HomeMy WebLinkAbout2021-09-28; City Council; ; Affordable Housing Agreement to satisfy the affordable housing requirement for the Aviara Apartments (DEV 2017-0033)Meeting Date: Sept. 28, 2021
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Mandy Mills, Housing & Homeless Services Director
mandy.mills@carlsbadca.gov, 760-434-2907
Subject: Affordable Housing Agreement to satisfy the affordable housing
requirement for the Aviara Apartments (DEV 2017-0033)
Districts: 2 & 3
Recommended Action
Adopt a resolution approving an Affordable Housing Agreement for the Aviara Apartments
project.
Executive Summary
Summerhill Apartment Communities has received approval to develop a total of 329 apartment
units on an existing parcel at 1205 Aviara Parkway. The project, known as Aviara Apartments,
was approved by the Planning Commission in December 2020 and is to include a total of 81
units affordable to moderate and lower-income households.
The city’s affordable housing requirement will be satisfied through the construction of new
apartment units on both east and west parcels. The project’s approval requires an affordable
housing agreement to be executed before its final map is approved. (Planning Commission
Resolution No. 7399 Exhibit 2).
The City Council is being asked to review and approve the Affordable Housing Agreement in
accordance with the city’s Inclusionary Housing Ordinance, Chapter 21.85 of the Carlsbad
Municipal Code. The ordinance, first adopted in 1993 and updated in 2000, is designed to assist
the city in reaching its lower-income housing goals. The Affordable Housing Agreement is
included as Attachment A to Exhibit 1.
Discussion
Background
Summerhill, the master developer, received approval on Dec. 16, 2020, to demolish an
agricultural packaging warehouse and construct 329 apartments – 247 market-rate units, 81
affordable units and one manager’s unit – on an existing parcel at 1205 Aviara Parkway. The
project site is south of Palomar Airport Road and north of Laurel Tree Lane. It is bisected by
Aviara Parkway, creating a west site and an east site (See location map, Exhibit 3).
Sept. 28, 2021 Item #5 Page 1 of 43
The city’s inclusionary housing ordinance (Carlsbad Municipal Code Chapter 21.85) requires
15% of the dwelling units to be provided for lower-income households. The project’s developer
was allowed to build to a higher density based on the map in the city’s 2015 Housing Element,
which increased the inclusionary housing requirement to 20%. In exchange for providing
additional affordable housing, the project received approval to increase the density over what
would normally be allowed. Modifications to development standards, including for height,
setbacks and parking, as allowed in Carlsbad Municipal Code Section 21.53.120, were also
granted. In all, development of the west and east sites will result in 329 new apartment units,
of which 25%, or 81 units, will be income and rent-restricted to serve extremely low to
moderate-income households.
Summerhill, or a successor builder, will construct the market-rate and moderate-income
apartments on the west site, and BRIDGE Housing will construct the lower and extremely low-
income affordable apartments on the east site.
The Aviara Apartments west site is to contain 247 market-rate, one-, two-, and three-bedroom
apartment units and 12 moderate-income, one-bedroom apartment units that will be income
and rent-restricted to serve moderate-income households, that is, those at 90% of the area’s
median income.
Summerhill has partnered with BRIDGE Housing to provide 70 units on the east site. The east
site will contain 70 studio, one, two, and three-bedroom apartments, 69 of which will be
affordable to lower-income and extremely low-income households, plus one unrestricted
manager’s unit. (Lower-income households are those at 50-60% of the average median income
in the area. Extremely low-income households are those at 30% of the average median
income.) The City Council-approved BRIDGE’s financial assistance request for the affordable
apartment project on Aug. 31, 2021. The east parcel will be providing seven of the low-income
units at the very low-income level based on funding requirements. That requirement will be
reflected in the city’s loan documents because it is restricted by the funding approval. It is not a
requirement for the inclusionary housing, so it is not reflected in the Affordable Housing
Agreement.
The following chart summarizes the affordability requirement and unit mix:
Unit Type Extremely low
income
Low income* Moderate income
(
Studio 2 12
1 bedroom 2 21 12
2 bedroom 2 24
3 bedroom 1 5
Total 7 62 12
*Seven of the low-income units will actually be rented at the very low-income level based on
funding requirements. As mentioned above, that requirement will be reflected in the city’s
loan documents, but not in the Affordable Housing Agreement.
The affordable housing agreement for the project establishes the phasing and development of
the inclusionary housing, in keeping with Chapter 21.85 of the Carlsbad Municipal Code. The
affordable units must be developed concurrently, or before, the market rate part of the project
Sept. 28, 2021 Item #5 Page 2 of 43
Housing Element consistency
The City Council has adopted the 2021-2029 Housing Element, an eight-year plan that describes
how the city will accommodate Carlsbad’s housing needs for residents at all income levels and
those with specialized needs. The project to be built under this affordable housing agreement
will serve extremely low, very low, and low-income households.
In addition, the city is committed to affirmatively furthering fair housing by removing barriers to
housing and encouraging affordable housing in high opportunity areas. The project site is
located in a high opportunity area according to the Regional Opportunity Index (see Carlsbad
Housing Element pages 10-90 through 10-92).
Specifically, the project is consistent with the following provisions of the Housing Element:
• Program 2.9 - Assistance for Special Needs Populations: “Households with special needs
include seniors, persons with physical and/or mental disabilities (including
developmental disabilities), large households, extremely low-income households, single-
parent households, female head of households, veterans, farmworkers, students, and
military personnel. The City will provide assistance to these households to encourage
the provision of adequate housing to meet their needs.”
• Program 4.2 – Affirmatively Furthering Fair Housing, Objective (a): “Encourage mixed-
income developments accessible to lower income residents citywide, especially in high
opportunity and resource-rich areas through use of the city’s Inclusionary Housing
Ordinance, Housing Trust Funds, development of city-owned properties, and use of
grant funding for housing.”
Options
Staff offer the following options for the City Council’s consideration:
1. Approve the affordable housing agreement as presented.
Pros
• This option keeps the development project on track with meeting conditions
prior to the final map being approved.
• Allows for the new construction of 81 units for extremely low, very low, low, and
moderate-income households.
Cons
• None identified
2. Do not approve the Affordable Housing Agreement as presented.
Pros
• None identified
Cons
• If the City Council does not approve the Affordable Housing Agreement, the
current developers may have to restructure the projects for an alternate
funding plans, potentially jeopardizing the viability of both the market rate and
affordable projects. Both the market rate and affordable projects would be at
risk of not being built in the near future.
Sept. 28, 2021 Item #5 Page 3 of 43
Fiscal Analysis
Approval of the Affordable Housing Agreement does not have a fiscal impact.
Next Steps
Staff will draft implementing agreement with master developer. The resolution authorizes the
City Manager, or designee, to execute and record all appropriate documents.
Environmental Evaluation
The Planning Commission certified an environmental impact report and adopted findings of fact
and mitigation monitoring and reporting program for the Aviara Apartments development
project on Dec. 16, 2020 (Planning Commission Resolution No. 7398). As an integral component
of the overall development, the affordable apartments were adequately evaluated by the
certified environmental impact report and the project is subject to applicable mitigation
monitoring and reporting requirements. No further environmental review is required.
Public Notification and Outreach
This item was noticed in keeping with the state's Ralph M. Brown Act and it was available for
public viewing and review at least 72 hours before the scheduled meeting date.
Exhibits
1. City Council resolution
2. Planning Commission Resolution 7399
3. Location map
Sept. 28, 2021 Item #5 Page 4 of 43
RESOLUTION NO. 2021-221
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING AN AFFORDABLE HOUSING AGREEMENT FOR THE
CONSTRUCTION OF 81 AFFORDABLE UNITS TO SATISFY THE AFFORDABLE
HOUSING REQUIREMENTS FOR THE AVIARA APARTMENTS PROJECT (DEV
2017-0033)
EXHIBIT 1
WHEREAS, the developer of Aviara Apartments has proposed to construct 81 apartment units
affordable to low and moderate-income households as a means to satisfy their affordable housing
obligation as permitted by Carlsbad Municipal Code Chapter 21.85 and Section 21.53.120; and
WHEREAS, in exchange for providing additional affordable housing, the project received
approval to increase the density on the project over what would normally be allowed and modifications
to development standards, including for height, setbacks and parking as allowed in Carlsbad Municipal
Code Section 21.53.120, were granted;
WHEREAS, the affordable units will be satisfied through two parcels being created on the east
and west side of Aviara Parkway with different ownership interests. It is anticipated that once the maps
are recorded there will be two separate agreements recorded against the two respective parcels; and
WHEREAS, Carlsbad Municipal Code Chapter 21.85 requires the developer of a project to
receive approval of an Affordable Housing Agreement which details how the requirements of the
lnclusionary Housing Ordinance shall be met.
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.
2. That the project is consistent with the goals and objectives of the City of Carlsbad's
Housing Element, and the General Plan.
3. That the project will provide 81 apartment homes affordable to extremely low, low, and
moderate-income households. The project, therefore, can effectively serve the city's
housing needs and priorities expressed in the Housing Element ..
4. That the Affordable Housing Agreement (Attachment A) is hereby approved.
5. That the City Council authorizes the City Manager, or designee, to prepare and execute
all documents related to the provisions of the Affordable Housing Agreement, subject
to review and approval by the City Attorney.
Sept. 28, 2021 Item #5 Page 5 of 43
RECORDING REQUESTED BY:
City of Carlsbad
AND WHEN RECORDED MAIL TO:
City of Carlsbad City Clerk's Office Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
Attachment A
THIS SPACE FOR RECORDER’S USE ONLY
AFFORDABLE HOUSING AGREEMENT
IMPOSING RESTRICTIONS ON REAL PROPERTY
(DEV2017-0033)
This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY (this "Agreement"), entered into on the ___ day of __________, 2021, by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as,
"City"), and SHAC SC LAUREL TREE LLC, a California limited liability company (hereinafter
referred to as, "Developer"), and made with reference to the following:
RECITALS
A.Developer is the owner of certain real property, known as Aviara Farms, in theCity of Carlsbad, in the County of San Diego, California (the "Property") described in Exhibit
A, which is attached hereto and incorporated herein by this reference. The Property, which is
bisected by Aviara Parkway, is divided into a 2.31 acre "East Parcel" and a 7.19 acre "West
Parcel."
B.Developer intends to develop two (2) separate multi-family apartmentcommunities (the "Development") on the Property totaling three hundred twenty-nine (329)
dwelling units, including eighty-two (82) Affordable Units (as defined below). The East Parcel
shall include seventy (70) Lower Income Affordable Units, as defined herein, and the West Parcel shall include two hundred forty-seven (247) market rate dwelling units (the "Market
Units") and twelve (12) Moderate Income Affordable Units, as defined herein, in exchange for increased density, additional units from the City’s excess dwelling unit bank, and related
standards modifications pursuant to Carlsbad Municipal Code (“CMC”) Chapter 21.53, and to
satisfy the inclusionary housing requirements set forth within CMC 21.85. On December 16, 2020, in connection with the Development, City certified a final environmental impact report and adopted Candidate Findings of Fact and a Mitigation Monitoring and Reporting Program (Planning Commission Resolution No. 7398, EIR 2018-0001), and issued approvals for a
tentative tract map (CT 2018-0002), site development plan (SDP 2018-0002), coastal
development permit (CDP 2018-0005), hillside development permit (HDP 2018-0001), and habitat management plan permit (HMP 2018-0001), which said approvals specify therein the granting of increased density, additional units from the City’s excess dwelling unit bank, and
Sept. 28, 2021 Item #5 Page 7 of 43
related standards modifications, subject to certain conditions of approval (Planning Commission Resolution No. 7399 "Conditions of Approval"). Said Conditions of Approval specifically
include conditions requiring a portion of the units on the West Parcel to be affordable to
moderate income households and all of the units on the East Parcel to be affordable to extremely low and low income households (except for the manager’s unit, which shall be unrestricted). Developer intends to comply with the Conditions of Approval for the Development by constructing twelve (12) Moderate Income Affordable Units on the West Parcel, and by
constructing or causing to be constructed a total of seventy (70) Affordable Units, including
seven (7) Extremely Low Income Affordable Units, sixty-two (62) Low Income Affordable Units, and one (1) unrestricted manager's unit.
