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HomeMy WebLinkAbout2024-06-25; City Council; ; Variance and Coastal Development Permit for Unpermitted Retaining Walls at 939 Begonia Court (V 2023-0002/CDP 2023-0016)Meeting Date: June 25, 2024 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 at 939 Begonia Court (V 2023-0002/CDP 2023-0016) District: 3 Recommended Action 1.Hold a public hearing; and 2.Adopt a resolution denying a variance and a coastal development permit application to allow unpermitted retaining walls that exceed the standards of the Hillside Development Regulations on property located at 939 Begonia Court within the Mello II Segment of the city’s Local Coastal Program and Local Facilities Management Zone Four (Case Name: Begonia Court Retaining Wall; Case No.: CDP 2023-0016 / V 2023-0002 (DEV 2020-0134)). Executive Summary In late 2018, the city received notice that unpermitted work to install retaining walls was being conducted at 939 Begonia Court. The city began issuing notices of violation to the property owner in early 2019. The property owner stopped construction in June 2019 and has been working with the city to resolve the issue since that time. The work does not meet city development regulations, so the only options are to either obtain a variance from these regulations or to remove the retaining walls. A request for a variance was considered and denied by the City Council on Feb. 23, 2021. The applicant has since submitted a new variance request that includes retention of the unpermitted retaining walls and additional engineering improvements. These unpermitted walls conflict with the height limitations included in the Hillside Development Regulations that are adopted as part of the city’s Zoning Ordinance. To approve the variance, the city must make the following findings: •Due to special circumstances, the property is deprived of privileges enjoyed by similar properties in the vicinity •The approval of a variance would not be a grant of special privileges •The variance does not allow a use that is not expressly authorized by the zoning code •The variance is consistent with the intent of the city’s General Plan, municipal code, etc. •The variance is consistent with the Local Coastal Program, the planning document for the city’s Coastal Zone June 25, 2024 Item #9 Page 1 of 12 CA Review AF Staff have reviewed the new application request and are again recommending that the variance findings cannot be made, and that the variance and coastal development permit applications be denied. The Planning Commission considered the request on March 20, 2024, and voted to recommend that the City Council deny the variance and coastal development permit that would allow the retaining walls located at 939 Begonia Court. 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 applicant, Rene Lichtman, on behalf of the property owner, Valerie Lichtman, is requesting a variance and coastal development permit to allow a series of retaining walls, which are currently built but unpermitted, to be kept in place. The retaining walls, shown at right, step up the rear yard slope, which is over 40% inclination, with central stairs leading up the slope. The walls, which are installed up to 22 vertical feet from the toe of slope, were installed without required grading or building permits. (A location map is provided as Exhibit 2. ) In late 2018, upon discovering unpermitted grading and ongoing construction on the property, the city’s Code Enforcement Division opened a case on the property. Code Enforcement subsequently issued a notice of violation against the property owner in February 2019 and a final notice of violation in June 2019. Construction of the retaining walls stopped in approximately June 2019, and those violations have not been corrected to this date. Aerial photographs and statements by the property owner indicate the construction of the retaining walls began in 2016. The property owner had the option to either remove the retaining walls and return the rear yard to its previous state, or to process and receive approval of a permit to legalize the installed retaining walls. The retaining walls, which are not compliant with provisions of the Carlsbad Municipal Code in Chapter 21.95 – Hillside Development Regulations, would first need approval of a variance and coastal development permit prior to any building or grading permits being approved. June 25, 2024 Item #9 Page 2 of 12 The applicant decided to submit applications for a variance and a coastal development permit, requesting authorization to retain the walls in their current location. • The applicant submitted a request for a variance and coastal development permit in June 2020. • The Planning Commission reviewed the proposal on Dec. 16, 2020, and recommended the City Council deny the request • The City Council denied the request for the variance and coastal development permit on Feb. 23, 2021. The applicant has been in discussions with the City Attorney’s office since that time about the code enforcement case and potential remediation. One of the outcomes of those discussions was allowing the applicant to again submit a request for a new variance and coastal development permit, in