last Tuesday for approval of a change to a more
conforming use for the above referenced property.
As discussed, I would like to supplement our application with a review of the controlling legal
authorities responsive to the questions raised during our meeting of March 21, 2017. One of
those questions pertained to whether the request must be first submitted to the San Diego County
Airport Authority for a consistency determination. The answer is that it is neither required nor
recommended.
The statutory authority for Airport Land Use Commission powers of review is found in the State
A.;;ronautics Act (°'SAA"), Chapter 4, A1ticle 3.5, titled '"Alrport Land Use Commission", Public
Utilities Code Sections 21670, et seq.
i. Power to Assist Local Agencies: A Power T}Jat Does Not Extend To Existing
Incompatible Uses. The scope of Airport Land Use Commission authority is defined in Section
2167 4(a) to include assisting local agencies to ensure compatible land uses "to the extent that the
land ... is not a1ready devoted ta incompatible uses." This provision by itself makes clear that the
assistance of an ALUC is not authorized with respect to existing incompatible uses, such as the
(619} 297-3170 o Freeland, Mcl(inlcy, & McKinley o 402 W. Broadway, San Diego, CA 92101
Page 1 of4
March 27, 2018 Item #9 Page 27 of 56
. t:--~ • -
office building on Lot 24, and for that reason alone the power to "assist" does not come into play
with respect to the existing incompatible use.
Moreover, the power to "assist" as refened to in this subsection does not imply or confer
any authority either to review a land use action for compatibility, or to find it inconsistent so as
to require an override.
ii. Power to Review: A Power Limited to Adoption .or Amendment of General or
Specific Plans, Zoning Ordinances, and. Building Regulations. Subdivision (b) of Section
2167 4 empowers an ALUC to "review the plans, regulations, and other actions of local
agencies ... pursuant to Section 21676." Accordingly, the scope of review depends upon what is
allowed under Section 21676.
Where there is an adopted ALUCP (as is the case here), Section 21676 specifically limits
the power of review to the following actions of the local agency:
Ii) The amendment of general or specific plans, and
o The adoption or amendment of a zoning ordinance, and
e The adoption or amendment of a building regulation.
Accordingly, reading Sections 21674(b) and 21676 together, it is abundantly clear that
the ALUC does not have the power to review the planning director's exercise of the discretion
given him under Zoning Code Section 21.48.070 "E." to approve a more conforming use. Such
an exercise of discretion is not one of the above enumerated legislative acts.
Our interpretation that the ALUC's power ofreview is limited to the above enumerated
legislative actions was confirmed as conect by the City in its staff report dated Jan. 4, 2012, in
which it affirmed the effect of adoption of Resolution GP 10-02 as follows:
" ... after a local agency's general plan is f01md by ALUO to be consistent with the
Compatibility Plan, the ALUC will no longer have authority to review land use actions
(except for legislative actions such as the adoption, approval or amendment of the general
plan). Therefore, with adoption of GP A 10-02, and subsequent ALUC consistency
finding, the authority to review development projects for consistency with, the
Compatibility Plan, as well as the enforcement of the document's compatibility policies,
is transferred to the city ( except for legislative actions as noted above)."
An excerpt from the .staff report containing this interpretation is attached for your convenience .
Moreover, the fundamental concept that the ALUC is not intended to have review powers over
land uses that predated the adoption of the applicable ALUCP is found in the Legislative
declaration of purpose for the Airport Land Use Commission: "to protect public health, safety,
and welfare by ensuring the orderly expansion of airports and the adoption of land use measures
that minimize the public's exposure to excessive noise and safety hazards within areas around
public airports to the extent that these areas are not already devoted to incompatible uses." PUC
Section 21670 (a).
(619) 297-3170 o Frcclnml, McKinley, & McKinley " 402 W. Brondway, San Diego, CA 92101
Page 2. of 4
March 27, 2018 Item #9 Page 28 of 56
In summary, the SDCRAA has no power to review the exercise of administrative discretion
involved here.
The Prior Application for A Specific Plan Amendment: Another issue discussed at our last
meeting was the reason given by the SDCRAA for proposing to reject the application for specific
plan amendment. This particular pathway to a legal change of use was originally suggested by
the City, but because a specific plan amendment is by definition a legislative action over which
the ALUC has the power ofreview, submission to the SDCRAA was required, and in retrospect,
an inconsistency finding was a foregone conclusion. A specific plan amendment takes the
proposal out of the ALUCP nonconforming, nomesidential-use safe harbor for changes that do
not result in an increase in nonresidential intensity (ALUCP, Policy 2.l 1.2(c)(2)). See, excerpt
from SDCRAA Staff Report, 10/20/16, attached; and SDCRAA proposed Resolution, 10/20/16,
attached, excerpt as follows:
"WHEREAS, the proposed project is located within Safety Zone 1, and,
though the use would occur within an existing nonconforming building without
increase in existing intensity, the project proposes to change the land use
designation of a property to allow a repair garage use which the ALUCP identifies
within Safety Zone 1 as incompatible with airport uses;"
A key takeaway is the acknowledgement by the SDCRAA that the proposed change does not
involve an increase in existing intensity. The problem identified by the SDCRAA is that the
proposal involved a change in "the land use designation". In other words. because a legislative
act was involved it was bounced out of the nonconforming use provisions of the ALUCP found·
at 2.11.2.
If the pending application for an administrative approval by the Planning Director was to be
submitted to the SDCRAA for a consistency finding it would set the wrong precedent by
suggesting that all administrative planning decisions are subject to SDCRAA consistency
determinations. The City should not compromise and surrender its exclusive authority over such
decisions as provided under its Zoning Code.
The Effect of Overriding An SDCRAA Inconsistency Determination: I believe the other
major issue raised was the effect of an inconsistency determination by the SDCRAA, should the
matter be submitted for obtaining such a dete1mination. It was acknowledged at the meeting that
existing provisions of the SAA grant the airport operator immunity from liability in the event of
. an override, .and th~t the rele':ant statute says nothing about who might be exposed to liability.
There are no cases found on point, but the clear text and intent of the statute is not to shift or
create liability but to grant an immunity where an immunity is not otherwise available. Had
there been any intent to shift liability to the local agency the Legislature could and would
logically have so expressed, but instead the statute is silent in this regard. The logical and best
explanation for this silence is that the Legislature knew~ and it indeed is presumed to know, that
there already existed a whole body of statutory and case law granting immunity to public entities
for the exercise of permitting and other land use authority. There was no reason to duplicate such
grant, and indeed had the statute included such a grant it would have created confusion given the
(619) 297-3170 " Frce!:md, McKinley, & l\'lcKinley o 402 W. Broadwny,. Snn Diego, CA 92101
Page 3 of4
March 27, 2018 Item #9 Page 29 of 56
preexisting immunities. The reason the statute was needed was because airport operators may be
private entities, or public entities acting in a proprietary capacity, and as such need immunity.
The Legislature concluded such imi.ilunity fo good policy, because ffa local agency, already the! .
beneficiary of statutory immunities for its land use decisions, makes a land use decision
overriding the SDCRAA, and the decision exposes the airport operator to liability, in fairness the
operator should have the same immunity as does the local agency .
. Another concern raised by Mr. Neu was that the automotive use is inconsistent with the general
plan. However, the current use is inconsistent with the general plan because of the 2012
amendment incorporating into the general plan the Safety Zone 1 classification for Lot 24
contained in the 2010 ALUCP. It is this inconsistency that makes the cmTent use a legal
nonconformfog use, thereby invoking the provisions of the nonconforming use ordinance
allowing approval to a more conforming use. Here, the requested change is to a more conforming
use because the reduction in occupancy reduces the intensity of the nonconformity.
In summary, the),"e is no need in this case to dilute and blur the proper sphere of City authority by
submitting what is clearly an administrative decision under the zoning ordinance to the
SDCRAA for a review it has no statutory authority to make. If it is determined to do so and an
inconsistency detennination is made, it will unnecessarily burden the City Council with an
override decision it should not be required to make.
Very Truly Yours,
FREELAND MCKINLEY & MCKINLEY
By: Steven A. McKinley
(619) 297-3.170 D Freeland, lVlcKinlcy, & McKinley ,. 402 W. Broa<lwlly, San Diego, CA 92101
Page 4of4
March 27, 2018 Item #9 Page 30 of 56
May 30, 2017
Steven A. McKinley
Freeland McKinley & McKinley
Suite 1815
402 West Broadway
San Diego, CA 92101
• I I ( 1-i i 2 1 'T . A
ATTACHMENT 8
.JUN 7 2017
SUBJECT: CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE
Dear Mr. McKinley,
On behalf of your client, you have asked for the approval of a change of use on Carlsbad Airport Centre
lot 24, owned by Durkin"CAC-Lot24, LLC to an auto body and repair shop.
The property is currently permitted for an office/industrial use with an allowed occupancy limit of 100.
This becam.e a nonconforming use with the 2010 adoption of an amended Airport Land Use Compatibility
Plan (ALUCP}, which placed the· property in Safety Zone 1 of the Runway Protection Zone. It is our
understanding that the property is currently being used as a warehouse with an occupancy of 1-2 people.
You have stated that the City Planner has the authority to approve a change in a legal nonconforming
nonresidential use to a use that is more conforming under Carlsbad Municipal Code Section 21.48.070(e),
which states:
E. Change of Use. A nonconforming nonresidential use may be changed to a use that Is
permitted in the zone in which the subject property is located, or may be changed to a
use that i~ more conforming, subject to approval of the city planner and the issuance of a
business license.
It is stated that the proposed use will result in a substantial reduction of life-safety risk because occupancy
of the building will be reduced from an allowed number of people from 100 to 30, thus making the use
more conforming.
Reduction of allowable occupancy is not the only way to anafyze nonconformity. The current use of the
property is allowed under the specific plan. It is nonconform_ing under the ALCUP. An auto body and
repair shop is not allowed under the specific plan. A change would make the use nonconforming in both
plans.
