HomeMy WebLinkAbout2023-06-20; City Council; ; Variance and Coastal Development Permit for Unpermitted Retaining Walls and Deck Located at 2170 Twain Avenue (V2022-0002. CDP2022-0019)CA Review __RK__
Meeting Date: June 20, 2023
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Kyle Van Leeuwen, Associate Planner
kyle.vanleeuwen@carlsbadca.gov, 442-339-2611
Subject: Variance and Coastal Development Permit for Unpermitted Retaining
Walls and Deck Located at 2170 Twain Avenue (V2022-0002. CDP2022-
0019)
District: 2
Recommended Action
Hold a public hearing and adopt a resolution approving a variance and a coastal development
permit to allow an unpermitted retaining wall system and wood deck that exceeds standards on
property located at 2170 Twain Avenue within the Mello II Segment of the city’s Local Coastal
Program and Local Facilities Management Zone Eight (Exhibit 1).
Executive Summary
The City Council is being asked to approve a variance and coastal development permit for a
retaining wall and deck located at 2170 Twain Ave. that were built without a permit. These
permits will allow for the wall and deck to remain. City staff have determined that all required
findings can be made to support approving this request, as detailed below.
The Planning Commission conducted a public hearing on May 3, 2023, and recommended by a
vote of 7-0 to approval the variance and coastal development permit.
The project is before the City Council because the Coastal Resource Protection Overlay Zone,
Chapter 21.203 of the Carlsbad Municipal Code, requires City Council approval of a coastal
development permit for development proposals that impact steep slopes within the Coastal
Zone (Section 21.203.040 (A.)). Carlsbad Municipal Code Section 21.54.040.C(3)) requires all
concurrently processed development permits to be considered and approved by the same
decision maker, so the requested variance from city zoning standards also requires the City
Council’s approval.
Explanation & Analysis
Project description and history
The project site consists of one lot totaling 0.32 acres, at 2170 Twain Ave., within the
Residential (R-1) Zone, the Mello II Segment of the Carlsbad Local Coastal Program, the relevant
planning document for this site. The site is a corner lot and was originally developed with a
single-family home containing a five-foot retaining wall and manufactured slope in the rear of
the lot. Construction of a pool, a four-tiered retaining wall system and a deck were started in
June 20, 2023 Item #13 Page 1 of 30
2020, but remain unfinished. The site is bordered on the north and east by public streets, to the
west by undeveloped land designated as open space, and a developed single-family lot to the
south. A location map is included as Exhibit 2.
The retaining walls were installed, in part, to push back the toe of an existing slope to expand
the usable rear yard area and to allow room for the installation of the swimming pool. A permit
was issued for the swimming pool and, during a routine inspection of the swimming pool
construction in 2021, the inspector noticed the grading and construction of the retaining walls
and deck, which were not represented on the pool permit or any other issued permit.
The city subsequently issued a notice of violation for the unpermitted portions of the project,
and the property owners stopped all construction. The retaining walls and deck are about 95%
complete, and the swimming pool and concrete patio are about 70% complete.
The property owners, who thought their contractor had previously secured the necessary
permits for initiating the work, had the option to either remove the unpermitted features or to
obtain permits to legalize the improvements. They decided to attempt to obtain permits for the
retaining walls and deck to avoid having to demolish the near-finished improvements. The
property owner has not had any construction activity on the property while seeking the
required approvals.
The owners are requesting the following permits:
• A coastal development permit to allow for grading of the slope, which is considered
development under the California Coastal Act and the city’s Local Coastal Program, its
plan for the Coastal Area
• A variance, which is necessary to allow a deviation from two sections of Carlsbad
Municipal Code Chapter 21.95 - Hillside Development Regulations:
o Section 21.95.140(C)(1)(a)(i) allows retaining walls into an uphill
perimeter manufactured slope beyond the limit of 6 vertical feet from
the toe of slope, where 6 vertical feet is the standard limit per section.
The applicant is proposing a series of retaining walls, each up to 5
vertical feet in height, with an aggregate height of approximately
22 feet.
o Section 21.95.140(c)(1)(a)(ii) allows a deck to be constructed upon an
uphill perimeter manufactured slope within the required setback, where
decks are required to be setback a distance consistent with the required
building setback in the underlying zone (at least 5 feet).
The applicant is proposing a deck constructed at the rear property
line with no setback.
Approval of both permits would allow for the installation of the retaining walls and deck to be
completed with subsequent building and grading permits; and allow the property owners to
complete the construction of the swimming pool and patio in their rear yard.
June 20, 2023 Item #13 Page 2 of 30
Project analysis
The requested variance requires very specific findings to be made to support its approval.
Staff’s analysis found that the applicant’s property possesses special topographical
circumstances. These circumstances, identified by staff and acknowledged by the Planning
Commission, are:
1. A rear-yard manufactured slope that facilitates the preservation of the natural ridgeline
immediately behind the slope, where the typical function of a manufactured slope is to
provide a transition between lots of different elevations or between graded lots and
roadways.
2. The manufactured slope occupies an unusually large percentage of the residential lot
and its rear-yard area and rises to an elevation of 25 feet above the grade of the house;
larger and higher than any other lot in the area with a manufactured slope.
3. The location of the slope results in a disproportionately small useable rear-yard area and
an unusually shallow distance between the house and the originally installed retaining
wall.
