HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (46)AUGUST 14,1998
TO: CITY MANAGER
FROM: Planning Director
COASTAL DEVELOPMENT PERMIT 97-59
Mayor Lewis contacted Chris DeCerbo and asked ulln to prepare the attached letter for the
Mayor’s signature. Council Member Kehoe, who is also a member of the California Coastal
Commission, is appealing a recent coastal permit approved by the Planning Commission. The
permit allows the development of a single family home on property adjacent to the mouth of
Buena Vista Lagoon.
MICHAEL J. HOLZMILLER
Attachment
-_ .
City of Carlsbad
August 14,1998
Council Member Christine Kehoe
California Coastal Commission
202 C Street, MS 10A
San Diego, CA 92 10 1
SUBJECT: CALIFORNIA COASTAL COMMISSION APPEAL #A-6-9&98
Dear Christine:
I received a telephone call from Mr. John Levy, who recently processed and was granted
approval of a Coastal Development Permit (CDP 97-59) by the City of Carlsbad to develop a
single family residence and a 2nd dwelling unit (granny flat) upon a legal lot adjacent to Buena
Vista Lagoon. Mr. Levy informed me that on behalf of the California Coastal Commission
(CCC), you have filed an appeal of this permit. I have been apprised of this project by my staff.
It appears that Mr. Levy has diligently worked with California Coastal Commission staff as well
as the California Department of Fish and Game and U.S. Fish and Wildlife Service (USF&W)
for in excess of three years to resolve all project issues. In light of these on-going good faith
efforts of Mr. Levy to negotiate with and reach concurrence on his project design with these
State and Federal resource agencies, I am surprised by your appeal.
I have enclosed documentation of Mr. Levy’s efforts to process this project through to resolution
for your review. This documentation includes:
Copy of the October 26, 1995 memo to the CCC requesting a review of the initial proposed
site plan;
Copy of April 9, 1996 letter from USF&W indicating that CCC was an active participant in
negotiating project design and required mitigation;
Copy of February 6, 1997 memo to CCC staff with copies of the proposed Adjustment
PlatsKertificate of compliance; and a
Copy of February 13, 1997 letter from USF&W indicating that CCC was involved in
establishing the conditions of approval from the resource agencies for the site plan.
There are other numerous documents, but I believe that these clearly provide evidence of the
diligent efforts by Mr. Levy to achieve concurrence from the respective State and Federal
agencies regarding his project. The project as designed and conditioned (through CDP 97-59) is
consistent with the project that was conceptually approved by these agencies.
The aforementioned project appeal discusses several project issues including: (1) the legality of
the subject lots; (2) project access; and (3) whether the lot line adjustment on the subject
property (MS 471) required a Coastal Development Permit. A review of project documentation
and records reveals the following:
@ 1200 Carlsbad Village Drive Carlsbad, CA 92008-1 989 (61 9) 434-2830 0 FAX (61 9) 720-9461
#- “
CALIFORNIA COASTAL COMMISSION
AUGUST 14,1998
APPEAL #A-6-98-98
PAGE 2
0 That the subject property includes two legal parcels as verified by Certificate of
Compliance issued by the City of Carlsbad in 1997.
0 A private access easement was granted to the site in 1971 and again in 1984, in
advance of the California Coastal Commission accepting an open space easement
upon this property.
0 The subject lot line adjustment, (MS 471), which was processed by Mr. Levy and
approved by the City in October 1997, modified the lot lines between Mr. Levy’s
two existing legal lots which front along Buena Vista Lagoon but did not result in
the creation of a greater number of parcels or greater total lot acreage than existed
prior to the lot line adjustment. Pursuant to Section 21.201.030 of the Carlsbad
Municipal Code (CMC), “any applicant wishing to undertake a development
(defined in Section 2 1.04.107) in the coastal zone shall obtain a coastal development
permit. Section 2 1.20 1.107 of the CMC specifies that “Development in the coastal
zone includes a subdivision pursuant to the Subdivision Map Act (commencing with
Section 66410 of the Government Code)”. Subsection 66412(d) of the California
Government Code specifies that the Subdivision Map Act shall be inapplicable to “a
lot line adjustment between two or more existing adjacent parcels, where the land
taken from one parcel is added to an adjacent parcel, and where a greater number of
parcels than originally existed is not thereby created”. In that the Subdivision Map
Act clearly does not apply to Mr. Levy’s lot line adjustment, it does not qualify as
“dGvelopment” in the coastal zone and therefore does not require a coastal
development permit. ‘
In summary, these facts indicate that Mr. Levy acted responsibly in processing his project and
that the City of Carlsbad acted responsibly in approving CDP 97-59. Because the project as
designed is in compliance with glJ recommendations of the State and Federal Resource agencies,
including Coastal Commission staff, I request that you withdraw your appeal of this project.
