HomeMy WebLinkAbout2001-01-03; Planning Commission; ; ZC 99-08|LCPA 00-01 - CARLSBAD BOULEVARD/TAMARACK ZONE CHANGE--
The City of Carlsbad Planning Department .#jtl
REPORT TO THE PLANNING COMMISSION
P .C. AGENDA OF: January 3, 2001
ItemNo. @
Application complete date: N'A
Project Planner: Scott Donnell
Project Engineer: N/A
SUBJECT: ZC 99-08/LCPA 00-01 -CARLSBAD BOULEVARD/TAMARACK ZONE
CHANGE -A city-initiated amendment to change the City and Local Coastal
Program zoning map designations of three contiguous properties from
Neighborhood Commercial and General Commercial (C-1 and C-2, respectively)
to Multiple-family Residential (R-3) and Beach Area Overlay Zone. The affected
properties are at 3862 and 3878 Carlsbad Boulevard and include the Seaside
Bistro. No development is proposed with this amendment.
I. RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 4891
RECOMMENDING APPROVAL of a Negative Declaration and ADOPT Planning
Commission Resolutions No. 4892 and 4893 RECOMMENDING APPROVAL of ZC 99-08
and LCP A 00-01 based upon the findings contained therein.
II. INTRODUCTION
The City requests approval of a Zone Change and Local Coastal Program Amendment that
would affect three contiguous beach area properties on Carlsbad Boulevard between Tamarack
Avenue and Redwood Avenue. No development is associated with this request. The three
properties have different land uses, zoning designations, and owners. The following table
provides the details on the city-initiated amendment and the properties involved.
ZC 99-08/LCPA 00-01 -CARLSBAD BOULEY ARD/TAMARACK ZONE CHANGE
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Existing
Zoning
Property Address Owner Use Lot Size General
(in square Plan& LCP
feet) Designations Local
City Coastal
Program
'Seaside 3878 Mitze H. Restaurant
Bistro Carlsbad Eubanks with 14,000 RH C-2 C-2 Parcel' Blvd Trust parking
lot
'Ledgerwood 3862 CharlesB. Small 4,650
Parcels' Carlsbad Ledgerwood House, (each lot) RH C-1 C-2
(2 lots) Blvd Trust Vacant
Key
LCP = Local Coastal Program RH = Residential High Density, 15-23 dwelling units per acre
C-1 = Neighborhood Commercial Zone
C-2 = General Commercial Zone
R-3 = Multiple Family Residential Zone BAOZ= Beach Area Overlay Zone
Proposed
Zoning
(City&
LCP)
R-3.
BAOZ
R-3.
BAOZ
The primary purpose of the City's request is to bring the properties' zoning, presently
commercial, into compliance with the General Plan and Local Coastal Program, both of which
designate each property as High Density Residential (RH). In 1996, the City Council passed a
resolution declaring its intention to rezone the three properties so they would comply with the
General Plan and Local Coastal Program designation of RH, as listed above. A fundamental state
planning law requires a property's zoning designation to be consistent with its General Plan
designation.
Rezoning of the Seaside Bistro (formerly the Sandbar Restaurant) property will cause the
restaurant building and use to become legally nonconforming with city standards. The building
will become nonconforming because it does not comply with the development standards ( e.g.,
setbacks) of the proposed R-3 zone. The use will become nonconforming since a restaurant is
not permitted in any residential zone. When a building or use is nonconforming, the Planning
Commission may or may not, on its initiative, establish a time period by which the building must
be removed and the use discontinued. Further discussion on nonconforming aspects will be
provided later in the report.
Since this is a city-initiated project, staff notified all parties affected or potentially affected by the
proposed zone change well in advance of the Planning Commission hearing and in a manner
more informative than just a public hearing notice. On June 7, 2000, staff sent a letter (included
as Attachment 6) to the affected property owners. Subsequently over the summer, that same
letter and its attachments were sent to attorneys representing the operators of the Seaside Bistro
and to the prospective purchasers of the Ledgerwood parcels.
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III. PROJECT DESCRIPTION AND BACKGROUND
Surrounding the three properties to the north, south (across Tamarack Avenue) and east are a mix
of detached homes with yards, multi-story condominiums, and older apartments. Carlsbad
Boulevard and the Pacific Ocean are to the west. The General Plan and Local Coastal Program
land use designation for the subject and surrounding properties and most of the beach area
between Agua Hedionda Lagoon and the Village is RH. And, except for the subject lots, all
zoning designations for this area are residential. The nearest commercially designated properties
to the subject site are located approximately ½ mile to the north at Carlsbad Boulevard and
Walnut Avenue and to the east at Tamarack Avenue and Jefferson Street. Please refer to the
Location and Surrounding Zoning Map provided as Attachment 5.
In the General Plan, Land Use Element Policy C.16 states, "Amend Title 21 of the Carlsbad
Municipal Code (zoning ordinance and map), as necessary to be consistent with the approved
land use revisions of the General Plan and General Plan Land Use Map." The proposed zone
change from commercial to residential would accomplish that. This proposal is also part of a
systematic and comprehensive Planning Department program to fix such inconsistencies
citywide. Recommended changes to other properties will be scheduled for public hearing over
the coming year.
To implement the General Plan on the Ledgerwood and Seaside Bistro properties, staff
specifically recommends the R-3, Multiple Family Residential Zone. Since it allows high-
density uses, this zone is consistent with the RH, Residential High Density General Plan
designation. The R-3 zone is also the majority zoning in the beach area, including the properties
east and north of the project. In addition, given that the Ledgerwood and Seaside Bistro parcels
are within the boundaries of the Beach Area Overlay Zone, staff proposes applying the Overlay
Zone to each of the properties. Zoning Ordinance Section 21.82.020 requires the Overlay Zone
to apply to any residentially zoned property within its boundaries.
Besides the requirement for consistency with the General Plan, past activities on the Seaside
Bistro parcel have also led to this zone change proposal. Staff has summarized these activities in
this report to provide further background on the proposal, a description of the compatibility
problems a restaurant/bar can have in a residential area, and a demonstration of the time, effort,
and difficulties in trying to correct the compatibility problems. For clarity's sake, descriptions
and backgrounds on both the Ledgerwood and Seaside Bistro parcels are provided separately
below.
Ledgerwood Parcels
These two, small properties are north of the Seaside Bistro. One of the lots borders the
restaurant and is vacant except for the remnants of a garden. The other lot, at the corner of
Carlsbad Boulevard and Redwood Avenue, features a small, Spanish style house built in the
1930s. "Charles Ledgerwood Seeds" operated from this house for decades until this spring,
following Mr. Ledgerwood's death in December 1999. The seed business has since been sold
and in the future will likely operate outside Carlsbad. Though at least part of the house was used
for the seed business, the lot was not developed commercially; customer parking, for example,
was located in the street.
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Staff believes the Ledgerwood parcels are now in escrow. The prospective purchasers are aware
of the proposed zone change, and have indicated they would like to develop both lots
residentially.
Seaside Bistro
According to City Building Department information, an eatery has been on the Seaside Bistro
property since at least 1970. At that time, development on the property included the eatery,
likely a hamburger stand, a parking lot, and a detached home. Although not clear as to which
was built first, County Assessor's information indicates construction of a building occurred on
the property in 1946.
In 1975, the small home was demolished and the snack bar expanded to become the Captain's
Anchorage, a steak and seafood restaurant. That same year the Captain's Anchorage also
received City approval of a zone change from C-1 to C-2 to permit alcohol sales and State
Department of Alcoholic and Beverage Control (ABC) approval of a liquor license. It appears
the restaurant was renamed the Sandbar in 1986. In 1989, a City business license was issued to
Mitze Eubanks and Carlos Almendra, the new owners of the Sandbar Restaurant. In 1995, Ms.
Eubanks became sole owner. While retaining ownership of the property, Ms. Eubanks sold the
restaurant business, along with the alcoholic beverage license, to Jim and Monika DiMaggio in
1999. Earlier this year, the DiMaggios changed the name of the restaurant to Seaside Bistro.
One aspect that has hampered the past and current owners of the restaurant is its lack of adequate
on-site parking. Building Department and County Assessor's data indicate the restaurant has a
floor area of approximately 4,000 to 4,400 square feet; according to the Zoning Ordinance, 40 to
48 parking spaces should be provided for this restaurant. The Seaside Bistro has approximately
20 to 25 spaces. A lack of adequate on-site parking has contributed to problems between the
neighborhood and the Sandbar because some customers have parked on the nearby streets.
In the early 1990s, the City received numerous complaints from residents surrounding the
Sandbar about the restaurant's operations and patrons. Sometime prior to that point, staff
believes the business changed from a restaurant with the incidental serving of alcohol to
predominantly a bar with live music and dancing. Residents complained about the noise from
the live music that sometimes lasted until after 1 :00 A.M. and inebriated or boisterous patrons
who would leave the bar and yell, fight, litter, deface property, and generally disturb the peace.
Adding to the problem was the fact that some Sandbar customers parked on surrounding streets,
including Redwood Avenue and Garfield Street, and thus would carry the negative behavior into
the adjacent neighborhood. According to the ABC, Carlsbad police at various times between
1994 and 1996 responded to fights both inside and outside the restaurant and arrested several
Sandbar patrons for public intoxication and driving under the influence of alcohol.
In November 1995, city staff met with the Sandbar Restaurant to seek a voluntary reduction in its
business hours as a way to curb or eliminate late night noise and other complaints. Although the
Sandbar apparently had already implemented other voluntary measures to mitigate the
complaints about the impacts of its operations, such as hiring additional security and making
noise-attenuating building improvements, it would not agree to alter its hours of operations.
Despite the measures taken by the Sandbar, problems related to its operations and patrons
continued. •
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Other methods were considered by the City as a way to regulate excessive noise from the
Sandbar and other businesses that serve alcohol and provide entertainment. In 1996, the Citv
Council reviewed an ordinance that would have required such establishments, beginning at 10:00
P.M., to not exceed a specified exterior noise level deemed compatible with residential uses. At
the public hearing, many residents and business owners opposed the proposed ordinance.
Ultimately, the Council took no action on this proposal, with some members noting that the
proposed ordinance did not fully resolve the issue of compatibility between such an
establishment and its nearby residential uses. A shortcoming of the proposed ordinance was that
it did not address customer-parking impacts in surrounding residential neighborhoods, a concem
with the Sandbar.
However, on May 21, 1996 the Council did approve Resolution of Intention (ROI) No. 96-168,
in which the Council declared its intention to:
1. Change the zoning of the Seaside Bistro and Ledgerwood parcels from commercial to
residential to be consistent with the General Plan and Local Coastal Program; and
2. Directed staff to process the intended rezoning for hearing before the Planning
Commission and City Council.
A copy of the ROI and its accompanying staff report are included as Attachment 7. Zone
Change 99-08 and Local Coastal Program Amendment 00-01 are proposed to fulfill the
Council's directive.
At the same time the City was receiving and responding to complaints about the Sandbar
Restaurant, the ABC was also monitoring the situation. In 1993, it issued a warning letter to the
Sandbar regarding noise, loud music, and claims of disturbances from nearby residents.
Following additional complaints, a 1995 ABC letter placed the Sandbar on notice that
disciplinary action could occur should further complaints be received. More complaints and the
Department's own investigations led to the ABC filing an "Accusation against Respondents" in
1996. In brief, this filing alleged the Sandbar:
1. Kept a "disorderly house;"
2. Permitted the business to operate in a manner that caused a law enforcement problem;
3. Permitted the business to operate in a manner disruptive to the neighborhood;
4. Allowed a public nuisance to exist after written notice from the City of Carlsbad City
Attorney to discontinue the same, and;
5. Failed to take reasonable steps to correct objectionable conditions on the premises of the
restaurant.
Following an administrative hearing on the above allegations, the ABC in 1997 revoked Ms.
Eubank's alcohol license. However, this revocation was stayed for a two-year period upon the
Sandbar demonstrating compliance with a number of conditions. If the conditions were
successfully followed during the two-year period, the stay would become permanent. These
conditions, imposed on the license, prohibited, among other things, live entertainment and
alcohol after midnight on Friday and Saturday and entertainment noise audible beyond the
Sandbar parking lot. Although the Sandbar appealed this decision, the stayed revocation and the
conditions became effective in March 1999. Attachment 8 to this staff report is a copy of the . ...--·, I
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ABC order and list of these conditions. Though Ms. Eubanks' has sold the alcohol license along
with the restaurant business, the conditions are still applicable to its new owners, Jim and
Monika DiMaggio.
Since 1997, complaints regarding the Sandbar Restaurant and Seaside Bistro have generally
ceased. According to the attorney representing the DiMaggios, the Seaside Bistro is a restaurant,
not a nightclub, and consequently does not offer nighttime entertainment nor stay open late at
night. Further, the attorney notes that much of the Bistro's business is walk-in traffic. Ideally,
the DiMaggios hope to operate the restaurant for a sufficient number of years to recoup their
investment in the business, the lease, improvements they have made, and financing for their
planned future purchase of the Bistro property still owned by the Mitze H. Eubanks Trust.
IV. ANALYSIS
The project requires approval of the following legislative actions:
A. Zone Change from C-1 and C-2 to R-3 and Beach Area Overlay Zone, and;
B. Local Coastal Program Amendment to implement the zone change in the Local Coastal
Program.
The following regulations are applicable or relevant to this proposal
C. Section 65860 of the State Government Code -Zoning Consistency with the General
Plan;
D. Section 30108.5 of the State Public Resources Code -Zoning Consistency with the Local
Coastal Program;
E. Carlsbad General Plan and the General Plan land use designation of Residential High
Density (RH) designation;
F. Beach Area Overlay Zone (Chapter 21.82 of the Zoning Ordinance);
G. Local Coastal Program for the Mello II segment;
H. Growth Management (Chapter 21.90 of the Zoning Ordinance), and;
I. Nonconforming Buildings and Uses (Chapter 21.48 of the Zoning Ordinance);
Staff developed its recommendation for approval upon determining the proposed zone change
and local coastal program amendment was consistent with the applicable City regulations and
policies. The project's compliance with each of the above regulations is discussed in detail in
the sections below. Furthermore, while the zone change is not subject to the nonconforming
buildings and uses section of the Zoning Ordinance, a discussion of this section is included
because of its relevance to the use of the Seaside Bistro and Ledgerwood parcels.