As noted aliove, it is 01:i'r understa"nding is that the property is currently occupied by 1-2 p~ople, not the
100 alio1,Ved by the permifor as analyzed in your argument. It may be that approving·an auto repair shop
will actually put more people on the property than are on it at this time. ·
Community & Economic Development
Planning Division I 1635 Faraday Avenue Carlsbad, CA 92008-7314 I 760-602-4600 I 760·602-8560 f I www.carlsbadca.gov
March 27, 2018 Item #9 Page 31 of 56
CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE
May 30, 2017
The ALUCP points out that an auto repair shop is classified in high hazard group H-4 under the building
code. This classification is given to building and structures containing material$ that are health hazards,
such as corrosives, highly toxic materials and toxic materials. This is not a more conforming use in Safety
Zone 1.
Under CMC 21.54.140 a decision or determination of the City Planner can be appealed to the Planning
Commissio.n if the appeal is filed within 10 calendar days of when the decision becomes final. In this
instance the decision becomes final when this letter has been mailed, May 30, 2017. The appeal
application form and fee Is available on the Planning Division webpage or can be obtained at the Planning
Division office.
Recognizing the limited number of sites in the in the City of Carlsbad designated to permit auto repair the
Planning Division has initiated a project that includes a zone code amendment, local coastal program
amendment, and amendments to certain specific plans to designate add1ifonal areas where auto repair
could be permitted. This is a project of importance to the city recognizing the need for sites for auto body
and repair facilities.
Sincerely,
DON NEU, AICP
City Planner
c: Michael J. Durkin, Durkin Development Co., Suite 1080, 4660 La Jolla Village Drive, San Diego, CA 92122
Glen Van Peski, Community and Economic Development Director
Teri Delcamp, Principal Planner
Ron Kemp, Assistant City Attorney
March 27, 2018 Item #9 Page 32 of 56
ATTACHMENT 9
ATTACHMENT "1" ro APPEAL FROM Cl1Y PLANNER DECISION PERTAINING TO LOT 24
Pursuant to City of Carlsbad Municipal Code 21.54.140, Durkin CAC lot 24, LLC, "Appellant", appeals the
May 30, 2017 denial by the City Planner of its1 application for approval of a change in a nonconforming
nonresidential use to a more conforming use because there was an error or abuse of discretion on the
part of the city planner in that the decision was not supported by the facts presented to the city planner
prior to the decision being appealed.
A copy of the denial is attached hereto as Exhibit "A".
On March 7, 2017, Appellant applied to the City Planner for an approval under Municipal Code Section
21.48.070 "E" of a change in an existing legal non-conforming use to a use that is more conforming. lot
24 has an existing permitted use allowing an office/industrial occupancy of up to 100 people, which use
was approved in 2002. This use now conflicts with the current 2010 ALUCP zero occupancy use, which is
incorporated into the City's land use regulations via the 2012 amendment to its General Plan. The
present use is therefore a legal non~conforming use. Appellant asked for a change to a more conforming
use of automotive body and repair with an occupancy load of only 30 people, a reduction in the'
intensity of the non-conformity of 70% (form 100 people to 30 people). A copy of the application is
attached hereto as Exhibit. "B" and incorporated herein by this reference. A copy of supporting
materials filed with the application, consisting of a report titled "Fire Safety and Risk Analysis",
(hereinafter the "Hazard Report") is attached hereto as Exhibit ''C:'.
A hearing was held on the application on March 21, 2017, and on March 30, 2017, supplemental
material in the form of a letter was submitted to the City Planner and City Attorney, a copy of which is
attached hereto as Exhibit "D".
The City Planner made a material error of fact. He incorrectly assumed that the existing actual
occupancy of the 30,000-square foot office/industrial building was only 1 to 2 people, and that the
existing use was only warehouse. There was no basis for these assumptions, as the only evidence before
the Planner was that the building was approved for office uses and a human occupancy load up to 100
people. In fact, this building is currently devoted to a combination of office and lab uses, and related
storage space, with the actual occupancy varying from time to time, but certainly far more than 30
people. The building is actually improved, configured and furnished to accommodate at least 60 office
personnel, and 20 technicians and storage personnel.
Accordingly, the current tenant improvements, which have been in place for many years, are designed
to and do accommodate at least 80 people.
The factual error as to the assumed use is compounded by the planner's erroneous legal conclusion that
the current use is conforming under the specific plan, but nonconforming under the AlUCP. This legal
conclusion is erroneous because in 2012 the City amended all of its plans to conform to the ALUCP,
therefore what is inconsistent with the ALUCP is equally inconsistent with any specific plan. This follows
March 27, 2018 Item #9 Page 33 of 56
inescapably from the fact the City incorporated the ALUCP into its General Plan, and provided that all
uses would be consistent with the ALUCP absent a City override. (See, General Plan, Policy Statements 2-
P.37, P. 38, pg. 2-44). Moreover, the General Plan provides that it prevails over any inconsistency in the
zoning code or map. (See, pg. 2-29, General Plan). Incontrovertibly, the specific plan is obsolete to the
extent it conflicts with the 2010 ALUCP as incorporated in the General Plan (Gov. Code Sections 65302.3;
65454), and therefore any consistency with an obsolete specific plan is irrelevant.
Lot 24 was originally permitted for office/industrial use with an occupancy load of up to 100 people. (PIP
00-04{A) Carlsbad Airport Centre Lot 24). At the time it was approved in 2002, the property was not
designated by the ALUCP as a runway protection zone, and the approved use was not inconsistent, from
a safety standpoint, with the ALUCP. The building was constructed in 2004 in accordance with the
planned industrial permit and has since been used for its approved use of office/industrial with an
occupancy load of up to 100 people.
But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway Protection Zone, and it
was reclassified as Safety Zone 1, with an allowed occupancy load of "zero". People and buildings are
basically prohibited in this zone. It is a matter of safety for people on the ground. (2010 ALUCP, p. 3'-28,
29).
Accordingly, the current office/industrial use with an allowed occupancy of 100 people is a legal non-
conforming use. It was legal and conforming when it began, but it became non-conforming in 2010 with
the adoption of the new ALUCP, which prohibits people and buildings in the Runway Protection Zone.
Right now, the intensity of the non-conformity is most accurately measured by the number of people
allowed, and for which the building is improved and configured, by reason of the legal non-conforming
use. That number is 100 people, and that is the number of people at risk of an aviation related accident
as things stand today, and as things will stand for the useful life of the building 100 years into the future.
The risk of an accident over that period of time cannot be discounted. However, it is legal to use the
building now for 100 people because it was permitted for that use in 2002, and that will be the case
forever absent an approved change of use to a lower occupancy.
Earlier last year, Mr. Durkin made application to the City for a specific plan amendment to accommodate
a change in use from office/industrial to auto body and repair. But, as shown above, a specific plan
amendment is unneeded because the non-conforming use zoning ordinance authorizes the city planner
to approve any change in use, whether authorized by the applicable zone or not, so long as the change
results, as is the case here, in a reduction in the degree of non-conformity.
The previous application for a specific plan amendment was submitted to the ALUC for a consistency
determination. The ALUC staff specifically noted in response that the proposed change in use would
reduce the non-conformity. But because it was proposed as an amendment to the specific plan, ALUC
staff analyzed it as if the legal non-conforming use provisions of the ALUCP were inapplicable. Once it is
dear that it is being treated as a reduction in a non-conformity, as opposed to an amendment to a
specific plan, not only does the ALUC objection disappear, AlUC review is not even triggered. (PUC
March 27, 2018 Item #9 Page 34 of 56
Section 21676 (b} (referral to the ALUC for consistency determination on non-general plan land use
actions is not required once City General Plan found to be consistent).
Mr. Durkin's proposed change in use to auto body and repair will result in a substantial reduction of life-
safety risk to the benefit of everyone, including the City and the Airport. His proposal to change the use
to auto body and repair will reduce the allowed n'umber of people from 100 to 30. This reduction in the
number of people allowed can only be achieved by this change in use. It results in a 70% reduction in the
overall risk to life and safety. From a City planning point of view, this is a golden opportunity to reduce a
non-conformity and thereby preserve and protect the public health and welfare.
In support of this change, Mr. Durkin commissioned a Fire And Safety Risk Analysis by a well-recognized
and highly regarded fire saftey expert, and this report was submitted to the planner. The report
conclusively shows that the life-safety risk is reduced by 70% by changing the use to automotive. As
more fully discussed and analyzed in the report, automotive use does NOT result in any increase in life-
safety risk from factors such as automotive fluids and paints. In the event of an aviation accident the
controlling factor exposing people to risk is the flammability of the on-board aviation fuel, and that
factor remains the same under both the existing use and the proposed change in use.
Accordingly, while other safety variables remain the same, the change in use will reduce the primary risk
factor addressed by the ALUCP and with which both the airport and the City are properly concerned,
and that is the number of people on the ground. Mr. Durkin asks that the City lower the life safety risk
associated with this legal non-conforming use by granting a change in use that will decrease the life
safety risk by fully 70%. Such a change in use reduces the degree ofnon-conformity by the same 70%,
since the non-conformity relates to the risk to the safety and lives of the people on the ground.
Moreover, such a change in use will serve a vital business need currently unmet within the City limits.
The City rightfully can take pride that it is home to a thriving auto dealership community, but that
community is in desperate need of this very facility to accommodate the service demands of its
clientele. To keep Carlsbad's auto dealership community vibrant and thriving into the foreseeable
future, the City must take care to make available conveniently located land upon which high end auto
dealers can provide auto body and repair.
Lot 24 presents a unique and strategic opportunity to serve this unmet need. This opportunity cannot be
duplicated by rezoning less well located property elsewhere for automotive body and repair, because
unlike other properties that may be located near incompatible residential or commercial uses, Lot 24 is
located between two properties already devoted by the Hoehn and Baker auto dealerships to
automobile uses, being storage of automobile inventory. Sandwiched between these automobile
inventory uses, Lot 24 provides an unmatched opportunity to integrate automotive repair and body with
existing compatible, adjacent uses.