Staff have determined the requested coastal development permit are consistent with the
requirements and policies of the Local Coastal Program and Coastal Resource Protection
Overlay Zone. This includes findings that the project would not negatively affect coastal views
or access, would not impact plant or animal species, and that the site is not susceptible to
accelerated erosion or slope instability.
Planning Commission
The Planning Commission considered the proposed project at a public hearing on May 3, 2023.
After questions and discussion, the Planning Commission voted 7-0 to recommend the City
Council approve the project. A complete description of the project and the staff analysis that
supports the requested permit approvals are included in the Planning Commission staff report
(Exhibit 3). The Planning Commission’s actions and decisions are included in the attached
minutes (Exhibit 4) and resolution (Exhibit 5).
Community Engagement
Public notice of the Planning Commission hearing was mailed on April 17, 2023, to property
owners within 600 feet and occupants within 100 feet of the subject property. Additionally, the
project is subject to City Council Policy No. 84 - Development Project Public Involvement Policy.
In accordance with that policy, the applicant sent a notice of application to surrounding
property owners and placed a notice on the site informing neighbors of their application. These
early notices were carried out in March of 2022.
No comments in opposition to the project were received, either during early notification in
March of 2022 or at the time of the Planning Commission hearing. Signatures of neighboring
homeowners who support of the completion of the retaining walls and deck are provided in the
Planning Commission staff report (Exhibit 3). The applicant had several people attend the
Planning Commission hearing to show their support, with four individuals speaking in support
during the public comment portion. This included two of the property owners who live adjacent
to the site. Additionally, 17 people submitted speaker slips to show their support but chose not
to speak during the hearing. Public notice of the City Council hearing was mailed on June 10,
June 20, 2023 Item #13 Page 3 of 30
2023, to property owners within 600 feet and occupants within 100 feet of the subject
property. Additionally, a newspaper advertisement was published in the Coast News on June 9,
2023.
Fiscal Analysis
All required improvements needed to serve this project will be funded by the property owner,
so there is no cost to the city from this action.
Options
The following options are available to the City Council:
1. Approve the proposed variance and coastal development permit (recommended by staff
and the Planning Commission)
Pros
• Allows for the property owner to complete their rear yard remodel with all
required reviews, approvals, and permits.
• Improves the aesthetic quality of the property and neighborhood where walls
can be seen.
• Condition of the slope with installed retaining walls has been analyzed for
stability and safety by the applicant’s civil engineer, geotechnical engineer, and
engineering geologist; with the conclusions of that analysis reviewed by City
engineers and a third-party geotechnical consultant.
Cons
• None
2. Remand the project back to the Planning Commission for additional review.
Pros
• The Planning Commission could resolve any issues or concerns the City Council
might have about design or compliance with standards. City Council should
provide clear direction why the project is being remanded and what is expected
from the Planning Commission.
Cons
• Delays the approval of the project.
3. Deny the project:
Pros
• Site restored to prior conditions
Cons
• Property owner would bear the cost of removal of un-permitted rear yard
improvements already installed, with unknown impacts to slope stability.
Approach to restoring slope would require separate analysis and permitting.
Next Steps
If Option 1 is selected, staff will ensure that all project conditions are satisfied and that the
project complies with all applicable regulations and laws before development permits are
issued.
June 20, 2023 Item #13 Page 4 of 30
Environmental Evaluation
In accordance with the California Environmental Quality Act and the CEQA Guidelines, the City
Planner has determined that the project qualified for an exemption pursuant to CEQA
Guidelines section 15303(e) - New Construction or Conversion of Small Structures. A notice of
intended decision regarding the environmental determination was advertised on March 9,
2023, and posted on the city’s website. No comment letters or appeal were received and,
consistent with Carlsbad Municipal Code Chapter 21.54 - Procedures, Hearings, Notices, and
Fees, the City Planner’s written decision is final.
Exhibits
1. City Council resolution
2. Location map
3. Planning Commission staff report dated May 3, 2023 (on file in the Office of the City Clerk)
4. Planning Commission draft minutes dated May 3, 2023
5. Planning Commission Resolution No. 7483
June 20, 2023 Item #13 Page 5 of 30
Exhibit 1
June 20, 2023 Item #13 Page 6 of 30
RESOLUTION NO. 2023-183
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING 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 EIGHT
CASE NAME:
CASE NO.:
HOM RESIDENCE: RETAINING WALL VARIANCE
CDP2022-0019/V 2022-0002( DEV2022-000S)
WHEREAS, the City Council of the City of Carlsbad, California has determined that pursuant
to the provisions of the Municipal Code, the Planning Commission did, on May 3, 2023, hold a duly
noticed public hearing as prescribed by law to consider Coastal Development Permit CDP 2022-0019
and Variance V2022-0002, as referenced in Planning Commission adopted Resolution No. 7483
recommending to the City Council that they be approved; and
WHEREAS, the City Council of the City of Carlsbad held a duly noticed public hearing to consider
said variance and coastal development permit; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, the City Council considered all factors relating to the variance
and coastal development permit.