part because the previous reviews occurred during Covid-19 restrictions, which may have impacted the applicant’s ability to fully present their case before decision makers under the virtual meeting format, and because the one-year restriction against submitting a variance application after a substantially similar application has been denied had lapsed. (Section 21.54.130.) On March 30, 2023, the applicant submitted a new application to keep the retaining walls and terracing in place. The application includes: • A variance to the Hillside Development Ordinance, to allow 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 under Carlsbad Municipal Code Section 21.95.140(C)(1)(a)(i). • A coastal development permit, because the work is considered development under the state Coastal Act and Carlsbad Municipal Code Section 21.04.107. This permit would allow the retaining walls to be built on the slope. Approval of both permits would allow for the retention of the retaining walls, with additional measures to ensure the stability of the slope and structural soundness of the walls, with the subsequent approval and issuance of a grading permit. Additional information is included in the Planning Commission staff report (Exhibit 3), including information from the applicant to justify the variance and coastal development permit request. The applicant has also provided a statement describing the history of how the walls came to be built and why the removal of the walls, and reconstruction of the slope, would be too costly for the property owner to achieve. While this statement describes the origin of the unpermitted work and highlights the financial hardship the applicant might face in remediating their unpermitted work, these considerations do not establish or support any required findings for the variance or coastal development permit. The variance and coastal development permit would normally be heard by the Planning Commission as the final decision-maker. However, an aspect of the project’s Coastal Development Permit application for deviations to grading of steep slopes within the Coastal Zone (Carlsbad Municipal Code Section 21.203.040 (A)) requires action by the City Council. Therefore, under Municipal Code Section 21.54.040, decision-making authority for multiple June 25, 2024 Item #9 Page 3 of 12 development permits, both applications require City Council action. The Planning Commission conducted a public hearing on the project and has recommended that the City Council deny the applicant’s requests. Project analysis – Variance request Under Carlsbad Municipal Code Section 21.50.050, variances may be granted when special circumstances that result from the unique size, shape, topography or dimensions of a property act to deprive that property of privileges enjoyed by other properties in the vicinity that fall under the same zoning classification. Variances may not grant a special privilege that is not shared by other properties in the surrounding area. All properties in the vicinity are subject to the same hillside development and design standards in Carlsbad Municipal Code 21.95.140, which prohibit retaining walls from being constructed on a manufactured uphill perimeter slope of a certain size. Except for the subject property, all neighboring properties comply with this requirement. Before the unpermitted grading, the lot was similar in size, shape and topography to surrounding lots. A single-family home was constructed at roughly the same size as the neighboring properties and included a usable front and rear yard, again similar to other properties in the neighborhood. Staff find that the lot contains no special circumstances or characteristics that deprive it of a privilege enjoyed by other properties in the vicinity. Rather, approval of a variance in this case would grant a special privilege not enjoyed by surrounding properties. Staff therefore recommended denial of the variance request. The full list of variance findings with staff’s analysis can be found in Exhibit 3, the Planning Commission staff report. Project analysis – Coastal Development Permit Certain areas covered by the city’s Local Coastal Program allow appeals of such zoning matters to the state Coastal Commission. The property is located within the Mello II Segment of the Local Coastal Program, not in the appeal jurisdiction. The site is also located within Coastal Resources Protection Overlay Zone and subject to its regulations. Improvements typically associated with a single-family residence outside the coastal appeal area, such as retaining walls, are exempt from a coastal development permit. This exemption assumes that the proposed work complies with all of the provisions of the Zoning Ordinance. Therefore, a project that does not comply with the hillside development regulations is not exempt from obtaining a coastal development permit. Approval of a coastal development permit would be needed to allow the construction or retention of retaining walls that are inconsistent with the hillside development regulations. However, that construction or retention would also require a variance to be approved. If the required findings for the variance cannot be made, as discussed above, approval of a