March 27, 2018 Item #9 Page 35 of 56
.J. ,,, ' '-',
FREJEL1-\.ND 1\/ICKINLEY {'i MCKINLEY ATTACHMENT 10
A TIORNEYS AT LAW 4760 S. Pecos Rd. Steven A. McKinley*
~--·Karen-G;-McK:inley----'-'-'-'-----"----~ ··--402 W. Broadway,_Ste, lSJS --··--------'-----suite--1·03~·----
San Diego, Ca. 92101 Las Vegas, NV 89017
Ian W, McKinley
Ryan 0. McKinley
* Also admitted in Nevada
Tel. (619) 297-3170
Fax. (619) 255-2853
SENT VIA EMAIL: plannlng@carlsbadca.gov; attorney@carlsbadca.gov
June 7, 2017
Mr. Don Neu
Planning Director
City of Carlsbad
1635 Faraday Ave.
Carlsbad, c~L 92008
Mr. Ron Kemp
Assistant City Atto1ney
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, Ca. 92008
Re: Carlsbad Airpo1t Centre Lot 24: Decrease in Intensity of Non-Conformity
Dear Mr. Neu;
Thank you for your letter of May 30, 2017, concerning the application made on MarGh 7, 2017
for approval of a change of use for the above referenced property.
We think it is important to correct a factual misstatement appearing in your letter. In this regard,
you assumed that the existing actual use of the property is "warehouse" with an actual occupancy
of only "1-2 people". In fact, this 30,000 square foot building is currently devoted to a
combination of office and lab uses, and related storage space, with the actuai occupancy varying
from time to time, but certainly far more than 30 people. The building is actually improved,
configured and furnished to accommodate at least 60 office personnel, and 20 technicians and
storage personnel.
Accordingly, the current tenant improvements, which have been in place for many years, are
designed to and do accommodate at least 80 people.
Moreover, your statement that the current use is allowed under the specific plan disregards the
fact that the City incorporated the 2010 ALUCP into it's General Plan for the express purpose
and with the expressly stated effect of conforming its land use plans and regulations with the
ALUCP. The specific plan is obsolete, if not deemed amended by and subordinate to the 2010
(619) 297-3170 • Fr~clnnd, McKinley, & McKinley " 402 W, Broadway, San Diego, CA 92101
Page 1 of 2
March 27, 2018 Item #9 Page 36 of 56
--.c----~-·-;AI:lJCP;·· otli:envise·ctne CilY's1'e-solut10ns and representa1ions--ma."aeto·-11ie SDCRAAw..,..ith-c-re_g_a_r_,d--····--·-····-----
to ALUCP consistency would be incorrect Whether the present use conforms with a specific
plan which has been rendered obsolete (see Gov. Code Section 65302.3; 65454) by it's
inconsistency with the amended General Plan and ALUCP would seem to be irrelevant.
Finally, the statement that auto repair is not more confom1ing because of its hazard classification
is not supported~ and in fact is shown untme by the report we submitted. That report compared
the hazards associated with the specific existing uses of the property and the proposed use of
auto body and repair and found that there was no practical difference in terms of fire risk or the
dangers posed by aviation.
We ask that you kindly reconsider.
Very Tmly Yours,
(619) 297-3170 " Freeland, McKinley, & l\frICinky " 402 W. Broadway, Snn Diego, CA 92101
Page 2 of2
March 27, 2018 Item #9 Page 37 of 56
Durkin Property
APN: 212-091-02
5817 Dryden Place
Carlsbad1 CA
February 2017
Prepared for:
Durkin CAC Lot 24 LLC
Michael J. Durkin
4660 La Jolla Village Drive
San Diego, CA 92122
Prepared By:
Wildfire Information Consulting
807 Cassou Road
San Marcos, CA 92069
760-703-4497 cell phone
Contact: Clifford F. Hunter, 9onsultant
~ -;' ~ .f T ··-·"" <,.,--~--->, ,,,.· ,:_,, -~·-· r, "~ ,,,_,,,.
I
760-703-.-M-97
pl]Jfl,,_fir:::@ai t.nct
1 I Page-Fire s~fety Risli .l\naivsls-5B1-7 Dryden Place, C,ulsbad, CP,.
March 27, 2018 Item #9 Page 38 of 56
··-----· ····---------------~ ~~-. . ..... ---
-\JVildfire itJJ¢:)lTI-1ation ri::c~nsuJ:tUlfJ
v~:I .4f1' l•,:., f'.•.,..;"-VP"1'''\,0" ~.~,Url (;;,11.r,1'-,r;-· :s,•i,;-,n t'V lJ.UJ.-... t.... -· 1 ........ ,_.1.~t-.,._.1,. ,tj,j,1 •v i~ .. i..,. J.J~· ~ .... ,-,j _,. ___ ~
Clifford F. H1mte,-
Fire Safety Risi< Analysis
5817 Dryden Place, Carlsbad, CA. (Lot 24)
February 2017
Executive Fire Safety Risk Analysis Summary
807 Cassou Road
Sai] Marcos, CA, 92069
7G0-70S-,H97
wik!-f:re@au.riu
The property which is the subject of this Fire Safety Risk Analysis is 5817 Dryden Place,
Carlsbad, California. (Referred to as the "Durkin property"). The purpose is to compare
the fire safety risks associated with the proposed restricted use of automotive painting
and repair to the existing allowed and actual uses of the Dur.kin property.
In 2002 the City of Carlsbad issued a Planned Industrial Pennit (PIP 0O-04(A))
. approving office/industrial use on the Durkin property. The Permit expressly allows a
human occupancy load of 100 people and the presence of flammable liquids ("Existing
Use"). In 2010the SDCRM amended the applicable Airport Land Use Compatibility
Plan to designatethe Durkin property as "Safety Zone 1", prohibiting the Existing Use at
this location, and the City amended its General Plan to conform to the designation.
The current use involving an occupancy load of up to 100 people is therefore non-
conforming, and the owner proposes a change in allowed uses so that the degree of
non-conformance is reduced from an intensity of 100 people to a maximum of 30
people, and at the same time impose quantitative restrictions on flammable liquids (the
"Proposed Use"). This would be accomplished by allowlng automotive painting and
repair, fully self-contained in the existing building, conditioned upon compliance with the
restrlctions on occupancy and presence of flammable liquids.
The fire safety risk associated with both the Existing Use and the Proposed Use is
compared having regard for the location of the Durkin property within the "Runway
Protection Zone" of the adjacent McClellan Palomar Airport, and the potential for
aviation accidents. To provide a frame of reference of comparative risk, the fire safety
risk of the existing uses on adjacent Lots 23 and 25 is also considered.
Conclusion
This investigation and the resulting analysis reveals that the probability and
severity of fire in the event of an aviation related accident is the same for the
Proposed Use as for the Existing Use. However, the life safety risk from an
aviation accident or resulting fire is greatly reduced under the Proposed Use
because the human occupancy load is reduced from the 100-people allowed
under the Existing Use to 30 people allowed under the Proposed Use.
S I P a g e -F i I' e 5 :1 f e t •_, l{ i .5 ls A n ;; ! y s f , -5 5 1 7 I) r '! ,i ,:; r, f" t ;, , e , C a r , s b a d , C A ,
March 27, 2018 Item #9 Page 39 of 56
Summary of Analysis
Overall Risk Fire Probability Fire Severity
(1} (.g_L __
Existing Risk ~ Lot 24 -Remote Low 5817 Dryden Place
Existing Risk -
Parking Lots 23 and Remote Low
25
Proposed Risk Lot 24
Repair Garage/Spray Remote Low
Painting
(1) Fire Probability Rating
760-703-4.491
,vild-iire@att.net
Life Safety
Hazard (3}
100 people
N/A
30 people
Remote -So improbable, may be assumed this hazard will not be
experienced.
(2} Fire Severity Rating
Low -The impact will be so low the results would have limited impact.
(3) Life Safety Hazard
Danger to people on the ground.
6jPage-Flre Safety Risk Analysis--5817 D,vdP.n Place, Carlsbad, CA.
March 27, 2018 Item #9 Page 40 of 56
Planning Commission Minutes
Minutes of:
Time of Meeting:
Date of Meeting:
Place of Meeting:
CALL TO ORDER
November 15, 2017
PLANNING COMMISSION
6:00 p.m.
November 15, 2017
COUNCIL CHAMBER
Chairperson Segall called the meeting to order at 6:00 p.m.
PLEDGE OF ALLEGIANCE
Commissioner Siekmann led the Pledge of Allegiance.
ROLL CALL
EXHIBIT 5
Page 1
Present: Chairperson Segall, Commissioners Anderson, Goyarts, Montgomery, Rodman and
Siekmann
Absent: Commissioner Black
STAFF PRESENT
Don Neu, City Planner
Ron Kemp, Assistant City Attorney
Farah Nisan, Administrative Secretary
Greg Fisher, Associate Planner
Jason Geldert, Engineering Manager
Mike Grim, Senior Program Manager
APPROVAL OF MINUTES
Chairperson Segall asked if there were any corrections or revisions to the minutes of the meeting of November
1, 2017.
MOTION
ACTION: Motion by Commissioner Montgomery and duly seconded by Commissioner
Siekmann to approve the minutes of the Regular Meeting of November 1, 2017.
VOTE: 6-0-1
AYES: Chairperson Segall, Commissioner Anderson, Commissioner Goyarts,
Commissioner Montgomery, Commissioner Rodman and Commissioner Siekmann
NOES: None
ABSENT: Commissioner Black
ABSTAIN: None
PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA
Tracy Seemann, 4907 Via Arequipa, stated she received a phone call from Jonathan Frankel, New Urban
West Project Manager for the Marja Acres development, and asked if the large signs posted around the
neighborhood could be removed if the existing house on 4926 Park Drive would not be demolished and the
pathway between the two neighborhoods would be removed from the project plan. Ms. Seemann stated
that they came to an agreement and thanked staff for their guidance.
March 27, 2018 Item #9 Page 41 of 56
Planning Commission Minutes November 15, 2017 Page 2
PLANNING COMMISSION PUBLIC HEARING
Chairperson Segall asked Mr. Neu to introduce the first item and opened the public hearing on Agenda
Item 1.
