HomeMy WebLinkAbout2023-05-03; Planning Commission; Resolution 7483PLANNING COMMISSION RESOLUTION NO. 7483
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF A COASTAL
DEVELOPMENT PERMIT AND VARIANCE TO ALLOW AN UNPERMITTED
RETAINING WALL SYSTEM AND WOOD DECK THAT EXCEEDS STANDARDS
ON A MANUFACTURED UPHILL PERIMETER SLOPE WITH A GRADIENT
GREATER THAN 40 PERCENT AND AN ELEVATION DIFFERENTIAL OF
GREATER THAN FIFTEEN FEET LOCATED ON PROPERTY LOCATED AT 2170
TWAIN AVENUE WITHIN THE MELLO II SEGMENT OF THE CITY'S LOCAL
COASTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE 8.
CASE NAME:
CASE NO.:
HOM RESIDENCE: RETAINING WALL VARIANCE
CDP2022-0019/V 2022-0002(DEV2022-0005)
WHEREAS, ROBERT HOM, "Developer/ Applicant," has filed a verified application with the
City of Carlsbad regarding property owned by HOM FAMILY TRUST, "Owner," described as
LOT 68 OF CARLSBAD TRACT N 97-16A, KELLY RANCH CORE ACCORDING
TO MAP THEREOF NO.14340, IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON
FEBRUARY 1, 2002
("the Property"); and
WHEREAS, said verified application constitutes a request for a Coastal Development
Permit and Variance as shown on Exhibit(s) "A" -"H" dated May 3, 2023, on file in the Planning Division,
CDP 2022-0019/V 2022-0002 (DEV2020-0026) -HOM RESIDENCE: RETAINING WALL VARIANCE, as
provided by Chapter 21.201 and 21.50 of the Carlsbad Municipal Code; and
WHEREAS, the Planning Division studied the Coastal Development Permit and Variance
applications and performed the necessary investigations to determine if the project qualified for an
exemption from further environmental review under the California Environmental Quality Act, (CEQA,
Public Resources Code section 21000 et. seq.), and its implementing regulations (the State CEQA
Guidelines), Article 14 of the California Code of Regulations section 15000 et. seq. After consideration of
all evidence presented, and studies and investigations made by the city planner and on its behalf, the city
planner determined that the project was exempt from further environmental review pursuant to State
CEQA Guidelines Section 15303{e) of CEQA exemptions {Class 3), which exempts accessory (appurtenant)
structures from environmental review. The project consists of the construction of retaining walls and a
deck which are accessory to the existing single-family residence on site. The proposed project and site
meet the criteria of the Section 15303(e) Class 3 new construction or conversion of small structures. The
project will not have a significant effect on the environment and all of the requirements of CEQA have
been met; and
WHEREAS, on March 9, 2023, the city distributed a notice of intended decision to adopt
the ((New Construction or Conversion of Small Structures" exemption. The notice was circulated for a 10-
day period, which began on March 9, 2023 and ended on March 20, 2023. The city did not receive any
comment letters on the CEQA findings and determination. The effective date and order of the city planner
CEQA determination was March 10, 2023; and
WHEREAS, the Planning Commission did, on May 3, 2023, held 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 all persons desiring to be heard, said Commission considered all factors relating to
the Coastal Development Permit and Variance; and
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
RECOMMENDS APPROVAL of CDP 2022-0019/V 2022-0002 (DEV2022-0026) -HOM
RESIDENCE: RETAINING WALL VARIANCE, based on the following findings and subject to
the following conditions:
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Findings:
Coastal Development Permit, CDP 2022-0019
1. The proposed development is in conformance with the Certified Local Coastal Program and all
applicable policies in that the site has an LCP Land Use Plan designation of R-4, which allows for
development of a single-family home. No changes are proposed to the existing home, which
has previously been found to be consistent with the LCP Segment. The proposed retaining walls
and deck will not obstruct views of the coastline as seen from public lands or the public right-
of-way. No agricultural uses or sensitive resources currently exist on this previously graded site.
The retaining walls and deck are not located in an area of known geological instability or flood
hazard. Given that the site does not have frontage along the coastline, no public opportunities
for coastal shoreline access or water-oriented recreational activities are possible from the
subject site. The project is consistent with the LCP Mello II Segment.
2. The proposal is in conformity with the public access and recreation policies of Chapter 3 of the
Coastal Act in that the property is not located adjacent to the coastal shore; therefore, it will
not interfere with the public's right to physical access or water-oriented recreational activities.
3. The project is consistent with the provisions of the Coastal Resource Protection Overlay Zone
(Chapter 21.203 of the Zoning Ordinance) in that the project will adhere to the city's Master
Drainage Plan, Grading Ordinance, Storm Water Ordinance, BMP Design Manual and
Jurisdictional Runoff Management Program (JRMP} to avoid increased urban runoff, pollutants,
and soil erosion. The site is not located in an area prone to landslides, or susceptible to
accelerated erosion, floods, or liquefaction.