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 recommendation of the Planning Commission for the approval of Coastal
Development Permit CDP 2022-0019 and Variance V2022-0002, are adopted and approved, and that
t he findings and conditions of the Planning Commission contained in the Planning Commission adopted
Resolution No. 7483 on file with the City Clerk and incorporated herein by reference, are the findings
and conditions of the City Council.
3. This action is final the date this resolution is adopted by the City Council. The provisions
of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial Review" shall apply:
"NOTICE"
The time within which judicial review of this decision must be sought is governed by Code of Civil
Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad
Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the
appropriate court not later than the ninetieth day following the date on which this decision becomes
final; however, if within ten days after the decision becomes final a request for the record is filed with
a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time
within which such petition may be filed in court is extended to not later than the thirtieth day following
the date on which the record is either personally delivered or mailed to the party, or his attorney of
record, if he has one. A written request for the preparation of the record of the proceedings shall be
filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 20th day of June, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder, Luna.
None.
None.
None.
KEITH BLACKBURN, Mayor
SHERRY FREISINGER, City Clerk
(SEAL)
June 20, 2023 Item #13 Page 7 of 30
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V 2022-0002 / CDP 2022-0019
Hom Residence: Retaining Wall Variance
SITE MAP
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Map generated on: 3/15/2023
Exhibit 2
June 20, 2023 Item #13 Page 8 of 30
Exhibit 3
Planning Commission staff report dated May 3, 2023
(on file in the Office of the City Clerk)
June 20, 2023 Item #13 Page 9 of 30
City Council Chamber
1200 Carlsbad Village Drive
Carlsbad, CA 92008
May 3, 2023
CALL TO ORDER: 5:01 p.m.
ROLL CALL: Hubinger, Kamenjarin, Lafferty, Meenes, Stine, Sabellico, and Merz
PLEDGE OF ALLEGIANCE: Commissioner Hubinger led the Pledge of Allegiance.
APPROVAL OF MINUTES:
Minutes of the Regular Meeting held on April 5, 2023
Minutes of the Regular Meeting held on April 19, 2023
Motion by Commissioner Meenes, seconded by Commissioner Kamenjarin, to approve the
minutes of the Regular Meeting held April 5, 2023, 6/0/1. (Hubinger – Abstain).
Motion by Commissioner Stine, seconded by Commissioner Kamenjarin, to approve the minutes
of the Regular Meeting held April 19, 2023, 7/0.
PUBLIC COMMENT:
Lance Schulte discussed his experience in field of city planning and made comments related to
community input.
CONSENT CALENDAR: None.
At the request of Chair Merz, Item #4 was moved to the end of the agenda.
PUBLIC HEARINGS:
This item was continued from the April 19, 2023, Planning Commission Regular Meeting.
1.CDP 2021-0056/V 2021-0003 (DEV2021-0227) – EDWARDS RESIDENCE - Adoption of a
resolution approving a coastal development permit and minor variance to allow for the
demolition of an existing single-family residence and construction of a new 3,277-square-
foot, three-story single-family residence with a 537-square-foot attached accessory dwelling
unit (under a separate coastal development permit) and attached two-car garage and a front
yard setback reduction of five feet and a rear yard setback reduction of one foot six inches,
within the Mello II Segment of the city’s Local Coastal Program located at 2669 Garfield Street
within Local Facilities Management Zone 1.
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolution.
PLANNER: Eric Lardy ENGINEER: Nichole Fine
City Planner Eric Lardy introduced and reviewed the PowerPoint presentation (on file in the
Office of the City Clerk) addressing the concerns that were raised in the last meeting,
Exhibit 4
June 20, 2023 Item #13 Page 10 of 30
PLANNING COMMISSION
Minutes
Planning Commission Minutes May 3, 2023 Page 2
At Chairperson Merz request, the following Commissioner provided their additional
disclosures:
• Commissioner Sabellico disclosed that he visited the site with special attention to the
ocean view.
Commissioner Lafferty expressed concerns that this could be setting a bad precedent and she
cannot support this item.
City planner Lardy responded to Commissioner Lafferty’s comments noting the variance
discussed and the alternative design streets policy are two different issues and indicating that
if City Council recommends that the alternative design streets policy be re-evaluated, they
will do so at that time.
Commissioner Lafferty offered to share the APA’s Planning for Equity Policy Guide with the
other members of the Commission adding that perhaps the Commission should consider
policies from there.
In response to Commissioner Lafferty’s inquiry about the impact of building this home
without the variance, Applicant Sam Wright responded that the City would be restricting a
homeowner from building a home similar in value to their neighbors noting that most homes
on that street have the 15-foot front yard setback.
Applicant John Strominger, civil engineer, added that the city required the developer to
design streets that facilitate future construction of future street improvements like sidewalks.
Chair Merz opened the public testimony at 5:25 p.m. and asked if there were any members of
the public who wished to speak on the project.
Seeing no one else wishing to speak, Chair Merz closed the public testimony at 5:26 p.m.
In response to Commissioner Stein’s request for confirmation that there is no reason to
suspect that the applicant’s statement regarding the 15-foot setbacks in the neighborhood is
not accurate, Commissioner Lafferty pointed out that the corner house on the Google maps
picture has sidewalks and a 15-foot setback and City Planner Lardy added that staff has no
reason to believe the statement is inaccurate.
Commissioner discussion ensued.
Commissioner Stine Commissioner Meenes and Chair Merz expressed their support for this
project.