1. PCD 2017-0001 (DEV2017-0120) -DURKIN CAC LOT 24 LLC APPEAL -Request to
grant an appeal of the City Planner's denial of a change of use based on a determination
that an auto body and repair shop use proposed to be located at 5817 Dryden Place within
Local Facilities Management Zone 5 is not a more conforming use than the existing use,
and is not permitted in the Carlsbad Airport Centre Specific Plan (SP 181 (H)).
Mr. Neu introduced Agenda Item 1 and stated Associate Planner Greg Fisher would make the staff
presentation.
Mr. Fisher gave a presentation and stated he would be available to answer any questions.
Chairperson Segall asked if any of the Commissioners have ex parte communications to disclose for this
item.
Commissioner Anderson disclosed that she drove through the property.
Commissioner Montgomery disclosed that he worked near the property about 15 years ago.
Chairperson Segall disclosed that he viewed the property on Google Maps.
Chairperson Segall asked if there were any questions of staff.
Chairperson Segall inquired about the scope of the Commission's review on this item. Assistant City
Attorney Ron Kemp clarified the commission was to review if the City Planner misinterpreted the evidence
that was before him or abused his discretion.
Chairperson Segall asked if the appellant wished to make a presentation.
Steven A. McKinley, Freeland, McKinley & McKinley, Suite 1815, 402 West Broadway, San Diego, assisted
by Cliff Hunter, Rancho Santa Fe Protection District retired Fire Marshal, made a presentation.
Chairperson Segall asked if there were any questions for the appellant.
Commissioner Anderson wondered what the thresholds for acceptable victims are in the event of an
emergency. Mr. Hunter replied there is no acceptable loss to human life, however the reduction from 70
occupants to 30 would be less severe.
Commissioner Montgomery asked if the appellant could propose something else that is more compatible
rather than proposing something specifically excluded in the Airport Land Use Compatibility Plan (ALUCP).
Mr. McKinley replied that there is an investment made on the property and it has to be an economically
viable use as determined by his client that allows for the reduction of the risk.
Commissioner Anderson asked how the applicant would find it easier to rent the building to auto use any
more so for office use. Mr. McKinley replied that the building is fully rented for a mix of uses, most of it for
office use and a portion devoted for storage.
Mr. Neu clarified that there have been different ALUCP's prepared by the San Diego Association of
Governments (SANDAG) then the Regional Airport Authority was created and prepared the current plan.
The plans have been utilized by staff to implement land use approvals on many projects that come before
the Commission. Mr. Neu stated that the building was approved in conformance with the earlier version of
the plan and that use could continue. Staff has been asked to consider through an unusual method, the
nonconforming provision, to allow a use that is not allowed in the ALUCP or the specific plan. Mr. Neu
concluded stating that staff has not been asked to consider other uses, however there are other uses that
would be considered more favorably that would have conformance with the ALUCP and the specific plan
March 27, 2018 Item #9 Page 42 of 56
Planning Commission Minutes November 15, 2017 Page 3
such as warehouse distribution or storage that is allowed in the specific plan and expected to have a lower
occupancy. Chairperson Segall inquired about the process in changing the specific plan. Mr. Neu replied
that there is a process to amend the specific plan that is similar to a zoning code amendment which requires
review by the Regional Airport Authority. Mr. Neu added that an application was filed by the appellant that
was routed to the Regional Airport Authority and they indicated at a staff level that they do not find it
consistent with the ALUCP.
Chairperson Segall asked if Mr. McKinley wished to respond.
Mr. McKinley commented that any use would have to be an economically viable use. Reducing it from
office use to auto repair involves an economic sacrifice the property owner is willing to make. Mr. McKinley
stated that devoting the entire property to storage or warehouse use is unrealistic and will not happen.
Chairperson Segall asked if any member of the audience wished to speak on the item. Seeing none, he
closed public testimony.
Mr. Kemp commented that the City Attorney's office is confident that the city did not incur liability in 1985
by approving a subdivision map. Up until 2010, the subject property's use was a legal conforming lot. Mr.
Kemp concluded the concern is that if a decision has been made by the city to override the ALUCP and
approve the project, there could be potential exposure for the city by exercising discretion now to allow a
nonconforming use.
DISCUSSION
Commissioner Anderson has sympathy for the property owner, although not every business venture is
successful. She feels that it is an attempt to make an investment more viable, however the applicant is
asking the Commission to go against two different sets of rules that do not allow the proposed use.
Commissioner Anderson cannot disagree with the City Planner's decision.
Commissioner Montgomery has great empathy for the applicant, however he would have to support the
City Planner's decision. Commissioner Montgomery is hopeful that the applicant can propose something
that is economically viable.
Chairperson Segall understands the applicants issue and concerns and stated that he would support the
decision made by the City Planner.
MOTION
ACTION: Motion by Commissioner Montgomery and duly seconded by Commissioner
Siekmann that Planning Commission approve Planning Commission Resolution No.
727 4, denying the appeal of Durkin CAC Lot 24 LLC, denying the requested change
of use, and determining that an auto body and repair shop is not a more conforming
use than the existing use and is prohibited in the Carlsbad Airport Centre Specific
Plan (SP 181 (H)) based on the findings contained therein.
VOTE: 6-0-1
AYES: Chairperson Segall, Commissioner Anderson, Commissioner Goyarts,
Commissioner Montgomery, Commissioner Rodman and Commissioner Siekmann
NOES: None
ABSENT: Commissioner Black
ABSTAIN: None
Chairperson Segall closed the public hearing on Agenda Item 1, asked Mr. Neu to introduce the next item
and opened the public hearing on Agenda Item 2.
March 27, 2018 Item #9 Page 43 of 56
EXHIBIT 6
Deveiopment Services
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
RECEIVED
Date of De~ision you are appealing;___,,_N_,_,o'--'-v=em=b=er'"'"'l:c.:5:.z...=20=1"-'-7 _____ ____,1---!-'-1,,J--l'-----'oL..L..~l+---,--+-,!';.+µ""----
Subiect of the App·eal: ·. _CITY OF CARLSBAD
CITY CLERK'S OFFICE
BE SPECIFIC Exam·ples: if the action is a City Planner's Decision, pleas.e say so. If a projec! .. as .. n;,u~tiple
applications, (such . as a Coastal Development Permit, Planned Unit Deveioprnent, MinQr Conditional Use
Permit, etc) pleas<? list all of them. If you only want to appeal a part of the whole action, p)ease state that here.
Plea$e see .fee schedule for the current fee.
Planning Commission's Decision ofNovemb~r.1.5, 2017.
See attachment L incorporated herein,by reference.
Reason s for the A eal: PLEASE NOTE: The .a eal shall s ecificall state the reason s for the
appgaL Fiilure· k)' S.Pe:dfy a r.eason. may .re.sui.t.Jn. denial of t .. ·e .apµ:ear1 and you will be lim1t13d to· fhe
grounds stated hete When presenffhg your appeal. . .
8E $.PECIFiC How did the decis,ion-m~ker err? What ~bout tt,e decision is inconsistent with local laws, plans,
or poHcy? Please see Carlsb.ad Municipal Code (CMC) Section 21.54.140(b) for additional information
(attached). Please attach additional sheets ·or exhibits if necessai:y.
Se_e.atfachmen.t ~, wcorporated he~eirt by reference,
NAME (Print): Durkin CAC Lot 24, LLC, .l?y.Michael Dur.kin
MAILING ADDRESS :: _4-~· l..,,_c.. .. _C?_. __ LA_.,..._ ~_,.c_?L-L--1_,_..,...: _i\-_\J_,_I_\ '-'='fr.-_i:::::-__ k-_·_:_-q_·,,....0-=15,__"'_0_--,-______ _
CITY, STATE, ZIP: s~ ll i&G-0 , C--A-~z_j_?:,Z...
I:
TELEPHONE: ~B .... $'3~.-::3 t?=>0{3
EMAIL ADDRESS:
SIGNATURE:
DATE:
P-27 Page·1 of 1 Rev. 05112
March 27, 2018 Item #9 Page 44 of 56
ATTACHMENT "1" TO APPEAL TO CITY COUNCIL FROM CITY PLANNING COMMISSION DECISION
PERTAINING TO LOT 24
Pursuant to City of Carlsbad Municipal Code 21.54.150, Durkin CAC lot 24, LlC, "Appellant", appeals the
November 15, 2017 denial by the City Planning Commission of its' appeal of the denial of its application
for approval of a change in a nonconforming nonresidential use to a more conforming use because there
was an error or abuse of discretion on the part of the planning commission in that the decision was not
supported by the facts presented to the planning commission prior to the decision being appealed. A
copy of the denial is attached hereto as Ex. "ft:'.
On March 7, 2017, Appellant applied to the City Planner for an approval under Municipal Code Section
21.48.070 "E" of a change in an existing legal non-conforming use to a use that is more conforming. The
existing permitted use of up to 100 people conflicts with the current 2010 AlUCP zero occupancy use,
and is therefore a legal non-conforming use. Appellant asked for a change to a more conforming use of
automotive repair with an occupancy load of only 30 people, a reduction in the intensity of the non-
conformity of 70%. A copy of the application is attached hereto as Ex. "B" and incorporated herein by
this reference. A copy of supporting materials filed with the application, consisting of a report titled
"Fire Safety and Risk Analysis", (hereinafter the "Hazard Report") is attached hereto as Exhibit "C".
A hearing was held on the application on March 21, 2017, and on March 30, 2017, supplemental
material in the form of a letter was submitted to the City Planner and City Attorney, a copy of which is
attached as Exhibit "D".
The City Planner denied the application on May 30, 2017, and it was subsequently appealed to the
Planning Commission, which denied the appeal on November 15, 2017. The ten day period for filing an
appeal fell on a Saturday, and on Wednesday, Nov. 23, the City Planner, Greg Fisher, told appellant,
Mike Durkin, that the time for filing this appeal extended to Monday, November 27, 2017, and in
reliance thereon Mr. Durkin waited until Nov. 27 to file this appeal.