coastal development permit will not be necessary. Therefore, further analysis of the project’s consistency with the local coastal program, Carlsbad Municipal Code Sections 21.201, and 21.203, is not included. Planning Commission The Planning Commission considered the proposed project at a public hearing on March 20, 2024. During the hearing, commissioners raised questions to staff clarifying that the overall height of unpermitted walls was over three times that of what the Hillside Development June 25, 2024 Item #9 Page 4 of 12 Regulations allows, and that the variance request is to retain all of the unpermitted walls with necessary retrofitting for stability. Commissioners also asked questions of the applicant and their representatives, including questions about what the applicant’s engineers considered as options to remediate the issue and stabilize the slope. The commission also questioned why the applicant, after having their previous variance request denied, would propose the same scope of project with this second variance request. After questions and discussion, the Planning Commission voted to recommend the City Council deny the project. A complete description of the project and the staff analysis 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 A public notice of this meeting, as well as for the Planning Commission hearing, was mailed to both property owners within 600 feet of the project site and occupants of property within 100 feet of the project site and posted consistent with the requirements of the Ralph M. Brown Act, California’s open meeting law. Information regarding public notification of this item such as mailings, public hearing notices posted in a newspaper of general circulation and on the city’s website are available in the Office of the City Clerk. The project is also subject to City Council Policy No. 84 - Development Project Public Involvement Policy. The applicant posted a project application sign at a conspicuous location on the site and mailed the early public notice to property owners located within 600 feet of the project site and to occupants of property located within 100 feet in May of 2023. In response to the notice sent to surrounding properties in May of 2023, staff received emails from three neighbors during the month of June 2023. One uphill neighbor was supportive of the project, with concerns that "to bulldoze and regrade the hillside, strikes [them] as an unpragmatic solution which [they] would strongly oppose” and stating that allowing the retaining walls to stay “would be less disruptive for the surrounding neighborhood, less hazardous to hillside stability, and more cost-sensitive to one of our city residents.” Two other neighbors stated concerns about the project, citing noise and privacy issues created by the elevated terraces and concerns about the stability of the unpermitted work on the slope. These early outreach comments are included with the Planning Commission staff report. Fiscal Analysis There is no fiscal impact from this item. Options The following options are available to the City Council: 1. Deny the proposed variance and coastal development permit applications (recommended by staff and the Planning Commission) 2. Remand the project back to the Planning Commission for additional review. 3. Support the variance request. If the City Council reviews the applicant’s justification for the variance included in the Planning Commission staff report (Exhibit 3) and supports June 25, 2024 Item #9 Page 5 of 12 the variance request, it is requested that the City Council provide specific direction to staff to return with a draft resolution to approve the variance and coastal development permit applications, and to provide specific text supporting the required findings to approve the variance and coastal development permit applications. Next Steps If the City Council denies the applications, staff will ensure that the property owner obtains a grading permit to restore the slope to its previously approved condition or a condition consistent with all municipal code standards. Environmental Evaluation If this coastal development permit (CDP 2023-0016) and variance (V 2023-0002) is denied, the project is exempt from environmental review in accordance with Sections 15061(b)(4) and 15270 of the California Environmental Quality Act Guidelines because CEQA does not apply to projects that a public agency rejects or disapproves. (See Exhibit 3, Planning Commission staff report.) If the City Council reviews the applicant’s justification for the variance and supports the variance request, CEQA would require findings to be made to support the City Council’s approval of the applications. Exhibits 1. City Council resolution 2. Location map 3. Planning Commission staff report, March 20, 2024 (on file in the Office of the City Clerk) 4. Planning Commission minutes dated March 20, 2024 (on file in the Office of the City Clerk) 5. Planning Commission Resolution No. 7508 (on file in the Office of the City Clerk) June 25, 2024 Item #9 Page 6 of 12 RESOLUTION NO. 2024-163 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING A VARIANCE AND COASTAL DEVELOPMENT PERMIT APPLICATION TO ALLOW UNPERMITTED RETAINING WALLS THAT EXCEED