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Le2islative Actions
A. Zone Change
Consistent with the City Council Resolution of Intention No. 96-168, staff proposes to rezone
three properties from C-1 (Neighborhood Commercial) and C-2 (General Commercial) to R-3
(Multiple Family Residential) and BAOZ (Beach Area Overlay Zone). The C-2 zone applies to
the Seaside Bistro parcel. The C-1 zone applies to the two Ledgerwood parcels. Neither of these
existing designations is consistent with the properties' Residential High Density (RH) General
Plan designation. The C-1 zone permits office, retail, and service uses -such as restaurants and
gas stations. The C-2 zone, a more liberal commercial designation, also allows automobile
repair, and with a conditional use permit, bars and car washes. Development of new
commercial uses, or significant expansion of existing ones on the properties, however, would not
be possible since such improvements could not be found to be consistent with the properties'
residential General Plan and Local Coastal Program designation. The proposed rezoning of the
Ledgerwood and Seaside Bistro parcels for residential uses will enable a clear determination of
the uses that can be built.
Resolution 96-168 recommends giving consideration to rezoning the properties either R-3 or
RD-M (Residential Density-Multiple) as both implement the RH General Plan designation. Staff
believes the R-3 zone is more appropriate for the following reasons:
• By far, most properties in the beach area between Carlsbad Boulevard, the
Village, the railroad, and Agua Hedionda Lagoon are zoned R-3;
• All properties fronting Carlsbad Boulevard between Tamarack A venue and
Walnut Avenue are zoned R-3;
• Except for lots facing Garfield Street, all properties in the same block as the
Seaside Bistro and Ledgerwood parcels are zoned R-3.
• R-3 and RD-M development standards differ somewhat (e.g., setback
requirements, lot size). Most of the lots in the beach area between Carlsbad
Boulevard and Garfield Street are similarly sized and configured (long, narrow
rectangles approximately 4,500 -7,500 square feet). Applying the R-3 zone to
the subject properties will maintain development consistency.
• The RD-M zone in the beach area mainly has been applied to condominium
developments and larger parcels ofland (1/2 acre or more).
In addition to recommending the R-3 zone, staff has also proposed that each of the three
properties be designated with the Beach Area Overlay Zone given that the properties are within
its boundaries. As previously mentioned, Zoning Ordinance Section 21.82.020 requires the
Overlay Zone to apply to any residentially zoned property within its boundaries. The purpose
and intent of the overlay is to supplement the underlying residential zoning by providing
additional regulations to ensure compatible development, adequate parking and public facilities,
and to protect the unique mix of residential development and the aesthetic quality of the beach
area.
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B. Local Coastal Program Amendment
Presently, the Local Coastal Program has zoned each of the affected properties as C-2 (General
Commercial). The Local Coastal Program Amendment (LCP A) is required to implement the
proposed zone change from C-2 to R-3 and Beach Area Overlay Zone. The LCP A will result in
consistency with the Local Coastal Program land use designation of RH.
No comments were received during the required six-week LCPA public notice period.
Reeulatory Compliance
C. California Government Code Section 65860 -Zoning Consistency with the General
Plan
State law requires that a jurisdiction's zoning ordinance be consistent with its general plan. In
the event that a zoning ordinance becomes inconsistent with a general plan by reason of
amendment to the plan, the law requires the zoning ordinance to be amended accordingly within
a reasonable time. This means development standards, land uses, and land use categories in the
zoning ordinance must all be consistent with the land use policies and designations specified in
the general plan. A primary objective of this rezone proposal is to bring the zoning designations
of the affected properties into compliance with the General Plan.
D. California Public Resources Code 30108.5 -Zoning Consistency with the Local
Coastal Program
The Public Resources Code regarding the California Coastal Act refers to the Local Coastal
Program as part of the City's General Plan. The requested rezoning will cause compliance with
the General Plan and thus the Local Coastal Program.
E. General Plan
The existing General Plan designation for all three properties -and most of the beach area -is
RH, or Residential High Density. This designation permits a density range of 15 -23 dwelling
units per acre (du/ac) with a Growth Management Control Point of 19 du/ac. The General Plan
Land Use Element describes the RH designation as a "High density residential classification
characterized by two and three-story condominium and apartment development . . . " As
evidenced by the different types of residences in the beach area, the proposed R-3 zone
implements the RH designation by permitting such multi-family development, as well as single
family homes.
The General Plan seeks to ensure compatibility between adjacent uses. The proposed
amendment will establish zoning, use, and development standards for the subject properties that
are consistent with their surroundings. Moreover, from a noise standpoint, as demonstrated by
past experiences with the Sandbar Restaurant, the residential neighborhood around the subject
properties would likely benefit from the proposed zone change.
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The proposed zone change is consistent with the following General Plan provisions:
Land Use Element -Overall Land Use Pattern -Policy C.16: Amend Title 21 of the Carlsbad
Municipal Code (zoning ordinance and map), as necessary to be consistent with the approved
land use revisions of the General Plan and General Plan Land Use Map.
Land Use Element -Residential -Objective B.2: To preserve the neighborhood atmosphere and
identity of existing residential areas.
Land Use Element -Residential -Policy C.7: Locate higher density residential uses in close
proximity to open space, community facilities, and other amenities.
Noise Element -Land Use -Objective B.2: to achieve noise impact compatibility between land
uses through the land use planning/development review process.
F. Beach Area Overlay Zone
The Ledgerwood and Seaside Bistro parcels are within the boundaries of the Beach Area Overlay
Zone. Zoning Ordinance Section 21.82.020 requires the Overlay Zone to apply. to any
residentially zoned property within its boundaries. Therefore, staff recommends the application
of the Overlay Zone along with the proposed R-3 zone.
The application of the Overlay Zone to the subject properties does not affect the types of
residential uses that may be permitted by the proposed R-3 zone; however, the Overlay does
require a project's density to be at the lowest end of the density range established by the General
Plan designation unless a greater density is determined justifiable by the decision making body.
Under the proposed zoning, a single unit could be built on each of the approximately 4,650
square foot Ledgerwood parcels at the lowest end of the RH density range ( 15 du/ac ), and two
units could be built on each parcel at a density of -18 du/ac. The larger, roughly 14,000 square
foot Seaside Bistro parcel could potentially accommodate 4-5 units at the low end of the density
range and 6 units at just under the Growth Management Control Point of 19 du/ac.
Determination of precise density yields, however, is impossible without analysis of a proposed
project in relation to City development standards such as setback and parking requirements.
G. Local Coastal Program
The subject properties are within the Mello II segment of the Carlsbad Local Coastal Program
(LCP). The proposed rezoning is consistent with the LCP. It will not affect or conflict with LCP
policies regarding access, recreational opportunities, views, or coastal dependent land uses. The
rezoning also does not involve property with sensitive topography or natural resources. Finally,
the proposed rezoning is compatible with the existing LCP land use designation of the subject
properties and the LCP land use and zoning designations of surrounding properties.
H. Growth Management
The Ledgerwood and Seaside Bistro parcels are located within Local Facilities Management
Zone 1 in the northwest quadrant of the City. Review of the 1987 Local Facilities Management
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Plan (LFMP) for Zone 1 shows the subject properties were designated as commercial to
determine their existing and future impacts on public facilities. The Plan indicates 5.000 square
feet of existing commercial development and the potential for 5,000 square feet more on the
subject parcels.
The 1994 update of the General Plan analyzed the impacts of the subject properties' Residential
High Density (RH) designation. The proposed rezoning is consistent with that designation. As
reflected in the attached environmental analysis, staff does not believe the proposed rezoning to
allow residential development will produce any significant impacts that would cause the
performance standards of the LFMP for Zone 1 to not be met. Of course, absent an actual
development proposal, a completely accurate determination of impacts to public facilities and
thus compliance with the LFMP cannot be made.
One aspect of growth analyzed by the Local Facilities Management Plan is traffic. In general,
residential uses produce less traffic than commercial uses. Additionally, the proposed residential
zoning would allow uses that produce less traffic than the current commercial uses on the project
site, based on trip generation rates developed by the San Diego Association of Governments.
• Considering the existing Seaside Bistro use only, staff estimates the restaurant produces
approximately 400 to over 700 average daily trips. Staff calculates development of the project
site with 10 multi-family dwelling units would produce 80 average daily trips (condominiums)
and 60 average daily trips (apartments). Less traffic also contributes to reduced pollution and
n01se. A more detailed explanation of this traffic analysis may be found in the attached
environmental analysis.
I. Nonconforming Buildings and Uses
If the proposed rezoning is approved, the Seaside Bistro building and use will become legally
nonconforming. The Zoning Ordinance defines nonconforming building and nonconforming use
as follows:
Nonconforming building (Zoning Ordinance Section 21.04.275): A building, or
portion thereof, which was lawfully erected or altered and maintained, but which,
because of the application of this title to it, no longer conforms to the use, height
or area regulations of the zone in which it is located.
Nonconforming use (Zoning Ordinance Section 21.04.280): A use which was
lawfully established and maintained but which, because of the application of this
title to it, no longer conforms to the use regulations of the zone in which it is
located. A nonconforming building, or nonconforming portion of the building
shall be deemed to constitute a nonconforming use of the land upon which it is
located.
Chapter 21.48 of the Zoning Ordinance, which regulates nonconforming uses and buildings, is
provided with this staff report as Attachment 9. The Seaside Bistro building will become
nonconforming because it will not comply with all of the development standards of the proposed
R-3 zone, including setbacks. The use will become nonconforming since a restaurant is not
permitted in the R-3 or any residential zone. It is not clear if the home on the northernmost
Ledgerwood parcel would be considered a nonconforming building since staff has no plans or
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information on the structure. Because of its age (approximately 70 years) it may not meet
current setback requirements. Undoubtedly, there are homes throughout the City that do not
meet all of today's standards. Since the seed business no longer operates on the Ledgerwood
parcel, we believe the property would not contain a nonconforming use.
While recognizing that nonconforming uses and buildings may continue to exist, Chapter 21.48
establishes several restrictions on their use and expansion so, ultimately, they are either brought
into conformity or eliminated to promote the public health, safety, and welfare and comply with
the objectives of the General Plan. A summary of these restrictions follows.
1. While a nonconforming use is on a lot, no other use, even a conforming one, may be
established on the lot.
2. If a nonconforming building is removed, future use of the land on which the building
was located must be conforming.
3. Another like nonconforming use may replace an existing nonconforming use only if the
degree of nonconformity does not increase ( e.g., a sit-down restaurant use could be
replaced by another sit-down restaurant use, but not by a drive-through restaurant).
4. A nonconforming building or use shall not be altered, improved, intensified or expanded.
However, generally acceptable are limited, incidental repairs necessary because of
ordinary wear and tear.
5. A nonconforming building destroyed by fire or an act of God to no more than 25% of its
replacement value may be restored.
6. The Planning Commission may grant limited expansions of nonconforming uses or
buildings only upon approving a conditional use permit, requiring improvements to meet
current standards and be designed for easy removal, and by establishing a date for which
the nonconforming uses and structures will be removed or brought into conformance.
7. If a building is nonconforming due only to inadequate setbacks or open spaces, it may be
increased in size subject to certain setback and floor space enlargement limitations.
This is only a summary list; please refer to Attachment 9 for the complete Zoning Ordinance
requirements. In addition, please note that a change in ownership does not cause a building or
use to lose its legal nonconforming status.
According to Section 21.48.070 of Chapter 21.48, the Planning Commission may establish a
period of time and conditions for abatement of a non-conforming use or building. This is a
discretionary procedure that the Commission would have to initiate. If the Planning Commission
were to consider this option, it would need to determine the date the building was established and
the period of time before abatement would occur. Section 21.48.060 establishes various
abatement periods based on different types of building construction ( e.g., wood frame or
masonry buildings, offices and warehouses), and states any abatement period would have to be a
minimum five years. In addition, the section allows the Planning Commission to establish, if it
determines appropriate, a period of time greater than the minimum abatement period to allow for
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amortization of significant investments due to structural alterations or enlargements or the
installation of major equipment designed into the building.
Another option is to take no action on establishing a time period for abatement. Thus, there
would be no mandated deadline by which the nonconforming building or use would have to be
removed or brought into compliance. While this may permit a nonconforming use to remain for
a longer time than if an abatement period was established, the standard Zoning Ordinance
restrictions limiting the use, improvement, and expansion of nonconforming buildings and uses
would still apply.
Staff has prepared no analysis of the Seaside Bistro building type or any major improvements to
the restaurant's structure or its interior in an effort to recommend an abatement period. Instead,
staff advises the Planning Commission not to establish an abatement period. Upon rezoning of
the affected properties to residential, the City will always have the option of establishing an
abatement period should conditions warrant. Whether associated with the current or another
business, such conditions might include customer parking in the surrounding neighborhood,
failure to comply with the conditions placed on the alcohol license, incompatible hours or noise,
and lack of building or property upkeep.
V. ENVIRONMENTAL REVIEW
Staff conducted an environmental analysis of the proposed rezoning and determined the change
in land use designation from commercial to residential would not have an adverse impact on the
environment. Because the General Plan has designated the properties for high-density residential
development, it has already considered impacts associated with the rezoning, to a large extent. In
its analysis, staff found that residential uses on the properties would, in general, generate less
traffic, air pollution, and noise than would commercial uses. Additionally, the proposed
rezoning would allow uses compatible with the surrounding residential neighborhood.
Staffs environmental analysis also noted that traffic noise from Tamarack Avenue and Carlsbad
Boulevard might impact residential development on the subject properties. However, the
analysis documents that traffic noise can be mitigated to a level of insignificance with proper
project design and mitigation, such as placement of garages toward the street, use of specific
building materials, and incorporation of certain architectural elements such as patio walls and
Plexiglas sound barriers. For further information, please see page 12 of the Environmental
Impact Assessment Form -Part II included with Attachment 1. When and if a project is
submitted under the proposed zoning, a full environmental analysis will be performed.
The project falls within the scope of the City's MEIR for the City of Carlsbad General Plan
update (EIR 93-01) certified in September, 1994, in which a Statement of Overriding
Considerations was adopted for cumulative impacts to air quality and traffic. An MEIR may not
be used to review projects if it was certified more than five years prior to the filing of an
application for a later project except under certain circumstances. The City is currently
reviewing the 1994 MEIR to determine whether it is still adequate to review subsequent projects.