C. Developer is required by the Conditions of Approval to enter into this Agreement as required and with the content specified by City's Inclusionary Housing Ordinance, set forth
within CMC Chapter 21.85. This Agreement will be executed and recorded prior to the approval
of any final map for the Property or the first building permit, whichever may occur first.
D. City hereby approves this Agreement pursuant to the terms set forth herein and agreed to by both Developer and City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties that:
1. Satisfaction of Affordable Housing and Negotiated Density Increase Obligation
and Conditions of Approval. In order to satisfy the Conditions of Approval of tentative tract map CT 2018-0002 and site development plan SDP 2018-0002, and in exchange for an approved density increase, additional units from the city’s excess dwelling unit bank and related standards modifications for said Development per said permits and CMC 21.53, a total of eighty-two (82) units of the Development, seven (7) Extremely Low Income Affordable Units and sixty-two (62)
Low Income Affordable Units as well as one (1) unrestricted manager's unit on the East Parcel, and twelve (12) Moderate Income Affordable Units on the West Parcel, as further defined herein, shall be constructed for the purpose of providing housing to be affordable to lower and moderate-income households according to the schedule and terms contained herein (the "Affordable Units"). A total of two hundred forty-seven (247) Market Units and at least eighty-
one (81) Extremely Low, Low and Moderate Income Affordable Units may be constructed with approval of this Agreement.
2. Terms Governing Provision of Affordable Housing and Density Increase. Provision of the Affordable Units shall be governed by the following terms:
2.1 Size and Bedroom Count. Eighty-one (81) Extremely Low, Low and
Moderate Income Affordable Units in the Development shall be built in the aggregate as follows:
Unit Size Number of Units by Income Level (% AMI) Total
Number of bedrooms Approx. square feet Extremely Low Low Moderate
30% 60% 90%
EAST PARCEL
Studio 445-450 s.f. 2 12 14
One bedroom 606-625 s.f. 2 21 23
Two bedroom 702-860 s.f. 2 24 26
Sept. 28, 2021 Item #5 Page 8 of 43
Unit Size Number of Units by Income Level (% AMI) Total
Number of
bedrooms
Approx.
square feet
Extremely Low Low Moderate
30% 60% 90%
Three bedroom* 986 s.f. 1 5 6
WEST PARCEL
One bedroom 711-785 s.f. 12 12
TOTALS 7 62 12 81
*Plus 1 unrestricted manager’s unit 2.2 Affordability Requirements.
2.2.1 East Parcel. A total of seven (7) Extremely Low Income
Affordable Units on the East Parcel shall be restricted to occupancy by households with
extremely low incomes not exceeding thirty percent (30%) of the area median income ("AMI") for San Diego County, adjusted for actual household size. Monthly Rent of the Extremely Low Income Affordable Units shall not exceed the product of one-twelfth (1/12) times thirty percent (30%) times thirty percent (30%) of the household AMI for San Diego County adjusted for
assumed household size appropriate for the unit pursuant to the East Parcel Regulatory
Agreement (as defined below and to be approved separately from this Agreement). A total of sixty-two (62) Low Income Affordable Units on the East Parcel shall be restricted to occupancy by households with low incomes not exceeding sixty percent (60%) of the AMI for San Diego County, adjusted for actual household size. Monthly rent of the Low Income Affordable Units
shall not exceed the product of one-twelfth (1/12) times thirty percent (30%) times sixty percent
(60%) of the household AMI for San Diego County adjusted for assumed household size appropriate for the unit pursuant to the East Parcel Regulatory Agreement.
2.2.2 West Parcel. The twelve (12) Moderate Income Affordable Units on the West Parcel shall be restricted to occupancy by households with incomes not exceeding
ninety percent (90%) of the AMI for San Diego County, adjusted for actual household size.
Monthly Rent of the Moderate Income Affordable Units shall not exceed the product of one-twelfth (1/12) times thirty percent (30%) times ninety percent (90%) of the household AMI for San Diego County, adjusted for assumed household size appropriate for the unit pursuant to the West Parcel Regulatory Agreement (as defined below).
2.2.3 In General. For purposes of this Agreement, "Rent" shall include
a utility allowance as established and adopted by City of Carlsbad Housing Authority, as well as all required monthly payments made by the tenant to the lessor in connection with use and occupancy of a housing unit and land and facilities associated therewith, including any separately charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant (but not including fees or charges resulting from any default by the tenant or damage caused by
the tenant, or fees or charges paid by the tenant to third party utilities or other providers). AMI figures shall be those published annually by the California Department of Housing and Community Development for San Diego County. For purposes of this Agreement, “assumed household size appropriate to the unit” shall mean a household of one person in a studio unit, two persons in a one-bedroom unit, three persons in a two-bedroom unit, and four persons in a three-
bedroom unit, unless the requirements of another funding source require an alternate method of
Sept. 28, 2021 Item #5 Page 9 of 43
calculating assumed household size. With respect to each Affordable Unit, the affordability requirements of this Section 2.2 shall continue for fifty-five (55) years from the date of issuance
of a Certificate of Occupancy by City for such unit or another comparable unit based upon
substitution provisions pursuant to the Regulatory Agreements (as defined below).
2.3 Schedule for Developing Affordable Units. Developer shall provide the Extremely Low, Low and Moderate Income Affordable Units concurrently with the Market Units of the Development, as further outlined in Section 5 below.
3. City Approval of Documents. The following documents, to be approved in
writing by City, which approval shall not be unreasonably withheld, conditioned or delayed shall be used in connection with the rental of Affordable Units. Nothing in the requirements of this Section 3 shall apply to the Market Units.
3.1 A marketing plan for the East Parcel consistent with the terms of this
Agreement, establishing the process for seeking, selecting and determining the eligibility of
tenants of the Affordable Units.
3.2 A marketing plan for the West Parcel consistent with the terms of this Agreement, establishing the process for seeking, selecting and determining the eligibility of tenants of the Affordable Units.
3.3 A form of Rental Agreement for the East Parcel.
3.4 A form of Rental Agreement for the West Parcel.
3.5 A Property Management Plan for the East Parcel.
3.6 A Property Management Plan for the West Parcel.
3.7 A form of regulatory agreement between Developer (or its successor-in-interest) and City for the East Parcel (the "East Parcel Regulatory Agreement"), in form and
substance reasonably acceptable to Developer (or its successor-in-interest) and City.
3.8 A form of regulatory agreement between Developer (or its successor-in-interest) and City for the West Parcel (the "West Parcel Regulatory Agreement"), in form and substance reasonably acceptable to Developer (or its successor-in-interest) and City (the East Parcel Regulatory Agreement and the West Parcel Regulatory Agreement, collectively referred
to herein as, the "Regulatory Agreements").
4. Compliance Report. Following completion of construction of the Affordable Units located on the West Parcel or the East Parcel, a Compliance Report meeting the requirements of (a) CMC Section 21.85.140, and (b) CMC Chapter 21.53, verifying compliance by Developer as to the Affordable Units on the West Parcel or the East Parcel with the terms of
this Agreement and certified as correct by a third party, shall be submitted annually to the City’s Housing Services Manager, commencing on the first Report Date that is twelve (12) months from the completion of construction of the Affordable Units on the West Parcel or East Parcel, as applicable. If similar reports on some or all of the Affordable Units are required for regulatory compliance with other financing programs, those reports may be deemed satisfactory for the
purpose of this section by the City’s Housing Services Manager, with respect to the Affordable Units covered by such reports, provided that copies of those reports are provided on an annual basis to the City’s Housing Services Manager with a third party certification addressed to City.
Sept. 28, 2021 Item #5 Page 10 of 43
5. West Parcel Condition Precedent. The Construction Commencement Date (as defined below) for the dwelling units on the East Parcel shall occur prior to the issuance of any
building permits for construction on the West Parcel. As used in this Section 5, the
"Construction Commencement Date" shall mean the date upon which Developer (or its successor-in-interest for the East Parcel) has done all of the following: (i) for the East Parcel, provides evidence satisfactory to the City that Developer has secured sufficient funding to construct the Affordable Units on the East Parcel from either (a) an allocation of tax credits and
tax-exempt bonds or (b) private financing, suitable to Developer in its sole and absolute
discretion; (ii) obtained a building permit for the construction of the project on the East Parcel in accordance with the requirements of the California Building Code, California Code of Regulations, Title 24, Part 2, Volumes 1 and 2, Section 105, and as amended by Carlsbad Municipal Code Section 18.04.020; and (iii) provided a completion guarantee to the City (on
substantially the same form that such developer routinely provides to its lenders) from a
reputable, creditworthy entity, guaranteeing completion of the project on the East Parcel.
6. Intentionally Deleted.
7. Release of Subject Property from Agreement. Subject to the provisions of Section 18, the covenants and conditions herein contained shall apply to and bind Developer and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any
right, title or interest in or to any part of Property and shall run with and burden the Property until terminated in accordance with this Agreement. Developer shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in such property. The burdens of this Agreement, except for such burdens as may be released as set forth above, shall remain in full force and effect and recorded
against the Development for the fifty-five (55)-year duration of this Agreement.
8. Default. Failure of Developer to cure any default in Developer's obligations under the terms of this Agreement within ninety (90) days after the delivery of a notice of default from City (or where the default is of the nature which cannot be cured within such ninety (90)-day period, the failure of Developer to commence to cure such default within the ninety (90)-day
period or Developer's failure to proceed diligently to complete the cure of such a default within a reasonable time period, but in no event greater than one-hundred eighty (180) days will constitute a failure to satisfy the Conditions of Approval with respect to the Property and the requirements of Chapter 21.85 of the CMC. After expiration of such notice and cure period, City may exercise any and all remedies available to it with respect to Developer's failure to satisfy the
Conditions of Approval and Chapter 21.85 of the CMC, including but not limited to, the withholding of further building permits for the Market Units within the Development until such cure is completed.
9. Appointment of Other Agencies. At its sole discretion, City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform
City's obligations under this Agreement.
10. Hold Harmless. Except to the extent caused by City's gross negligence or willful misconduct, Developer will indemnify and hold harmless City and its elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as, "Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage
(including attorneys' fees and expenses) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating
Sept. 28, 2021 Item #5 Page 11 of 43
in any manner to Developer's actions or defaults pursuant to this Agreement, and shall protect and defend Indemnitees, and any of them with respect thereto. This provision shall survive the
term of this Agreement.
11. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the party to receive such notice at the addresses set forth below:
TO THE CITY OF CARLSBAD:
City of Carlsbad
Housing and Homeless Services Department Housing Services 1200 Carlsbad Village Drive Carlsbad, California 92008
Attn: Housing and Homeless Services Director
with a copy to: City of Carlsbad Office of the City Attorney
1200 Carlsbad Village Drive Carlsbad, California 92008 Attn: City Attorney
TO THE DEVELOPER:
SHAC SC Laurel Tree LLC 2 Venture, Suite 360 Irvine, California 92618 Attn: Keven Doherty, Vice President Development
with a copy to:
SHAC SC Laurel Tree LLC 777 California Avenue Palo Alto, California 94304 Attn: General Counsel
Any party may change the address to which notices are to be sent by notifying the other parties of the new address in the manner set forth above.