Chair Merz opened the public testimony at 5:30 p.m. and asked if there were any members of
the public who wished to speak on the project. Seeing none, Chair Merz closed public
testimony at 5:30 p.m.
Motion by Commissioner Meenes, seconded by Commissioner Sabellico, to adopt Resolution
No.7478. Motion carried, 6/1 (Lafferty No).
June 20, 2023 Item #13 Page 11 of 30
Planning Commission Minutes May 3, 2023 Page 3
Chair Merz closed the public hearing at 5:32 p.m.
2. CDP 2022-0052 (DEV2022-0013) – KANTER RESIDENCE – Adoption of a resolution
recommending approval of a coastal development permit for the construction of a two-story,
615-square-foot addition and a 402-square-foot second story deck to an existing single-family
residence within the Mello II Segment of the city’s Local Coastal Program located at 7249
Mimosa Drive within Local Facilities Management Zone 6.
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolution.
PLANNER: Lauren Yzaguirre ENGINEER: Nichole Fine
Chair Merz opened the duly noticed public hearing at 5:33p.m.
City Planner Eric Lardy introduced the item and announced that Associate Planner Lauren
Yzaguirre will not be making a presentation, but that she is available for questions.
At Chair Merz’s request, the following Commissioners made disclosures as follows:
• Commissioner Hubinger drove by the site
• Commissioner Kamenjarin drove by and walked the area
• Commissioner Meenes drove by and walked the site
• Commissioner Stine drove by the site
• Commissioner Sabellico drove by the site
• Chairperson Merz drove by the site
In response to Chair Merz’s inquiry as to whether construction had begun on the project,
Associate Planner Yzaguire confirmed that it had but was halted due to the need for an
updated permit requirement which is why this item is before the Commission.
In response to Commissioner Lafferty’s question if the homeowners had started construction
illegally, Associate Planner Yzaguirre responded that the applicant had a permit to start
construction legally, but a plan/construction change required them to stop construction and
update their application from a Minor Coastal Development Permit to a Major Coastal
Development Permit.
In response to Commissioner Stine’s inquiry, Associate Planner Yzaguirre confirmed that
there are no scenic corridor issues with this project.
Chair Merz opened the public testimony at 5:38 p.m. and asked if there were any members of
the public who wished to speak on the item.
Seeing none, Chair Merz closed public testimony at 5:39p.m.
Motion by Commissioner Meenes, seconded by Commissioner Stine, to adopt Resolution No.
7479. Motion carried, 7/0.
June 20, 2023 Item #13 Page 12 of 30
Planning Commission Minutes May 3, 2023 Page 4
Chair Merz closed the public hearing at 5:40 p.m.
3. CDP 2023-0010 - AVENIDA ENCINAS COASTAL RAIL TRAIL AND PEDESTRIAN
IMPROVEMENTS – Adoption of a resolution approving a coastal development permit for
Avenida Encinas Coastal Rail Trail improvements on property generally located along Avenida
Encinas Road between Poinsettia Lane and Windrose Circle in Local Facilities Management
Zones 9 and 22.
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolution.
PLANNER: Izzak Mireles ENGINEER: Emad Elias
Chair Merz opened the duly noticed public hearing at 5:40 p.m.
City Planner Eric Lardy introduced the item and Associate Planner Izzak Mireles who reviewed
a PowerPoint presentation (on file in the Office of the City Clerk).
At Chair Merz’s request, the following Commissioners made disclosures as follows:
• Commissioner Stine walked by the project
• Commissioner Meenes walked the site
• Commissioner Lafferty indicated familiarity with the site
• Commissioner Kamenjarin has driven by the site
• Chair Merz driven by the site
• Commissioner Sabellico has driven the site many times
In response to Commissioner Meenes’ inquiry regarding LOS remaining an A category,
Associate Planner Mireles explained that the General Plan and mobility element claim is that
a certain level of service needs to be maintained He added that in this case the vehicles that
travel in north and southbound lanes will not be changed with the addition of the bicycle
lanes.
Chair Merz opened the public testimony at 5:45 p.m.
Chaz Wick expressed his support for the project and requested more safety precautions.
Chairperson Merz closed the public testimony at 5:48 p.m.
In response to Commissioner Meenes’ request, Associate Engineer Brandon Miles responded
with a list of improvements the City has made, based on its research in the area including
enhanced crosswalks, other pedestrian/safety improvements and traffic slowing measures
including narrowing streets.
In response to Commissioner Stine’s question if there are plans to improve the Windsor Circle
crosswalk mentioned in the public comment, Associate Engineer Miles explained the
improvements that are already planned for the crosswalk.
June 20, 2023 Item #13 Page 13 of 30
Planning Commission Minutes May 3, 2023 Page 5
In response to Commissioner Lafferty’s inquiry, City Planner Lardy explained that this project
design and construction contract was approved by the City Council based on conversations
with the Coastal Commission. Since the project changes capacity, staff are also processing a
the Coastal Development Permit prior to construction.
Commissioner Stine expressed support this project adding that it is a good public safety
measure.
Commissioner Sabellico concurred adding that he appreciates the city’s commitment to
safety.
Motion by commissioner Stine, seconded by Commissioner Meenes, to adopt Resolution No.
7480. Motion carried, 7/0.
Chair Merz closed the public hearing at 5:56pm.