Although the MEIR was certified more than five years ago, the City's preliminary review of its
adequacy finds that no substantial changes have occurred with respect to the circumstances under
which the MEIR was certified. The only potential changed circumstance, the intersection failure
at Palomar Airport Rd. and El Camino Real, is in the process of being mitigated to below a level
61
ZC 99-08/LCPA 00-01 -CARLSBAD BOULEY ARD/TAMARA CK ZONE CHANGE
January 3, 2001
Pa e 13
of significance. Additionally, there is no new available information, which was not known and
could not have been known at the time the MEIR was certified. Therefore. the MEIR remains
adequate to review later projects.
Since the project could not have a significant effect on the environment, the Planning Director
has issued a negative declaration. No comments were received during the required 30-day public
review period of the negative declaration.
ATTACHMENTS:
1. Planning Commission Resolution No. 4891 (Neg Dec)
2. Planning Commission Resolution No. 4892 (ZC)
3. Planning Commission Resolution No. 4893 (LCPA)
4. Background Data Sheet
5. Location and Surrounding Zoning Map
6. June 7, 2000 letter to property owners affected by the zone change
7. May 21, 1996 Agenda Bill and Council Resolution No. 96-168 declaring Council's
intention to rezone the affected properties
8. Copy of ABC order placing conditions on the alcohol license of Sandbar
Restaurant/Seaside Bistro
9. Zoning Ordinance Chapter 21.48, "Nonconforming Buildings and Uses"
SD:cs:mh
BACKGROUND DATA SHEET
CASE NO: ZC 99·08/LCP A 00•01
CASE NAME: CARLSBAD BOULEY ARD/TAMARACK ZONE CHANGE
APPLICANT: CITY OF CARLSBAD
REQUEST AND LOCATION: A Zone Change and Local Coastal Program Amendment to
amend the zoning designation of three properties on the east side of Carlsbad Boulevard between
Tamarack and Redwood A venues. No development is proposed.
LEGAL DESCRIPTION: Lots 1 and 2 in Block 'G' of Palisades in the City of Carlsbad,
County of San Diego. State of California. according to Map thereof No. 1747. filed in the Office
of the Recorder of said San Diego County. February 5. 1923; and Parcel 1 of Parcel Map 3713,
filed in the Office of the County Recorder of San Diego County on April 21. 1975 as file/Page
No. 75•092233 of Official Records.
APN: 204-253-13. -14. -20 Acres: ½ Proposed No. of Lots/Units: _N~/A~--------
GENERAL PLAN AND ZONING
Land Use Designation: RH {Residential High Density)
Density Allowed: 15-23 dwelling units/acre {Growth Management Control Point of 19 du/ac)
Density Proposed: :...N:.:...:/A:....:...,_ _______________________ _
Existing Zone: C-1 {Neighborhood Commercial) and C-2 {General Commercial)
Proposed Zone: R-3 {Multiple Family Residential Zone)
Surrounding Zoning, General Plan and Land Use:
Zoning General Plan Current Land Use
Site C-1 & C-2 RH Restaurant, house
North R3, BAO Zone RH Apartments
South RD-M, BAO Zone RH Condominiums
East R-3, BAO Zone RH House, apartments
West OS OS Carlsbad State Beach
PUBLIC FACILITIES
School District: CUSD Water District: CMWD Sewer District: CMWD
Equivalent Dwelling Units (Sewer Capacity): .:..N:.:.:/A:....:...,_ ______________ _
ENVIRONMENT AL IMPACT ASSESSMENT
rgi Negative Declaration, issued ""'Jun=e'-'8=2 ___ 00 ..... 0 _______________ _
D Certified Environmental Impact Report, dated ______________ _
D Other, __ '----------------------------/ ::, re'._;
SITE
Attachment 5 -Location and Surrounding Zoning Map
CITY ZONING LCP ZONING
EXISTING C-1: LEDGERWOOD C-2: LEDGERWOOD
C-2: SEASIDE BISTRO C-2: SEASIDE BISTRO
PROPOSED R-3, BEACH AREA
OVERLAY ZONE: ALL
PARCELS
R-3, BEACH AREA
OVERLAY ZONE: ALL
PARCELS
CARLSBAD BLVD/TAMARACK AVE
ZONE CHANGE
ZC 99-08/LCPA 00-01
Gttachment 6 -June 7, 2000 le. ~r to property owners
City of Carlsbad
l:.f Eieleh,t·l•J§•tbi 1114,JI
June 7, 2000
Mitze H. Eubanks
2061 Oak Glen Drive
Vista, CA 92083
RE: PROPOSED REZONING OF THE SEASIDE BISTRO PROPERTY
Dear Ms. Eubanks:
In May 1996, the City Council adopted Resolution No. 96-168 (copy attached),
declaring its intention to change the zoning designations of three neighboring
parcels along Carlsbad Boulevard to conform to the parcels' General Plan and
Local Coastal Program land use designations. One of these parcels is the
Seaside Bistro (Sandbar) property at 3878 Carlsbad Boulevard (Assessor's
Parcel Number 204-253-20). The other two parcels are at 3862 Carlsbad
Boulevard (APNs 204-253-13 and 14) and are owned by the Charles
Ledgerwood Trust. Since current County Assessor's information shows you as
owner of the Seaside Bistro property, I want to inform you that the Planning
Department has begun the process to propose a rezoning as intended by the
Council. The relevant case numbers are Zoning Amendment ZC 99-08 and
Local Coastal Program Amendment LCPA 00-01.
As proposed, the existing zoning designations on both the City Zoning Map and
Local Coastal Program Zoning Map would change from either neighborhood or
general commercial to multiple-family residential and Beach Area Overlay Zone
(see below). In compliance with state planning law, this would cause the zoning
to be consistent with both the General Plan and Local Coastal Program, both of
which designate the parcels as high-density residential. As you may know, the
proposed change also would be compatible _with all surrounding zoning
designations. The chart below details the proposed changes:
General Local Coastal Existing Zoning Proposed Zoning Plan Program Designations Designations Property Designation Designation
(no change (no change
Local Coastal City Local Coastal City proposed) proposed) Pmnram Program
Seaside RH RH C-2 C-2 R-3 R-3, BAOZ Bistro
Ledgerwood RH RH C-2 C-1 R-3 R-3, BAOZ Parcels
Key
RH = Residential High Density, 15-23 dwelling units per acre
C-1 = Neighborhood Commercial Zone
C-2 = General Commercial Zone
R-3 = Multiple Family Residential Zone BAOZ= Beach Area Overlay Zone
6------------------------------------.!:~ 1635 Faraday Avenue• Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 @
r PROPOSED REZONIN~F THE SEASIDE BISTRO PROPERl,
June 7, 2000
Page2
Besides the Council resolution, I have enclosed the following items:
1. The description of the General Plan RH land use designation
2. Zoning Ordinance Chapter 21.16, containing the R-3 Zone standards
3. Zoning Ordinance Chapter 21.82, containing the Beach Area Overlay
Zone standards •
4. The Environmental Impact Assessment Form -Part II and the
Negative Declaration prepared for the proposed zone change
The Negative Declaration mentioned above is a declaration by the City that the
proposed zone change will not have a significant impact on the environment.
The potential impacts analyzed and the reasons for the conclusion are contained
in the Environmental Impact Assessment Form -Part II. Currently, the Negative
Declaration is undergoing public review and comment. Thereafter, staff will
schedule the proposed zone change for public hearing review before the
Planning Commission and City Council. Finally, some time after Council action,
the California Coastal Commission must also consider the rezoning proposal
since it is an amendment to the Local Coastal Program Zoning Map change. I
expect the entire process may be completed toward the end of the year.
Before each public hearing, staff will mail you meeting notices, agendas, and
staff reports. If you have any questions about this letter or the proposed zone
change, I welcome your call. My phone number is 602-4618.
Yours truly,
~
Scott Donnell
Associate Planner
SD:cs
Attachment 7 -Ma:y ~l, 1996 Agenda Bill and Co cil Resolution No. 96-168
r CITY OF CAR~~BAD -AGENDA BILL
z
0
H E-t u ~
..:l H u z :::,
0 u
DEPT. CA
RECOMMENDED ACTION:
If Council concurs, your action is to adopt Resolution No. ,,-11,r, expressing an intention to
amend the zoning of the three parcels of real property along Carlsbad Boulevard from C-2,
general commercial zone, to RD-M or R-3, residential multiple family zone to conform to the
General Plan and Local Coastal Program designation for the property.
ITEM EXPLANATION:
One of the alternatives to the proposed entertainment ordinance the Council wished to discuss
was the consideration of adoption of a Resolution of Intention to begin the process of rezoning
of the properties that are the subject of this agenda bill. At its meeting of April 9, 1996, it
directed staff to return with documents enabling the process to begin.
At its meeting of May 7, 1996, the Council continued this item to May 21, 1996, at the request of
one of the affected property owners.
The recommended action sets in motion a process which will begin the study of the three
affected properties and direct the Planning Director, upon completion of those studies, to return
through the Planning Commission with a recommendation to the City• Council as to whether or
not a rezoning is appropriate. The recommended action in this agenda biU-does not make any
changes to the underlying zoning at this time. Public hearings before both the Planning
Commission and City Council are· required prior to taking any final action on rezoning.
Appropriate notice of· these hearings will be given to all affected pro~rties and parties as
required by law.
The current zoning designation of C-2 for the subject property, hereafter listed, is inconsistent
with the City's General Plan and Local Coastal Program which designate the property RH,
residential high density (15-23 du/ac). •
Parcel No. 204-253-13-Lot Two (2) in Block •G• of PALISADES in the County of San Diego, •
State of California, according to Map thereof No. 1747, filed in the Office of the Recorder of
said San Diego County, February 5, 1923. The property owner is Charles Ledgerwood.
Parcel No. 204-253-14 -Lot one (1) in Block ·o· PALISADES as per Map thereof No. 1747 filed
in the Office of the Recorder of said San Diego County, February 5, 1923. The property owner
is Charles Ledgerwood. Parcels 13 and 14 are used currently as a retail seed store.
Parcel No. 204-253-20 -Parcel 1 of Parcel Map No. 3713, filed in the Offi~ of the County
Recorder of San Diego County on April 21, 1975 as file/Page No. 75-09(i)2233 of OfflCial
Records. The property owner is Mitze Eubanks. The property is used currently as a restaurant
and bar. b 7
~ Govemment Code ~ ...... 1ion 65860 requires that under the "consistency doctrine· loc:
governments must maintain their zoning in a manner consistent with their general plans. Thu~
the existing zoning designation for this property should be amended to conform to the Genen
Plan. In addition, the Mello II land Use Plan of the City's Local Coastal Program is consister
with the General Plan (designating the site RH) and the zoning designation for the propert
should also be consistent with the LCP. The zoning designations that implement the R~
classifications are RD-M (Residential Density-Multiple Zone) and/or R-3 (Multiple-Famil:
Residential Zone). As part of the zone change process, staff will be making a recommendatior
as to which designation would be the most appropriate.
This resolution directs the Planning Director to conduct all necessary studies, notices, anc
reports regarding the recommended zone change, and bring the matter without undue dela}
before the Planning Commission for public hearing and recommendation to the City Council.
Upon rezoning, CMC § 21.48.050 requires that all nonconforming uses and nonconformin~
buildings in any R-Zone shall be discontinued within a designated amortization period set forth
in the municipal code. It is the responsibility of the Plahning Commission to determine whether,
by reason of structural alterations or the installation of major equipment prior to the date of the
ordinance, it is deemed necessary to establish a later date_ for abateme~t in order to ensure that
the investment represented by such alterations may be amortized. The Planning Director has
prepared a summary of the department's scheme to implement a program to resolve identified
inconsistencies in zoning and the General Plan, a copy of which is attached hereto as Exhibit
• A •. This summary includes a more detailed discussion of the restrictions -imposed on a legal,
nonconforming use.
FISCAL IMPACT:
The suggested action will require staff time for processing, and the actual cost of notice and
publication. •
EXHIBITS:
1. Resolution No. 9 IP -10 8'
2. Parcel Location Map.
· 3. Exhibit "A".
r-
-----------
0
~1&11
II')::,, -i£ rs •
j~"'s
<~~<! Ill> J a: !::
CU Cl
..J. ':I
it;~ ~i c ~ t.' ! <! t: -~ l)
1
2
3i I
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11 ,
i2 '.
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14,
15
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24
26
26
27
28
RESOLUTION NO. 96-168
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA DECLARING THE INTENTION TO
AMEND THE ZQblJNG. DESIGNATION FOR T.HBEE
eABC~LS LO~ ALONG CARLSBAD BOULEVARD
F_RQM_ e-2 TO R-H TO CONFORM WITH THE GENERAL
PtAN Af!lD LOCAl. 'COASTAL PROGRAM FOR THE
PROPERTY.
WHEREAS, three oarcels of real property, located at
the northeast comer of Carlsbad Boulevard and Tamarack Avenue is
currently zon~ C-2, ge~ral commercial, according to the City of Carlsbad
zoning map; aAd..
WHEREAS, the curre~art~ Land Use General Plan and Local Coastal
Program both designate the propel(ty as ROM, residential multiple family zone; and
WHEREAS, Public Re'8e1.1Jra&,'Code section 30108.5 refers to the local
Coastal Program as a portion of the City's General Plan and Government Code section
65860 provides that the zoning designation for a property shall be consistent with t' •
General Plan Land Use desi_gnation,
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 it is the intention of the City Council to amend the zoning designation·
for the above referenced property to be consistent with the Local Coastal Program and
General Plan for the property by rezoning the property to ROM or R-3, as appropriate.
3. The City Council directs the Planning Director to conduct the necessary
studies, notices, and reports and bring the matter without undue delay before the Planning
Commission for public hearing and recommendation to the Council.
,.
0 iwl _, ~ ":' ~c8
::I ~ ~ Sl
cO~< m -i:ci;5l r o 0 c!2 ~-•-C > m ,l z III en u ocrz~. a: C 0 ~oi
< §'.:'.3 ~ -~ 13 0
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,
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4
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7
8
9
10
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12
13
14
15
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21
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26
27
28
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City
Council of the City of Carlsbad on the 21st day of _..;;.;MA=Y:....-_1996 by the following I
vote, to wit
AYES: Council Members Lewis,· Nygaard, Kulchin, Finnila
ATTEST:
NOES: None
ABSENT: None
ABSTAINED:
(U,.tj.,,, ' Tu?,, u&A... ry ALETHA L. RAUTENKRANZ, City Clerk
2
70
,.