12. Insurance Requirements. Developer shall obtain, at its own expense, commercial general liability insurance for development of the Property naming Indemnitees as additional
named insureds with aggregate limits of not less than five million dollars ($5,000,000), for bodily injury and death and property damage, including coverage for contractual liability and projects and completed operations, purchased by Developer or its successor or assigns from an insurance company duly licensed to engage in the business of issuing such insurance in the State, with a current Best’s Key Rating of not less than A:VII, such insurance to be evidenced by an
endorsement which so provides and delivered to the City’s Housing and Homeless Services
Sept. 28, 2021 Item #5 Page 12 of 43
Director, Housing and Homeless Services Department, City of Carlsbad prior to the issuance of any building permit for the Property.
13. Integrated Agreement. This Agreement constitutes the entire Agreement between
the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto.
14. Duration of Agreement. This Agreement shall remain in effect for fifty-five (55) years following the date Certificates of Occupancy have been issued by City for all
Affordable Units. This Agreement, and any section, subsection, or covenant contained herein,
may be amended only upon the written consent of Developer and the Director.
15. Recording of Agreement. The parties hereto shall cause this Agreement to be recorded against the Property in the Official Records of the County of San Diego. The execution and recordation of this Agreement shall be governed by the requirements set forth in CMC
21.85.140(A).
16. Severability. In the event any limitation, condition, restriction, covenant or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect.
17. Intentionally Deleted.
18. Assignment. Developer’s rights and obligations set forth in this Agreement shall be transferable and assignable to any subsequent fee owner of all or any portion of the Property only with the express written approval of the City (the City Manager shall have the authority to approve any such assignment), which approval will not be unreasonably withheld, conditioned or delayed. Such approval shall be granted by the City if the proposed assignee is a reputable
developer, owner or operator of apartment communities similar to the Development or portion thereof; provided, however, in the event that Developer transfers or assigns its interest in all or any portion of the Property to an entity which is affiliated with Developer or in connection with or as a part of a reorganization, consolidation or merger of Developer, no consent from the City shall be required for such transfer or assignment. Developer has provided to the City
background information and operating experience for Wermers GP MGR, LLC, a California limited liability company and R & V Real Estate Services, a California corporation (collectively “Wermers Properties”) and Bridge Housing Corporation, and the City, having reviewed such information, hereby agrees as of the date hereof that Wermers Properties (as to its proposed acquisition of the entire Property from Developer) and Bridge Housing Corporation (as to its
proposed acquisition of the East Parcel from the Developer who owns the Property) are each a reputable developer, owner or operator of apartment communities similar to the Development or portion thereof for all purposes of this Section 18, provided, however, that the foregoing does not itself accomplish the assignment of this Agreement to Wermers Properties or to Bridge Housing Corporation and that separate assignments of this Agreement would need to be entered into in
order to effect such assignments of this Agreement. After the City approves such transfer or assignment of Developer’s fee interest in all or any portion of the Property, Developer shall (i) notify City in writing of the transfer/assignment and (ii) deliver to City an assignment and assumption agreement executed by Developer and its transferee/assignee pursuant to which Developer’s transferee/assignee assumes all of Developer’s remaining executory obligations set
forth herein with respect to the Property or the portion thereof so transferred. After the date that such transfer/assignment occurs and a copy of the fully executed assignment and assumption
Sept. 28, 2021 Item #5 Page 13 of 43
agreement has been delivered to City, the transferor/assignor shall be released from all liabilities and obligations hereunder. As used in this Agreement, the term "Developer" shall be deemed to
include any such transferee/assignee after the date such transfer/assignment occurs.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.
20. Non-Waiver. No delay or omission by either party in exercising any right or
power accruing upon the compliance or failure of performance by the other party under the
provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by one party of a breach or failure of performance by the other party of any of the covenants, conditions, or agreements hereof to be performed by such other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions, or conditions herein.
21. Governing Law. This Agreement shall be governed by the laws of the State of California. Any legal action brought under this Agreement must be instituted in the Superior Court of the County of San Diego, State of California, or in the Federal District Court in the Southern District of California in San Diego County.
[SIGNATURE PAGE FOLLOWS]
Sept. 28, 2021 Item #5 Page 14 of 43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written:
DEVELOPER:
CITY:
SHAC SC LAUREL TREE LLC, a California limited liability company
By: SummerHill Apartment Communities, a California corporation, its managing member
By:__________________________________
Name: Title: By: __________________________________ Name: ____________________________
Title: _____________________________ Dated:
CITY OF CARLSBAD, a municipal corporation
By:__________________________________ Name: Title:
Dated:
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the office(s) signing to bind the corporation.)
(If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument.)
(Proper notarial acknowledgment of execution by Developer must be attached.)
APPROVED AS TO FORM: Celia A. Brewer, City Attorney
By:__________________________________ Name: Title: Dated:
Sept. 28, 2021 Item #5 Page 15 of 43
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of ______________________ )
On _________________________, before me, , (insert name of notary) Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Sept. 28, 2021 Item #5 Page 16 of 43
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
[TO BE PROVIDED]
ADDRESS: 1205 Aviara Parkway, Carlsbad, California 92011
ASSESSOR PARCEL NO.: 212-040-56-00
Sept. 28, 2021 Item #5 Page 17 of 43
PLANNING COMMISSION RESOLUTION NO. 7399
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING TENTATIVE TRACT MAP CT 2018-
0002, SITE DEVELOPMENT PLAN SOP 2018-0002, COASTAL
DEVELOPMENT PERMIT CDP 2018-0005, HILLSIDE DEVELOPMENT
PERMIT 2018-0001 AND HABITAT MANAGEMENT PLAN PERMIT HMP
2018-0001 TO DEMOLISH AN AGRICULTURAL PACKAGING WAREHOUSE
AND CONSTRUCT 329 APARTMENTS {81 AFFORDABLE UNITS AND 1
MANAGER'S UNIT), INCLUDING DEVELOPMENT STANDARDS
MODIFICATIONS, ON AN EXISTING PARCEL THAT IS BISECTED BY AVIARA
PARKWAY, NORTH OF LAUREL TREE LANE, CURRENTLY ADDRESSED AS
1205 AVIARA PARKWAY, WITHIN THE MELLO II SEGMENT OF THE LOCAL
COASTAL PROGRAM AND WITHIN LOCAL FACILITIES MANAGEMENT
ZONE 5.
CASE NAME: AVIARA APARTMENTS
CASE NO.: CT 2018-0002/SDP 2018-0002/CDP 2018-0005/HDP
2018-0001/HMP 2018-0001 (DEV2017-0033)
WHEREAS, Summerhill Apartment Communities, "Developer," has filed a verified application
with the City of Carlsbad regarding property owned by James S. Ukegawa, "Owner," described as
That certain portion of Lot "G" of Rancho Agua Hedionda, in the City of
Carlsbad, County of San Diego, State of California, according to Map
No. 823, filed in the Office of the County Recorder of San Diego
County, further described in Exhibit A of Preliminary Title Report from
Fidelity National Title Company Order No. 997-30006515-1M8
("the Property"); and
WHEREAS, said verified application constitut':s a request for a Tentative Tract Map, Site
Development Plan, Coastal Development Permit, Hillside Development Permit, and Habitat
Management Plan Permit as shown on Exhibit(s) "A' -"8888" dated December 16, 2020, on file in the
Planning Division CT 2018-0002/SDP 2018-0002/CDP 2018-0005/HDP 2018-0001/HMP 2018-0001 -
AVIARA APARTMENTS, as provided by Chapters 20.12, 21.06, 21.24, 21.53, 21.85, 21.95, 21.203 and
21.210 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; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of persons desiring to be heard, said Commission considered all factors relating to the Tentative
Tract Map.
Exhibit 2
Sept. 28, 2021 Item #5 Page 18 of 43
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad
as follows:
A)That the foregoing recitations are true and correct.
B)That based on the evidence presented at the public hearing, the Commission APPROVES
CT 2018-0002/SDP 2018-0002/CDP 2018-0005/HDP 2018-0001/HMP 2018-0001 -
AVIARA APARTMENTS, based on the following findings and subject to the following
conditions:
Findings:
Tentative Tract Map CT 2018-0002
1.That the proposed map and the proposed design and improvement of the subdivision as
conditioned, is consistent with and satisfies all requirements of the General Plan, any applicable
specific plans, Titles 20 and 21 of the Carlsbad Municipal Code, and the State Subdivision Map
Act, and will not cause serious public health problems, in that the proposed five-lot tentative
tract map is consistent with the General Plan and satisfies all the minimum requirements of
Title ZO and has been designed to comply with other applicable regulations including the
Residential Density-Multiple (RD-M) zone, the Growth Management Ordinance, and the R-30
General Plan Land Use designation.
2.That the proposed project is compatible with the surrounding future land uses since
surrounding properties are designated for residential, office and open space development on
the General Plan, in that surrounding properties to the west, south and east are developed
with residential uses or open space which is consistent with the proposed residential and
open space project. Existing office uses and an undeveloped office site are located to the
north of the project site. However, existing open space areas provide a buffer between the
proposed residential project and the existing and proposed office uses. Furthermore, the
proposed residential project will provide additional open space lots on the north side of the
project which will expand the existing open space buffer between the proposed residential
project and the existing and future office uses. Given the existing, surrounding development
and the existing and proposed open space areas, the residential project is compatible with
existing and future land uses.
3.That the site is physically suitable for the type and density of the development since the site is
adequate in size and shape to accommodate residen�ial development at the density proposed,
in that the R-30 Residential General Plan Land Use designation allows residential development
at a density range of 23 to 30 dwelling units per acre. The proposed project exceeds 30
dwelling units per acre (40 du/ac) and is requesting standards modifications through the site
development plan process as described in the project staff report. Nevertheless, the proposed
multiple-family residential project meets the maximum lot coverage of the RD-M zone by
proposing smaller building footprints in order to preserve and enhance open space areas and
to minimize grading of existing slopes. Therefore, the project site is suitable to accommodate
the multiple-family residential development at the density proposed.
4.That the design of the subdivision or the type of improvements will not conflict with easements
of record or easements established by court judgment, or acquired by the public at large, for
PC RESO NO. 7399 -2-Sept. 28, 2021 Item #5 Page 19 of 43
access through or use of property within the proposed subdivision, in that the project has been
designed and conditioned such that there are no conflicts with established easements.
5.That the property is not subject to a contract entered into pursuant to the Land Conservation
Act of 1965 (Williamson Act).
6.That the design of the subdivision provides, to the extent feasible, for future passive or natural
heating or cooling opportunities in the subdivision, in that structures have been designed to
in�lude operable windows on all elevations in addition to balconies for the majority of the
project to maximize exposure of each unit to natural light and ventilation from nearby coastal
breezes, if desired.
7.That the Planning Commission has considered, in connection with the housing proposed by this
subdivision, the housing needs of the region, and balanced those housing needs against the
public service needs of the city and available fiscal and environmental resources in that the
applicant proposes to designate 81 units as affordable units. An Environmental Impact Report
(EIR) was prepared for the project. Mitigation measures have been incorporated into the
design of the project and the Mitigation Monitoring and Reporting Program (MMRP) such that
all potentially significant impacts will be mitigated to below a level of significance. The city's
Housing Policy Team recommended approval of the request. As required by CMC Chapter
21.85, the project has been conditioned to require the approval of an Affordable Housing
Agreement prior to issuance of building permits.
8.That the design of the subdivision and improvements are not likely to cause substantial
environmental damage nor substantially and avoidably injure fish or wildlife or their habitat, in
that staff has conducted an Environmental Impact Report (EIR) to determine if the project
could have any potentially significant impacts on the environment. The EIR identified
potentially significant impacts to Air Quality, Biological Resources, Cultural/Paleontological
Resources, Geology/Soils, Hazards/Hazardous Materials, and Noise. Mitigation measures have
been incorporated into the design of the project and the Mitigation Monitoring and Reporting
Program (M!VIRP) such that all potentially significant impacts will be mitigated to below a level
of significance. Therefore, the project is not likely to cause substantial environmental damage
nor substantially and avoidably injure fish or wildlife or their habitat.