The City Planner incorrectly assumed that the existing actual occupancy of the 30,000-square foot
office/industrial building was only 1 to 2 people, and that the existing use was only warehouse. There
was no basis for these assumptions, as the only evidence before the Planner was that the building was
approved for office uses and a human occupancy load up to 100 people. In fact, the building is currently
devoted to a combination of office and lab uses, and related storage space, with the actual occupancy
varying from time to time, but certainly far more than 30 people. The building is actually improved,
configured and furnished to accommodate at least 60 office personnel, and 20 technicians an storage
personne~
Accordingly, the current tenant improvements, which have been in place for many years, are designed
to and do accommodate at least 80 people.
March 27, 2018 Item #9 Page 45 of 56
The Planning Commission abused its discretion by denying the appeal and making erroneous findings
and legal conclusions that 1.) an auto body and repair shop is not a more conforming use than the
existing office/industrial use, and 2.) that the current use is conforming under the Specific Plan, hut
nonconforming under the ALUCP; 3.) that the proposed use is both specifically excluded and expressly
prohibited under the Specific Plan, and 4.) that a change to auto body and repair would make the
property non-conforming under both plans.
The Planning Commissions factual findings, if any, are not supported by substantial evidence, and its
legal conclusions are not supported by findings of fact, and are erroneous and an abuse of discretion,
because:
1.) The proposed use is more conforming because the human occupancy is less: The evidence is that
the noneconformity is high human occupancy, and the proposed change will reduce this non-
conformity.
2.) The current use is non-conforming under the Specific Plan: In 2012 the City amended all of its
plans to conform to the ALUCP, therefore what is inconsistent with the ALUCP is equally
inconsistent with any specific plan. This follows inescapably from the fact the City incorporated the
ALUCP into its General Plan, and provided that all uses would be consistent with the ALI.JCP absent a
City override. (See, General Plan, Policy Statements 2-P.37, P. 38, pg. 2-44). Moreover, the General
Plan provides that it prevails over any inconsistency in the zoning code or map. (See, pg. 2~29,
General Plan). Incontrovertibly, the Specific Plan is deemed amended to conform to the ALUCP, and
therefore the existing use conforms with neither plan. Accordingly, as a matter of law the current
use is a legal non-conforming use, and is not allowed under the Specific Plan as revised and
amended by the 2012 amendment of all the City's plans and policies to conform to the 2010 ALUCP.
3.) The proposed use is neither specifically excluded or prohibited under the Specific Plan: More
precisely, it is excluded from the list of specifically permitted uses while nonetheless remaining
consistent with the generally described uses. In this regard, the Specific Plan approves generally
described uses (light and medium industrial, industrial support and service, and business uses) in
addition to uses elsewhere specifically listed as permitted. While the proposed use is excluded from
the list of specifically permitted uses, it fits within the description of generally permitted uses, and
therefore is neither specifically excluded or prohibited under the Specific Plan. Indeed, the Specific
Plan contains no list of "prohibited" uses whatsoever, and the word "prohibited'' simply does not
appear with reg;::ird to auto body and repair uses.
4.) The proposed change would not "make" the property non-conforming under both plans: Since
both the current use and the proposed use are non-conforming as a matter of law under the
Specific Plan, the change to auto body and repair would not make the property non-conforming
under both plans; the property is non-conforming under both plans whether the change is made or
not.
Since the current use does not conform to the Specific Plan, the non-conformity of the proposed use
with the Specific Plan is irrelevant and simply means both current and proposed uses are on an equal
footing in this regard. The only issue is whether the intensity of the non-conformity is less under the
March 27, 2018 Item #9 Page 46 of 56
proposed use than the current use. The only evidence on the point is that the proposed use involves a
lower human occupancy and is therefore more conforming than the current use.
Lot 24 was originally permitted for office/industrial use with an occupancy load of up to 100 people. (PIP
00-04(A) Carlsbad Airport Centre Lot 24). At the time it was approved in 2002, the property was not
designated by the ALUCP as a runway protection zone, and the approved use was not inconsistent, from
a safety standpoint, with the ALUCP. The building was constructed in 2004 in accordance with the
planned industrial permit and has since been used for its approved use of office/industrial with an
occupancy load of up to 100 people.
But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway Protection Zone, and it
was reclassified as Safety Zone 1, with an allowed occupancy load of 11zero". People and buildings are
basically prohibited in this zone. It is a matter of safety for people on the ground. (2010 ALUCP, p. 3-28,
29).
Accordingly, the current office/industrial use with an allowed occupancy of 100 people is a legal non-
conforming use. It was legal and conforming when it began, but it became non-conforming in 2010 with
the adoption of the new ALUCP, which prohibits people and buildings in the Runway Protection Zone.
Right now, the intensity of the non-conformity is most accurately measured by the number of people
allowed by reason of the legal non-conforming use. That number is 100 people, and that is the number
of people at risk of an aviation related accident as things stand today, and as things will stand for the
useful life of the building 100 years into the future. The risk of an accident over that period of time
cannot be discounted. However, it is legal to use the building now for 100 people, and that will be the
case forever absent an approved change of use to a lower occupancy.
Earlier last year, Mr. Durkin made application to the City for a specific plan amendment to accommodate
a change in use from office/industrial to auto body and repair. But, as shown above, a specific plan
amendment is unneeded because the non-conforming use zoning ordinance authorizes the cfty planner
to approve any change in use, whether authorized by the applicable zone or not, so long as the change
results, as is the case here, in a reduction in the degree of non-conformity.
The previous application for a specific plan amendment was submitted to the ALUC for a consistency·
determination. The ALUC staff specifically noted in response that the proposed change in use would
reduce the non-conformity. But because it was proposed as an amendment to the specific plan, ALUC
staff analyzed it as if the legal non-conforming use provisions of the ALUCP were inapplicable. Once it is
clear that it is being treated as a reduction in a non-conformity, as opposed to an amendment to a
specific plan, not onJy does the ALUC objection disappear, ALUC review is not even triggered. (PUC
Section 21676 (b) (referral to the ALUC for consistency determination on non-general plan land use
actions is hot required once City General Plan found to be consistent).
Mr. Durkin's proposed change in use to auto body and repair will result in a substantial reduction of life-
safety risk to the benefit of everyone, including the City and the Airport. His proposal to change the use
to auto body and repair will reduce the allowed number of people from 100 to 30. This reduction in the
March 27, 2018 Item #9 Page 47 of 56
number of people allowed can only be achieved by this change in use. It results in a 70% reduction in the
overall risk to life and safety. From a City planning point of view, this is a golden opportunity to reduce a
non-conformity and thereby preserve and protect the public health and welfare.
In support of this change, Mr. Durkin has commissioned a Fire And Safety Risk Analysis by a well-
recognized and highly regarded fire saftey expert, and this report was submitted to the planner. The
report conclusively shows that the life-safety risk is reduced by 70% by changing the use to automotive.
As more fully discussed and analyzed in the report, automotive use does NOT result in any increase in
life-safety risk from factors such as automotive fluids and paints. In the event of an aviation accident the
controlling factor exposing people to rrsk is the flammability of the on-board aviation fuel, and that
factor remains the same under both the existing use and the proposed change in use.
Accordingly, while other safety variables remain the same, the change in use will reduce the primclry risk
factor addressed by the ALUCP and with which both the airport and the C:ity are properly concerned,
and that is the number of people on the ground. Mr. Durkin asks that the City lower the life safety risk
associated with this legal non-conforming use by granting a change in use that will decrease the life
safety risk by fully 70%. Suth a change in use reduces the degree of non-conformity by the same 70%,
since the non-conformity relates to the risk to the safety and lives of the people on the ground.
Moreover, such a change in use will serve a vital business need currently unmet within the City limits.
The City rightfully can take pride that it is home to a thriving auto dealership community, but that
community is in desperate need of this very facility to accommodate the service demands of its
clientele. To keep Carlsbad's auto dealership community vibniht and thriving into the foreseeable
future, the City must take care to make available conveniently located land upon which high end auto
dealers can provide auto body and repair, and this change in use will serve that heretofore unmet need.
March 27, 2018 Item #9 Page 48 of 56
May 30, 2017
Steven A. McKinley
Freeland McKinley & McKinley
Suite 1815 ·
402 West Broadway
San Diego, CA 92101
~ x i---i-i B i ·, ,. A
SUBJECT: CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE
Dear Mr. McKinley,
On behalf of your client, you have asked for the approval of a change of use on Carlsbad Airport Centre
lot 24, owned by Durkin-CAC-Lot24, LLC to-an auto body and repair shop;
The property is currently permitted for an office/industrial use with an allowed occupancy limit of 100.
This becam_e a nonconforming use with the 2010 adoption of an amended Airport La·nd Use Compatibility
Plan {ALUCP}, which placed the property in Safety Zone 1 of the Runway Protection Zone. It ls our
understanding that the property is currently being used as a warehouse with an occupancy df 1-2 people.
You have stated that the City Planner has the authority to approve a change in a legal nonconforming
nonresidential use to a use that is more conforming under Carlsbad Municipal Code Section 21.48.070(e),
which states:
E. Change of Use. A nonconforming nonresidential use may be changed to a use that is
permitted in the zone in which the subject property is located, or may be changed to a
use that i~ more conforming, subject to approval of the city planner and the issuance of a
business license.
It is stated thatthe proposed use will result in a substantial reduction oflife-safety risk because occupancy -·. . "' · · ·
of the building will be reduced from an allowed number of people from 100 to 30, thus making the use
more conforming.
Reduction of allowable occupancy is not the only way to analyze nonconformity. The current use of the
property is allowed under the specific plan. It is nonconform_ing under the ALCUP. An auto body and
repair shop is not allowed under the specific plan. A change would make the use nonconforming in both
plans.
As noted above, it is our understanding i; that the property is currently occupied hy 1-2 people, not the
io'O al.iowed by the pe~mif or as arJalyied in your argument. It may be that approving· an auto repair shop
wm actually put more· people on the property than are on it at this time.