PACIFIC
OCEAN
NOT TO SCA~[
PROJECT NAME
LOCATION MAP
Cffl' 0/f CICEMIIDC
CARLSBAD BOULEVARD
EXHIBIT
-11
2 -
..
♦
••
As part of the rt. ..:nt General Plan update, se~ -JI properties were identified
where the zoning and the General Plan designation are inconsistent (e.g.
Zoning is commercial, General Plan designation is residential)
►
The properties on which the Sandbar and the adjoining seed business art::
located are one of these (there are 4 other properties with similar situations)
• One of the implementation programs of the General Plan is to resolve these
identified inconsistencies (Program C.16, Page 28)
• Regardless of the present controversy regarding the Sandbar, tf:le property
would have been considered for rezoning as part of the General Plan
implementation program
• If rezoned from commercial to residential, the Sandbar and the Seed business
would become Legal, Non-Conforming Uses
• As a Legal, Non-Conforming Use:
1) No new, additional uses can be established on the property until the non-
conforming use is removed
2) No expansions, alterations or repair of the non-conforming use can occr
unless:
a) it is destroyed by a fire or an act of God to an extent not.more than
25% of the replacement value
b) incidental reconstruction, repair or rebuilding not to exceed 10% of
the building replacement value
c) A conditional use permit is granted by the Planning Commission
allowing up to maximum of 50% of the replacement value. In
granting this conditional use permit, an abatement date must be
established for the use
3) If the non-conforming use vacates or closes for more than six months, it
loses it's legal non-conforming status
4) The Planning Commission may establish a period of time and conditions
for abatement of a non-conforming use. This is a discretionary procedure
under Chapter 21.48 for consideration of removal of non-conforming uses
and buildings, and would have to be initiated by the city; it is not
automatic.
. ? :J.
EXHIBITA
'..;j
AJmmulr&. Cados and ~.aJIZC Bubak•
47•2273S4
96037655
Pa,e 11 Attachment 8 -ABC order with conditions on alcohol license
V
lt was atab&.W 1bat on or about Nowmiber 14, 1995, Re.p,ndenrs ,we :POtificd of
a:ad failed to tu:,: rca.VJDabJc •• lo correct objectionable cxmditiom OD the J.i0en1ed
premises. iDc1udiq the immediately acUacm. mca &bat» owned, te.ed, or ie:ar,,d by the
licensee. lbal COUS1iJ1Jte a nuisance witbiD a reuoaable time a"-notioe to 1118b thole
comx:tions. in -..iolaticm of Businca BIid 'Pn:m:aaion& Code RClioo 24200(c) u s:it fodh
In 'Flindin& VIL A1dKmgh same m:ps were tab:D. they WCR ineffective.
'VI
cause for suspension er mvoca&i0D of Respondenll' ltceme was embllshed..
Continnatkm of the licease would be ccmtnry tD public welfare a:ad marall punaant to
Article: XX. Sec1ion 22. of lbc Coa,umlioa of dao State of Califomia, and Business and
Professions Code Sectiam 24200(a). (b) and (e) In coopacttaa with Section 25601 of
1aid Code. Sections 370 and 373a or I.he Penal Code and Section 3479 of Ille Ciffl
Code by reason or me Pmdinp and Detemllnatlons made hrmn.
ORPII
R.esp>ndenb' Jims ii ha'eby m'Obcl, pnmcb!. ~. ■aid revoc;adaa is atayed. for
a~ of two yeas from the date of the Depu'lment's decisioll upon compUance Will
die fottowlng COFMti&im11: •
I. TM Hawe shall be suspended for twm1y-ft'Ve (25) days.
2. Wl1bin 6filt:en (15)-flom die date af lbe Depanmem'I Decillcm. Respandcnta
&hall pcdlioD. daat 1he llceme be subjecl ID Che foJlowina cond1dom:
A. Sale&p ID'Vice mad coasmuptioa of. alcoholic hrNenpl shall be pem,ined only
becweoo r:be hours of 9:00 a.m. wl 12.-00 midm1be
B. Lift~ &Gd dallclnl shaJI be permitted cmly betwem. dmhaan af 3:00
p.m. and 10:00 p.m. fnml SUw.y tmough Thunday and between 3:00 p.m. and
rn.lctnlght OD Fdaay aacl SatardlJ.
C. EabtrtainmmtPl'OVided shall tlOt bc audible 11e,a Ille pranises putina .-. •
depicred on form ABC-257.
D. Th& sala af alcob.o1ic ~ for consumpuon off pnma.i&C5 i1 prohl1,ltad.
E. 0a Diabta wha live entertainment is pn,Tkbl. t= Ua:mm:(1) aball pn,vid8 at least
two licemad m1 llDifaamd aecnrity pazds ~ tbe bm:n of 9:00 pm aacl
cloelq, who sball rnmtain mda' wiebin 1he premirs and $U11'0ID1din1J --, iDcmdmg
lhe partiq lot. to Jll'CftDI L1tYfty wbicb ,'Ollld interfere with die qmca CIQOYJDCm or
73
-
,.....,
Atmendia. Cadoe wl Mita,. Jubmb 47.221354
9603'16SS
Pa,ell
tba JJIQPOfl1 ~ marby rcaidaalL 'I'beee duties ab.all .inelu& IIVJlritorinl 1ICdlC levels
and pdlllll activity to UIIU8 compliance wi1b the MDCUtkml rm. d1e Urme..
F. VUJdowa and doof's ~~IC• ,mall mnaill cloeed when CDtilrblinmc:m, liw
or reconlcd, is·bcial Doom may be opcacd to pcnmt inpesa. eanes a.ad deliverit& -•
G. Thls1l from 'the yen,. tball natbe dnmped Imo du, alltSldc b8Bhdlln:qm,r afbsr
9:00 p.m. ot llefcHe 7:00 a.m.
3. That DO CBIIIC far dieaipllmry actioa OCJGUd within the '1ayed, pedocl.
4. Rcapoaden,' failum 1D pctitim f« the c:oaditiona .tatecl abovo widain 15 days of the
Departments Decfsioa will ICllllt m ftaltiua tho stayed Otdar ol icWJC81ion am the:
licew will be revoked wilhout flll'1her action.
If eaae tor dlaclpllnaEy acdon ocxxn during t1ac -,eel period, die Dba:ur ~ the
~ 0111Y.1 i:8 hia diacn,tion and. witbaut fmthcr l:ariu&, Vlalte this day Older ad
JalllpolO tho ORlor of nwocadoll 01' take such odlm-~. Che Diredor dccmajust and
...,..,,hle lD bis ctiacrctioD. aacl a1aaa1c1 no audJ. dctmmmatioa be 1IUlda. at till ena or Ole
&TIO 1fJl&'t period of • .,, said stay abaJl become pcrmauat.
Dllr4NIRill23,l997
..
?1
Attachment 9 -Zoning Ordinance Chapter on "Nonconforming
Buildings and Uses"
Chapter 21.48
NONCONFORMING BUILDINGS AND
USES
Sections:
21.48.010
21.48.020
21.48.030
21.48.040
21.48.050
21.48.060
21.48.070
21.48.080
21.48.090
21.48.100
Limitation on other uses.
RemoYal of nonconforming
buildings or change in status of
nonconforming use.
Application of chapter.
Nonconforming land use when
no-structure inYolved.
Nonconforming use of a
conforming building.
RemoYal of nonconforming
buildings.
Commission to determine
conditions of abatement.
Alteration. repair or expansion
of nonconforming uses.
Alteration of building when
nonconforming by reason of
inadequate yards.
Public utility exemptions.
21.48.010 Limitation on other uses.
While a nonconforming use exists on any lot.
no additional use may be established thereon. .
even though such use would be a conforming
use. (Ord. 9060 § 1700)
21,48.020 Removal of nonconforming
buildinss or change in status of
nonconforming use. ,
If any nonconforming building is removed,
every future use of the land on which the building
is located shall conform to the provisions of this
title. If a nonconforming use vacates and is suc-
ceeded by anQther and more restrictive use, it is
evidence that the heavier nonconforming use
was ended and thereupon immediately loses any
vested right as such. If the substitute use is itself
731
nonconforming, the degree of nonconfonnit'"'-
may not subsequently be increased by changi.
to a less restricted use. (Ord. 9060 § 1701)
21.48.030 Application of chapter.
The provisions of this chapter shall apply to
buildings, lands and uses which hereafter
become nonconforming due to any reclassifica-
tion of zones under this title. (Ord. 9060 § 1702)
21.48.040 Nonconforming land use when no
structure involved.
In any zone the nonconforming use of land
wherein no structure is involved shall be abated
within one year from the date the ordinance
codified in this title becomes applicable, and any
future use of such land shall conform to the
provisions of this ordinance. If the nonconform-
ing use ofland existing at the time this ordinance
takes effect is thereafter discontinued for six
months or more. any future use of such land shall
conform to the provisions of this title. (Ord. 9060
§ 1703)
21 .48.0SO Nonconforming use of a
conforming building.
(a) IN R ZONES. All nonconforming uses of
a conforming building in any of the R zones shall
be discontinued within three years from the date
of formal notice to the owner from the planning
commmion. or not later than five years from the
date the provisions of this ordinance becomes
applicable to it.
(b) INC ZONES. Every nonconforming use
of a conforming building in a C zone which use is
first pennined in a less restrictive zone shall be
completely removed before the expiration of a
ten-year period measured from the date the ordi-
nance codified in this title bc:comes applicable to
it.
(c) IN M ZONES. The nonconfonning use of
a conforming building which is devoted to any
residential purpose, hospital ( except emergency
hospitals), hotel, institution or home for the
treatment of convalescent persons, alcoholics,
21.48.050
the wounded or mentally infirm. lodging.houses.
schools. trailers used for human habitation. or
trailer parks. shall be completely removed before
the expiration of a ten-year period measured
from the date the ordinance codified in this title
becomes applicable to it. ( Ord. 9060 § I 704)
21.48.060 Removal of nonconforming
buiJdings.
(a) IN R ZONES. Every nonconforming
building in any of the R zones. except residential
buildings. churches and schools. which noncon-
forming building was designed _or intended for a
use not permitted in the R zone in which it is
located. shall be completely removed or altered
to structurally conform to the uses permitted in
the zone in which it is located within the herein
specified times upon notice from the planning
commission. which time is measured from the
date of construction. In no case shall this period
of ti~e be less than five years from the date of
notification by the planning commission. As
used in this section the designations ··Type I
Building··. "Type 2 Building". ·•Type 3 Build-
ing··. ··Type 4 Building" and '"Type 5 Building ...
are employed as defined in the existing building
ordinance:
( I ) If property is occupied by structures of a
type for which the existing building ordinance
does not require a building permit -One year:
(2) Type 4 or Type 5 buildings (light com-
bustible frame and wood frame) -Fony years:
(3) Type 2 or Type 3 buildings (heavy timber
construction and ordinary masonry):
( A) Apanments. offices. hotels or residences
having stores or offices below and apartments or
offices above -Thirty-five years.
( B) Warehouses. stores. garages. lofts -Thir-
tyfi ve years.
(C) Factories and industrial -Fony-five
years:
( 4) Type I Buildings (fire resistant):
(A) Offices and hotels -Forty-five years.
( B) Theatres -Fifty years.
732
(C) Warehouses. lofts. stores. garages
Forty-five years.
(D) Industrial -Thirty-five years:
(b) IN C ZONES.
(I) Residential structures in a ·•C" zone exist-
ing on the effective date of the ordinance codified
in this title shall be considered as nonconforming
uses and as such; shall be subject to those provi-
sions _of this ordinance which provide that a non-
conforming building removed or destroyed may
not be replaced by other than a conforming
building. Structural alterations or enlargements
may be made: provided. that the degree of non-
conformity may not be increased by changing to
a less restricted residential use or by reducing
yard widths less than the prescribed minimum
required in R-3 zone:
(2) Every nonconforming building in a C
zone which is designed for a use first permitted in
an M zone shall be completely removed or
altered to conform to those uses permitted in the
C zone in which such building is located within
the herein specified times. upon notice from the
planning commission. which times are measured
from the date of construction except that in no
case shall this period of time be less than five
years from date of such notice by the planning
commission. As used in this section. the designa-
tions .. Type I Building··. "Type 2 Building"·.
·•Type 3 Building"' ... Type 4 Building·· and "Type
5 Building"' are employed as defined in the exist-
ing building ordinance:
(A) Where property is unimproved except for
structures of a type for which the existing build-
ing ordinance does not require a building permit
-One year.
(B) Type 4 or Type ; buildings (light com-
bustible frame and wood frame) -Forty years.
(C) Type 2 or Type 3 buildings (heavy timtx..
construction and ordinary masonry):
(i) Apanments·. offices. hotels or residences
having stores or offices below and apanments or
offices above -Thirty-five years
(ii) Warehouses. stores. garages. lofts -
Thirty-five years
•
•
•
•
•
<iii) Factories and industrial -Fony-five
years
(D) Type I buildings (fire resistant):
(i) Offices and hotels -Fony-five years
(ii) Theatres -Fifty years
(iii) Warehouses. lofts. stores, garages
Fony-five years
(iv) Industrial -Thiny-five years.
(c) IN .. M .. ZONES.
( 1) Residential structures in an .. M .. zone
existing on the effective date of the ordinance
codified in this title shall be considered as non-
conforming uses and assuch, shall be subject to
those provisions of this ordinance which provide
that a nonconforming building removed or
destroyed may not be replaced by other than a
conforming building. Structural alterations or
enlargements may be made: provided. that the
degree of nonconformity may not be increased
by changing to a less restricted residential use or
by reducing yard widths less than the prescribed
minimum required in R-3 zone .
C2) Every nonconforming building in the
"M" zone which is used for. or devoted to. any
hospital ( except emergency hospitals). hotel.
institution or home for the treatment of con-
valescent persons. alcoholics. the wounded or
mentally infirm. lodginghouses. schools. trailers
used for human habitation. or trailer parks. and
which nonconforming building was designed or
intended for a use not permitted in the ·•M" zone
in which it is located. shall be completely
removed or altered to structurally conform to the
uses permitted in the zone in which it is located
within the herein specified times upon notice
from the planning commission. which times are
measured from the date of construction. except
that in no case shall this period of time be less
than five years from the date of such notice. As
used in this section the designations ·•Type I
building"'. "Type 2 building". ·•Type 3 building ...