5. CDP 2022-0019/V 2022-0002 (DEV 2022-0005) – HOM RESIDENCE: RETAINING WALL
VARIANCE – Adoption of a resolution 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 on property located at 2170
Twain Avenue within the Mello II Segment of the city’s Local Coastal Program and Local
Facilities Management Zone .
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolution.
PLANNER: Kyle Van Leeuwen ENGINEER: Allison McLaughlin
Chair Merz opened the duly noticed public hearing at 5:57 p.m.
At Chair Merz’s request, the following Commissioners made disclosures as follows:
• Commissioner Stine drove by the property, parked & walked the area
• Commissioner Meenes drove by the site and walked the side street
• Commissioner Kamenjarin drove by the property
• Chair Merz visited site and looked over the fence
City Planner Eric Lardy introduced the item and Planner Kyle Van Leeuwen who reviewed a
PowerPoint presentation (on file in the Office of the City Clerk).
In response to Commissioner Meenes’ question about the City being able to discern if the
integrity of the walls completed follow City regulations, Associate Planner Kyle Van Leeuwen
explained that the soil and the retaining wall were tested on multiple occasions, and staff can
say confidently that it is safe and built to a certain level of standards. He added that the City
used an outside evaluator for geological stability as an additional measure for stability.
June 20, 2023 Item #13 Page 14 of 30
Planning Commission Minutes May 3, 2023 Page 6
In response to Commissioner Stine’s inquiry, Planner Van Leeuwen confirmed that the
property owners halted construction upon learning they did not have a permit and have been
cooperative through the entire process.
Associate planner Van Leeuwen replied to Commissioner Laffterty’s question and explained
that this was an unusual circumstance where the contractor misled the residents and as far
as informing Carlsbad residents in general the City staff does the best they can to explain
regulations to applicants. This is a well-known section of our code for planners who work the
counter and typically people do come in and ask clarifying questions.
Applicant’s representative Paul Klukkas spoke in support of the Homs and reiterated the
information provided by Associate City Planner Van Leeuwen.
Chair Merz opened the public testimony at 6:23p.m.
The following four speakers spoke individually in support of the project.
Ray Patchett, Robert Hom, Ivan Mendelson, Daniel Toro
Chair Merz asked if there were any more members of the public who wished to speak on the
project. Hearing no one else wishing to speak, he closed the public testimony at 6:33pm.
Commissioner Meenes expressed his sympathy to the Hom family and satisfaction regarding
the level of support from their neighbors.
In response to Commissioner Stine’s question as to whether staff received any comments in
opposition to this application Associate Planner Van Leeuwen replied no.
Commissioner Stine explained he will support the variance.
Motion by Commissioner Meenes seconded by Commissioner Stine, to adopt Resolution
No. 7483. Motion carried, 7/0.
Chair Merz closed the public hearing at 6:40 p.m.
6. CDP 2021-0044/HDP 2022-0008/SUP 2021-0002/SUP 2022-0002 (PUB 2020-0009) – EL
CAMINO REAL ROAD WIDENING - Adoption of a resolution recommending approval of a
coastal development permit, hillside development permit, special use permit – floodplain,
and special use permit – El Camino Real, and a waiver of General Plan Open Space Policy 4-
p.6 to allow for road improvements along El Camino Real for property generally located
within the public rights-of-way on El Camino Real from Jackspar Drive to Sunny Creek Road,
within Local Facilities Management Zone 15.
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolution.
PLANNER: Izzak Mireles ENGINEER: Tim Carroll
June 20, 2023 Item #13 Page 15 of 30
Planning Commission Minutes May 3, 2023 Page 7
Chair Merz opened the duly noticed public hearing at 6:42 p.m.
Commissioner Sabellico recused himself because he lives in the community uses that intersection
regularly.
At Chair Merz’s request, the following Commissioners made disclosures as follows:
• Commissioner Lafferty familiar with the site & researched historic registry
• Commissioner Stine familiar with site, drives by regularly
• Commissioner Meenes familiar with site, drives by regularly
• Commissioner Hubinger familiar with site, has driven by many times
• Chair Merz familiar with site, drives by regularly
City Planner Eric Lardy introduced Agenda Item 6 and stated Associate Planner Izzak Mireles
would make the staff presentation (on file in the Office of the City Clerk).
Brandon Miles, Public Works, responded to Commissioner Meenes that City Council directed
staff to move forward with improvements without waiting for a developer to assist with the
cost.
Associate Planner Mireles responded to commissioner Stine that there were questions but
no opposition to this project.
Jason Geldert, Engineering Manager, replied to Commissioner Lafferty’s preservation
concerns by explaining this is this is a low vibration work zone. He explained with this type
of grading it is not necessary to measure since no extra amount of vibration going on.
Experience and understanding of how vibrations effect construction informs staff that there
is no threat to adobes from this project.
Chair Merz asked if there were any members of the public who wished to speak on the project.
Seeing none, he opened and closed public testimony at 6:58 p.m.
Motion by Kamenjarin, seconded by Commissioner Hubinger, to adopt Resolution No. 7484.
Motion carried, 6/1 (Sabellico – Absent).