9.That the discharge of waste from the subdivision will not result in violation of existing California
Regional Water Quality Control Board requirements, in that the project will adhere to the city's
Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, BMP Design Manual and
Jurisdictional Runoff Management Program (JRMP) to avoid increased urban runoff,
pollutants, and soil erosion.
Site Development Plan SOP 2018-0002
10.That the proposed development or use is consistent with the General Plan and any applicable
master plan or specific plan, complies with all applicable provisions of Chapter 21.06 of the
Carlsbad Municipal Code, and all other applicable provisions of this code, in that the various
goals and objectives of the General Plan will be implemented as the proposed project is
consistent with the General Plan, which allows for a mixture of residential uses, including
multiple-family residential, within the R-30 Residential Land Use designation. Although the
project's density of 40 dwelling units per acre is above the maximum R-30 Residential density
of 30 du/ac;the project includes a request for a residential density increase. As discussed in
PC RESO NO. 7399 -3-Sept. 28, 2021 Item #5 Page 20 of 43
the project staff report, the project also includes a standards modification request for
increased building height, increased wall and fence height, reduced setbacks, and reduced
parking requirements. CMC Section 21.53.120 allows for approval of standards modifications,
including increased density, provided the project is in conformity with the general plan and
adopted policies and goals of the city and is consistent with the local coastal program
provisions except for density. As indicated above and in findings below, the project is
consistent with the city's General Plan, policies and goals, and is consistent with the city's
local coastal program provisions except for density. Therefore, the 329-unit residential
apartment project can be found consistent with the General Plan Land Use Policies as
discussed below and in the project staff report, with the standards modifications as
requested.
11.That the requested development or use is properly related to the site, surroundings and
environmental settings, will not be detrimental to existing development or uses or to
development or uses specifically permitted in the area in which the proposed development or
use is to be located, and will not adversely impact the site, surroundings or traffic circulation, in
that multiple-family residential is a permitted use within the Residential Density -Multiple
(RD-M) Zone and is compatible with the other single-family and multiple-family residential
uses surrounding the project site. The site development plan for affordable housing projects
may allow increased density and less restrictive development standards than specified in the
underlying zone or elsewhere as described above, provided that the project would have no
detrimental effect on public health, safety and welfare. The residential project is buffered
from existing and future office uses by open space area to the north of the site. The residential
apartment project will not adversely impact the site, surroundings, or traffic circulation in that
the existing surrounding streets have adequate capacity to accommodate the 1,974 Average
Daily Trips (ADT) generated by the project and the residential project has direct access to
Aviara Parkway and Laurel Tree Lane. Therefore, the project with the requested standards
modifications will not be detrimental to existing permitted development, will not adversely
impact the site, surroundings or traffic circulation, and will not have a detrimental effect on
public health, safety and welfare.
12.That the site for the intended development or use is adequate in size and shape to
accommodate the use, in that the 329-unit apartment project is located on a 9.5-acre site that
is bisected by Aviara Parkway which creates an east and west parcel. By -requesting a
standards modification for increased height, increased wall/fence height, reduced setbacks,
and reduced parking, the building footprints are reduced and impacts to existing slopes_ and
habitats areas are minimized. The project still meets minimum standards of the Residential
Density Multiple (RD-M) Zone and Carlsbad Municipal Code for some setbacks and lot
coverage.
13.That all yards, setbacks, walls, fences, landscaping, and other features necessary to adjust the
requested development or use to existing or permitted future development or use in the
neighborhood will be provided and maintained, in that the project is buffered from existing and
future uses by open space areas, Aviara Parkway and Laurel Tree Lane. Landscaping along the
outer edges of the property, including the areas along Aviara Parkway and Laurel Tree Lane,
will be provided consistent with the requirements of the city's Landscape Manual.
14.That the street systems serving the proposed development or use is adequate to properly
handle all traffic generated by the proposed use, in that the project will take access off Aviara
Parkway and Laurel Tree Lane. The proposed project has been designed with two street
PC RESO NO. 7399 -4-Sept. 28, 2021 Item #5 Page 21 of 43
entries from Aviara Parkway for the West Parcel. The East parcel has been designed with a
single entry from Laurel Tree Lane which connects to Aviara Parkway approximately 400 feet
to the west. Aviara Parkway between Palomar Airport Road and Poinsettia Lane is identified
as an Arterial Street while Laurel Tree Lane is identified as a Local/Neighborhood Street. The
streets are designed to adequately handle the 1,974 Average Daily Trips generated by the 329-
unit residential apartment project as analyzed by the project Traffic Impact Analysis. The
project site is served by one NCTD bus route with stops approximately 1,000 feet north of the
site on Palomar Airport Road. In addition, the applicant will be required to pay traffic impact
fees prior to issuance of building permits that will go towards future road improvements.
Coastal Development Permit CDP 2018-0005
15.That the proposed development is in conformance with the Certified Local Coastal Program and
all applicable policies in that the four-story buildings will not obstruct views of the coastline as
seen from public lands or the public right-of-way since there are no views of the coastline
from this segment of Aviara Parkway or Laurel Tree Lane. The project's location along Aviara
Parkway and Laurel Tree Lane will not damage the visual beauty of the Coastal Zone. It was
determined that the site does not qualify as prime, non-prime or coastal agricultural land
required to be preserved pursuant to the Coastal Act when the Coastal Commission approved
the General Plan land use changes for the project site. Lastly, the project maintains the
required SO-foot riparian buffer from the off-site Encinas Creek to the north.
16.The proposal is in conformity with the public access and recreation policies of Chapter 3 of the
Coastal Act in that the site does not have frontage along the coastline so no public
opportunities for coastal shoreline access or water-oriented recreation activities are available
from the site.
17.The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone
(Chapter 21.203 of the Zoning Ordinance) in that the project complies with the areas of
concern listed below:
a.Preservation of Steep Slopes and Vegetation. Slopes greater than 25 percent and possessing
endangered plant/animal species and/or coastal sage scrub and chaparral plant
communities are considered "dual criteria" slopes and are protected in the Coastal Zone.
The project does not propose development of any "dual criteria" slopes.
b.Drainage, Erosion, Sedimentation, Habitat. Topographic and vegetation mapping and
analysis were prepared as part of the project. Riparian boundaries were identified, and a SO
foot buffer area has been provided between the riparian area and the edge of development
to buffer sensitive habitat areas from intrusion. Impacts to habitat are minor compared to
the proposed preservation and restoration, and will be fully mitigated. A habitat restoration
plan and a preserve management plan are proposed with this project and the project is
consistent with the city's adopted Habitat Management Plan. The project will adhere to the
city's Master Drainage Plan, Grading Ordinance, Storm Water Ordinance, BMP Design
Manual and Jurisdictional Runoff Management Program (JRMP) to avoid increased urban
run-off, pollutants and soil erosion.
c.Seismic Hazards, Landslides and Slope Instability. The Preliminary Geotechnical Investigation
(GeoSoils, Inc, July 7, 2016), identifies that ground surface rupture as a · result of an
earthquake or seismic event is not likely to occur at the site. Geomorphic expressions
PC RESO NO. 7399 -5-Sept. 28, 2021 Item #5 Page 22 of 43
indicative of past significant mass wasting events (i.e., scarps and hummocky terrain) were
not observed during field studies. Further, no adverse geologic structures were encountered
during subsurface exploration nor during the review of regional geologic maps. The report
concludes, from a geologic and soils engineering point of view, that the site is suitable for
the proposed development. By following the recommendations contained within the
referenced report, the site is suitable for the proposed project, and will not expose people
or structures to geotechnical-related hazards.
d.Flood Plain Development. No structures or fill are being proposed within a one-hundred
year floodplain area as identified by the FEMA Flood Map Service Center.
Hillside Development Permit HDP 2018-0001
18.That hillside conditions have been properly identified on the constraints map which show
existing and proposed conditions and slope percentages.
19.That the development proposal is consistent with the intent, purpose, and requirements of the
Hillside Ordinance, Chapter 21.95, in that:
a.The project implements the goals and objectives of the land use and open
space/conservation elements of the Carlsbad General Plan for infill residential
development as discussed below.
b.The existing hillside conditions have been properly identified and addressed in the
planning process.
c.The project design will preserve and enhance the aesthetic qualities of the existing
manufactured and natural slopes by incorporating an aesthetically pleasing design that
mainly constructs over existing, relatively flat pads, and by using retaining walls less than
six feet in height on slopes which have a gradient of fifteen percent or more and an
elevation differential greater than fifteen feet. Furthermore, landscaping will be used to
reduce the visual impacts on the adjacent properties. Additionally, the proposed grading
volume of 5,601 cubic yards per acre (cy/ac) falls within the acceptable level because it is
less than 8,000 cy/ac.
d.The project provides the required SO-foot riparian buffer from development to the offsite
Encinas Creek, and biofiltration BMPs to address drainage and water quality, thereby
protecting the riparian ecosystem from increased erosion. In accordance with the EIR and
mitigation measures prepared for the project, no substantial impacts to natural resource
areas, wildlife habitats or native vegetation areas will occur as a result of the project with
the required mitigation for removal of 0.1 acres of unoccupied Diegan Coastal Sage Scrub.
20.That the proposed development or grading will not occur in the undevelopable portions of the
site pursuant to provisions of Section 21.53.230 of the Carlsbad Municipal Code, in that:
a.No development is proposed on a slope that has a minimum of 10,000 square feet in area,
over 40% gradient and has an elevation differential of greater than 15 feet. Some areas of
-:1-0% slope on-site are either smaller than 10,000 square feet or have an elevation
differential of less than 15 feet. Therefore, the 40% slopes are permitted to be developed.
PC RESO NO. 7399 -6-Sept. 28, 2021 Item #5 Page 23 of 43
b.The site is partially traversed by an SDG&E power transmission easement. Pursuant to
CMC Section 21.53.230(c), the location of accessory facilities including but not limited to
vehicular access and parking, recreation areas and landscaping, etc., for a residential
development may be located on land that is subject to major power transmission
easements. No dwelling units or recreation buildings are located within the SDG&E
easement.
21.That the project design substantially conforms to the intent of the concepts illustrated in the
Hillside Development Guidelines Manual, in that there are no proposed downhill perimeter
slopes exceeding 40% gradient and an elevation differential of greater than 15 feet; no slope
edge building setbacks are required; and no retaining walls exceeding six feet in height are
proposed on slopes which have a gradient of fifteen percent or more and an elevation
differential greater than fifteen feet.
22.That the project design and lot configuration minimizes disturbance of hillside lands, in that the
significant slope and sensitive habitat areas are being preserved in open space to the
maximum extent practicable.
Habitat Management Plan Permit HMP 2018-0001
23.That the Aviara Apartments project parcel is shown in Figure 28 of the approved HMP as a
"Development Area," and located adjacent to an "Existing Hardline Conservation Area."
24.That authorization to impact sensitive habitats, through the removal of 0.1 acres of unoccupied
Diegan Coastal Sage Scrub (Habitat Group D), 0.3 acres of non-native grassland (Habitat Group
E), and 4 acres of non-native vegetation and disturbed habitat (Habitat Group F) is subject to
continuous compliance with all provisions of the Habitat Management Plan for Natural
Communities in the City of Carlsbad (HMP), the Citywide Incidental Take Permit issued for the
HMP, the Implementing Agreement, the Terms and Conditions of the Incidental Take Permit,
and the Biological Opinion.
25.That authorization to impact sensitive habitats is subject to continuous compliance with all
mitigation measures as stated in the Mitigation Monitoring and Reporting Program of EIR
2018-0001 and is subject to all conditions contained in Planning Commission Resolutions No.