"Type 4 building". and ·•Type 5 building" are
employed as defined in the existing building
ordinance:
733
:1.48.060
(A) Where propeny is unimproved except fr -
Structures of a type for which the existing buila-
ing ordinance does not require a building permit
-One year.
(B) Type 4 or Type 5 buildings (light com-
bustible frame and wood frame) -Fony years.
(C) Type 2 or Type 3 buildings (heavy timber
construction and ordinary masonry):
(i) Apanments. offices. hotels or residences
having stores or offices below and apanments or
offices above -Thiny-five years
(ii) Warehouses. stores, garages. lofts -
Thiny-five years.
(iii) Factories and industrial -Fony-five
years.
(D) Type I buildings (fire resistant):
(i) Offices and hotels -Forty-five years
(ii) Theatres -Fifty years
(iii) Warehouses. lofts. stores. garages
Fony-five years
(iv) Industrial -Thiny-five years. (Ord.
9088 §§ I. 1: Ord. 9060 § 1705)
21.48.070 Commission to determine
conditions of abatement.
When any nonconforming condition exists in
any zone. other than the nonconforming use of
land when no structure is involved. it shall be the
responsibility of the planning commission. on its
own initiative. to fix a date upon which the non-
conforming building was established. 1t shall also
be the responsibility of the planning commission
to determine whether. by reason of structural
alterations or enlargements, or the installation of
major equipment designed into the building
prior to the date the ordinance codified in this
title becomes applicable thereto. it is deemed
necessary to establish a later date for abatement
than that prescribed herein for the building itself
in order to assure that the investment repre-
sented by such structural alterations. enlarge-
men ts or equipment installations may be
amonized. In performing this function the com-
mission shall consider all peninent data in con• _
nection therewith to provide the opponunity for
?7
21.48.070
the owner of record. or lessee if there be such. to
present such evidence as they may possess-and
which properly relate to such case. When the date
of abatement has been determined. the commis-
sion by resolution. shall establish such date and
shall set forth such facts as bear upon the case
upon which the determination of such date of
abatement is based. and shall formally notify the
owner of such nonconforming propeny of the
action of the commission by mailing to such
owner a copy of the formally-a_dopted resolution
not later than ten days following the date ofsub-
ject action by the planning commission. (Ord.
9060 § 1706)
21.48.080 Alteration. repair or expansion of
nonconforming uses.
(a) Except as provided in this section. a non-
conforming use or building shall not be altered.
improved. reconstructed. restored. repaired.
intensified. expanded or extended.
--(b)A ...... nonconforming building destroyed to
the extent of not more than twenty-five percent
of its replacement value as determined by the
building and planning director at the time of its
destruction by fire. explosion. or other casualty
or act of God. or public enemy. may be restored
and the occupancy or use of such building. or
pan thereof. which exists at the time of such
panial destruction may continue subject to all
other provisions of this chapter. Such restoration .
shall not extend the time of abatement as estab-
lished by this chapter.
(c) Incidental reconstruction. repair or
rebuilding of a nonconforming building ren-
dered necessary by ordinary wear and tear and
which does not increase the degree of nonconfor-
mity of a nonconforming building. nor increase
the degree or size of a_ nonconforming use may be
made. provided that:
( I) The aggregate value of such repairs or
alterations shall not exceed ten percent of the
building's replacement value at the time the
building permit is applied for as determined by
the building and planning director:
I -...
734
(2) That such reconstruction. repair or
rebuilding complies with the provisions of Title
18 of this code;
(3) Such repairs. reconstruction or rebuilding
shall not extend the time of abatement estab-
lished by this chapter.
(d) A nonconforming use or building may be
altered. improved. reconstructed. restored.
repaired or extended as may be pennined by the
planning commission upon granting of the con-
ditional use permit. processed according to the
procedures established in Chapter 21.50 of this
code. Before a conditional use permit may be
granted all provisions of Chapter .:? 1.50 shall be
met and it shall be shown that:
( I) The aggregate value of the proposed altera-
tion. improvement. reconstruction. restoration.
repair or extension shall not exceed twenty-five
percent of the total replacement at the time the
conditional use permit is applied for as deter-
mined by the building and planning director of
all improvements on the site unless the building
or structure is changed to a conforming use. Such
aggregate value may be increased up to fifty per-
cent of total replacement for those uses which
provide a pubbic service traditionally provided
by the city:
(2) The proposed alteration. improvement.
reconstruction. restoration. repair or extension is
of a .type of structure that is specifically designed
to be easily removed:
(3) The proposed alteration. improvement.
reconstruction. restoration. repair or extension
meets all construction setback. coverage. plan-
ning and all other applicable requirements of this
code.
• In approving such conditional use permit. the
planning commission shall establish a date by
which all nonconforming structures and uses
shall be made conforming or removed from the
site. In no event shall the date for such removal or
compliance extend beyond the date set according
to the provisions of this title for abatement of the
existing nonconforming use. Extensions of said
date for abatement shall be perm~ned only upon
•
•
•
•
•
•
approval of amendment of the conditional use
permit and. then. only upon showing of good
cause. A conditional use permit or amendment
shall be effective only upon execution by the
applicant of wrinen acceptance of the condi-
tional use permit. or amendment. Such accept-
ance shall include an agreement by the applicant
to remove all nonconforming uses and buildings
or structures. or make them conforming, on or
before the date for removal established by the
conditional use permit or amendment in
exchange for permission to alter, improve.
reconstruct. restore. repair or extend.
The land use planning manager shall cause
such conditional use permit, complete with
abatement date. or any amendment to the condi-
tional use permit. extending an abatement date.
to be recorded at the office of the county recorder
within five days after the issuance of the permit
or amendment. Any alteration. improvement.
reconstruction. restoration. repair or extension
undenaken pursuant to the conditional use per-
mit shall be commenced within three months
after the issuance of the permit unless an exten-
sion is granted by the planning commission.
le) No nonconforming building, structure. or
use shall be changed to any other nonconforming
use. building or structure. (Ord. 1261 § 50. 1983:
Ord. 1256 § 7 (part), 1982: Ord. 9538 § 2. 1979:
Ord. 9060 § 1707)
21.48.090 Alteration of buiJding when
nonconforming by reason of
inadequate yards.
Where a building or buildings. and customary
accessory buildings are nonconforming only by
reason of substandard yards or open spaces. the
provisions of this title prohibiting structural
735
:I.48.080
alterations or enlargements shall not apply: prr -
vided. that any structural alterations or enlarge-
ments of an existing building shall conform to
the following:
(!) That such nonconforming structure may
be enlarged or extended to the same degree of
nonconformity as may exist but in no event shall
such addition or enlargement encroach closer
than three feet to any side yard lot line.1en feet to
·any front line or five feet to any rear lot line:
(2) That any such enlargement shall not
increase the floor space more than fony percent
of that existing prior to such enlargement. (Ord.
9060 § 1708)
21.48.JOO Public utility exemptions.
The foregoing provisions of this chapter con-
cerning the required removal of nor:iconforming
buildings and uses and the reconstruction of
nonconforming buildings panially destroyed.
shall not apply to public utility buildings and
structures when such buildings and structures
penain directly to the rendering of the service or
distribution such as power generating plants and
electrical distribution substations: water wells
and pumps: gas storage. metering and valve con-
trol stations. Nor shall anything in this article be
construed or applied so as to prevent the expan-
sion. modernization or replacement of such pub-
lic utility buildings. structures. equipment and
features as are used directly for the delivery of. or
distribution of. the service: provided the provi-
sions of this section shall not exempt from the
provisions covering nonconformity of such
buildings. structures. or uses as do not immedi-
ateJy relate to the direct service by consumers.
such as warehouses. storage yards and the like.
(Ord. 9060 § 1709)
--
PLANNING COMMISSION January 3, 2001 Page~JHIBIT 6
13. ZC 99-08/LCPA 00-01 -CARLSBAD BOULEVARD/TAMARACK ZONE CHANGE -A city-
initiated amendment to change the City and Local Coastal Program zoning map designations of
three contiguous properties for Neighborhood Commercial and General Commercial (C-1 and C-2
respectively) to Multiple-family Residential (R-3) and Beach Area Overlay Zone. The affected
properties are at 3862 and 3878 Carlsbad Boulevard and includes the Seaside Bistro. No
development is proposed with this amendment.
Project Planner, Scott Donnell presented the staff report as follows: This is a request for a Zone Change
and Local Coastal Program Amendment to re-zone from commercial to residential. The re-zoning is
consistent with General Plan and the Local Coastal Program designations. It affects the Seaside Bistro and
the Ledgerwood parcels. The Seaside Bistro is a single parcel, approximately 14,000 square feet, at the
corner of Tamarack Avenue and Carlsbad Boulevard. Just to the north of the Seaside Bistro parcel are two
parcels owned by the Charles Ledgerwood Trust, at the corner of Carlsbad Boulevard and Redwood
Avenue. This is a City initiated amendment and there is no development proposed or other physical
changes proposed to the existing uses on the properties. These lots are similar (rectangular) to the other
lots in the area and are approximately 4,600 square feet in size. Adjacent to the Ledgerwood property are
some large, single-family homes and behind the Seaside Bistro is an apartment building. The Seaside
Bistro has a long history. The property began as a snack shop, was eventually expanded to become the
Captain's Anchorage, purchased by Mitze Eubanks in 1986 and the name was changed to the Sandbar
Restaurant. In 1999, Ms. Eubanks sold th~ business, but not the property, to the current owners, Jim and
Monica DiMaggio. In the year 2000, the DiMaggio's changed the name of the restaurant to the Seaside
Bistro. The Seaside Bistro has both Local Coastal and City Zoning designations of C-2 for General
Commercial. On the other hand, the Ledgerwood parcels have designations of C-1 and C-2. Nevertheless,
the existing zonings are commercial and the proposal is to change all of those zonings to Multiple-family-
Residential or R-3 and also Beach Area Overlay. All of the properties in the beach area have this Beach
Area Overlay zoning designation. The proposed zoning will provide consistency with State Planning law.
There is a fundamental planning law that requires all California jurisdictions to have zoning that is consistent
with the General Plan. The re-zoning will also achieve neighborhood zoning in terms of compatibility with
the surrounding zoning as well as the surrounding land uses. Currently, development on the property is
stymied; you have a General Plan that calls for residential and the zoning, on the other hand, that calls for
commercial. The Seaside Bistro, for example, cannot expand. Any expansion could not be found to be
conforming with the General Plan. The proposed re-zoning also enables implementation of the General
Plan Policy that says that the city is to correct any inconsistency between the zoning and the General Plan.
Finally, it also implements the City Council Resolution of Intention that the City Council passed back in
1996. This resolution declared the Council's intention to change the zoning of the Seaside Bistro and the
Ledgerwood parcels from commercial to residential, primarily to be consistent with the General Plan. The
resolution also directed Staff to begin processing that re-zoning. Reasons for the passage of the Resolution
of Intention to fix the zoning and consistency and also to address the problems occurring at the Sandbar,
now the Seaside Bistro. Sometime in the late 1980's or early 1990's, the Sandbar Restaurant changed from
a primary use of a restaurant to a bar use with live music. The problems that the city, the Alcoholic
Beverage Control Department (ABC), and the neighbors experienced occurred primarily in the early to mid
1990's. Some of the problems were loud music, activity beyond midnight and past 1 :00 a.m. and 2:00 a.m.,
fighting both inside and outside the restaurant, public drunkenness, and vandalism. One of the problem the
Seaside Bistro and the prior restaurant had and still has, is a lack of adequate parking. They are
approximately twenty to twenty-five spaces short. That contributed to the problem of the Sandbar patrons
parking in the surrounding neighborhood on Redwood Avenue and Garfield Street. That was a problem,
mainly because the problems associated with fighting and public drunkenness were carried forward into the
residential neighborhoods. They weren't concentrated on the premises of the Sandbar. Of course these
problems contributed to neighborhood complaints and there were also several arrests by Carlsbad Police.
In response, the Sandbar hired extra security and they also made improvements to the building to try to
attenuate some of the noise. The city sought a voluntary reduction in the Sandbar's business hours. The
Sandbar did not reduce its hours and the city also considered passing an entertainment ordinance that
would restrict noise after 10:00 p.m., but there was no action taken on that ordinance. Parking studies were
also considered and the final option, the Resolution of Intention, was what was actually done. While the city
PLANNING COMMISSION January 3, 2001 Page 30
Corrected
and the Sandbar were considering these responses, the ABC was also looking at the situation. They
received a number of complaints and in the early 1990's the ABC sent letters to the Sandbar saying that it
had received complaints and if the problems weren't satisfactorily addressed, it might have to take
disciplinary action. In 1996, the ABC actually filed an Accusation Against Respondents in which the ABC
alleged several problems such as; 1. The Sandbar kept a disorderly house; 2. The restaurant wasn't
responding to the problems that it was causing; 3. That it was creating a Police enforcement problem; and
4. That it was basically not being a good neighbor. Finally the ABC took the action after holding a local
hearing here in the Council Chambers to revoke the Sandbar's alcohol license. Along with that revocation
there was a requirement that said that revocation could be stayed, subject to some conditions. One of the
conditions was that if the Sandbar could demonstrate, over a two year period, that they could comply with
the conditions, the revocation would be stayed permanently. The ABC action was appealed by the Sandbar
and became effective in March, 1999. Some of the conditions placed on the alcohol license were; no live
entertainment or alcohol sales beyond midnight; no audible entertainment at any time beyond the Sandbar
premises; no use of the outside trash dumpster after 9:00 p.m.; and finally, if live entertainment was
provided, that the Sandbar provide patrolling security, both on the premises and in the surrounding
neighborhood. Since 1997, complaints against the sandbar have generally ceased. In 1999, the Sandbar
and it's alcohol license with the conditions, were sold, and in the year 2000, the Sandbar was re-named The
Seaside Bistro. The current owners of the Seaside Bistro indicate that it is a restaurant use and is no longer
a nightclub with live entertainment. If the parcels are re-zoned, high density residential development will be
permitted. The Beach Area Overlay Zone and also the recommended additional zoning restricts building
heights and densities and the re-zoning will enable uniform zoning use and development standards to be in
place throughout the neighborhood. Most of the adjacent properties have the R-3 designation as well as
the RH General Plan designation. What is being done now is clearly consistent with the surroundings. If
the properties were to develop, residentially, under the proposed zoning, it is possible that each
Ledgerwood parcel could build one to two units each. The Seaside Bistro parcel, since it is larger, could
have up to four to six units. With residential development there is generally less pollution, less traffic, and
less noise. Standard traffic formulas indicate that traffic generated by a restaurant use is significantly higher
than generated by a residential use. The facts of the re-zoning are; if the re-zoning goes through, the
Seaside Bistro would become legally non-conforming. Commercial uses, such as a restaurant, are not
permitted in a residential zone. Staff does not think re-zoning will effect the Ledgerwood parcel because the
seed business that was formerly housed on the property was sold and relocated outside of Carlsbad. For
the Seaside Bistro, because it would become a non-conforming use, it could not improve, expand, or
intensify. An addition could not be added on that would intensify or expand the restaurant. If the restaurant
were to be destroyed, a new non-conforming use could not take its place. However, if the restaurant were
sold, the restaurant could remain and would still be considered legally non-conforming. In addition, repairs
can be made to repair ordinary wear and tear to the restaurant building. Because it is a non-conforming
use, the city has the option to abate, or order a time when the use is to be terminated. That decision to
abate is entirely up to the Planning Commission on its own initiative. To determine an abatement schedule
some things would have to be determined about the building, such as the date it was established, the type
of building it was, and what significant improvements have been made to the building. If a decision is made
on abatement, the code requires a minimum five year abatement period. Staff's recommendation on
abatement is that no abatement period be established. Without an abatement, restrictions will still remain
on the use, expansion, and improvement of the property. As always, the city maintains the option to abate if
it determines that abatement is necessary. Finally, with the environmental review, Staff found that there are
no environmental impacts associated with the re-zoning. When development occurs on the properties, the
environmental review for the type of development proposed will be performed at that time.