Community & Economic Development
Planning Division l 1635 Faraday Avenue Carlsbad, CA 92008-7314 I 760-602-4600 j 760-602-8560 f I www.carlsb,1dca.gov
March 27, 2018 Item #9 Page 49 of 56
CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE
May 30, 2017
-Pagec2 -------. --------·
The ALUCP points out that an auto repair shop is classified in high hazard group H-4 under the buildJng
code. This classification is given to building and structures containing materials that are health hazards,
such as corrosives, highly toxic materials and toxic materials. This is not a more conforming use in Safety
Zone 1.
Under CMC 21.54.140 a decision or determination of the City Planner can be appealed to the Planning
Commission if the appeal is filed within 10 calendar days of when the decision becomes final. In this
instance the decision becomes final when this letter has been mailed, May 30, 2017. The appeal
appllcation form and fee is available on the Planning Division webpage or can be obtained at the Planning
Division office.
Recognizing the limited number of sites in the in the City of Carlsbad designated to permit auto repair the
Planning Division has initiated a project that includes a zone code amendment, !ocal coastal program
amendment, and amendments to certain specific p[ans to designate additional areas where auto repair
could be permitted. This is a project of importance to the city recognizing the need for sites for auto body
and repair facilities.
DON NEU; AICP
City Planner
c: Michael J. Durkin, Durkin Development Co., Suite 1080, 4660 La Jolla Village Drive, San Diego, CA 92122
Glen Van Peski, Community and Economic Development Director
Teri Delcamp, Principal Planner
Ron Kemp, Assistant City Attorney
March 27, 2018 Item #9 Page 50 of 56
-,._i d
Ex. 1--i-1 ..G i T ..B
FREELAND MCKINLEY & MCKINLEY
Steven A. McKinley*
Karen G. McKinley
Ian W. McKinley.
Ryan 0. McKinley
* Also admitted in Nevada
SENT VIA MESSENGER
March 7, 2017
Mr.Don Neu
Planning Director
City of Carlsbad
ATTORNEYS AT LAW
402 W. Broadway, Ste. 1815
San Diego, Ca. 92101
Tel. (619) 297-3170
, Fax. (619) 255-2853
Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity of Non-Conformity
4760 S. Pecos Rd
Suite 103
Las Vegas, NV 89017
This is an application for approval, pursuant to Municipal Code Section 21.48.070. "E.",
of a change in a legal non-conforming use to a use that is more conforming. Specifically, it is
requested that the current approved use of office/industrial be changed to allow a more
conforming use of auto body and repair for the above described property.
This request is made under the authority of Section 21.48.070, which authorizes the
/planner to approve such a change in use when the change will decrease the intensity of the non-
conformity. That section reads as follows:
"Change of Use. A nonconforming nonresidential use may be changed to a use
that is permitted in the zone in which the subject property is located, or may be
changed to a use that is more conforming, subject to approval of the city planner
and the issuance of a business license."
As you can see from the foregoing, there are two distinct instances in which the city
planner can approve a change in use. The first is where the change is to another use permitted
within the zone. The second is where the change is simply to a use which is more conforming. It
is this second authorization for change in use that applies in this case. Lot 24 was originally
permitted for office/industrial use with an occupancy load ofup to 100 people. (PIP 00-04(A)
Carlsbad Airport Centre Lot 24 ). At the time it was approved in 2002, the property was not
designated by the ALUCP as a runway protection zone, and the approved use was not
inconsistent, from a safety standpoint, with the ALUCP: The building was constructed in 2004 in
accordance with the planned industrial permit and has since been used for its approved use of
office/industrial with an occupancy load ofup to 100 people.
But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway
Protection Zone, and it was reclassified as Safety Zone 1, with an allowed occupancy load of
"zero". People and buildings are basically prohibited in this zone. It is a matter of safety for
people on the ground. (2010 ALUCP, p. 3-28, 29).
(619) 297-3170 ,. Freeland, McKinley, & McKinley • 402 W. Broadway, San Diego, CA 92101
Page 1 of 3
March 27, 2018 Item #9 Page 51 of 56
Subsequent to the 2010 ALUCP amend1nent, the City incorporated it into its General
Plan, and provided that all uses would be consistent with the ALUCP absent a City override.
(See, General Plan, Policy Statements 2-P.37, P. 38, pg. 2-44). Moreover, the General Plan
provides that it prevails over any inconsistency in the zoning code or map. (See, pg. 2-29,
General Plan). ·
Accordingly, the current office/industrial use with an allowed occupancy of 100 people is
a legal non-conforming use. It was legal and conforming when it began, but it became non-
conforming in 2010 with the adoption of the new ALUCP, which prohibits people and buildings
in the Runway Protection Zone.
Right now, the intensity of the non-conformity is most accurately measured by the
number of people allowed by reason of the legal non,-conforming use. That number is 100
people, and that is the number of people at risk of an aviation related accident as things stand
today, and as things will stand for the useful life of the building 100 years into the future. The
risk of an accident over that period of time cannot be discounted. f[owever, it is legal to use the
building now for 100 people, and that will be the case forever absent an approved change of use
to a lower occupancy.
Earlier last year, Mr. Durkin made application to the City for a specific plan amendment
to accommodate a change in use from office/industrial to auto body and repair. But, as shown
above, a specific plan amendment is unneeded because the non-conforming use zoning ordinance
authorizes the city planner to approve any change in use, whether authorized by the applicable
zone or not, so long as the change results, as is the case here, in a reduction in the degree of non-
conformity.
The previous application for a specific plan amendment was submitted to the ALUC for a
consistency determination. The ALUC staff specifically noted in response that the proposed
change in use would reduce the non-conformity. But because it was proposed as an amendment
to the specific plan, ALUC staff analyzed it as if the legal non:-conforming use provisions of the
ALUCP were inapplicable. Once it is clear that it is being treated as a reduction in a non-
conformity, as opposed to an amendment to a specific plan, not only does the ALUC objection
disappear, ALUC review is not even triggered. (PUC Section 21676 (b) (referral to the ALUC
for consistency determination on non-general plan land use actions is not required once City
General Plan found to be consistent).
Mr. Durkin's proposed change in use to auto body and repair will result in a substantial
reduction of life-safety risk to the benefit of everyone, including the City and the Airport. His
proposal to change the use to auto body and repair will reduce the allowed number of people
· from 100 to 30. This reduction in the number of people allowed can only be achieved by this
change in use. It results in a 70% reduction in the overall risk to life and safety. From a City
planning point of view, this is a golden opportunity to reduce a non-conformity and thereby
preserve and protect the public health and welfare.
In support of this change, Mr. Durkin has commissioned a Fire And Safety Risk Analysis
by a well-recognized and highly regarded fire safety expert, and this report is enclosed with this
(619) 297-3170 • Freeland, McKinley, & McKinley • 402 W. Broadway, San Diego, CA 92101
Page2 of 3
March 27, 2018 Item #9 Page 52 of 56
letter. The report conclusively shows that the life-safety risk is reduced by 70% by changing the
use to automotive. As more fully discussed and analyzed in the report, automotive use does NOT
result in· any ·increase in life-safety risk from factors such as automotive· fluids and paints .. In the
event of an aviation accident the controlling factor exposing people to risk is the flammability of
the on-board aviation fuel, and that factor remains the same under both the existing use and the
proposed change in use.
Accordingly, while other safety variables remain the same, the change in use will reduce
the primary risk factor addressed by the ALUCP, and with which both the airport and the City
are properly concerned. That ove1Tiding risk factor is the number of people on the ground. Mr.
Durkin asks that the City lower the life safety risk associated with the current legal non-
conforming use by granting a change in use that will decrease the life safety risk by fully 70%.
Such a change in use reduces the degree of non-confonnity by the same 70%, since the non-
conformity relates to the risk to the safety of the lives of the people on the ground.
Moreover, such a change in use will serve a vital business need currently unmet within
the City limits. The City rightfully can take pride that it is home to a thriving auto dealership
community, but that community is in desperate need of this very facility to accommodate the
service demands of its clientele. To keep Carlsbad's auto dealership community vibrant and
thriving into the foreseeable future, the City must take care to make available conveniently
located land upon which high end auto dealers can meet the ever-increasing demand for auto
body and repair services, and this change in use will serve that heretofore-unmet need.
It is respectfully therefore requested that the city planner approve a change of use that
reduces the degree of non-confonnity, and allow a fully enclosed auto body and repair use within
the existing building envelope, with no resulting change in the exterior building or aesthetics.
Very Truly Yours,
(619)297-3170 • Freeland, McKinley, & McKinley • 402 W. Broadway, San Diego, CA 92101
Page 3 of3
March 27, 2018 Item #9 Page 53 of 56
FREELAND MCKINLEY ,& MCKINLEY
Steven A. McKinley*
Karen G. McKinley
. lan W. McKipli:;y
Ryan 0. McKinley
* Also admitted in Nevada
SENT VIA FED EX
March 30, 2017
Mr.Don Neu
Planning Director
City of Carlsbad
1635-Faraday Ave.
Carlsbad, Ca. 92008
Mr.RonKemp
Assistant City Attorney
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, Ca. 92008
ATTORNEYS AT LAW
402 W. Broadway, Ste. 1815
San Diego, Ca. 92101
Tel. (619) 297-3170
. ·fax. (619} 255-2853
. :·., ., :
Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity ofNon-Conformity
Dear Mssrs. Kemp and Neu;
4760 S. Pecos Rd.
Suite 103
Las Vegas, NV 89017
Thank you for listening to our-application last Tuesday for approval of a change to a more
conforming use for the above referenced property.
As discussed, I would like to supplement our application with a review of the controlling legal
authorities responsive to the questions raised during our meeting of March 21, 2017. One of
those questions pertained to whether the request must be first submitted to the San Diego County
Airport Authority for a consistency determihation. The answer is that it is neither required nor
recommended.
The statutory authority for Airport Land Us:e Commission powers of review is found in the State
A~ronautics Act ("SAA''), Chapter 4, Article 3.5, trqed '"AfrportLand Use Co.rntnission", Public ··
Utilities Code Sections 21670, et seq.
i. Power to Assist Local Agencies: A Power That Does Not EA-tend To Existing
Incompatible Uses. The scope of Airport Land Use Commission authority is defined in Section
2167 4(a) to include assisting local agencies to ensure compatible land uses "to the extent that the
land .. .is not already devoted to incompatible uses." This provision by itself makes clear that the
assistance of an ALUC is not authorized with respect to existing incompatible uses, such as the
(619) 297-3170 o Freeland, MclGnlcy, & McKinley " 402. W. Broailway,Sart Diego, CA 92101
Page1 of4
,.· .. ·.