THE STANDARDS OF THE HILLSIDE DEVELOPMENT REGULATIONS ON PROPERTY LOCATED AT 939 BEGONIA COURT WITHIN THE MELLO II SEGMENT OF THE CITY'S LOCAL COSTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE FOUR CASE NAME: BEGONIA COURT RETAINING WALL CASE NO.: CDP 2023-0016 / V 2023-0002 (DEV 2020-0134) WHEREAS, the City Council of the City of Carlsbad, California has determined that pursuant to the provisions in the Carlsbad Municipal Code, the Planning Commission did, on March 20, 2024, hold a duly noticed public hearing as prescribed by law to consider Variance No. V 2023-0002 and Coastal Development Permit No. CDP 2023-0016, as referenced in Planning Commission Resolution No. 7508, and the Planning Commission adopted Resolution No. 7508 recommending to the City Council that they be denied; and WHEREAS, the City Council of the City of Carlsbad held a duly noticed public hearing to consider the Variance and Coastal Development Permit; and WHEREAS, at the 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 City Council hereby denies Variance No. V 2023-0002 and Coastal Development Permit No. CDP 2023-0016, and that the findings and conditions of the Planning Commission contained in the Planning Commission adopted Resolution No. 7508 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" June 25, 2024 Item #9 Page 7 of 12 Exhibit 1 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 25th day of June, 2024, by the following vote, to wit: AYES: NAYS: ABSTAIN: ABSENT: BLACKBURN, ACOSTA, BURKHOLDER, LUNA. NONE. NONE. BHAT-PATEL. KEITH BLACKBURN, Mayor �JU� /�HERRY FREISINGER, City Clerk f7 (SEAL) I Exhibit 1 June 25, 2024 Item #9 Page 8 of 12 BATIQUITOS DR DA I S Y A V WISTERIA WY AZ A L E A P L BEGONIA CT LIL Y P L WHIMBREL CT POPPY LN ANAT R A CT E L C AMINO R E A L LA COSTA AV A L G A R D C A R L S B A D B L BEGONIA COURT RETAINING WALL CDP 2023-0016 / V 2023-0002 SITE MAP J SITE!"^ Map generated on: 12/5/2023 Exhibit 2 June 25, 2024 Item #9 Page 9 of 12 Exhibit 3 Planning Commission Staff Report, March 20, 2024 (on file in the Office of the City Clerk) June 25, 2024 Item #9 Page 10 of 12 Exhibit 4 Planning Commission Minutes dated March 20, 2024 (on file in the Office of the City Clerk) June 25, 2024 Item #9 Page 11 of 12 Exhibit 5 Planning Commission Resolution No. 7508 (on file in the Office of the City Clerk) June 25, 2024 Item #9 Page 12 of 12 From:Linda Kranen To:Priya Bhat-Patel Cc:City Clerk Subject:public hearing re variance/permit for Begonia Court retaining wall Date:Monday, June 24, 2024 11:32:20 AM Priya, I’ve just received written notice of a Council meeting tomorrow with an agenda item regarding a variance for mydownhill neighbor’s retaining walls. After attending the previous Planning Commission meeting in this regard, I have become concerned andincreasingly disturbed by the intransigence and bloody-minded stubbornness shown toward my downhill neighborby the city’s planning staff and commission regarding his hillside retaining wall issue. My stake in this is that (1) I do not want to increase the risk of hill destabilization that would affect my property; (2)for the sake of myself and all Carlsbad residents, I want to see a friendly, helpful, pragmatic, solution-orientedmindset exhibited by city officials and staff toward the residents paying their salaries; and (3) I do not ever want tohear the words “Cost can’t be a consideration in this decision” from a Planning Commissioner’s mouth ever again,upon pain of leaving skid-marks down the sidewalk. My neighbor built an unpermitted and nonconforming series of retaining walls behind his house, and has beenrefused a variance recommendation by the Planning Commission. He has also submitted plans developed by aprofessional engineering firm (also requiring a variance) to suitably strengthen the installation, but City Planning hasinsisted that the only acceptable solution is to rip everything out and regrade the entire hill. This is patentlyunaffordable for any individual homeowner, would cause disruption from noise and dust throughout theneighborhood for months, and would scrape off groundcover and disturb the 50-year-old network of acacia rootsthat now lock the hillside in place, leaving a bare sand surface vulnerable to the coming winter rains. The Planning Department’s proposal is rubbish, their refusal to accept an affordable and less intrusiveprofessionally-engineered solution is outrageous, and their stubborn hostility toward a homeowner left with nowhereto go is unprofessional. No homeowner in the city of Carlsbad should be subjected to this. Yes, he brought theproblem on himself. Now it has to get solved, and I suggest Planning set aside their bad attitude and get on with it. This last winter was an unusually wet one, and there have been no problems with my downhill neighbor’sunpermitted terracing. I see no reason not to grant a variance for the walls as-is. Alternatively, grant a variance forhis professionally-engineered modification. Under no circumstances do I want my hillside’s stability jeopardized bya meat-headed Planning Department recommendation, nor do I want to see the planning staff and officials get in thehabit of blindly mandating absurdly disruptive and unaffordable solutions. - Linda