4. The project involves the grading of steep slopes that do not possess endangered plant/animal
species or coastal sage scrub. The project is consistent with the provision of the Coastal
Resource Protection Overlay Zone {CMC Chapter 21.203 of the Zoning Ordinance} to allow such
grading in that:
a. The applicant provided a soils investigation conducted by a licensed soils engineer that
has determined the subject slope area to be stable and grading and development
impacts mitigatable for the life of the structure. This investigation was reviewed by city
staff and a third-party geotechnical consultant to verify the stability of the slope, the
grading performed, and the installed retaining walls.
b. The grading of the slope is essential to the development intent and design to allow for
reasonable use of the rear yard.
c. The slope disturbance will not result in substantial damage or alteration to major
wildlife habitat or native vegetation areas as the manufactured slope had been
previously disturbed and no wildlife habitat or native vegetation was identified. Native
vegetation located on the adjacent open space lot will not be impacted.
d. The area disturbed or proposed to be disturbed is less than ten acres.
e. No interruption of significant wildlife corridors will occur as no corridors have been
identified on the site.
f. The slope is not a north facing.
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Variance (V 2022-0002}
5. That because of special circumstances applicable to the subject property, including size, shape,
topography, location or surroundings, the strict application of the zoning ordinance deprives such
property of privileges enjoyed by other property in the vicinity and under identical zoning
classification in that:
a. The single-family lot was constructed with a "cut-back" slope which was required by the
Coastal Commission in order to preserve a natural ridge immediately behind the
manufactured slope at the rear of the lot, greatly reducing the usable rear-yard area of
the lot from what was originally approved by the City.
b. The 2:1 cut slope on the property occupies approximately 43.6% of the applicant's lot
area and approximately 81.4% of the applicant's rear yard area. No other lot with a
rear yard "cut-back" slope is impacted to the same degree as the subject property.
c. The peak of the "cut-back" slope in the rear of the subject property is approximately 25
feet in height above the back yard elevation, which is higher than other properties in
the area that are adjacent to the ridgeline, affecting available views from the lot to a
higher degree than all other properties in the area.
d. The "cut-back" slope on the property results in a disproportionately small usable rear-
yard area, and an unusually tight 15-foot distance between the house and the 5-foot
retaining wall built into the slope constructed by the original developer. This shallow
depth of the owner's usable rear yard area severely limits the rear yard buildable area.
e. Strict application of the zoning ordinance would deprive the subject property from
installing rear-yard improvements that are typical for a single-family residence on lot
zoned R-1.
6. That the variance shall not constitute a grant of special privileges inconsistent with the limitations
upon other properties in the vicinity and zone in which the subject property is located and is
subject to any conditions necessary to assure compliance with this finding in that no other lots in
the vicinity have as great of an elevation differential or have the same percentage of lot area
occupied by the slope, which disproportionately impacts the subject property. The variance will
allow use of the subject property consistent with, and not more than, other properties in the
vicinity for such back-yard improvements as a patio, patio cover, and swimming pool.
7. That the variance does not authorize a use or activity which is not otherwise expressly authorized
by the zone regulation governing the subject property in that the construction of retaining walls
and other yard improvements is considered accessory to the primary use of the property as a
single-family residence, which is a permitted uses in the R-1 Zone.
8. That the variance is consistent with the general purpose and intent of the general plan and any
applicable specific or master plans in that the variance is consistent with the general purpose
and intent of the general plan and zoning ordinance because the project complies with all
policies of the Land Use Element, does not affect the density of the property, does not affect
the Growth Management program, and complies with all the development standards of the R-
1 zone, except for the retaining wall height limit and deck requirements of the Hillside
Development Regulations. Approval of the variance will comply with the purpose and intent of
the Hillside Development Ordinance (Chap 21.95.010} as it will continue to implement the goals
and objectives of the Land Use and Open Space Elements of the General Plan. Approval of the
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variance will also assure that hillside conditions are properly incorporated into the planning and
permitting process through the review of the integrity of the slope by City Staff to ensure that
it is structurally sound, and subsequent building plan review and permit.
9. The minor variance is consistent with the general purpose and intent of the certified local coastal
program and does not reduce or in any manner adversely affect the requirements for protection
of coastal resources in that the variance is consistent with the general purpose and intent of the
certified local coastal program and does not reduce or in any manner adversely affect the
requirements for protection of coastal resources. The subject retaining walls will not impact
the ridge identified for protection by the Coastal Commission behind the cut-back slope on the
subject property. The variance also does not adversely affect views of the coast; it protects
existing views from the_coast;Jt wilLnoLdjsrupt access to the coast; the slope/retaining wall
design is stable; it will not diminish the effectiveness of the onsite storm water and
runoff/treatment on the property or in the neighborhood; and it will not disrupt any adjacent
wildlife.
