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HomeMy WebLinkAbout2020-12-16; Planning Commission; Resolution 7394PLANNING COMMISSION RESOLUTION NO. 7394 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL DENY A COASTAL DEVELOPMENT PERMIT AND VARIANCE TO ALLOW AN UN PERMITTED RETAINING WALL SYSTEM THAT EXCEEDS STANDARDS ON A MANUFACTURED UPHILL PERIMETER SLOPE WITH A GRADIENT GREATER THAN 40 PERCENT AND AN ELEVATION DIFFERENTIAL OF GREATER THAN FIFTEEN FEET LOCATED AT 939 BEGONIA COURT ON PROPERTY LOCATED AT 939 BEGONIA COURT WITHIN THE MELLO II SEGMENT OF THE CITY'S LOCAL COASTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE 4. CASE NAME: BEGONIA COURT RETAINING WALL CASE NO: CDP 2020-0026/V 2020-0004 WHEREAS, Rene Lichtman, "Developer/Applicant," has filed a verified application with the City of Carlsbad regarding property owned by Valerie Lichtman, "Owner," described as Lot 138 of Carlsbad Tract No. 73-79, Spinnaker Hill Unit #3, in the City of Carlsbad, County of San Diego, State of California, according to map thereof no. 8453, filed in the Office of the County Recorder of San Diego County on December 29, 1976 ("the Property"}; and WHEREAS, said verified application co,nstitutes a request for a Coastal Development Permit and Variance as shown on Exhibit(s} "A" dated December 16, 2020, attached hereto and on file in the Carlsbad Planning Division, CDP 2020-0026/V 2020-0004 -BEGONIA COURT RETAINING WALL, as provided in Chapters 21.201 and 21.50 of the Carlsbad Municipal Code; and WHEREAS, the Planning Commission did, on December 16, 2020, hold a duly noticed public hearing as prescribed by law to consider said request; WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to the Coastal Development Permit and Variance. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad, as follows: A} That the above recitations are true and correct. B) Findings: That based on the evidence presented at the public hearing, the Commission RECOMMENDS DENIAL of CDP 2020-0026/V 2020-0004 -BEGONIA COURT RETAINING WALL, based on the following findings and subject to the following conditions: Coastal Development Permit (CDP 2020-0026) 1. The proposed development is not in conformance with the Certified Local Coastal Program and all applicable policies in that the site is known for geologic instability due to the unpermitted grading and construction of an unpermitted retaining wall system. A geotechnical evaluation provided by the applicant and prepared by Advanced Geotechnical Solutions, Inc., dated October 9, 2019 (see Attachment 8) confirms the slope stability has been compromised and does not meet minimum safety standards for static or seismic conditions. The geotechnical evaluation offered conceptual options to mitigate the structure; however, the applicant's engineer did not provide adequate technical information to determine if the subject slope area would be stable or if the impacts would be mitigatable for at least seventy-five years or for the life of the structure. The city requested specific structural details related to the retaining walls and retrofitting of the walls. The applicant refused to provide the information and the applicant's engineer stated that the specifics regarding the retrofit would be on a design-build basis (see Attachment 9). A design- build basis implies that the necessary information to demonstrate the feasibility of the retrofit would only be provided after the coastal development permit and variance are approved, but the city does not have the information to rely upon in order to approve the project. Therefore, staff does not have the necessary information to make the determination that the slope would be stable, or if the impacts would be mitigatable for at least seventy-five years or for the life of the structure. In addition, the geotechnical evaluation did not address compliance with the requirements of the Coastal Zone or Zoning Ordinance. Therefore, the project is not consistent with the intent and purpose of the Certified Local. Coastal Program in that it does not preserve or protect steep manufactured slopes, nor does the project ensure structural stability of the slope from erosion, geological instability or destruction of the site or surroundi,:ig area . The project does not meet this finding. ·-2. The project is not consistent with the provisions of the Coastal Resource Protection Overlay Zone (Chapter 21.203 of the Zoning Ordinance) because the geotechnical evaluation did not provide adequate information for staff to confirm that the project will avoid increased urban runoff, pollutants and soil erosion and there is a steep slope (equal to or greater than 25 percent gradient) of approximately 55 percent located-on the subject property. The project does not meet this . finding based on the analysis in finding number 1 above. a. The applicant provided a geotechnical evaluation that was prepared ~y a licensed engineer who inspected the unpermitted retaining wall system and determined the wall system is structurally faulty because the fill has not been compacted to a minimum percentage that is safe. In addition, the evaluation finds that the slope is not safe for long term stability for static conditions or seismic conditions. The geotechnical evaluation included three options to remediate the wall system to make it structurally sound which are: A) remove the existing walls and undocumented fill and replace it with a new five-foot wall near the toe of the slope with an ascending fill slope located above the wall, and rebuild a new wall system constructed near the top of the fill slope; B) remove the walls and undocumented fill and restore the existing slope; or C) leave the existing walls in place with considerable reinforcement effort, which may require encroachment onto the adjacent properties that will require authorization PC RESO NO. 7394 -2-. from the property owners. Although the geotechnical evaluation offered conceptual options to mitigate the structure, the applicant's engineer did not provide adequate technical information to determine if the subject slope area would be stable or if the impacts would be mitigatable for at least seventy-five years or for the life of the structure as described in more detail in Section lll(C)(l)(a) of the staff report above. b. The grading of the manufactured uphill perimeter slope is not essential for the development intent and design of a single-family residential property. If it were essential, it would have been done with the original grading of the overall subdivision development. Grading is only necessary to retain the unpermitted retaining wall system, but the walls are not a permitted structure-on a manufactured uphill perimeter