Commissioner Nielsen stated that it is his understanding that even if there was no expansion restriction, the
Bistro would not have the room to expand, especially since they are currently under-parked. He further
commented that all the Commission is doing is allowing the city to abate the restaurant, if the Commission
so chooses.
Mr. Donnell replied that he is correct.
Commissioner Baker asked if there is a way to leave the restaurant zoned as Neighborhood Commercial. -•.
PLANNING COMMISSION January 3, 2001 Page 31
Mr. Donnell explained that the restaurant is currently zoned General Commercial. He added that the city
has both State law and General Plan policy that requires the city to bring the zoning into conformance with
the General Plan.
Ms. Mobaldi interjected and stated that there is a way and that way is to change the General Plan
Designation in order to be consistent.
Commissioner Baker asked how the General Plan is changed.
Ms. Mobaldi replied that it is changed with a General Plan Amendment.
Commissioner Baker asked if that is a long and involved process.
Ms. Mobaldi replied that it would begin with the Planning Commission and move on to the City Council.
If a General Plan Amendment was affected, Commissioner L'Heureux asked if the two properties would be
dealt with separately.
Ms. Mobaldi replied that, theoretically, they could be dealt with separately. One could be left commercial
and el=laRge the General Plan Designation could be changed for one and not oo the other. As part of this
process, the Commission could take an action on this resolution. Assuming that the resolution were denied,
the Commission could request that a resolution for a General Plan Amendment be prepared, take whatever
action you wish, and then send that recommendation forward to the City Council.
Responding to Ms. Mobaldi's last response, Commissioner L'Heureux asked if the Ledgerwood property is
changed to residential and the restaurant is left as commercial, would the Ledgerwood property then be
able to be developed.
Ms. Mobaldi replied that if the Commission can make the appropriate findings either property can be re-
zoned to be consistent with the General Plan or vice versa. The two properties can be considered
individually because the histories are different and the uses are very different.
Commissioner Compas asked if "spot" zoning is completely out of the question.
Ms. Mobaldi replied that "spot" zoning is illegal but "spot" zoning is a legal term of art. Just because there is
a unique designation for a property doesn't necessarily mean it is spot zoning, particularly if there is
justification for whatever the zoning and General Plan is for that specific property, such as historical use,
etc. •
Chairperson Segall asked if it was the Council's intention, in 1996, to change the zoning or make the zoning
consistent with the General Plan.
Ms. Mobaldi replied that it is her understanding that the primary concern was to make it consistent because
the California government code requires that they be consistent as well our General Plan. Also, the other
issue was the problem activity going on at the Sandbar and the compatibility with the neighborhood.
Chairperson Segall stated that problem activity doesn't appear to be an issue at this time and it seems that
the issues before the Commission are the General Plan and zoning.
Commissioner Nielsen asked if it is possible for the Commission, in this action, to prohibit abatement on that
property.
Ms. Mobaldi replied that abatement is discretionary and that the code allows the Planning Department to set
a time for abatement but it is not mandatory.
PLANNING COMMISSION January 3, 2001 Page 32
Commissioner Nielsen also asked that even if the Commission voted in favor of the zone change, could the
city still abate the restaurant at some time in the future.
Ms. Mobaldi replied that if it is a non-conforming use, yes.
Chairperson Segal pointed out that if that were to happen, and the restaurant continued k> be a non-
conforming use, financing issues and other matters could be severely impacted.
Ms. Mobaldi replied that she would have to assume that that is true.
Chairperson Segall opened Public Testimony and admonished those wishing to testify to be as brief as
possible in deference to the lateness of the hour.
Janet Robinson, Attorney for the restaurant operator, 772 Corinia Court, Encinitas, stated as follows:
everything has changed since this re-zoning was initiated some four years ago and that re-zoning this site,
in her opinion, would not be a good planning decision. The DiMaggios have thoroughly cleaned and
upgraded the interior of the restaurant, redecorated, halted the evening entertainment, limited the evening
hours, and generally did everything that could possibly be done in an effort to become a good neighbor.
They have a twelve year lease on the property and they hope to operate the restaurant long enough to
finance the purchase of the property. It is true that a re-zone of this property would create a cloud that
would make it almost impossible for them to get financing for the purchase of the property. The long range
plan for this restaurant is to eventually rebuild it, add parking (perhaps underground), and possibly add a
few rooms to create a European style inn. The result would be a beautiful inn with a restaurant that is open
to the public. This restaurant creates a lot of community cohesiveness in that there is pedestrian access to
services and a twenty-four hour life that discourages crime and encourages a feeling of neighborhood. The
problems of the past have now been solved and should not cause the Commission to take the extreme
measure of re-zoning this property. If there is a problem with the use, that should be addressed by
nuisance abatement and code enforcement. Mr. DiMaggio is willing to live with any kind of condition that
the Commission might wish to impose, whether it is an overlay or something else. He is also willing to give
up his cabaret license, entirely, and would like to work with the city, ensuring that his business will never be
a problem to anyone, ever again. The Seaside Bistro upholds so many of the city's and Coastal
Commission's policies that promote public use of the coastline. Re-zoning the property to R-3 simply adds
the last brick in a private wall of residential uses that reserves the relaxed enjoyment of the ocean view for a
handful of property owner that can afford to live on the waterfront. With the restaurant in this place, the
public, as well as the neighborhood residents, can enjoy the restaurant and its view. Regarding an
abatement period, should the Commission approve the zone change, an indefinite abatement period would
be a definite problem for the owner. Mr. DiMaggio does want to finance the purchase of the property and
being in a Limbo ( of sorts), would create huge problems. Regarding the environmental analysis of the re-
zone, there are concerns about the growth inducing effect of the re-zone triggering at least a potentially
cumulative significant environmental impact. The re-zone may create a significant aesthetic impact and its
proposal could have a significant adverse recreational impact for the same reasons. In conclusion, please
send this back to the City Council for their reconsideration based on very changed circumstances. If that is
done, it may well be that they will take another look at this and change their minds. There is no currently
existing problem(s) at the restaurant that would be resolved with this re-zone. Please give the DiMaggios
an opportunity to retain their business and work with the city to provide a great amenity for the City of
Carlsbad. A General Plan Amendment would solve this problem and a Beach Overlay Zone could also help
control uses. Any other overlays or conditions, that the Commission may deem applicable, will be
welcomed.
James DiMaggio, Restaurant Owner, 29042 Vista Valley Drive, Vista, stated that the restaurant, as it stands
today, is a "used car" and there is only so much that can be done with it under current code conditions. He
added that he would eventually like to put a first rate establishment on that site; perhaps not as big but
something that conforms with the neighborhood, the city codes, etc.
Kevin Mccann, 2755 Jefferson St. Suite 211, Carlsbad, Attorney representing the land owner, Mitze
Eubanks, expressed concern for an item in the staff report that suggests an error of fact. He stated that fact
PLANNING COMMISSION January 3, 2001 Page 33
is that this was a snack-bar, turned restaurant (for a short time), turned bar and it understates the history of
this business as a component of this community. Also, this is a fifty year, plus, business and there are
many people who have resided here long enough to remember the way it was and has been over the years.
Mr. Mccann further stated that to identify this business as merely a snack-bar, turned restaurant, turned
bar, is unfair and that there are many places that make Carlsbad a special place to live, and this restaurant
is one of them. He agreed with Ms. Robinson, in that to re-zone the Bistro property is not a good use of a
community resource. He pointed out that much has been said about the necessity to change the use of this
property to conform with the General Plan and that he has to disagree with that idea. He stated that he
does not agree with the concept that things must be changed, retroactively, because there has been a
General Plan Amendment. Mr. Mccann further stated that to take away a valuable opportunity, on such a
questionable basis, simply does not make good common sense.
Commissioner Campas asked Mr. Mccann who owns the cabaret license.
Mr. McCann replied that the cabaret license has been sold to James DiMaggio.
By consensus, the Commission once again agreed to extend the Meeting to 11 :00 p.m.
Margaret Bonus, 231 Olive Avenue, Carlsbad, stated that she has been a resident of Carlsbad since 1965
and expressed her wish to go on record with the following statement: "I request a denial, or continuance, or
a zone-change to multiple-family residential condos, high density, in the area. There is no benefit, unless
they are single-family and one story, so the people up the hill ... The original meeting for the Beach
Overlay group was held at my home and the original plan was to have the homes on the lower lots, one-
story homes so the people, up the hill, would not lose their views. That hasn't happened. Views and air
space need to be protected. The intent of the Beach Overlay has been abused and since the inception of
the plan there has been more traffic, less parking, and lower quality of life. Safety hazards to the cars and
pedestrians have increased, and with the higher density, some setbacks are encroaching on Carlsbad
Boulevard's sidewalks. As the condos and other multiples increase, west of the railroad tracks in the
Overlay Zone, so does the voltage and power lines that line Garfield Avenue, from Chinquapin Avenue to
Pine Avenue. The utilities should be put underground to protect the health and safety of the residents as
well as the tourists."
Commissioner Campas asked Ms. Bonus what all this has to do with the question of re-zoning and she
replied that it has to do with adding more people to the neighborhood by building larger places on smaller
lots.
Ms. Bonus continued: 'This area is more of a tourist area; there are already several condos and we don't
need any more there. Quality of life should be considered with regard to the increased use of water and
electricity. I am in favor of the restaurant."
Chairperson Segall stated that letters regarding this item have been received from Seth Sharon, Mr. Winter,
and Mrs. Stewart, copies of which are on file in the Planning Department.
Joyce James, 3931 Garfield Street, Carlsbad, stated that she would like to retain and continue with a
neighborhood commercial zone and believes that such zoning helps to retain the village character and that
the family atmosphere is needed now, more than ever. She further stated that she wants the restaurant to
continue. Ms. James added that the site of the Bistro has not only been a site for Sunday afternoon
Dixieland concerts but has hosted charitable fund raisers, book signings for children's books, and other
neighborhood style activities. Ms. James concluded by requesting that the Commission please keep the
restaurant.
Seth Sharon, 130 Tamarack Avenue, #4, Carlsbad, Manager of the apartment building directly adjacent to
the Seaside Bistro property, stated that his experience (he is the person perhaps most impacted by the
Bistro since his apartment windows face the restaurant) with the Bistro has been extremely pleasant and
there have been absolutely no problems. He further stated that he fully supports a zone-change for the
PLANNING COMMISSION January 3, 2001 Page 34
Ledgerwood property but also supports the retention of the commercial zone for the Bistro. Mr. Sharon
strongly urged the Commission to reject this resolution.
Robert Mantz, 125 Chesterfield, Cardiff by the Sea, requested the Commission oppose the resolution for a
zone-change and keep the property as commercial. He pointed out that he is a commercial property owner
and, in his experience, it is entirely possible to take an older property and change it to a mixed use
development. Mr. Mantz indicated that the Bistro property, as testified by some of the surrounding
residents, is best kept in its current zone. In this case it appears that the Bistro should remain as a
restaurant and the City of Carlsbad should be able to find a way to balance its use and to avoid proscribing
law to the development of land and, in his opinion, is not the way a property should evolve.
Commissioner Trigas asked Mr. Mantz what his interest is in the issue.
Mr. Mantz replied that his property is very similar to the one at issue, and that he is considering entering into
an agreement with the DiMaggios regarding the development of the property.
Diane Lantz, 144 Redwood Avenue, Carlsbad, stated that since the DiMaggios have taken over the
restaurant, they have operated the business as good neighbors and that keeping the restaurant zoned as
commercial and changing the zoning to residential for the Ledgerwood property makes perfect sense. She
expressed her only concern that although the DiMaggios have good intentions (and so far they have
exhibited those good intentions), would it be possible to do something that would ensure that the restaurant
will never revert back to what it was when it was the Sandbar.
Bennie Rodriguez, 1000 Chinquapin Avenue, Carlsbad, stated that he is a Marine, currently stationed at
Camp Pendleton and that he has found Corrected a second home at the Seaside
Bistro. He continued by saying that each time he returns from a
deployment, he is welcomed back to the Bistro as an old friend by management, the employees, and even
the customers. Mr. Rodriguez further stated that he would hate to see all that go away and asked the
Commission to deny this resolution.
Ms. Mobaldi stated that if the zoning were to remain in some form of commercial, it is her opinion that they
can look into mechanisms for requiring a CUP. In addition, she stated that she believes that the DiMaggios
have indicated a willingness to obtain a CUP, which runs with the land so that if the business is sold at any
time in the future, the conditions of the CUP would apply to the new owner. The nature of those conditions
would remain to be seen. Conditions would be based on whatever is appropriate at the time. Also, the
DiMaggios have mentioned giving up the cabaret license, which would give some assurances.