4. SDP2022-0003, CDP2022-0023, and PCD2023-0001 (DEV2022-0048) – FPC RESIDENTIAL - 1)
Adoption of a resolution denying the appeal and upholding the City Planners’ determination
that the project is exempt from the California Environmental Quality Act; and 2) Adoption of
a resolution approving a site development plan and a coastal development permit to
consolidate three parcels of land, demo an existing self-storage facility, former junkyard, and
two abandoned structures, and construct 86 two- and three-story multiple-family residential
apartments on a 4.64 acre property located at 7200, 7290, and 7294 Ponto Drive in the
southwest quadrant of the city and Local Facilities Management Zone 22.
ACTION TYPE: Quasi-judicial
STAFF RECOMMENDATION: Adopt the resolutions.
PLANNER: Jason Goff ENGINEER: Allison McLaughlin
June 20, 2023 Item #13 Page 16 of 30
Planning Commission Minutes May 3, 2023 Page 8
Chair Merz closed the public hearing at 7:00 p.m.
Chair Merz started a 5 minute break 7:00 p.m.
Chair Merz called the meeting back to order at 7:08 p.m.
Chair Merz recused himself from Item No. 4 due to a conflict of interest as he is a partner at
Lee & Associates, the commercial real estate firm involved with both the seller and the buyer
of a certain parcel of the project.
In Chair Merz’ absence, Vice-Chair Sabellico acted as chair for the item.
City Planner Lardy reviewed the hearing procedures again since this is an appeal.
Vice-Chair Sabellico opened the duly noticed public hearing at 7:10 p.m.
At Vice-Chair Sabellico’s request, the following Commissioners made disclosures as follows:
• Commissioner Stine indicated familiarity with the site, has walked perimeter and
surrounding areas
• Commissioner Meenes drove and walked perimeter of the site on Ponto
• Commissioner Lafferty drove by the site
• Commissioner Kamenjarin indicated familiarity with the site
• Commissioner Hubinger indicated familiarity with the site
• Commissioner Sabellico visited the site and is familiar with someone who is speaking
on behalf of the applicant adding that he will still be fair and impartial
Upon Commissioner Meenes’ request Senior Assistant City Attorney Ronald Kemp reminded
the Commission that the role of the planning commission is assure that all the land use
decisions are consistent with the policies plans and ordinances adopted by the city council,
state and federal law. Additionally, he reminded commissioners about the Housing
Accountability Act to encourage local jurisdictions on housing that directs Committees to
approve housing projects unless they pose a safety or health threat that cannot be mitigated.
City Planner Eric Lardy introduced the item and Senior Planner Jason Goff who reviewed a
PowerPoint presentation (on file in the Office of the City Clerk).
In response to Commissioner Lafferty’s inquiry to the sequence of consideration for this
appeal, Senior Assistant City Attorney Kemp recommended that they consider the appeal of
the City Planners determination first because if the city planner’s determination is upheld,
you can go on to consider the project. If you determine that the appellant is correct, then
there is no environmental finding, and it would be sent back to staff.
In response to Commissioner Lafferty’s inquiry as to whether there was documentation of
the remediation and if there was a biological report done, Planner Goff responded that there
was a biological report.
June 20, 2023 Item #13 Page 17 of 30
Planning Commission Minutes May 3, 2023 Page 9
In response to Commissioner Lafferty’s question about the most recent EIR, City Planner Eric
Lardy responded that the 2015 EIR studied the city comprehensively, but that the
determination did not rely on that for the exemption. This exemption could have occurred
regardless of that EIR.
In response to Commissioner Lafferty’s question as to whether the City has been to the site
for analysis. City Planner Lardy replied no, the analysis looked at the databases available that
would list sites with hazardous materials, and nothing was identified on the site.
The applicant David Gatsky, H.G. Fenton Company, presented the FPC Residential project.
In response to Commissioner Stine’s request for more information regarding the amenities
and open space this project offers, Mr. Gatsky replied with a review of that section of the
slide show and reaffirmed the developers goal is to provide the residents with some type of
park like amenities with the open space and places to play.
In response to Commissioner Stine’s comment regarding the community’s request for park
dedication, the developer discussed the community engagement they did in the
neighborhood around the topic and explained the City Council has decided that what they
want to do to serve residents within this facilities management zone, in this part of the city,
is to collect a fee to support parks located elsewhere. This is consistent with the facilities plan.
In response to Commissioner Lafferty’s inquiry regarding the necessity of reduced setbacks,
Mr. Gatsky responded that setback reductions are proposed along the street frontage
because they wanted to create a strong street scene & neighborly atmosphere.
Commissioner Lafferty acknowledged the gas line was another constraint but still questioned
why with 64,000 square feet of open space, she requested an explanation since it is 7000
square feet vs 64,000 square feet. Mr. Gatsky responded that part of it is to create private,
usable, open space in the rear yards taking it out of that front yard setback or adding to the
front yard setback would mean taking it out and making those rear yards less usable. They
found that to be the best compromise.
In response to Commissioner Lafferty’s questions about why there are only 13 low income
units being provided and not 20 Mr. Gatsky explained that they meet the requirements with
15% of the units provided being affordable and there are 86 units. If the developer offered
more units, then the low-income number of units would also increase.
Senior Assistant City Attorney Kemp added that the setbacks in question are a waiver under
density bonus law, which is something the City is required to give in return for the density
bonus.