March 27, 2018 Item #9 Page 54 of 56
. ;-: ....
office building on Lot 24, and for that reason alone the power to «assist,, does not come into play
with respect to the existing incompatible use.
Moreover, the power to "'assist" as referred to in this subsection does not imply or confer
any authority either to review a land use action for compatibility, or to find it inconsistent so as
to require an override.
ii. Power to Review: A Power Limited to Adoption or Amendment of General or
Specific Plans, Zoning Ordinances, and Building Regulations. Subdivision (b) of Section
21674 empowers an ALUC to "review the plans, regulations, and other actions oflocal
agencies ... pursuant to Section 21676." Acc6rdingly, the scope ofreview depends upon what is
allowed under Section 21676. ·
Where there is an adopted ALUCP (as is the case here), Section 21676 specifically limits
the power of review to the following actionS of the local agency:
e The amendment of general or specific plans, and
s, The adoption or amendment of a zoning ordinance, and
G The adoption or amendment of a building regulation.
Accordingly, reading Sections 21674(b) and 21676 together, it is abundantly clear that
the ALUC does not have the power to review the planning director's exercise of the discretion
given him under Zoning Code Section 2 l.4;8.070 "E." to approve a more conforming use. Such
an exercise of discretion is not one of the above enumerated legislative acts.
· Our interpretation that the ALU Cs power ofreview is limited to the above enUJ.Tierated
legislative actions was confirmed as correct by the City in its staff report dated Jan. 4, 2012, in
which it affirmed the effect of adoption oftesolution GP 10-02 as follows:
" ... after a local agency's general plan is found by ALUC to be consistent with the
Compatibility Plan, the ALUC will µo longer have authority to review land use actions
( except for legislative actions such as the adoption, approval or amendment of the general
plan). Therefore, with adoption of GP A 10-02, and subsequent ALUC consistency
finding, the authority to review development projects for consistency with the
Compatibility Plan, as well as the epf orcement of the documenf s compatibility policies,
is transferred to the city (except for;Jegislative actions as noted above)."
An excerpt from the-staff report containing this interpretation is attached for your convenience .
Moreover, the fundamental concept that the ALUC is not intended to have review powers over
land uses that predated the adoption of the applicable ALUCP is found in the Legislative
declaration of purpose for the Airpmt Land Use Commission: "to protect public health, safety,
and welfare by ensuring the orderly expansion of airports and the adoption of land use measures
that minimize the public's exposure to excessive noise and safety hazards within areas around
public airports to the extent that these areas are not already devoted to incompatible uses." PUC
Section 21670 (a).
{619) 297-3170 " Freeland, McKinley, & McKinley & 402 \Y. Broadway, San Diego, CA 92101
Page 2 of 4
March 27, 2018 Item #9 Page 55 of 56
In summary, the SDCRAA has no power to review the exercise of administrative discretion
involved here.
The Prior Application for A Specific Plan Amendment: Another issue discussed at our last
meeting was the reason given by the SDCRAA for proposing to reject the application for specific
plan amendment. This particular pathway to a legal change of use was originally suggested by
the City, but because a specific plan amendment is by definition a legislative action over which
the ALUC has the power ofrevieW, submission to the SDCRAA was required, and in retrospect,
an inconsistency finding was a foregone conclusion. A specific plan amendment takes the
proposal out of the ALUCP nonconforming, nomesidential-use safe harbor for changes that do
not result in an increase in nonresidential intensity (ALUCP, Policy 2.11.2( c )(2)). See, excerpt
from SDCRAA Staff Report, 10/20/16, attached; and SDCRAA proposed Resolution, 10/20/16,
attached, excerpt as follows: ·
"WHEREAS, the proposed project is located within Safety Zone 1, and,
though the use would occur within an existing nonconforming building without
increase in existing intensity, the project proposes to change the land use
designation of a property to allow a repair garage use which the ALUCP identifies
within Safety Zone 1 as incompatible with airport uses;"
A key takeaway is the acknowledgement by the SDCRAA that the proposed change does not
involve an increase in existing intensity. The problem. identified by the SDCRAA is that the
proposal involved a change in «the land use, designation". In other words, because a legislative
act was involved it was bounced out of the nonconforming use provisions of the ALU CP found
at2.1L2.
If the pending application for an administrative approval by the Planning Director was to be
submitted to the SDCRAA for a consistency finding it would set the wrong precedent by
suggesting that all administrative planning ~ecisions are subject to SDCRAA consistency
determinations. The City should not compromise and surrender its exclusive authority over such
decisions as provided under its Zoning Coqe.
The Effect of Overriding An SDCRAA Ihconsistency Determination: I believe the other
major issue raised was the effect of an incq'nsistency determination by the SDCRAA, should the
matter be submitted for obtaining such a detennination. It was acknowledged at the meeting that
existing provisions of the SAA grant the aifport operator immunity from liability in the event of
. an override, _and thl;l.t the relevant statute says nothing about who might be exposed to liability.
There are no cases found on point, but the plear text and intent of the statute is not to shift or
create liability but to grant an immunity where an immunity is not otherwise available. Had
I there been any intent to shift liability to th~ local agency the Legislature could and would
logically have so expressed, but instead th~ statute is silent in this regard. The logical and best
explanation for this silence is that the Legi~lature knew, and it indeed is presumed to know, that
there already existed a whole body of stauitory and case law granting immunity to public entities
for the exercise of permitting and other latjd use authority. There was no reason to duplicate such
grant, and indeed had the statute included huch a grant it would have created confusion given the
(619) 297-3170 o Frccl:mtl, McIGn1ey, & McKinley o 402 W. Broadway, San Diego, CA 92101
~; Page 3 of 4
March 27, 2018 Item #9 Page 56 of 56
preexisting immunities. The reason the statute was needed was because airport operators may be
private entities, or public entities acting in a proprietary capacity, and as such need immunity.
The Legislature concluded such imnrnnity is good policy, because if a local agency, already th(;! .
beneficiary of statutory immunities for its lano. use decisions, makes a land use decision
overriding the SDCRAA; and the decision exposes the airport operator to liability, in fairness the
operator should have the same immunity as does the local agency .
. Anot)ler concern raised by Mr. Neu was that the automotive use is inconsistent with the general
plcm. However, the current use is inconsistent with the general plan because of the 2012
amendment incorporating into the general plrin the Safety Zone 1 classification for Lot 24
contained in the 2010 ALUCP. It is this incoµsistency that makes the current use a legal
nonconforming use, thereby invoking the provisions of the nonconforming use ordinance
allowing approval to a more conforming use} Here, the requested change is to a more conforming
use because the reduction in occupancy reduces the intensity of the nonconformity.
In summary~ there is no need in this case to dilute and blur the proper sphere of City authority by
submitting what is clearly an administrative ~ecision under the zoning ordinance to the
SDCRAA for a review it has no statutory authority to make. If it is determined to do so and an
inconsistency determination is made, it will }IDilecessarily burden the City Council with an
override decision it should not be required to make.
Very Truly Yours,
FREELAND MCKINLEY & MCKINLEY
By: Steven A. McKinley
(619) 297-3170 " Freeland, McKinley, & McKinley o 401. W. Broadway, San Diego, CA 92101
Page4of4
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Durkin CAC Lot 24 LLC Appeal
PCD 2017-0001
Location Map
0
Durkin CAC Lot 24
LLCAppeal
PCD 2017-0001
8
200
Request
•Owner is seeking approval of a change in use on Lot 24
of the Carlsbad Airport Centre Specific Plan (CAC)from
office/industrial to an auto body and repair shop
•Section 21.48.070(e)of the C.M.C.states that a
nonconforming nonresidential use may be changed to a
use that is permitted in the zone in which the property
is located,or may be changed to a use that is more
conforming,subject to the approval of the City Planner
History/Background
•Office/industrial building was approved in 2002
•Permitted building was built in 2004
•The use became legal-nonconforming with the 2010adoptionofanamended Airport Land Use CompatibilityPlan(ALUCP), which placed the property in Safety Zone 1,the Runway Protection Zone
•March 2017,Owner requested change in use to auto
body &repair shop
•June 2017, City Planner denied request
History/Background Continued
•June 2017, owner appealed decision to the
Planning Commission
•November 15, 2017, the Planning
Commission denied the applicant’s appeal.
•November 27, 2017, the applicant filed an
appeal of the Planning Commission’s action
Location
•5817 Dryden Place/Lot 24
•P-M Zone/PI General Plan
•Zone 1 –Runway Protection Zone of the Airport Land
Use Compatibility Plan
•Area 1 -Carlsbad Airport Centre Specific Plan
5817 Dryden Place (Lot 24)
Airport Safety Zones
•The ASZ’s limit the intensity of
nonresidential development to
minimize risk of people on the
ground in the event of an aircraft
accident
•Project site is located in Safety Zone
1 –Runway Protection Zone (red)
•Auto body and repair is identified in
the ALUCP as “incompatible” in
Safety Zone 1
Carlsbad Airport Centre Specific Plan
•SP is the zoning document for the
area. It establishes development
standards and permitted uses.
•Project site is located in Area 1 of
the SP.Typical permitted uses
within Area 1 include light
industrial uses,research and
development uses,and business
and office uses.
•The proposed use (auto body and
repair shop)is not a permitted
use within Area 1 of the SP.
~ms• ..................... ,.~
FIGURE 7
CARLSBAD AIRPORT CENTRE
SPECIFIC PLAN 181 (H)
LAND USE PLAN
LEGEND D AREA1 -
""1L
SPECW. ~CAP-hOOOCMft)W'.».