Commissioner Trigas referred to a comment by Mr. Mccann in which he stated that the government code
does not require the retroactive changing of a use to conform with the General Plan.
Ms. Mobaldi responded by stating that she does not agree with Mr. Mccann in that statement. Further, the
government code does require consistency. However, there can be a legal, non-conforming use which
doesn't necessarily mean that because the zoning or the General Plan has changed, that they beeeme
consistent and ll'lot the business is instantly or automatically forced out of business. She pointed out that,
as Mr. Donnell explained, that business can continue but cannot expand or intensify, etc.
Commissioner Baker commented that she would like to see the Seaside Bistro remain a commercial
property and suggested that the Commission find a way to make that happen.
Commissioner Nielsen stated that he believes that his fellow Commissioners would agree with him that the
Bistro should be stayed and not change the zoning.
Chairperson Segall asked for a consensus of the Commission regarding a continuance of this item.
PLANNING COMMISSION January 3, 2001 Page 35
Ms. Mobaldi advised the Commission to make a motion on the resolution as proposed and if it is not
approved, to direct the City Attorney's Office to come back with a new resolution reflecting the intentions of
the Commission.
Commissioner Compas, believing this resolution to have two parts, stated that he will support the re-zoning
of the Ledgerwood property, to residential, but will not support the re-zoning of the Seaside Bistro property.
Chairperson Segall asked the Commissioners if anyone has any objection to the zone-change for the
Ledgerwood property. The unanimous response was negative.
MOTION:
ACTION: Motion by Commissioner Trigas, and duly seconded, to adopt Planning
Commission Resolution No. 4891, recommending approval of a Negative
Declaration and adopt Planning Commission Resolutions No. 4892 and 4893,
recommending approval of ZC 99-08 and LCPA 00-01, based upon the findings
contained therein.
Commissioner Baker expressed concern for the neighbors who are/or may be concerned about any future
change of ownership of the Bistro and stated that she wishes to make sure that the Commission is able to
adequately address those concerns.
VOTE:
AYES:
NOES:
ABSTAIN:
0-7-0
None
Segall, Trigas, Nielsen, Baker, Heineman, L'Heureux, Compas
None
By consensus, the Commission directed Staff to return to the Commission, at the next Regular Meeting,
with a resolution to re-zone the Ledgerwood Property to residential and to leave the Seaside Bistro property
with the commercial designation, without a cabaret license, and require a Conditional Use Permit or some
type of controls which will run with the land.
PLANNING COMMISSION January 17, 2001 DRAFT Page 3
1. ZC 99-08/LCPA 00-01 -CARLSBAD BOULEVARD/TAMARACK ZONE CHANGE -A city-
initiated amendment to change the City and Local Coastal Program zoning map designations of
three contiguous properties for Neighborhood Commercial and General Commercial (C-1 and C-2
respectively) to Multiple-family Residential (R-3} and Beach Area Overlay Zone. The affected
properties are at 3862 and 3878 Carlsbad Boulevard and includes the Seaside Bistro. No
development is proposed with this amendment.
Chairperson Segall opened the Public Hearing.
Chairperson Segall advised the applicant that there were only six Commissioners present and asked of the
applicant wished to proceed with the hearing or wished to have the item continued to the next meeting,
when it is likely that all seven Commissioners will be present.
Representing the City of Carlsbad (the applicant}, Assistant Planning Director, Gary Wayne replied that the
City wished to proceed with the hearing at this time.
Mr. Wayne introduced the item and pointed out that there is a letter regarding the subject properties, from
Mrs. Eldean Ledgerwood-Bratton, and Al and Pam Corbin, a copy of which is on file in the Planning
Department.
Project Planner, Scott Donnell presented the staff report as follows: This is a City initiated zoning
amendment, both to the Zone Change and the Local Coastal Program. It comes, primarily from a 1996 City
Council Resolution of Intent. In that resolution, Council stated its intention to re-zone three properties in the
beach area, from Commercial to Residential. Also in that resolution, they directed Staff to begin the
process and which was first presented to the Planning Commission on January 3, 2001 and continued to
this meeting. The parcels affected are the Ledgerwood properties (on the north) and the Seaside Bistro
properties (on the south). The Seaside Bistro was formerly called the Sandbar. As previously stated, this
was presented to the Commission on January 3, 2001 and the initial recommendation from Staff was to re-
zone all three properties from Commercial to Residential. All of the properties, adjacent to the subject
parcels shown on the exhibit, are zoned residential. The Seaside Bistro property is owned by the Mitze
Eubanks Trust. However, Jim and Monika DiMaggio are the owners and current proprietors of the
restaurant. Although Staff initially recommended the zone be changed to Residential, following the Public
Hearing (at which there was much testimony} on January 3, 2001, the Planning Commission recommended
to the City Council that only the Ledgerwood parcels be re-zoned from Commercial to Residential (R-3).
With regard to the Seaside Bistro parcel, the Commission recommended that the City keep the commercial
zoning but that the City consider some kind of appropriate designation such as the C-1 zone (Neighborhood
Commercial), that would have some type of land use controls whereby the City could regulate such things
as hours, noise, etc., to try to make sure that whatever commercial use (be it a restaurant or another type of
business) would be compatible with the neighborhood. Finally, the Planning Commission directed Staff to
return with a resolution incorporating the above recommendations. Staff has prepared an analysis of the
January 3, 2001 action; The first thing to be looked at is ''what an appropriate designation might be."
Presently the City is undergoing a commercial study, which would include changes to the overall General
Plan Policies and Land Use Designations regarding commercial uses. Among the recommendations are
that the "C" (General Commercial} and "N" (Neighborhood Commercial} General Plan Designations be
eliminated. In addition the study underway, there are some problems with the current zoning designations
that could be applied to the Seaside Bistro property. C-1 may well be an appropriate zoning for this
restaurant property. However, a C-1 zoning calls for a restaurant with alcohol sales, have a Conditional
Use Permit. A CUP is certainly the kind of control the City is interested in seeing in order to assure that the
uses are compatible. The property is currently zoned C-2 (General Commercial} which does not require a
CUP for a restaurant serving alcohol. Another zone that might be applied to the property is the C-T zone
(Commercial/Tourist). However, the C-T zone requires a 3 acre minimum to any lot that it is applied to.
When you consider what the current zonings allow and don't allow, the study that is underway with the
General Plan, there are some further actions and further analysis that needs to take place before Staff can
recommend an appropriate designation. In addition, there may be some potential Coastal Commission
issues. If the Planning Commission and the City Council see fit to designate the Seaside Bistro property as
Commercial, the Coastal Commission will probably be interested in some kind of Tourist Serving zone and
f7
PLANNING COMMISSION January 17, 2001 Page 4
the C-1 zone may not be appropriate as it allows uses such as "office", which the Coastal Commission does
not consider a tourist-serving use. In addition to that, if the Seaside Bistro parcel is designated for
commercial development, there are some limitations. Looking at the restaurant that is currently there and
based on its square footage, it is approximately twenty to twenty-five parking spaces short. The restaurant
parking requirement in the zoning ordinances is based on the building's square footage, not on the seating
area. Another potential limitation is the set-back. At this time the building has a zero (0) set-back on the
common property line with the Ledgerwood parcels and also on the property line that is common with the
adjacent apartment building to the east. While it is not clear what zoning could be applied, the set-backs
are clear. Under the current C-1 zone, there is a requirement for a ten foot set-back between a commercial
structure and a property line that borders residential. (Note: the recommendation is to re-zone the
Ledgerwood parcels to Residential (R-3) and as such, would make the Seaside Bistro non-conforming.
With the lot size and limitation of 14,000 square feet, with the parking shortage and set-backs, there are
limitations as to what can be done with the property. For the Seaside Bistro to add parking, it would be
necessary to demolish a portion of the building. Under its present configuration, there is no way that
enough parking spaces could be added. The lot size is also restricted because it has two street frontages;
Carlsbad Boulevard and Tamarack Avenue. A potential possibility is that if the two Ledgerwood properties
(those fronting on Carlsbad Boulevard, immediately north of the Seaside Bistro) were to remain commercial,
a parking lot could be built on the Ledgerwood parcels. However, as indicated in the letter previously
mentioned, the buyers of the Ledgerwood parcels are very much in favor of zoning the Ledgerwood parcels
to R-3, and that they intend to build single-family homes as opposed to allowing any kind of parking lot
expansion. Also, the other adjacent properties are strictly residential and fully developed and there is no
land available that the Seaside Bistro could expand upon. There are land use controls that would probably
be required to be placed on any use on the Seaside Bistro parcel, to ensure that it would be compatible with
the surrounding neighborhood. As was previously discussed at the last Planning Commission Meeting, a
Conditional Use Permit is likely because it enables the City to regulate things such as hours, noise,
architecture, etc., all in an effort to ensure compatibility. With all that said, Staff recognizes that the
Planning Commission realizes that this property may be a great site for a commercial development with
appropriate Land Use controls. Based on that recommendation, Staff has fashioned a resolution that
contains a number of findings, all of which say that the Seaside Bistro property has the potential to be a
good commercial site. Staff recognizes that the property has been used, historically, as a commercial
property and also with a restaurant use. Staff's recommendation therefore is, that the Planning Commission
recommend to the City Council the re-zoning of the Ledgerwood parcels from Commercial to Residential
and, at this time, there be no change to the current zoning of the Seaside Bistro Parcel. It is further
recommended that the Commission recommend to the City Council, that the Council consider allowing
Commercial to remain as a conforming use and accordingly direct Staff to conduct some further analysis,
prepare appropriate Land Use Amendments to the General Plan and the Local Coastal Program, and hold
public hearings on same. If the Planning Commission and the City Council agree that the Seaside Bistro
property should remain Commercial, then this process will be started all over again. Staff will come back
with a Staff Report for the General Plan Amendment, etc., there will be Public Hearings, and the neighbors
within a six hundred foot radius of the Seaside Bistro parcel will be notified.
Chairperson Segall asked if Staff has considered keeping the Ledgerwood property as Commercial.
Mr. Donnell replied that Staff has not made an analysis regarding the retention of the Ledgerwood property
as Commercial.
Chairperson Segall asked if that is something that might be considered if the entire parcel is examined. He
stated that it appeared that the Commission, at the last meeting, might be interested in keeping the
Commercial integrity of at least part of that property. However, he continued, he is hot sure that the
Commission has really looked at what is the best use for all of the land. Chairperson Segall also asked
what process would have to occur if the Commission wanted the entire parcel evaluated from a Commercial
standpoint and not from a Residential standpoint.
Mr. Wayne interjected and stated that the Commission would have to amend the resolution that Staff is
putting before the Commission because it is Staff's intention to follow the recommendation of the
Commission, at the last meeting, to change the Ledgerwood parcels to Residential. However, if the
Commission wishes to re-consider their recommendation, Staff will take forward whatever the re-
PLANNING COMMISSION January 17, 2001 Page 5
consideration is. What Staff has done in preparing this Staff report and resolution for the Commission's
consideration, is to bring up some of the issues that arise from the Commission's recommendations to the
City Council. Essentially, it is evidence that should go into the record and be part of the Commission's
consideration. Mr. Wayne further stated that Staff has no plans to evaluating the Ledgerwood parcel as
anything other than Residential.
Commissioner Campas asked Mr. Donnell to respond to some of the statements in the previously
mentioned letter.
Mr. Donnell responded by stating the following: The re-zoning application has been underway since the
Summer of 2000. When he was told that the Corbin's were the prospective buyers, he contacted them to
discuss the application. Since then, he has been in contact with Mr. Corbin, on a number of occasions. In
addition, the Staff reports as well as the Public Hearing notices, have been mailed to the Corbin's, so they
are aware of what is going on. He doesn't believe there has been any time when Mr. Corbin has been
informed that the City is definitely going to change the zoning to Residential, no questions asked.
Commissioner Campas asked if any part of the Seaside Bistro in encroaching on the Ledgerwood property.
Mr. Donnell replied that Staff has been unable to verify whether or not there is an encroachment and that he
has spoken to the Chief Building Inspector regarding the issue. The Building Inspector's response was
that, as far as the City knows, there has not been a study done to determine any encroachment.
Commissioner Baker asked if the property has been surveyed by the Corbin's, to determine where the lot
lines are.
Mr. Donnell replied that he is unsure as to whether there has been a survey.
Commissioner Baker stated that it would probably be prudent to have a survey and Mr. Donnell agreed.
Commissioner Baker asked what will happen if the Commission determines that they want the Seaside
Bistro property to remain as commercial.
Mr. Donnell replied that it would have to be determined what the Commercial zone would be. However, he
added, with the Commercial Study underway, it would be difficult to pick a zone and a General Plan
Designation since everything is quite up in the air.
For clarification, Commissioner Baker stated that even if it is the intention of the Commission to keep the
Seaside Bistro property as Commercial, there is no way the Commission could make that determination at
this meeting, since it is not possible to pick a zone designation for the property at this time. Mr. Donnell
agreed with the Commissioner's statement.
Commissioner Baker asked what kind of time frame there would be if the Commission agrees with the
resolution.
Mr. Donnell replied that it could be only a few months or it could take several months.
Chairperson Segall asked Mr. Donnell is there is also a "noticing" issue involved.
Mr. Donnell replied that what the neighbors received, initially, was a notice that all of the properties would be
re-zoned from Commercial to Residential, so, if the Commission's action is to keep part of it Commercial, it
might warrant a re-notice that, in tum, might bring out people who otherwise might not respond.
Commissioner Baker stated that this is the same issue and no promises have been made to the Corbin's
that this was going to be re-zoned to Residential and not promises have been made to the surrounding
neighbors that any change is going to be made.
89
PLANNING COMMISSION January 17, 2001 Page 6
Mr. Donnell responded that except that in the case of this recommendation to the City Council, to only
consider (as opposed to taking action) going from one to the other.
Mr. Wayne interjected and stated that it would create a technical problem, in that the Commission would
effectively denying a portion of the zone change request. Technically, per the city code, if the Commission
denies the change, the only way that the Council would hear the issue, would be on appeal. In fact, it was
the Council that passed a Resolution of Intent to change the zone, not to change the General Plan. It
would, effectively, short circuit this whole issue coming before the Council.