In response to Commissioner Sabellico’ s question about a fence in between residences and
the rail on the easter edge of the project, Mr. Gatsky replied in the affirmative and added
that the wall will provide safety as well as sound and vibration protection.
Vice Chair Sabellico directed the appellant, Mr. Lance Schulte to begin his PowerPoint
presentation appealing the Planning Commission’s decision to move forward with this
project. (on file in the Office of the City Clerk).
June 20, 2023 Item #13 Page 18 of 30
Planning Commission Minutes May 3, 2023 Page 10
City Planner Lardy responded to Mr. Schulte’s appeal to the project in a slide presentation
(on file in the Office of the City Clerk).
Vice Chair Sabellico invited the appellant to the podium for questions.
In response for clarification of the gas line, Sr. Planner Goff confirmed that it runs up the spine
of the project.
He also asked Mr. Schulte to clarify if he In response as to why Mr. Schulte considers the
studies the applicant conducted in applying for the exemption a violation and when it is due
diligence. Mr. Schulte explained state law and case law dictate that the studies need to be
done publicly.
Senior Assistant City Attorney Kemp explained the infill exemption says approval of the
project not result in any significant effects relating to traffic, noise, air quality or water quality.
So they do need to look at those things to see if there's going to be a significant event that's
part of 15332.
Mr. Kemp confirmed that he is not aware of any case law that makes conducting the study
itself is a violation of CEQA.
In response to Commissioner Stine’s question regarding the distance to Poinsettia Park, Mr.
Schulte agreed it is 2.5 miles from the site of this project and added that you must cross a
freeway to get there.
Commissioner Sabellico asked if Mr. Schulte is saying that CEQA exemptions are never
justified. In response to Commissioner Sabellico’ s question if a CEQA exemption is ever
justified, Mr. Schulte responded that he does think they are justified when the answer is clear
that there is no threat to the environment.
Commissioner Stine asked if Mr. Schulte is arguing that as a planning commission, we must
impose a park requirement on this project. Mr. Schulte responded yes.
City Attorney Kemp added that the section Mr. Schulte referenced, 20.44 of the Carlsbad
Municipal Code does not apply. The City can require the developer to pay park in lieu fees,
so we do not have the ability to require a dedication of park land for this site.
In response to Commissioner Stine’s inquiry regarding the claim this project is piecemealed,
Mr. Schulte explained the Ponto site 18 project overlays and expands upon the boundaries of
this project. And when the City takes that six-acre project that's not exempt from CEQA and
you make it a 5 acre project you've piecemealed it. City Planner Lardy added there are no
private discretionary applications that are pending or overlay this project and these three
parcels did not have any boundary adjustments. The 4.6 acres was what was included in the
original application.
In response to Commissioner Lafferty’s request for clarification regarding the visitor
commercial zone not being a part of this, City Planner Lardy explained this is a split
designation zone. These 3 parcels were proposed to be residential.
In response to Commissioner Lafferty’s inquiry as to how the project will impact the recently
approved road reduction and lack of commercial properties nearby this site, City Planner
Lardy responded that now we study VMT, whereas several years ago it was level of service
in order to implement that governance office of planning and research and CAPCOA, which
June 20, 2023 Item #13 Page 19 of 30
Planning Commission Minutes May 3, 2023 Page 11
is essentially the air pollution control office association that set forth guidelines of types of
developments that they see, and the studies have shown that higher density and low income,
especially in areas such as Carlsbad, that have major job centers, does tend to reduce VMT.
In response to Engineering Manager Jason Geldert question regarding staff and Commission
consideration of the appeal and adhering to its focus and content with regards to information
presented and discussed, Assistant City Attorney Kemp reiterated that staff and the
Commission are confined to what was raised in the appeal and further clarified that if staff
and commissioners in evaluating this, think that what Mr. Schulte has now said is not what is
in the appeal, then you don’t need to consider it in your evaluation. Senior Assistant City
Attorney Kemp also addressed the unusual circumstance discussed which is the 10-inch
pipeline running through the middle of the project. The significance of making that statement
is they're pointing to 15300.2, which is the exemption to the exemption. Basically, you need
to consider if someone says a 10-inch pipeline on your property is an unusual circumstance
you need to consider it by substantial evidence. Further, consideration should be given to
whether the appellant has testimony or comparisons or other evidence with regards to the
unusual circumstances that will have an impact on the environment.
Vice Chair Sabellico opened public testimony at 8:57 p.m.
The following 4 speakers individually spoke in opposition to the project: Kathleen
Steindlberger, William Rouch, Dale Ordas, Dolores Welty
The following 8 speakers individually spoke in support of the project: Bret Schazenbach, Eric
Brovold, Andrew Becht, Stacie Green, Jason Santos, Michael McSweeney, Hale Richardson and
Heather Riley.
Speaker Chas Wick requested that the developer build a park for the residents nearby.
Vice Chair Sabellico reopened the public testimony at 9:14 p.m. to add the following 15
residents’ names who submitted speaker cards to the record in support of the project but did
not wish to speak at the hearing: Ruben Caballos, Mary Chaparro, Emilie Colwell, Tadd Dolfo,
Constance Gaughan, Shannon Gaunt, Rhiann Haymes, Whitney Hodges, Anisa Kremer, Toni
McMahon, William Morrison, Jeff O’Conner, Angie Ortiz, Chris Rosink, Nicole Weiman.