General
10. 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 May
3, 2023.
11. 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.
12. The Planning Commission expressly declares that it would not have approved this Coastal
Development Permit application to use the Property for completing and implementing the project,
except upon and subject to each and all of the conditions hereinafter set, each and all of which
shall run with the land and be binding upon the Developer and all persons who use the Property
for the use permitted hereby. For the purposes of the conditions, the term "Developer" shall also
include the project proponent, owner, permittee, applicant, and any successor thereof in interest,
as may be applicable. If the Developer fails to file a timely and valid appeal of this Coastal
Development Permit within the applicable appeal period, such inaction by the Developer shall be
deemed to constitute all of the following on behalf of the Developer:
a. Acceptance of the Coastal Development Permit by the Developer; and
b. Agreement by the Developer to be bound by, to comply with, and to do all things required
of or by the Developer pursuant to all of the terms, provisions, and conditions of this
Coastal Development Permit or other approval and the provisions of the Carlsbad
Municipal Code applicable to such permit
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Conditions:
NOTE: Unless otherwise specified herein, all conditions shall be satisfied prior to the issuance of grading
permit or building permit, whichever comes first.
1. Approval is recommended for CDP 2022-0019/V 2022-0002 as shown on Exhibits "A" -"H", dated
May 3, 2023, on file in the Planning Division and incorporated herein by reference. Development
shall occur substantially as shown unless otherwise noted in these conditions.
2. The information contained in the application and all attached materials are assumed to be correct,
true, ~and complete. The Planning Commission is relying on the accuracy of this information and
project-related representations in order to process and approve this Coastal Development Permit
application. This permit may be rescinded if it is determined that the information and materials
submitted are not true and correct. The Developer may be liable for any costs associated with
rescission of such permits
3. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented
and maintained over time, if any of such conditions fail to be so implemented and maintained
according to their terms, the city shall have the right to revoke or modify all approvals herein
granted; deny or further condition issuance of all future building permits; deny, revoke, or further
condition all certificates of occupancy issued under the authority of approvals herein granted;
record a notice of violation on the property title; institute and prosecute litigation to compel their
compliance with said conditions or seek damages for their violation. No vested rights are gained
by Developer or a successor in interest by the city's approval of this Coastal Development Permit
and Variance.
4. Staff is authorized and directed to make, or require the Developer to make, all corrections and
modifications to the Coastal Development Permit and Variance 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.
5. Developer shall comply with all applicable provisions of federal, state, and local laws and
regulations in effect at the time of building permit issuance.
6. 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.
7. 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 Coastal Development Permit and Variance, (b) city's
approval or issuance of any permit or action, whether discretionary or nondiscretionary, in
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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
evenifthe city's approval is not validated.
8. 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.
9. Prior to the issuance of the grading or building permit, whichever occurs first, 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) Coastal Development Permit and Variance by the subject Resolution 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.
Engineering Conditions:
NOTE: Unless specifically stated in the condition, all of the following conditions, upon the approval
of this proposed development, must be met prior to approval of a grading permit.
General
10. 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.
Fees/ Agreements
11. 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.
12. Developer shall cause property owner to execute and submit to the city engineer for recordation
the city's standard form Drainage Hold Harmless Agreement.
Grading
13. Based upon a review of the proposed grading and the grading quantities shown on the site plan,
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.
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Storm Water Quality
14. 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.
15. Developer shall complete and submit to the city engineer a Determination of Project's SWPPP
Tier Level and Construction Threat Level Form pursuant to City Engineering Standards. Developer
shall also submit the appropriate Tier level Storm Water Compliance form and appropriate Tier
level Storm Water Pollution Prevention Plan (SWPPP) to the satisfaction of the city engineer.
Developer shall pay all applicable SWPPP plan review and inspection fees per the city's latest fee
schedule.
16. 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.
17. Developer shall complete the City of Carlsbad Standard Stormwater Requirement Checklist Form.
Developer is responsible to ensure that all final design plans, grading plans, and building plans
incorporate applicable best management practices (BMPs). These BMPs include site design,
source control and Low Impact Design (LID) measures including, but not limited to, minimizing
the use of impervious area (paving), routing run-off from impervious area to pervious/landscape
areas, preventing illicit discharges into the storm drain and adding storm drain stenciling or
signage all to the satisfaction of the city engineer.
NOTICE
Please take NOTICE that approval of your project includes the 11imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as 11fees/exactions."
You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest
them, you must follow the protest procedure set forth in 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.
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PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad,
California, held on May 3, 2023, by the following vote, to wit:
AYES: Merz, Hubinger, Kamenjarin, Lafferty, Meenes, Sabellico and Stine
NAYES:
ABSENT:
ABSTAIN :
PETER MERZ, Chair
CARLSBAD PLANNING COMMIS
ATTEST:
ERIC LARDY
City Planner
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