Commission Baker asked if the Commission's decision would be final if they reached a decision at this
meeting.
Mr. Wayne replied that if the Commission were to deny it, it would be final. He added that if the
Commission denies a zone change, the issue ends with the Commission.
Regarding set-backs for commercial properties abutting residential properties, Commissioner Trigas asked
how the issue would be dealt with if the Ledgerwood property were to be zoned Residential while the
Seaside Bistro property remained Commercial.
Mr. Donnell replied that he is not sure how that would be handled. He added that he has spoken with the
applicant's attorney and that they had some comments to make on the subject. However, he continued,
Staff considers that a large issue.
Commissioner Trigas asked if Staff is sure of the legalities or the process if that happened.
Mr. Donnell replied that if the Seaside Bistro property were to be designated Commercial, the issue would
have to be resolved because the property is non-conforming in terms of its parking requirements, as it is
today.
Commissioner Trigas asked if the Commission can do that.
Mr. Donnell replied that if a requirement for a CUP were attached to that restaurant, one of the findings
would be compliance with the zoning ordinance and that could not be made because they are already short
on the parking requirement. Some kind of adjustment would have to be made.
Commissioner Trigas asked if it wouldn't be prudent to have the answers to the questions brought forth at
this meeting, before the Commission makes any decisions.
Mr. Donnell replied that from a feasibility standpoint, yes.
Mr. Wayne interjected and suggested that the Commission is not hearing anything regarding a CUP and
that they should consider that there are provisions in the state law that provide for parking variances. He
added that if findings can be made to allow such a variance from a parking standard, then that is a
possibility that might help solve this situation. He also stated that there may be other solutions that the
property owner or the lessee has thought of and would like to discuss.
Commissioner Trigas asked Mr. Wayne to comment on the setbacks.
Mr. Wayne replied that if the use is made legal, then the structure becomes non-conforming. He added that
Carlsbad has a number of non-conforming buildings in the city. Being designated as a non-conforming
building merely sets limitation on the amount of expansion that can happen. The hope is that the non-
conforming structures can be brought into conformance, over time.
Commissioner Trigas asked what recourse the residents, adjacent to the Commercial use, have.
PLANNING COMMISSION January 17, 2001 Page 7
Mr. Wayne replied that with respect to residents next to a commercial use in this case, would not impact it
and it would still be subject to the same set-back requirements of the underlying zone. Residential could be
built per the set-back requirements of the R-3 zone which is what Staff is recommending on the
Ledgerwood property. Additionally, the Bistro would have zero set-back, non-conforming. The Ledgerwood
property could be built but they would have to live with the non-conforming commercial structure, for a time,
on the Seaside Bistro property.
Chairperson Segall asked what the process is if it becomes non-conforming and is there a period of time
when the City or the Commission can go in and give them a specific time limit in which to bring their
structure into conformance. He added that this was an issue at the last meeting.
Mr. Wayne responded by say that this is a different type of a non-conforming and what would happen
before, is that the Commission would be making this a non-conforming use as well. Therefore, there would
be a non-conforming structure with a non-conforming use, within the non-conforming structure. Now there
would be a conforming use within a non-conforming structure.
Assistant City Attorney, Jane Mobaldi interjected and stated that the code does allow for amortizing non-
conforming structures, over a period of time, based on the type of construction, the investment, etc., so the
Planning Commission could, theoretically, could do that if the structure became non-conforming. They
would then set a time that the structure could remain in existence. Eventually the building would have to be
brought into conformance.
Chairperson Segall then stated the same process would be used for this as is used in a non-conforming
process.
Mr. Wayne stated that it would be further addressed in the CUP process.
Commissioner Heineman asked that if the Commission should leave the Seaside Bistro property as
Commercial, would there still need to be a parking variance.
Mr. Wayne responded that the owner of the Seaside Bistro probably has some solutions to the parking
problem, in mind. However, one method left to the Commission is a parking variance if the findings can be
made.
Commissioner Heineman asked that if a parking variance should be granted, wouldn't that result in pushing
the parking problem right back into the residential area where there have already been problems.
Mr. Wayne responded that perhaps there could be a problem, but suggested that the Commission should
hear from the applicant before drawing any conclusions.
Commissioner Baker, referring to the issue of the ability of the Bistro owners to get financing for any
improvements or expansion, asked if a designation of a non-conforming building will potentially have an
impact on those efforts.
Ms. Mobaldi stated that the code does not allow the expansion of a non-conforming building and therefore
would not be an issue.
Using the example of remodeling, Commission Baker asked if that would have an impact on their ability to
get financing.
Mr. Wayne responded that the code allows for a very limited amount of expansion, approximately 40%,
providing the non-conformity is not increased. He added that that would not be a problem here because
they don't have the parking necessary to expand.
Commissioner Baker asked if, like other businesses in the Redevelopment Area, can't the Bistro owners
provide parking elsewhere to meet their parking requirements.
PLANNING COMMISSION January 17, 2001 Page 8
Mr. Wayne replied that the Redevelopment Area has a Parking District and there are no other Parking
Districts within the City, and he does not envision another such district being established.
Commissioner Baker asked if it is possible for the Bistro to lease parking in the beach parking lot across the
street.
Mr. Wayne replied that the referenced lot is a state parking lot and although the City pays the state for the
use of the lot in order to keep it as free parking, it would become a very complicated issue if they attempted
to get permission for the Bistro to use it.
Chairperson Segall opened Public Testimony.
Eldean Bratton, 2105 Linda Ln., Carlsbad, stated that she is the daughter of the late Charles Ledgerwood,
and is the Trustee for the Charles Ledgerwood Trust. Ms. Bratton stated that in May, 2000, she received a
letter from the City of Carlsbad informing her that the two lots fronting on Carlsbad Boulevard would be
changed from Commercial to Residential (R-3) zoning. It was at that time that Ms. Bratton decided to sell
the entire parcel to Al and Pam Corbin, after they assured her that her mentally disabled sister could remain
in the family home that is currently on the property, for at least two or more years. She pointed out that Mr.
Ledgerwood had approved the sale of the lots to the Corbin's, a fewyeats ago, and it was (and remains so)
their intention to build homes on the property. Since the Corbin's and Ms. Bratton have been in escrow, Ms.
Bratton stated the Corbin's have had plans drawn for homes on each of the four lots. Ms. Bratton continued
by pointing out that if the City rules to keep the front two lots in a Commercial Zone, the Corbin's will not be
allowed to build two of the four homes.
Regarding a statement in the previously mentioned letter, which referred to only having 24 hours notice of
the Planning Commission meeting, Ms. Bratton stated that she had received a telephone call from Project
Planner Scott Donnell, the day before this meeting, at which time he asked what she thought about having
her property remain Commercial. Her response, she continued, was to ask if houses could still be built and
that he had told her "no". Ms. Bratton further stated that she immediately called Mr. Corbin to the telephone
to talk with Mr. Donnell. Ms. Bratton stated that after that telephone conversation, Mr. Corbin explained it all
to her. She went on to explain that they were very surprised at this turn of events and very concerned
because they are already in escrow and a great deal of money has already been spent on plans, etc. With
regard to the two front lots remaining commercial and becoming a parking lot, Ms. Bratton pointed out that
not only would that be a blight on prime frontage but it would result in even more traffic and noise.
Commissioner Campas asked Ms. Bratton why she did not attend the meeting on January 3, 2001.
Ms. Bratton replied that she was in attendance but because it sounded like everything was going along
quite smoothly, she didn't see any point in offering any testimony.
Chairperson Segall, referred once again to the letter, and asked Ms. Bratton if she has a concern about
leaving the Seaside Bistro property zoned as Commercial.
Ms. Bratton replied that she has no quarrel with that and that for as long as she can remember, that site has
always had some type of restaurant on it and that from a historical standpoint, it is important to keep the
Bistro.
Commissioner Baker asked Ms. Bratton if she has been aware that it will be the Commission that will decide
this issue or was she under the impression that this was something that had already been decided and that
it could not be changed.
Ms. Bratton replied that when her father spoke to the City Council and the Mayor, in 1996, they were told
that the City has a General Plan and the City must go by the General Plan. Therefore, the zoning must be
changed and if it wasn't changed in 1996, it would definitely be changed at some later date. She added that
it has always been her impression that the zone change was etched in stone.
PLANNING COMMISSION January 17, 2001 Page 9
Commissioner L'Heureux stated that she had driven by the subject properties and noticed that there is
grading being done on the east end of the property, and asked Ms. Bratton if that is a part of the lots
fronting on Carlsbad Boulevard.
Ms. Bratton replied that that it is the back part of the parcel which is already zoned Residential.
Bill Lantz, 144 Redwood Avenue, Carlsbad, stated that he has no problem with the Bistro remaining as
Commercial except that he would like to see a C-1 designation there, governed by a CUP and not allow the
business to hold a cabaret license. He further stated that because the old Sandbar had a cabaret license,
there were numerous problems associated with that business. Mr. Lantz stated that he lives across the
street from the Ledgerwood parcel and that there are a lot of problems with parking. Mr. Lantz asked that if
the City Council actually started the whole process to mandate that that property be changed to R-3,
excluding the Bistro, why would there even be a question as to whether the Ledgerwood property should
become an R-3 zone. However, he continued, things are much better than they were when the Sandbar
was still there, when there were drunks, and beer bottles, and unacceptable behaviors exhibited on a nightly
basis. He went on to say that the Bistro doesn't foster any of those problems and they rather like having it
nearby. He urged the Commission to approve the change of the Ledgerwood property to R-3, and leave the
Seaside Bistro in a commercial designation but to ask for a suspension or cancellation of the current
cabaret license. Mr. Lantz also stated that they are not just a beach neighborhood, they are permanent
residents who have invested a great deal of money and time in their homes and they want to make it look
nice. He added that to put a parking lot on the front of the Ledgerwood parcel would be detrimental to the
residential area and defeat their purpose in trying to make it into a truly residential area.
Janet Robinson, 772 Corinia Court, Encinitas, Attorney for Jim and Monika DiMaggio, stated the following:
She is aware that Mr. DiMaggio has spoken with Mr. Corbin, a number of times, and that all parties have
seemed quite comfortable with what has been proposed, in as far as the Seaside Bistro remaining
Commercial and the Ledgerwood property changing to R-3. So, when they received the previously
mentioned letter, at this meeting, they were very surprised. However, she feels sure that they can meet and
solve most, if not all, of Mr. & Mrs. Corbin's concerns. The applicant is intending to work very closely with
the City and with the neighbors to make sure that everyone's concerns and needs are met. Ultimately, as
was mentioned at the last meeting, the DiMaggio's would like to rebuild the Bistro and create either a
smaller restaurant or a small restaurant in combination with a few rooms resembling a small European Inn.
In addition, the long term goal is to resolve all the parking and set-back problems. When they do re-build,
they want to do something very attractive and that fits in with the rest of the neighborhood. At that time,
most (if not all) the parking problems will be solved. The portion of the restaurant that is on or near the
common property line with the Ledgerwood property, is not really necessary to the business and will be
taken down. By doing so, they will reduce the square footage of the building thereby reducing the parking
requirement and satisfy the set-back requirements. If they were to take away that portion of the building
they would lose the restrooms and subsequently be forced to remodel. It would be very good if they could
do that all at once. Finally, if it is feasible, they may be able to go to underground parking. In any case,
they want to make the restaurant smaller, and with some creative designing, maybe they can put the rooms
on the Ledgerwood side of the building so that it will be quieter on that side of the property. Perhaps a
parking variance might be needed if they can't come up with quite the number of spaces required, but the
DiMaggio's can probably get very close to the requirement. This is, historically, a restaurant site and
because so many have and still enjoy it, it should remain and to that end, the DiMaggio's have every
intention of working with the neighborhood in an effort to come up with some creative solutions. The
DiMaggio's do not have a problem with the possibility of a CUP and they understand that they have to live
with the neighborhood and that it may well be appropriate for the City to regulate the hours of operation as
well as other facets of the operation. They are happy to work with the City through the process to get
whatever appropriate General Plan designation, whether its C-1 or some other zone designation.
Commissioner Campas asked if his assumption is correct in that the applicant supports the Planning
Commission Resolutions that are before the Commission at this time.
Ms. Robinson replied that he is correct.
93
PLANNING COMMISSION January 17, 2001 Page 10
Commissioner Baker asked Mr. Robinson if they are aware that this could go through the process and still
be changed.
Ms. Robinson replied that they are quite relieved that the Commission is considering taking another look at
the property and recommending that it remain Commercial. She also stated that she hopes the City Council
will agree with the Commission. She also stated that they realize that there are some technical issues still
to be addressed and also that they will be a non-conforming building for a period of time. All of this is
acceptable as long as the DiMaggio's can still operate the restaurant for the time they need in order to
purchase the property. They also need the time to come up with a new building design and go through the
process of rebuilding and remodeling, which will create an even more appropriate use for the site and the
neighborhood.
Seeing no one else wishing to testify, Chairperson Segall closed Public Testimony.
Commissioner Heineman asked which of the commercial designations require a Conditional Use Permit.
Mr. Donnell replied that it is a C-1 zone.
DISCUSSION:
Commissioner Campas stated his support for this recommendation. He further stated that this is a historical
restaurant and should be remain in the neighborhood.
Commissioner L'Heureux also stated support for the recommendation.
Commissioner Heineman also stated his support for the recommendation and added that it is a rather sterile
ocean front in that area and he feels it delightful that there is something there instead of houses and
condos, and something that seems to serve the neighborhood well.
Commissioner Baker concurred with the previous comments and voiced her support.
Commissioner Trigas stated her support for the recommendation.
Chairperson Segall also concurred with the support of the other Commissioners, in terms of the General
Use designations making this a commercial site for the good of the community. He thanked Staff for giving
the Commission the tools (six excellent points) they needed to make the proper findings and preserve the
integrity of what is now at the beach.
ACTION:
VOTE:
AYES:
NOES: None
ABSTAIN:
ABSENT:
Motion by Commissioner Trigas, and duly seconded, adopt Planning Commission
Resolution No. 4891, recommending approval of a Negative Declaration and
Addendum and adopt Planning Commission Resolutions No. 4892 and 4893,
recommending approval of ZC 99-08 and LCPA 00-01, based upon the findings
contained therein.
6-0-0
Segall, Trigas, Baker, Heineman, L'Heureux, Compas
None
Nielsen