Kranen7305 Lily Pl, CarlsbadCAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. All Receive - Agenda Item #_9_ For the Information of the: CITY COUNCIL Date: __6/24__ CA__X_ CC_X__ CM__X_ ACM_X__ DCM (3)_X_ PROCEDURES 1.Public Hearing opened 2.Staff Presentation 3.City Council questions on staff presentation 4.Applicant presentation (10 Min) 5.City Council opportunity to ask questions of applicant 6.Input from public 7.Staff and Applicant response (if necessary) 8.City Council discussion 9.City Council vote 10.Public hearing closed 1 Begonia Court Retaining Wall Eric Lardy, City Planner Kyle Van Leeuwen, Associate Planner Community Development June 25, 2024 V 2023-0002/CDP 2023-0016 2 BEGONIA COURT RETAINING WALL CDP 2023-0019/V 2023-0002 3 ITEM 9 PROJECT LOCATION ITEM 9 BACKGROUND 2015/2016 – Unpermitted Construction/Grading Began 2018 – Code Case Opened •June 2019 – Final Notice/Work Stopped 2020 (June) – 1st Application for CDP and Variance 2021 (March) – 1st Application Denied by Council 2023 (March) – New/Current Application Submitted 4 2005 2017 TODAY 5 ITEM 9 BACKGROUND Zoning Code: Hillside Development Reg. Retaining walls on or into an uphill perimeter manufactured slope shall be limited to a maximum of six vertical feet as measured from the existing grade at the toe of the slope. (Section 21.95.140(C)(1)(a)(i)) 6 ITEM 9 Variance: Hillside Development Reg. Allow retaining walls beyond the limit of six feet from the toe of slope, where six feet is the standard limit Coastal Development Permit Allow for grading of the slope ITEM 9 7 ITEM 9 Variance Findings: 1.That because of special circumstances (…) the zoning ordinance deprives such property of privileges enjoyed by other property (...). 2.That the variance shall not constitute a grant of special privileges (…). 8 Special circumstances: •47% of Lot is Sloped (76% of Rear Yard) •28 Feet Slope Height Deprives privileges: “Constraints deprive the owners of typical usage afforded to other properties in the vicinity/creates maintenance burden.” No grant of special privilege: “Six-foot retaining wall height limit disallows the owner's ability to build standard rear yard improvements.” ITEM 9 APPLICANT’S JUSTIFICATION 9 ITEM 9 JUSTIFICATION/RESPONSE Special Circumstances: •47% of Lot is Sloped •76% of Rear Yard is Sloped •28 Feet Slope Height No Special Circumstances: •2nd largest lot surveyed •Pie Shaped - wider rear •Useable lot area available 11 Special Circumstances: •47% of Lot is Sloped •76% of Rear Yard is Sloped •28 Feet Slope Height No Special Circumstances: •943 Begonia (yellow): - Similar size and shape - Appx 45% sloped ITEM 9 JUSTIFICATION/RESPONSE 12 Deprives privileges: “Constraints deprive the owners of typical usage afforded to other properties in the vicinity/creates maintenance burden.” Staff Response: Property is not deprived of privileges - Neighborhood average lot size: 9,528 SF - Subject lot without sloped area: 9,600 SF (17,148 sf lot - 7,500 sf slope) - Maintenance Burden is not loss of privilege ITEM 9 JUSTIFICATION/RESPONSE 13 ITEM 9 JUSTIFICATION/RESPONSE 14 No grant of special privilege : “6-foot retaining wall height limit disallows the owner's ability to build standard rear yard improvements.” Staff Response: Variance would be a grant of special privilege - More useable area exceeds neighborhood average - Existing rear-yard improvements (Pool and Patio) - Higher retaining wall height would be special privilege ITEM 9 JUSTIFICATION/RESPONSE 2014 2024 15 ITEM 9 JUSTIFICATION/RESPONSE ITEM 9 Variance - All Five Findings Required •Findings 1 and 2 cannot be made •Analysis of findings 3-5 in staff report Coastal Development Permit •No analysis warranted without variance approval 16 ITEM 9 Planning Commission: •Conducted a public hearing on March 20, 2024. •By a vote of 5-0, recommended denial of variance and coastal development permit. 17 ITEM 9 Next Steps (if denied) Property owner will need to correct the unpermitted work by either: •Restoring the slope to its previously approved condition •Restoring the slope to a condition consistent with all municipal code standards. 18 ITEM 9: RECOMMENDATION ADOPT a resolution Denying the Variance ( V 2023- 0002) and Coastal Development Permit (CDP 2023- 0016). 19 PROCEDURES 1.Public Hearing opened 2.Staff Presentation 3.City Council questions on staff presentation 4.Applicant presentation (10 Min) 5.City Council opportunity to ask questions of applicant 6.Input from public 7.Staff and Applicant response (if necessary) 8.City Council discussion 9.City Council vote 10.Public hearing closed 20 Hom’s Project Appx. 16 feet - (8 feet if no ret. wall) Appx. 16 feet, Building to Ret. Wall 21 Hom’s Property, Slope Red, Rear Yard Blue Hom’s Property, Slope Profile Hom’s Comparison 22 Hom’s Property (Rotated) Begonia Property 16’30’ Hom’s Comparison Begonia 30’ depth of yard HOM – 16’ Depth of Yard 23 16 FEET 30 FEET Hom’s Comparison 24 Begonia PropertyHom’s Property (Rotated) Hom’s Variance 25 Hom’s Property (Original Grading)Hom’s Property (After Variance) Hom’s Comparison 26 Hom’s Comparison Begonia Approx 20 feet without wall (28 with) HOM - Appx. 8 feet without wall (16 with) 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18