7398 for those other approvals, including but not limited to recordation of conservation
easements over all conserved areas and management and monitoring in perpetuity by a
qualified conservation entity.
26.That authorization to impact sensitive habitats {and take of species of concern} is subject to
continuous compliance with the provisions of Volumes I, II and Ill of the Multiple Habitat
Conservation Program and the Final Environmental Impact Statement/Environmental Impact
Report for Threatened and Endangered Species Due to Urban Growth within the Multiple
Habitat Conservation Program Planning Area (SCH No. 93121073).
27.That all impacts to habitat and all take of species will be incidental to otherwise lawful activities
related to construction and operation of the Aviara Apartments project. No take of species of
concern is proposed or anticipated.
28.That the project design as approved by the City of Carlsbad has avoided and minimized impacts
to wildlife habitat and species of concern to the maximum extent practicable. Specifically, only
PC RESO NO. 7399 -7-Sept. 28, 2021 Item #5 Page 24 of 43
0.1 acres of HMP Habitat Groups A-D will be impacted by the development. Furthermore,
approximately 1.6 acres of the site will be designated as an open space preserve. Additionally,
all 0.24 acres of Southern Willow Scrub (Habitat Group A) located on-site will be protected
and approximately 1.1 acres of unoccupied Diegan Coastal Sage Scrub (Habitat Group D) will
be created or restored in areas that are disturbed and characterized by non-native habitat
types in the pre-restoration condition.
29.That adequate funding has been provided to address changed circumstances and adaptive
management needs that may be reasonably anticipated in the future, consistent with the HMP
Implementing Agreement.
30.That the authorization to impact sensitive habitats {and incidental take of species of concern} as
a result of the project will not appreciably reduce the likelihood of survival and recovery of the
species in the wild due to compliance with all of the above stated requirements, as well as
ongoing monitoring and reporting to the wildlife agencies and the public. No take of species of
concern is proposed or anticipated.
31.The Planning Commission hereby finds that all development in Carlsbad benefits from the
Habitat Management Plan, which is a comprehensive conservation plan and implementation
program that will facilitate the preservation of biological diversity and provide for effective
protection and conservation of wildlife and plant species while continuing to allow compatible
development in accordance with Carlsbad's Growth Management Plan. Preservation of wildlife
habitats and sensitive species is required by the Open Space and Conservation Element of the
city's General Plan which provides for the realization of the social, economic, aesthetic and
environmental benefits from the preservation of open space within an increasingly urban
environment. Moreover, each new development will contribute to the need for additional
regional infrastructure that, in turn, will adversely impact species and habitats. The In-Lieu
Mitigation Fee imposed on all new development within the city is essential to fund
implementation of the city's Habitat Management Plan. Pursuant to the HMP, EIR 2018-0001
mitigation measures require the project to pay habitat in-lieu fees for impacts to 0.15 acres of
Group E habitat and 0.42 acres of Group F habitat
City Council Policy No. 43, Allocation for Excess Dwelling Units
32.That the City's Housing Policy Team recommended approval of the request for an allocation of
105 units from the EDUB on October 13, 2017.
33.That the project location and density are compatible with the existing adjacent residential
neighborhoods and/or nearby existing or planned uses in that the project includes a request for
an increase in the allowed density from 30 dwelling units per acre to 40 dwelling units per
acre pursuant to CMC Chapter 21.53.120. Surrounding land uses include residential
development and open space areas to the south and east, including a two-story, 138-unit
affordable apartment project across Laurel Tree Lane. Existing office uses and an undeveloped
office site are located to the north of the project site. However, existing open space areas
provide a buffer between the proposed residential project and the existing and proposed
office uses. Furthermore, the proposed residential project will provide additional open space
lots on the north side of the project which will expand the existing open space buffer between
the proposed residential project and the existing and future office uses. Given the existing,
surrounding development and the existing and proposed open space areas, the residential
project is compatible with existing and future land uses.
PC RESO NO. 7399 -8-Sept. 28, 2021 Item #5 Page 25 of 43
34.That the project location and density are in accordance with the applicable provisions of the
General Plan and any other applicable planning document, in that a residential apartment
project is consistent with the R-30 Residential General Plan Land Use designation and the site
is identified in Figure 10-1 of the General Plan as an underutilized site for lower and moderate
income housing. The requested increase in allowed density with standards modifications is
consistent with the provisions of CMC Chapter 21.53.120.
35.That the project complies with the findings stated in the General Plan Land Use Element for
projects that exceed the growth management control point for the applicable density range in
that:
General
a.The project qualifies for and will receive an allocation of "excess" dwelling units, pursuant to
City Council Policy No. 43 in that the project is compatible with surrounding existing and
planned neighborhoods and land uses, and the Southwest Quadrant dwelling unit limit
will not be exceeded as a result of the proposed project, as further discussed below.
b.There have been sufficient residential projects approved at densities below the GMCP so the
citywide and quadrant dwelling unit limits will not be exceeded as a result of the proposed
project in that per the city's Quadrant Dwelling Unit Report dated November 30, 2020, the
Southwest Quadrant has an additional 1,232-unit capacity to accommodate the 105
additional dwelling units not already allocated to the site by the General Plan.
Additionally, less any recent allocations, the report identifies 288 dwelling units in the
Excess Dwelling Unit Bank available to be allocated to the project. Therefore, the citywide
and quadrant dwelling unit limits will not be exceeded as a result of the proposed project.
c.All necessary public facilities required by the Citywide Facilities and Improvements Plan will
be constructed, or are guaranteed to be constructed, concurrently with the need for them
created by this development and in compliance with adopted city standards in that the
project plans and conditions of approval ensure either financial contribution through
required impact fees or actual construction of improvements concurrent with
development.
36.The Planning Commission finds that the project, as conditioned herein, is in conformance with
the Elements of the city's General Plan based on the facts set forth in the staff report dated
December 16, 2020, including, but not limited to the following:
A.Land Use -The 329-unit apartment project is consistent with the elements and objectives
of the General Plan as discussed in Section "A" of the project staff report. The General
Plan Land Use designation for the property is R-30 Residential, which allows residential
development at a density range of 23-30 dwelling units per acre (du/ac). The 329-unit
project results in a density of 40 du/ac which exceeds the maximum 30 du/ac of the R-30
Residential General Plan Land Use Designation. However, Program 2.2 of the Housing
Element states, "Flexibility in Development Standards of the General Plan describes how
the Planning Division may recommend waiving or modifying certain development
standards to encourage the development of low-income housing." Furthermore, the
General Plan identifies the project site as an "underutilized" site where redevelopment
with multi-family uses can help the city meet its Regional Housing Needs Assessment
PC RESO NO. 7399 -9-Sept. 28, 2021 Item #5 Page 26 of 43
(RHNA) goals. The applicant is proposing to redevelop the residentially designated site
with apartments. The project is an appropriate location as it is compatible with existing
residential uses to the south and buffered from commercial uses to the north by open
space areas. The location of the project site is also located near employment
opportunities and public transit.
B.Mobility -The proposed project has been designed to meet applicable circulation
requirements, which include driveway access points from Aviara Parkway and Laurel Tree
Lane. In addition, the applicant will be required to pay traffic impact fees prior to issuance
of a building permit that will go towards future road improvements. The proposed project
will maintain existing sidewalks along Aviara Parkway and will construct a new sidewalk
along the project frontage on Laurel Tree Lane. Pedestrian access will be provided to and
from the project.
C.Public Safety -The proposed structural improvements are required to be designed in
conformance with all seismic design standards. In addition, the proposed project is
consistent with all the applicable fire safety requirements. Further, the project has been
conditioned to develop and implement a program of "best management practices" for the
elimination and reduction of pollutants which enter into and/or are transported within
storm drainage facilities.
D.Noise -The project consists of 329 apartments located in two buildings. A noise study by
Charles M. Salter Associates Inc., dated March 21, 2019, was provided. The windows of
each residential unit will need to be closed to meet a 45 dB(a) CNEL interior noise level.
Therefore, mechanical ventilation is required. In addition, the project is conditioned to
comply with the construction requirements of the aforementioned noise study which
includes a minimum STC rating ranging from 28-36 for all exterior windows and doors as
shown on Figure 2 and Figure 3 of the study.
E.Housing -The proposed project will provide 81 affordable housing units with income
restrictions at extremely low-, low-, and moderate-income levels. Therefore, the proposed
project helps achieve the city's affordable housing goals as set forth in the Housing
Element of the General Plan including progress toward meeting the city's RHNA. The 329-
unit project will provide 25% of the housing units available to extremely low-, low-and
moderate-income households in addition to market-rate units. Furthermore, the project
site is located in an area that is in close proximity to public transit and employment
opportunities.
37.The project is consistent with the Citywide Facilities and Improvements Plan, the Local Facilities
Management Plan for Zone 5 and all city public facility policies and ordinances. The project
includes elements or has been conditioned to construct or provide funding to ensure that all
facilities and improvements regarding sewer collection and treatment; water; drainage;
circulation; fire; schools; parks and other recreational facilities; libraries; government
administrative facilities; and open space, related to the project will be installed to serve new
development prior to or concurrent with need. Specifically,
A.The project has been conditioned to provide proof from the Carlsbad Unified School District
that the project has satisfied its obligation for school facilities.
PC RESO NO. 7399 -10-Sept. 28, 2021 Item #5 Page 27 of 43
B.Park-in-lieu fees are required by Carlsbad Municipal Code Chapter 20.44 and will be
collected prior to issuance of building permit.
C.The Public Facility fee is required to be paid by Council Policy No. 17 and will be collected
prior to the issuance of building permit.
D.The Local Facilities Management fee for Zone 5 is required by Carlsbad Municipal Code
Section 21.90.050 and will be collected prior to issuance of building permit.
38.That all necessary public facilities required by the Growth Management Ordinance will be
constructed or are guaranteed to be constructed concurrently with the need for them created
by this project and in compliance with adopted city standards.
39.The project is consistent with the adopted Airport Land Use Compatibility Plan for the
McClellan-Palomar Airport (ALUCP), dated December 1, 2011, in that, as conditioned, the
applicant shall record a notice concerning aircraft noise. The project is compatible with the
projected noise levels of the ALUCP and the land use is compatible with the airport, in that the
project site is located within the 60dB noise contour of the ALUCP and is located within Safety
Zone 6. Multi-family residential is a compatible and allowed use within Safety Zone 6. Mutii
family residential is compatible within the 60dB noise contour if interior noise can be
mitigated to 45 dB or less. The project has been conditioned to meet a 45 dB interior noise
level by implementing the measures described in the noise study prepared for the project by
Charles M. Salter Associates Inc., dated March 21, 2019.
40.That the project is consistent with the city's Landscape Manual and Water Efficient Landscape
Ordinance {Carlsbad Municipal Code Chapter 18.50).
41.The Planning Commission has reviewed each of the exactions imposed on the Developer
contained in this resolution, and hereby finds, in this case, that the exactions are imposed to
mitigate impacts caused by or reasonably related to the project, and the extent and the degree
of the exaction is in rough proportionality to the impact caused by the project.
Conditions:
NOTE: Unless otherwise specified herein, all conditions shall be satisfied prior to the issuance of a
grading or building permit, or recordation of the Final Map, .whichever occurs first.
1.If any of the following conditions fail to occur, or if they are, by their terms, to be implemented
and maintained over time, if any of such conditions fail to be so implemented and maintained
according to their terms, the city shall have the right to revoke or modify all approvals herein
granted; deny or further condition issuance of all future building permits; deny, revoke, or
further condition all certificates of occupancy issued under the authority of approvals herein
granted; record a notice of violation on the property title; institute and prosecute litigation to
compel their compliance with said conditions or seek damages for their violation. No vested
rights are gained by Developer or a successor in interest by the city's approval of this Tentative
Tract Map/Site Development Plan/Coastal Development Permit/Hillside Development
Permit/Habitat Management Plan Permit.