slope in accordance with CMC Chapter 21.95 -Hillside Development Regulations. In addition, grading on a manufactured uphill perimeter slope beyond the six-foot limitation is only allowed in the Coastal Zone when it is necessary to preserve onsite natural habitat as required by the city's Habitat Management Plan. The project site is in the Coastal Zone but there is no natural habitat onsite that is required to be preserved; therefore, the grading of the slope is not essential to the development. The project does not meet this finding. Variance {V 2020-0004) 3. The applicant's justification does not speak to special circumstances related to the subject property, or loss of privileges enjoyed by other properties, but instead speaks to circumstances the applicant created through the illegal grading and construction of the retaining wall system. There are no special circumstances associated with the property, including size, shape, topography, location or surroundings, such that the strict application of the zoning ordinance would deprive the property of privileges enjoyed by the other homes in the vicinity and in the R-1 Residential zone. The property is of average size (17,146 sq. ft.) in the neighborhood and is a typical pie-shaped lot that is found on a cul-de-sac street. The other lots in the vicinity range in size from about 12,000 to about 19,000 square feet in size. The 55 percent manufactured uphill perimeter slope is characteristic of the adjacent properties and other properties in the vicinity. The strict application of the zoning code does not deprive the property of privileges enjoyed by other property owners because retaining walls that exceed the hillside development standards on a manufactured uphill perimeter slope are unpermitted for all residential properties. The retaining wall system is decorative and does not constitute relief from unique difficulties or hardships associated with the property in question. 4. The variance would constitute a grant of special privileges that is inconsistent with the limitations upon other properties in the vicinity and zone. All properties in the vicinity and the R-1 Residential zoning designation in the Coastal Zone are subject to the same Hillside Development Ordinance regulations that are in effect, which prohibit retaining walls from being constructed beyond what is allowed on a manufactured uphill perimeter slope. No other properties in the vicinity have similar, permitted retaining walls on the manufactured uphill perimeter slope. To approve the subject variance would be a grant of special privileges to this property that other properties in the vicinity do not enjoy. 5. The granting of this variance would authorize a use or activity which is not otherwise expressly authorized by the zone regulation governing the subject property. The fact that the retaining wall system is existing because it has been constructed without city approval is not appropriate justification to approve the variance. As designed, the unpermitted retaining wall system is PC RESO NO. 7394 -3-. --· . . - prohibited per CMC Chapter 21.95 -Hillside Development Regulations which governs · development on manufactured uphill perimeter slopes. CMC Chapter 21.95 allows for modifications to development on slopes; however, modifications are prohibited in the Coastal Zone unless it is necessary to preserve natural habitat as required by the city's Habitat Management Plan. The subject property is in the Coastal Zone, but there is no native habitat on site and the project is not necessary to preserve natural habitat Therefore, granting the variance would authorize an activity that is expressly not authorized within the applicable zoning regulations. 6. The granting of this variance is not consistent with the general purpose and intent of the General Plan. The subject property is designated Residential (R -4) General Plan Land Use designation and although walls are a typical component of residentially designated areas, the subject retaining wall system is not consistent with the development of single-family lots with a manufactured uphill perimeter slope within the Coastal Zone. The subject retaining wall system also does not promote the Hillside Development Ordinance intent to enhance the aesthetic qualities of manufactured slopes and is not consistent with the Hillside Development and Design Guidelines acknowledgment that manufactured slopes of greater than 40% gradient and greater than 15 feet in height are regarded as important aesthetic, visual resources because they provide visually open, vertical separations between developed pads in hilly areas and between developed pads and roadways. As a result, the project does not preserve the existing neighborhood atmosphere and identity of the existing residential area. 7. The granting of this variance would not be consistent with the general purpose and intent of the certified local coastal program and does reduce or adversely affect the requirements for protection of coastal resources. One of the purposes of the certified local coastal program is to preserve and protect natural and manufactured slopes in the coastal resource protection overlay zone area and to ensure stability and structural integrity of the slopes from erosion, geologic instability, or destruction of the site. The unpermitted grading that has occurred to construct the unpermitted and unengineered retaining wall system has compromised the stability of the slope. To retain the wall system will require considerable reinforcement and the structural integrity of reinforcing the walls has not been determined since the applicant has refused to provide such information at this time as described in detail previously in the staff report. Therefore, the feasibility of retaining the wall system and stabilizing the slope in accordance with the requirements for protection of the local coastal resources is unknown. Condition: 1. Within 60 days from the date of the City Council action, or as otherwise specified in the Code Compliance Agreement and Release for Code Enforcement Case No. CC 2018-0902, the property owner shall apply for the necessary permits such as but not limited to cl grading permit and coastal development permit to remove the unpermitted retaining wall system and restore the slope to comply with CMC Section 21.95.140(C)(1)(a)(i). PC RESO NO. 7394 -4- PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, California, held on December 16, 2020, by the following vote, to wit: AVES: Chair Anderson, Commissioners Geidner, Lafferty, Luna, Meenes and Stine NOES: ABSENT: ABSTAIN : Commissioner Merz VEL YN ANDERSON, Chair CARLSBAD PLANNING COMMISSION ATTEST: DON NEU . City Planner PC RESO NO. 7394