Vice Chair Sabellico closed the public testimony at 9:16 p.m.
Commissioner Stine, Vice Chair Sabellico, Commissioners Meenes and Kamenjarin expressed
their support of the project and staff’s recommendation.
Motion by Commissioner Meenes, seconded by Commissioner Stineto adopt Resolution No
7481. Motion carried, 6/0/1 (Merz – Absent).
Vice Chair Sabellico, Commissioner Stine, Commissioner Meenes and Commissioner
Kamenjarin expressed his support for the rest of staff’s recommendations.
June 20, 2023 Item #13 Page 20 of 30
Planning Commission Minutes May 3, 2023 Page 12
Motion by Commissioner Stine , seconded by Commissioner Meenes to adopt Resolution No.
7482. Motion carried, 6/0/1 (Merz – Absent).
PLANNING COMMISSION REPORTS/COMMENTS:
In response to Commissioner Lafferty’s question regarding if the Commission is supposed to end
meetings in 4 hours, Assistant City Attorney Kemp responded that he did not find anything in our
code dictating that.
Commissioner Lafferty announced that the next Historic Preservation meeting will be held
Monday, May 8th.
Commissioner Stine informed the Commission that the Growth Management Citizen’s
Committee has completed its work and there will be a report consistent with The City’s
determinations on performance standards going to the City Council.
CITY PLANNER REPORTS: None.
CITY ATTORNEY REPORTS: None.
ADJOURNMENT:
Vice Chair Sabellico adjourned the duly noticed meeting at 9:35p.m.
______________________
Cynthia Vigeland
Administrative Secretary
June 20, 2023 Item #13 Page 21 of 30
PLANNING 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
EIGHT.
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
Exhibit 5
June 20, 2023 Item #13 Page 22 of 30
June 20, 2023 Item #13 Page 23 of 30
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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June 20, 2023 Item #13 Page 24 of 30
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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June 20, 2023 Item #13 Page 25 of 30
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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June 20, 2023 Item #13 Page 26 of 30
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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June 20, 2023 Item #13 Page 27 of 30
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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June 20, 2023 Item #13 Page 28 of 30
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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June 20, 2023 Item #13 Page 29 of 30
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.
-8-
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
-.....::::::::
-9-June 20, 2023 Item #13 Page 30 of 30
Hom Residence: Retaining Wall Variance
Kyle Van Leeuwen, Associate Planner
Community Development
June 20, 2023
V 2022-0002/CDP 2022-0019
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{ City of
Carlsbad
2
PROJECT LOCATIONHom Residence: Retaining Wall Variance
V 2022-0002 / CDP 2022-0019
01,s Q 75
{city of
Carlsbad
BACKGOUND
2020 –Backyard Remodel Began
•Grading and Retaining Walls
•Pool Installation
2021 –Inspection of pool installation by City
•Owners informed that Contractor only had permit for Pool
•Code Case Initiated for unpermitted Work
2022 –Application for CDP and Variance
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{ City of
Carlsbad
APPLICANT REQUEST
Variance from Hillside Development Ordinance
•1: Allow retaining walls beyond the limit of six feet from
the toe of slope, where six feet is the standard limit
•2: Allow a deck within the rear setback, where decks are
subject to rear setback standards
Coastal Development Permit
•Allow for grading of the slope
4
{ City of
Carlsbad
VARINACE FINDINGS
•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
(...).
•Variance shall not constitute a grant of special
privileges inconsistent with the limitations upon other
properties in the vicinity and zone (…).
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{ City of
Carlsbad
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VARINACE FINDINGS
Natural
Slope
It
I
_______ \ _____ _
\_ Sl.im1fard Grading
Practice
Usiable Rear
Ya:rd
ILLUSTRATIVE SECTI.ON
NOT TO SCALE
{city of
Carlsbad
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VARINACE FINDINGS
“Cut-Back” Slope
•43.6% of the lot area
•81.4% of the rear yard area
•15-foot distance between house and
previous 5-foot retaining wall
I
\
D Total Lot Area
~ cut-back slope area
g Flat area
{city of
Carlsbad
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VARINACE FINDINGS
•Strict adherence to retaining wall limit
would disallow the ability to build a
typical patio, patio cover, swimming
pool and standard patio improvements
in their rear.
•Impact of cutback slope on project site
is to a larger degree than adjacent
similar sites.
Useable
(Flat) Rear-
Yard Areas
SITE
{city of
Carlsbad
9
Coastal Development Permit
Local Coastal Program (Mello II)
•Land Use Designation of R-4
•Does not obstruct views
•No agriculture or sensitive resources
Coastal Resource Protection Overlay
•Determined the slope area stable
•Will not damage or alter major wildlife
habitat or native vegetation areas
•No wildlife corridors on the site
{city of
Carlsbad
Planning Commission
•The Planning Commission conducted a public
hearing on May 3, 2023.
•By a vote of 7-0, recommended approval the
variance and coastal development permit.
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{ City of
Carlsbad
ITEM: RECOMMENDATION
•ADOPT a resolution Approving Variance V (2022-
0002) and Coastal Development Permit (CDP
2022-0019).
11
{ City of
Carlsbad