2.Staff is authorized and directed to make, or require the Developer to make, all corrections and
modifications to the Tentative Tract Map/Site Development Plan/Coastal Development
PC RESO NO. 7399 -11-Sept. 28, 2021 Item #5 Page 28 of 43
Permit/Hillside Development Permit/Habitat Management Plan Permit documents, as
necessary to make them internally consistent and in conformity with the final action on the
project. Development shall occur substantially as shown on the approved Exhibits. Any
proposed development, different from this approval, shall require an amendment to this
approval.
3.Developer shall comply with all applicable prov1s1ons of federal, state, and local laws and
regulations in effect at the time of building permit issuance.
4.If any condition for construction of any public improvements or facilities, or the payment of any
fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged,
this approval shall be suspended as provided in Government Code Section 66020. If any such
condition is determined to be invalid, this approval shall be invalid unless the City Council
determines that the project without the condition complies with all requirements of law.
5.Developer shall implement, or cause the implementation of, the Aviara Apartments EIR 2018-
0001 Project Mitigation Monitoring and Reporting Program.
6.Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold
harmless the City of Carlsbad, its Council members, officers, employees, agents, and
representatives, from and against any and all liabilities, losses, damages, demands, claims and
costs, including court costs and attorney's fees incurred by the city arising, directly or indirectly,
from (a) city's approval and issuance of this Tentative Tract Map/Site Development
Plan/Coastal Development Permit/Hillside Development Permit/Habitat Management Plan
Permit, (b) city's approval or issuance of any permit or action, whether discretionary or
nondiscretionary, in connection with the use contemplated herein, and (c)
Developer/Operator's installation and operation of the facility permitted hereby, including
without limitation, any and all liabilities arising from the emission by the facility of
electromagnetic fields or other energy waves or emissions. This obligation survives until all legal
proceedings have been concluded and continues even if the city's approval is not validated.
7.Prior to submittal of the building plans, improvement plans, grading plans, or final map,
whichever occurs first, developer shall submit to the City Planner, a 24" x 36" copy of the
(Tentative Map/Site Plan or other), conceptual grading plan and preliminary utility plan
reflecting the conditions approved by the final decision making body. The copy shall be
submitted to the City Planner, reviewed and, if found acceptable, signed by the city's project
planner and project engineer. If no changes were required, the approved exhibits shall fulfill
this condition.
8.Prior to the issuance of a building permit, the Developer shall provide proof to the Building
Division from the Carlsbad Unified School District that this project has satisfied its obligation to
provide school facilities.
9.This project shall comply with all conditions and mitigation measures which are required as part
of the Zone 5 Local Facilities Management Plan and any amendments made to that Plan prior to
the issuance of building permits.
10.This approval is granted subject to the approval of EIR 2018-0001 and is subject to all conditions
contained in Planning Commission Resolutions No. 7398 for those other approvals incorporated
herein by reference.
PC RESO NO. 7399 -12-Sept. 28, 2021 Item #5 Page 29 of 43
11.This approval shall become null and void if building permits are not issued for this project within
24 months from the date of project approval unless a time extension is filed in a timely manner
and approved by the City of Carlsbad.
12.Building permits will not be issued for this project unless the local agency providing water and
sewer services to the project provides written certification to the city that adequate water
service and sewer facilities, respectively, are available to the project at the time of the
application for the building permit, and that water and sewer capacity and facilities will continue
to be available until the time of occupancy. A note to this effect shall be placed on the Final
Map.
13.As a condition of this approval, applicant must comply with the requirements of all regulatory
agencies having jurisdiction over the project and any mitigation requirements of the
environmental documents for the project. Pursuant to Government Code section 65871 and
Carlsbad Municipal Code Title 20, Chapter 20.04, section 20.04.140 applicant shall grant a
conservation easement for the conservation, protection, and management of fish, wildlife,
native plants and the habitat necessary for biologically sustainable populations of certain
species thereof, in accordance with the city's adopted Habitat Management Plan.
14.Prior to final map approval, or issuance of a grading permit or clearing of any habitat, whichever
occurs first, the Developer shall take all of the following actions to the satisfaction of the City
Planner in relation to the open space lot(s) which are being conserved for natural habitat in
conformance with the City's Habitat Management Plan:
a.Select a conservation entity, subject to approval by the City, that possesses
qualifications to manage the open space lot(s) for conservation purposes.
b.Prepare a Property Analysis Record (PAR} or other method acceptable to the City for
estimating the costs of management and monitoring of the open space lot(s) in
perpetuity in accordance with the requirements of the North County Multiple Habitats
Conservation Plan and the City's Open Space Management Plan.
c.Based on the results of the PAR, provide a non-wasting endowment or other financial
mechanism acceptable to the City Planner and conservation entity, if any, in an amount
sufficient for management and monitoring of the open space lot(s) in perpetuity.
d.Record a Conservation Easement over the open space lot(s).
e.Prepare, and obtain approval of the City Planner, CDFW, USFWS and Coastal
Commission staff for, a Preserve Management Plan which will ensure adequate
management of the open space lot(s) in perpetuity.
15.This project has been found to result in impacts to wildlife habitat or other lands, such as
agricultural land, non-native grassland, and disturbed lands, which provide some benefit5 to
wildlife, as documented in the city's Habitat Management Plan and the environmental analysis
for this project. Developer is aware that the city has adopted an In-lieu Mitigation Fee consistent
with Section E.6 of the Habitat Management Plan and City Council Resolution No. 2000-223 to
fund mitigation for impacts to certain categories of vegetation and animal species. The
Developer is further aware that the city has determined that all projects will be required to pay
the fee in order to be found consistent with the Habitat Management Plan and the Open Space
and Conservation Element of the General Plan. Developer or Developer's successor(s) in interest
PC RESO NO. 7399 -13-Sept. 28, 2021 Item #5 Page 30 of 43
shall pay the habitat in-lieu fees for impacts to 0.15 acres of Group E habitat and 0.42 acres of
Group F habitat prior to recordation of a final map, or issuance of a grading permit or building
permit, whichever occurs first. If the In-lieu Mitigation Fee for this project is not paid, this
project will not be consistent with the Habitat Management Plan and the General Plan and any
and all approvals for this project shall become null and void.
16.Prior to the approval of the final map for any phase of this project, or where a map is not being
processed, prior to the issuance of building permits for any lots or units, the Developer shall
enter into an Affordable Housing Agreement with the city to provide and deed restrict 81
dwelling units as affordable to lower-income households for 55 years, earning up to 30% of the
area median income (AMI) (7 units), 60% AMI (62 units), and 90% AMI (12 units), in
accordance with the requirements and process set forth in Chapters 21.85 of the Carlsbad
Municipal Code. The draft Affordable Housing Agreement shall be submitted to the City Planner
no later than 60 days prior to the request to final the map and shall be recorded prior to
issuance of the first building permit. The recorded Affordable Housing Agreement shall be
binding on all future owners and successors in interest.
17.Developer shall pay the Citywide Public Facilities Fee imposed by City Council Policy #17, the
License Tax on new construction imposed by Carlsbad Municipal Code Section 5.09.030, and CFD
#1 special tax (if applicable), subject to any credits authorized by Carlsbad Municipal Code
Section 5.09.040. Developer shall also pay any applicable Local Facilities Management Plan fee
for Zone 5, pursuant to Chapter 21.90. All such taxes/fees shall be paid at issuance of building
permit. If the taxes/fees are not paid, this approval will not be consistent with the General Plan
and shall become void.
18.Prior to the issuance of the building permit, Developer shall submit to the city a Notice of
Restriction executed by the owner of the real property to be developed. Said notice is to be filed
in the office of the County Recorder, subject to the satisfaction of the City Planner, notifying all
interested parties and successors in interest that the City of Carlsbad has issued a(n) Tentative
Tract Map/Site Development Plan/Coastal Development Permit/Hillside Development
Permit/Habitat Management Plan Permit by Resolution(s) No. 7399 on the property. Said
Notice of Restriction shall note the property description, location of the file containing complete
project details and all conditions of approval as well as any conditions or restrictions specified
for inclusion in the Notice of Restriction. The City Planner has the authority to execute and
record an amendment to the notice which modifies or terminates said notice upon a showing of
good cause by the Developer or successor in interest.
19.Prior to the recordation of the first final tract map or the issuance of building permits,
whichever occurs first, the Developer shall prepare and record a Notice that this property is
subject to overflight; sight and sound of aircraft operating from McClellan-Palomar Airport, in a
form meeting the approval of the City Planner and the City Attorney (see Noise Form #2 on file
in the Planning Division).
20.Developer shall make a separate formal landscape construction drawing plan check submittal to
the Planning Division and obtain City Planner approval of a Final Landscape and Irrigation Plan
showing conformance with the approved Preliminary Landscape Plan and the city's Landscape
Manual. Developer shall construct and install all landscaping and irrigation as shown on the
approved Final Plans. All landscaping shall be maintained in a healthy and thriving condition,
free from weeds, trash, and debris. All irrigation systems shall be maintained to provide the
PC RESO NO. 7399 -14-Sept. 28, 2021 Item #5 Page 31 of 43
optimum amount of water to the landscape for plant growth without causing soil erosion and
runoff.
21.The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the landscape
plancheck process on file in the Planning Division and accompanied by the project's building,
improvement, and grading plans.
22.All roof appurtenances, including air conditioners, shall be architecturally integrated and
concealed from view and the sound buffered from adjacent properties and streets, in substance
as provided in Building Department Policy No. 80-6, to the satisfaction of the Directors of
Community Development and Planning.
23.No outdoor storage of materials shall occur onsite unless required by the Fire Chief. When so
required, the Developer shall submit and obtain approval of the Fire Chief and the City Planner
of an Outdoor Storage Plan, and thereafter comply with the approved plan.
24.Prior to issuance of a building permit, the developer shall demonstrate that the project will
comply with all construction requirements in the project's noise study prepared by Charles M.
Salter Associates Inc., dated March 21, 2019, which includes windows and doors with a
minimum STC rating ranging from 28-36 as shown on Figure 2 and Figure 3 of the study. These
construction requirements shall be shown on the building plans with a qualified acoustician
certifying that the measures shown will result in meeting the required 45 dB(a) CNEL interior
noise level.
25.Developer shall submit and obtain City Planner approval of an exterior lighting plan including
parking areas prior to the issuance of building permits. All lighting shall be designed to reflect
downward and avoid any impacts on adjacent homes or property. The project shall also comply
with the following lighting requirements:
a.Street lights should provide a safe and desirable level of illumination for both
motorists and pedestrians without intruding into residential areas.
b.Lighting fixtures should relate to the human scale, especially in pedestrian areas.
c.Lighting and lighting fixtures should complement project design and character.
d.All lighting shall be pedestrian-oriented and friendly, but shall not be obtrusive or
offensive.
e.All street lighting shall conform to city standards or an approved theme lighting
program, and shall be approved by the City Engineer.
f.Illuminated entries should direct lighting glow to the ground and be limited to only the
immediate vicinity of the entry.
g.Lighted entries should not be distracting or create visual hot spots or glare, etc.
h.Low-pressure sodium or similar, such as amber LED, downcast/fully shielded
temporary (during construction activities if required) and permanent lighting
PC RESO NO. 7399 -15-Sept. 28, 2021 Item #5 Page 32 of 43
associated with development adjacent to the open space shall be included within the
project's lighting plan.