R'ClllEf.P~Otr.v.RONCSYfAY
Summary
•The proposed change in use to auto body and repair is:
–“Incompatible”and nonconforming in Safety Zone 1
–Runway Protection Zone of the ALUCP;and
–Not a permitted use within Area 1 of the CAC Specific
Plan
•Allowing the proposed use would make the property
nonconforming with both the ALUCP and the CAC
Specific Plan
•The PC and staff did not support the request
Recommendation
That the City Council ADOPT a Resolution DENYING
the appeal of Durkin CAC Lot 24 LLC and upholding
the Planning Commission’s determination that an
auto body and repair shop use is not a more
conforming use than the existing office/industrial
use, and is a prohibited use in the Carlsbad Airport
Centre Specific Plan (SP 181(H))based on the
findings contained therein.
City of Carlsbad
We would like to start by saying Thank
You for hearing us out, we truly
appreciate your time and we honestly
have no ax to grind here today.
We understand that this is our last
opportunity to convince you but we also
know that your counsel has advised
against allowing a change of use
We too, most often listen to our
legal advisors, who goes against
it?
But in this particular instance we
hope that we can sway you, NOT
FOR PERSONAL GAIN, but quite
the OPPOSITE.
Runway Protection Zone (RPZ)
Land Uses that Encourage
assemblies of people, including
office buildings, are incompatible
with the Runway Protection Zone
(RPZ) and are PROHIBITED by the
FAA because risks associated near
the RPZ are unacceptably high
Our Building is Zone 1, the HIGHEST
risk for human safety within the RPZ
We are here for a “Change of Use” request BECAUSE the RPZ
has been extended off airport property and life is in danger:
Here are the 3 options as we see them
1)We do nothing today and 100 people
are in the danger zone. We can have
up to 100 people NOW, but WE
CHOOSE not to put people there.
2)Move from 100 to 30 not because we
have to or because we have personal
gain, but because it’s the right thing to
do for human life. WE LOSE MONEY in
this scenario
3)FAA/SD County buys property or
Carlsbad fights the Expansion of the
airport for its citizens safety. Expansion
makes the danger GREATER
How did we get here?
Approved for buildings WAY before we bought the property.
2001 Durkin Acquired Lots 23, 24 and 25 on Dryden Place, 16 years AFTER it was subdivided and zoned by the City of Carlsbad
2004 Durkin/Lamb are approved by City of Carlsbad to erect 30,000 Sq ft R&D Office Building with occupancy of 100 people
This building permit (R&D Office) is the 2nd highest rental rate just below CLASS A real estate. Today, similar buildings get an average of $1.60psf rent
In 2005, we completed the building and had it fully occupied at a rate of $1.30psf
In 2010 the Airport Planning Commission Changed its plan and extended the airport runway protection zone (RPZ) from public property onto PRIVATE property
That is SEVEN years after the building had been approved and erected the RULES were changed.
LAMB nor Durkin ever knew that the building was in the HIGHEST danger zone until 2013.
Coincidentally Coldwell Banker’s, Lannie Alleehad the back portion of the building for lease asking $1.50psf when we found out about the RPZ
Because of the danger to human life(R&D with 25 offices) we rented it as “dead storage” for .45psf since 2013. We lose about $12,000 per month ($1psf) and are close to $575k in losses
What did we do wrong? We applied for a permit that allowed us to build. It was 7 years after the building was built that the Airport decided it was dangerous and it updated its Airport plan that the CITY OF CARLSBAD ADOPTED!
Time Line
1985
Subdivision approved by Carlsbad
2001
Durkin Buys Lot
2004
Carlsbad APPROVES and PERMITS R&D Building
2005
Building FULLY Occupied at $1.30PSF
2010Airport Planning commission changes RPZ and plan. Carlsbad Adopts (2012)
Carlsbad Planning Commission Appeal
November 15, 2017
http://carlsbadca.swagit.
com/play/11152017-1163
Ron Kemp
“This was a Legal conforming lot
in 2010”
“Mr. Durkin Approached us, we
did not approach Mr. Durkin to
build a building”
The City APPROVED the
subdivision and APPROVED AND
PERMITTED an R&D office Building
with 100 people.
How many people does Carlsbad
approach to build or start a
business?
“If the City over-rides the Land
Use Plan it can open us up and
have exposure to Carlsbad”
Does the “Land Use Plan” know
that we approached Carlsbad to
reduce head count from 100 to
30?
Do “Rules” supersede Human Life
here in Carlsbad? How can
Carlsbad not have liability
knowing that it can move from
100 to 30 human lives?
What Did We Do?
We launched a suit against the County of San
Diego and the Airport Planning Authority in 2014
Inverse Condemnation: The taking of property by a
government agency which so greatly damages the
use of a parcel of real property that it is the
equivalent of condemnation of the entire property.
We were approved to have 100 people in the
building and we are NOW, 7 years after we moved
in, a NON conforming use and should have ZERO
people.
We lost the suit AND appeal and the 3 judge panel
believed that fault was on the City of Carlsbad
since it granted the permits to build. Their
recommendation was to sue Carlsbad
We, although not lawyers, disagree that Carlsbad
had fault. At the time of permitting the building was
NOT in the RPZ zone. It was only 7 years AFTER that
we are now non conforming
Carlsbad Adopted the airport authorities plan but 7
years AFTER it approved a building with 100 people.
How can Carlsbad not take action to help out a
business owner that have brought MORE THAN 100
engineers to the City (Nortek, Linear and Universal
Electronics) and $500M in sales revenue since 2005?
Tyco, Honeywell, GE, United Technologies, Ring,
Comcast and MORE
We did NOT re-lease to any people after 2013 and have ONLY leased the property (that’s available) as
storage at a HUGE loss, $575k thus far.
We looked for another option to help…..
Request for “Change of Use”
We made a request that has been denied by the city planner and city planning commission to change the use from Office R&D to Automotive
We would NOT want to change the use because we are ALREADY at the 2nd highest rental rate just below Class A properties.
Automotive gets LESS rent than R&D office
The city's answer is that automotive is a non conforming use, but a building with ANYpeople is a NON CONFORMING use. We believe this is a more CONFORMING use because we move from 100 people down to 30. The FAA’s RPZ is designed to eliminate HUMAN danger.
We had a “Fire Safety Risk Analysis” by a Fire Marshall and NO ADDITONAL HAZARD or LIABITILY
The question is:
WHY WOULD WE WANT TO GET LESS MONEY?
Why would we want to “Change the Use”?
No matter what the city planning commission believes, WE lose, have lost and will continue to lose because of something we had NO control over
We made a conscious decision to KEEP people out of the building even though we can have up to 100!
We have 25 EMPTY offices and lose $12,000 per month because we are NOT those greedy corporate people
We devised a plan to REDUCE the head count and human occupancy from 100 (currently allowed) down to guaranteed maximum 0f 30.
By doing so we still LOSE money
We are fortunate that on both sides of the building there are cars from Carlsbad dealerships.
WE REACHED OUT TO THEM to ask what would be a use that made sense?
New car Preparation and auto body repair all within the existing building
How would car prep and auto body ever get the same rent as R&D office?
We would LOSE approx. 75% of the
$1.2M in tenant improvements we put
into the building by having 60 offices, 3
conference rooms and marble, granite
and wood flooring completely
removed for automotive
Is this the best use for R&D office space?
OUR REQUEST WAS DENIED BY THE CITY
PLANNNING COMMISION
This was the summation of the planning committee
Carlsbad Planning Commission Appeal
November 15, 2017
http://carlsbadca.swagit
.com/play/11152017-
1163
“Not Every Business Venture is Successful”
I'm not sure how this statement applies to us?
If the Federal Government changed its mind and said Carlsbad is now an extension of Camp Pendleton and you could no longer live or do business here, would that be fair?
We built an office building because it was PERMITTED AND APPROVED
We would not have built NOR would Carlsbad approve of a building if it was in the “Runway Protection Zone”!
How does changing the rules 7 years AFTER mean WE caused this to be an unsuccessful venture?
“This looks like an attempt to make an
Investment more Viable”
This is not only WRONG but is absolute proof that the City Planning committee knew little about the reality of our space
WE LOSE MONEY EVERYDAY
We were told that this is the most dangerous area next to the airport
WE have gone through the entire process to try and be good business people, neighbors, and citizens.
How is a change of use that nets us LESS money than an R&D office building making it more viable?
The City and its legal counsel are worried about liability
This is a DANGER ZONE
How is this not considered the GREATEST liability since human life is being devalued for two technical rules that don’t consider the human aspect?
Carlsbad claims Auto Body repair is a non conforming use? Is that non conforming use more important than 70 lives?
Carlsbad Planning Commission Appeal
November 15, 2017
http://carlsbadca.swagit.com/pl
ay/11152017-1163
We do not understand the Cities position
Ron Kemp mentioned that we came to him and
somehow that makes this change by the airport authority
our fault yet the building was permitted by the city
The City Planning Board member said we made a bad
business decision and we are trying to make it into a more
viable businesses decision
We put HUMAN life in front of Money and Carlsbad seems
to be putting rules in front of human life
The City, State and FAA should buy the building if it is
indeed in the danger zone 25% each was suggestion
The City, at a minimum, has an opportunity to REDUCE
head count from 100 to 30. How can that be wrong?
We have exhausted all options and will rent the building,
per the city of Carlsbad's permit, as an R&D office
building with up to 100 people.
Closing
We are not a huge corporation, we are TWO individuals that are trying to do the right thing even though we are losing money
Besides my house, this building is my ONLY asset.
We are not a mega corporation, we are just like your Neighbors, Co-workers and other hard working business people in this great city
We are not here to tip the scales in our favor but to try to reduce, what the government tells us, is a dangerous situation
Land Uses that Encourage assemblies of people, including office buildings, are incompatible with the Runway Protection Zone (RPZ) and are PROHIBITED by the FAA because risks associated near the RPZ are unacceptably high
Would you prefer to have your daughter in the building or your daughters car?
How could Carlsbad support the $100M airport expansion when bigger, faster larger fuel capacity planes will multiply the danger
We are asking the city counsel to approve an automotive use for the property with a maximum occupancy of 30 people as a permitted use
Thank You For Your Time and Consideration