26.Prior to recording of a subdivision map or the commencement of grading or construction
activities, developer shall:
a.Receive approval from the California Public Utilities Commission (CPUC) pursuant to
Section 851 of the PUC and comply with any conditions imposed by the CPUC for
project improvements proposed within the high-power transmission easement.
b.Record a revocable Consent Agreement for proposed parking, private street
improvements, landscaping, curbs and gutters, light standards, and all other
improvements within the transmission easement.
c.Submit to San Diego Gas and Electric (SDG&E) for review the final grading and
improvement plans, including permission-to-grade language, and the project
landscaping and irrigation plans. Plans should substantially conform to those reviewed
during the tentative map stage. The plans must be signed by SDG&E prior to issuance
of any construction permits.
Engineering:
General
27.Prior to hauling dirt or construction materials to or from any proposed construction site within
this project, developer shall apply for and obtain approval from, the city engineer for the
proposed haul route.
28.This project is approved upon the express condition that building permits will not be issued for
the development of the subject property, unless the district engineer has determined that
adequate water and sewer facilities are available at the time of permit issuance and will
continue to be available until time of occupancy.
29.Developer shall submit to the city engineer an acceptable instrument, via CC&Rs and/or other
recorded document, addressing the maintenance, repair, and replacement of shared private
improvements within this subdivision, including but not limited to private streets, utilities, street
trees, sidewalks, landscaping, street lighting, enhanced paving, water quality treatment
measures, low impact development features, storm drain facilities, etc. located therein and to
distribute the costs of such maintenance in an equitable manner among the owners of the
properties within this subdivision.
30.Developer shall include rain gutters on the building plans subject to the city engineer's review
and approval. Developer shall install rain gutters in accordance with said plans.
31.Developer shall prepare submit and process for city engineer approval a final map to subdivide
this project. There shall be one Final Map recorded for this project. Developer shall pay the city
standard map review plan check fees.
32.Developer shall install sight distance corridors at all street intersections and driveways in
accordance with City Engineering Standards. The property owner shall maintain this condition.
PC RESO NO. 7399 -16-Sept. 28, 2021 Item #5 Page 33 of 43
33.Developer shall submit to the city engineer written approval from North County Transit District
(NCTD) demonstrating mass-transit improvement requirements for this project have been
satisfied.
34.Property owner shall maintain all landscaping (street trees, tree grates, shrubs, groundcover,
etc.) and irrigation along the parkway frontage with Aviara Parkway and Laurel Tree Lane as
shown on the Tentative Map.
Fees/ Agreements
35.Developer shall cause property owner to execute and submit to the city engineer for
recordation, the city's standard form Geologic Failure Hold Harmless Agreement.
36.Developer shall cause property owner to execute and submit to the city engineer for
recordation the city's standard form Drainage Hold Harmless Agreement.
37.Developer shall cause property owner to submit an executed copy to the city engineer for
recordation a city standard Permanent Stormwater Quality Best Management Practice
Maintenance Agreement.
38.Developer shall cause property owner to apply for, execute, and submit, to the city engineer for
recordation, an Encroachment Agreement covering private fire service, fire hydrant, storm
drain and access gate located over existing public right-of-way or easements as shown on the
tentative map. Developer shall pay processing fees per the city's latest fee schedule.
39.This project shall be annexed into City of Carlsbad Street Lighting and Landscaping District No. 2
(SL&LD #2). Prior to approval of any grading, building permits or final map for this project,
Developer shall cause owner to execute an Agreement to annex the subject property into SL&LD
#2. The Agreement shall be in a form approved by the assistant city finance director.
Developer shall pay all fees necessary to annex the property into SL&LD #2.
40.Developer shall cause property owner to execute and submit to the city engineer for
recordation the city's standard form Street Tree Maintenance Agreement.
41.Developer shall implement Transportation System Management strategies per the city's
Mobility Element policy 3-P.11. Prior to issuance of a grading permit, developer shall pay their
fair share for the purchase, installation and timing of new traffic signal controllers at the
intersections of Aviara Parkway/Laurel Tree Lane and Aviara Parkway/Palomar Airport Road.
42.Developer shall comply with the Mobility Element policy 3-P.11. Prior to building permit
issuance, the Developer shall submit a Tier 2 Transportation Demand Management Plan to the
satisfaction of the city engineer.
43.The Developer shall install the following transportation demand management infrastructure
measures, in accordance with the project transportation demand management plan, to the
satisfaction of the City Engineer:
a.Two parking spaces for on-site car share, carpool or van pool shall be installed on the
west and east sides of the Project.
PC RESO NO. 7399 -17-Sept. 28, 2021 Item #5 Page 34 of 43
Grading
b.Provide an on-site business center in a dedicated space on the west side and in a
shared multipurpose room space on the east side.
c.Dedicated bicycle storage shall be installed within the enclosed parking structures on
the west and east sides of the Project.
44.Based upon a review of the proposed grading and the grading quantities shown on the tentative
map, a grading permit for this project is required. Developer shall prepare and submit plans and
technical studies/reports as required by city engineer, post security and pay all applicable
grading plan review and permit fees per the city's latest fee schedule.
45.This project may require off site grading. No grading for private improvements shall occur
outside the project unless Developer obtains, records, and submits a recorded copy, to the city
engineer, a temporary grading, construction or slope easement or agreement from the owners
of the affected properties. If Developer is unable to obtain the temporary grading or slope
easement, or agreement, no grading permit will be issued. In that case Developer must either
apply for and obtain an amendment of this approval or modify the plans so grading will not
occur outside the project and apply for and obtain a finding of substantial conformance and/or
consistency determination from both the city engineer and city planner.
46.This project requires grading and improvements within the major SDG&E easements on the
west and east sides of the project. No grading for private improvements shall occur within the
easement unless the Developer obtains a temporary grading or construction easement or
agreement from SDG&E to the satisfaction of the city engineer. If Developer is unable to
obtain the temporary grading or construction easement or agreement, no grading permit will
be issued. In that case Developer must either apply for and obtain an amendment of this
approval or modify the plans so grading will not occur within the SDG&E easement and apply
for and obtain a finding of substantial conformance and/or consistency determination from
both the city engineer and city planner.
Storm Water Quality
47.Developer shall comply with the city's Stormwater Regulations, latest version, and shall
implement best management practices at all times. Best management practices include but are
not limited to pollution control practices or devices, erosion control to prevent silt runoff during
construction, general housekeeping practices, pollution prevention and educational practices,
maintenance procedures, and other management practices or devices to prevent or reduce the
discharge of pollutants to stormwater, receiving water or stormwater conveyance system to the
maximum extent practicable. Developer shall notify prospective owners and tenants of the
above requirements.
48.Developer shall submit for city approval a Tier 3 Storm Water Pollution Prevention Plan (TIER 3
SWPPP). The TIER 3 SWPPP shall comply with current requirements and provisions established
by the San Diego Regional Water Quality Control Board and City of Carlsbad Requirements. The
TIER 3 SWPPP shall identify and incorporate measures to reduce storm water pollutant runoff
during construction of the project to the maximum extent practicable. Developer shall pay all
applicable SWPPP plan review and inspection fees per the city's latest fee schedule.
PC RESO NO. 7399 -18-Sept. 28, 2021 Item #5 Page 35 of 43
49.This project is subject to 'Priority Development Project' requirements. Developer shall prepare
and process a Storm Water Quality Management Plan {SWQMP), subject to city engineer
approval, to comply with the Carlsbad BMP Design Manual latest version. The final SWQMP
required by this condition shall be reviewed and approved by the city engineer with final grading
plans. Developer shall pay all applicable SWQMP plan review and inspection fees per the city's
latest fee schedule.
50.Developer is responsible to ensure that all final design plans (grading plans, improvement plans,
landscape plans, building plans, etc.) incorporate all source control, site design, pollutant control
BMP and applicable hydromodification measures.
Dedications/Improvements
51.Developer shall cause owner to dedicate to the city and/or other appropriate entities an
easement for public street & public utility purposes as shown on the tentative map. the offer
shall be made by a certificate on the final map or separate recorded document. all land so
offered shall be free and clear of all liens and encumbrances and without cost to the city. Streets
that are already public are not required to be rededicated. Additional easements may be
required at final design to the satisfaction of the city engineer.
52.Developer shall design the private streets, as shown on the tentative map to the satisfaction of
the city engineer. The structural section of all private streets shall conform to City of Carlsbad
Standards based on R-value tests. All private streets shall be inspected by the city. Developer
shall pay the standard improvement plan check and inspection fees for private streets.
53.Developer shall design the private drainage systems, as shown on the tentative map to the
satisfaction of the city engineer. All private drainage systems (12" diameter storm drain and
larger) shall be inspected by the city. Developer shall pay the standard improvement plan check
and inspection fees for private drainage systems.
54.Developer shall prepare and process public improvement plans and, prior to city engineer
approval of said plans, shall execute a city standard Subdivision Improvement Agreement to
install and shall post security in accordance with C.M.C. Section 20.16.070 for public
improvements shown on the tentative map. Said improvements shall be installed to city
standards to the satisfaction of the city engineer. These improvements include, but are not
limited to:
a.Street widening of Laurel Tree Lane including AC pavement, curb and gutter, sidewalk,
tree wells, striping, streetlights, driveways and ped ramps.
b.Median improvements, ped ramps, driveways and striping of Aviara Parkway.
c.Water services and meters.
d.Sewer laterals.
e.Fire services.
f.Construct ADA-compliant sidewalk along the north side of Laurel Tree Lane.
g.Stripe Class II bicycle lanes on eastbound and westbound Laurel Tree Lane from Aviara
Parkway to the cul-de-sac.
h.Install an ADA accessible pad and bench to the existing bus stop on northbound
College Boulevard 500 feet north of Palomar Airport Road. The improvements shall be
coordinated with NCTD and completed to the satisfaction of the city engineer.
PC RESO NO. 7399 -19-Sept. 28, 2021 Item #5 Page 36 of 43
i.Install a trash can and bench on the existing ADA accessible pad for the bus stop on
westbound Palomar Airport Road 130 feet west of College Boulevard. The
improvements shall be coordinated with NCTD and completed to the satisfaction of
the city engineer.
j.Construct 200 feet of ADA-compliant sidewalk on the south side of Palomar Airport
Road from Aviara Parkway easterly to the existing bus stop. Install a trash can, an
ADA accessible pad and bench. The improvements shall be coordinated with NCTD
and completed to the satisfaction of the city engineer.
k.Install a northbound overlap phase at the Aviara Parkway/Palomar Airport Road
traffic signal.
I.Extend the existing southbound Aviara Parkway left turn pocket at Laurel Tree Lane
from 160 feet to 250 feet.
Developer shall pay the standard improvement plan check and inspection fees in accordance
with the fee schedule. Improvements listed above shall be constructed within 36 months of
approval of the subdivision or development improvement agreement or such other time as
provided in said agreement.
55.Developer shall prepare and process improvement plans and, prior to approval, shall execute a
city standard Subdivision Improvement Agreement to modify/install and shall post security in
accordance with C.M.C. Section 20.16.070 for public signal improvements shown on the
tentative map. Said improvements shall be installed to ciJy standards to the satisfaction of the
city engineer. More specifically, these signal improvements include but are not limited to
constructing a new traffic signal pole at the northeast corner of Aviara Parkway and Laurel
Tree Lane and modifications to the existing traffic signal including all appurtenances and traffic
signal interconnect conduit and cable, at the intersection of Aviara Parkway and Laurel Tree
Lane. Developer shall install the traffic signal only with written authorization from the city
engineer. Developer shall pay the standard improvement plan check and inspection fees.
Improvements listed above shall be constructed within 18 months of approval of the subdivision
or development improvement agreement or such other time as provided in said agreement.
56.Developer shall execute a city standard Traffic Signal Development Improvement Agreement for
the design and construction of a traffic signal constructed to the satisfaction of the city
engineer. Developer shall submit a construction cost estimate with contingency, subject to city
engineer approval, for the design and construction of a new traffic signal pole at the northeast
corner of Aviara Parkway and Laurel Tree Lane and modifications to the existing traffic signal
including all appurtenances and traffic signal interconnect conduit and cable, at the intersection
of Aviara Parkway and Laurel Tree Lane. Developer shall post security in accordance with
C.M.C. Section 20.16.070 for the design and construction of said improvements. Developer shall
bear all costs associated with the design and construction of this signal, if warrants are met. The
Agreement shall be kept in force and security kept valid for a period of 5-years after the last
building permit has been issued within this development. The traffic signal shall be installed
only when written approval is received by the city engineer.
57.Developer shall design, and obtain approval from the city engineer, the structural section for the
access aisles with a traffic index of 5.0 in accordance with city standards due to truck access
through the parking area and/or aisles with an ADT greater than 500. Prior to completion of
grading, the final structural pavement design of the aisle ways shall be submitted together with
required R-value soil test information subject to the review and approval of the city engineer.
PC RESO NO. 7399 -20-Sept. 28, 2021 Item #5 Page 37 of 43
58.Developer shall provide all-weather maintenance access roads to the public drainage facilities
(e.g.: headwalls, rip-rap field, etc.) for this project to the satisfaction of the city engineer. Where
maintenance access roads are not practical and/or permitted, Developer shall incorporate low
maintenance design features to the satisfaction of the city engineer.
59.Developer is responsible to ensure utility transformers or raised water backflow preventers
that serve this development are located outside the right-of-way as shown on the Tentative
Map and to the satisfaction of the city engineer. These facilities shall be constructed within
the property.
Non-Mapping Notes
60.Add the following notes to the final map as non-mapping data:
A.Developer has executed a city standard Subdivision Improvement Agreement and has
posted security in accordance with C.M.C. Section 20.16.070 to install public improvements
shown on the tentative map. These improvements include, but are not limited to:
a.Street widening of Laurel Tree Lane including AC pavement, curb and gutter, sidewalk,
tree wells, striping, streetlights, driveways and ped ramps.
b.Median improvements, ped ramps, driveways and striping of Aviara Parkway.
c.Water services and meters.
d.Sewer laterals.
e.Fire services.
f.Construct ADA-compliant sidewalk along the north side of Laurel Tree Lane.
g.Stripe Class II bicycle lanes on eastbound and westbound Laurel Tree Lane from Aviara
Parkway to the cul-de-sac.
h.Install an ADA accessible pad and bench to the existing bus stop on northbound
College Boulevard 500 feet north of Palomar Airport Road. The improvements shall be
coordinated with NCTD and completed to the satisfaction of the city engineer.
i.Install a trash can and bench on the existing ADA accessible pad for the bus stop on
westbound Palomar Airport Road 130 feet west of College Boulevard. The
improvements shall be coordinated with NCTD and completed to the satisfaction of
the city engineer.
j.Construct 200 feet of ADA-compliant sidewalk on the south side of Palomar Airport
Road from Aviara Parkway easterly to the existing bus stop. Install a trash can, an
ADA accessible pad and bench. The improvements shall be coordinated with NCTD
and completed to the satisfaction of the city engineer.
k.Install a northbound overlap phase at the Aviara Parkway/Palomar Airport Road
traffic signal.
I.. Extend the existing southbound Aviara Parkway left turn pocket at Laurel Tree Lane
from 160 feet to 250 feet.
B.Developer has executed a city standard Subdivision Improvement Agreement and has
posted security in accordance with C.M.C. Section 20.16.070 to install public signal
improvements shown on the tentative map. These signal improvements include but are not
limited to constructing a new traffic signal pole and modifications to the existing traffic
signal including all appurtenances and traffic signal interconnect conduit and cable, at the
intersection of Aviara Parkway and Laurel Tree Lane.
PC RESO NO. 7399 -21-Sept. 28, 2021 Item #5 Page 38 of 43
Utilities
C.Building permit will not be issued for development of the subject property unless the
appropriate agency determines that sewer and water facilities are available.
D.Geotechnical Caution
1.Slopes steeper than two parts horizontal to one part vertical exist within the boundaries
of this subdivision.
2.The owner of this property on behalf of itself and all of its successors in interest has
agreed to hold harmless and indemnify the City of Carlsbad from any action that may
arise through any geological failure, ground water seepage or land subsidence and
subsequent damage that may occur on, or adjacent to, this subdivision due to its
construction, operation or maintenance.
E.No structure, fence, wall, tree, shrub, sign, or other object may be placed or permitted to
encroach within the area identified as a sight distance corridor as defined by City of Carlsbad
Engineering Standards or line-of-sight per Caltrans standards.
F.The owner of this property on behalf of itself and all of its successors in interest has agreed
to hold harmless and indemnify the City of Carlsbad from any action that may arise through
any diversion of waters, the alteration of the normal flow of surface waters or drainage, or
the concentration of surface waters or drainage from the drainage system or other
improvements identified in the city approved development plans; or by the design,
construction or maintenance of the drainage system or other improvements identified in
the city approved development plans.
G.There are no public park or recreational facilities to be located in whole or in part within this
subdivision. The subdivider is therefore obligated to pay park-in-lieu fees in accordance
with section 20.44.050 of the Carlsbad Municipal Code and has either paid all of said park in
lieu fees or agreed to pay all of said park-in-lieu fees in accordance with section 20.16.070 of
the Carlsbad Municipal Code.
61.Developer shall meet with the fire marshal to determine if fire protection measures (fire flows,
fire hydrant locations, building sprinklers) are required to serve the project.
62.Developer shall design and agree to construct public facilities within public right-of-way or
within minimum 20-foot wide easements granted to the district or the City of Carlsbad. At the
discretion of the district or city engineer, wider easements may be required for adequate
maintenance, access and/or joint utility purposes.
63.The Developer shall agree to design landscape and irrigation plans utilizing recycled water as a
source and prepare and submit a colored recycled water use map to the Planning Department
for processing and approval by the district engineer.
64.Developer shall install potable water and/or recycled water services and meters at locations
approved by the district engineer. The locations of said services shall be reflected on public
improvement plans.
65.The Developer shall agree to. install sewer laterals and clean-outs at locations approved by the
city engineer. The locations of sewer laterals shall be reflected on public improvement plans.
PC RESO NO. 7399 -22-Sept. 28, 2021 Item #5 Page 39 of 43
66.The Developer shall design and agree to construct public water, sewer, and recycled water
facilities substantially as shown on the tentative map to the satisfaction of the district engineer
and city engineer.
67.The potable water service for this project shall be master metered, which shall be located
within a water easement subject to approval by the district engineer. Developer shall install
private sub-meters as necessary for all proposed units in the building on the West Parcel.
Final meter design, backflow preventer, size, and manufacturer shall be provided to the
satisfaction of the district engineer and shown on public improvement plans.
68.The Developer shall submit a detailed sewer study, prepared by a registered engineer, that
identifies the peak flows of the project, required pipe sizes, depth of flow in pipe, velocity in the
main lines, and the capacity of the existing infrastructure. Said study shall be submitted
concurrently with the improvement plans for the project and the study shall be prepared to the
satisfaction of the district engineer.
69.The Developer shall submit a detailed potable water study, prepared by a registered engineer
that identifies the peak demands of the project (including fire flow demands). The study shall
identify velocity in the main lines, pressure zones, and the required pipe sizes. Said study shall
be submitted concurrently with the improvement plans for the project and the study shall be
prepared to the satisfaction of the district engineer.
Code Reminders
The project is subject to all applicable provisions of local ordinances, including but not limited to the
following:
70.Approval of this request shall not excuse compliance with all applicable sections of the Zoning
Ordinance and all other applicable city ordinances in effect at time of building permit issuance,
except as otherwise specifically provided herein.
71.Premise identification (addresses) shall be provided consistent with Carlsbad Municipal Code
Section 18.04.320.
72.Subdivider shall comply with Section 20.16.040(d) of the Carlsbad Municipal Code regarding the
undergrounding of existing overhead utilities.
73.Some improvement shown on the tentative map and/or required by these conditions are
located offsite on property which neither the city nor the owner has sufficient title or interest to
permit the improvements to be made without acquisition of title or interest. The developer shall
immediately initiate negotiations to acquire such property. The developer shall use its best
efforts to effectuate negotiated acquisition. If unsuccessful, developer shall demonstrate to the
city engineer its best efforts and comply with the requirements of the Carlsbad Municipal Code
Section 20.16.095 to notify and enable the city to successfully acquire said property by
condemnation.
74.Developer shall pay a landscape plancheck and inspection fee as required by Section 20.08.050
of the Carlsbad Municipal Code.
PC RESO NO. 7399 -23-Sept. 28, 2021 Item #5 Page 40 of 43
75.Developer shall pay park-in-lieu fees in accordance with Section 20.44 of the City of Carlsbad
Municipal Code to the satisfaction of the City Engineer.
76.Developer shall pay planned local area drainage fees in accordance with Section 15.08.020 of
the City of Carlsbad Municipal Code to the satisfaction of the City Engineer.
77.Developer shall pay traffic impact and sewer impact fees based on Section 18.42 and Section
13.10 of the City of Carlsbad Municipal Code, respectively. The Average Daily Trips (ADT) and
floor area contained in the staff report and shown on the tentative map are for planning
purposes only.
78.Any signs proposed for this development shall at a minimum be designed in conformance with
the city's Sign Ordinance and shall require review and approval of the City Planner prior to
installation of such signs.
79.Developer acknowledges that the project is required to comply with the city's greenhouse gas
(GHG) reduction ordinances and requirements. GHG reduction requirements are in accordance
with, but are not limited to, Carlsbad Municipal Code Chapters 18.21, 18.30, and 18.51 in
addition to the California Green Building Standards Code (CCR, Title 24, Part 11 -CALGreen), as
amended from time to time. GHG reduction requirements may be different than what is
proposed on the project plans or in the Climate Action Plan Checklist originally submitted with
this project. Developer acknowledges that new GHG reduction requirements related to energy
efficiency, photovoltaic, electric vehicle charging, water heating and traffic demand
management requirements as set forth in the ordinances and codes may impact, but are not
limited to, site design and local building code requirements. If incorporating GHG reduction
requirements results in substantial modifications to the project, then prior to issuance of
development (grading, building, etc.) permits, Developer may be required to submit and receive
approval of a Consistency Determination or Amendment for this project through the Planning
Division. Compliance with the applicable GHG reduction requirements must be demonstrated on
or with the construction plans prior to issuance of the applicable development permits.
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.
NOTICE TO APPLICANT
The project site is within the appealable area of the California Coastal Commission. This Coastal
Development Permit (CDP) shall not become effective until ten (10) working days have elapsed, without
a valid appeal being filed with the Coastal Commission, following the Coastal Commission's receipt of
the city's notice of the CDP issuance ("Notice of Final Action"). The filing of a valid appeal with the
Coastal Commission within such time limit shall stay the effective date of this CDP until such time as a
final decision on the appeal is reached by the Coastal Commission.
PC RESO NO. 7399 -24-Sept. 28, 2021 Item #5 Page 41 of 43
NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions."
You have 90 days from date of approval to protest imposition of these fees/exactions. If you protest
them, you must follow the protest procedure set forth in Government Code Section 66020(a), and file
the protest and any other required information with the City Manager for processing in accordance with
Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any
subsequent legal action to attack, review, set aside, void, or annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT
APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other
similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any
fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the
statute of limitations has previously otherwise expired.
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:
AYES: Chair Anderson, Commissioners Geidner, Lafferty, Luna, Meenes, Merz and Stine
NOES:
ABSENT:
ABSTAIN:
VELYN ANDERSON, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
City Planner
PC RESO NO. 7399 -25-Sept. 28, 2021 Item #5 Page 42 of 43
Aviara Apartments Location Map
Sept. 28, 2021 Item #5 Page 43 of 43