Sincerely,
CLAUDE A. “BUD LEWIS
Mayor
CAL.CDCb
Attachments
C: John Levy
Chris DeCerbo
4322 Sea Bright Place Carlsbad, CA 92008 Telephone/FAX 619-720-0098
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/ _-
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Ecological Services
Carlsbad Field o&ce
2730 Lo& Avenue West Carlsbad, California 92008
April 9, 1996
Robert 0. Sukup
The Sea Bright Company
4322 Sea Bright Place
Carlsbad, California 92008
Re: Conceptual development plan for the property located
immediately south and east of the Buena Vista Lagoon mouth, San
Diego County, California.
Dear Mr. Sukup:
Jeff Manning, of my staff, met with you, John Levy (your client), Tim
Dillingham of the California Department of Fish and Game (CDF&G), and
Bill Ponder of the California Coastal Commission (CCC) on the property
located immediately south and east of the Buena Vista Lagoon (Lagoon)
mouth on February 1, 1996. The purpose of this meeting was to discuss
Mr. Levy's conceptual, blue-line plan (Plan), dated October 18, 1995
to construct two single-family homes. It is our understanding that
your client is not the present property owner. He is a prospective
buyer and wishes to determine significant issues regarding impacts to
sensitive biological resources that may result from implementation of
the referenced Plan. This letter addresses potential impacts to
endangered species and sensitive biological resources that the Service
is aware of in the vicinity of the Lagoon immediately adjacent to the
property and provides a chronology of the Service's involvement with
this proposed project .
The Service's primary concern and mandate is the protection of fish
and wildlife resources and their habitats. A priority of the Fish and
Wildlife Service (Semice) is to provide comments on any public
notices issued for a Federal permit or license affecting the nation's
waters (e.g., Clean Water Act, Section 404 and River and Harbor Act of
1899, Section 10). The Service is also responsible for administering
the Endangered Species Act of 1973, as amended (ESA).
As discussed during our site visit, the Service has concerns regarding
potential direct and indirect impacts to sensitive fish and wildlife
resources and species protected under the ESA if the proposed Plan is
implemented. One species that is known to occur on the eastern
Mr. Robert 0. Sukup 2
boundary of the property is the California light-footed clapper rail
~Rallus loncrirnstr Ls (rail), a federal and state listed
endangered species. The Service is aware of a breeding pair of rails
that occupy the cattail marsh along the eastern edge of the property.
Direct impacts to rail may result from construction noise, lighting,
and other operations associated with actual construction activities.
Additional impacts may result from: 1) the actual loss of upland
habitat which functions as a biological buffer from existing human
development, 2) the killing, harming, and/or harassment of individual
birds by domestic pets, 3) the use of herbicides, pesticides, and
insecticides typically associated with urban development that may have
potential direct impacts to rail and its prey base, and 4) the
reduction in the biological value of the habitat by lighting. Based
on these concerns, the Service recommended, during our site visit,
that the Plan incorporate a 100-foot "buffer" between the outer edge
of the wetland habitat and any structure, fence, or driveway. This
"buffer" area should be planted with native vegetation, acceptable to
the Service and CDF&G. In addition, the above issues pertaining to
the avoidance and minimization of direct and indirect impacts to the
rail will need to be addressed. -_
In addition to the rail, numerous migratory waterfowl are known to use
the property for loafing, foraging, and possibly nesting. During our
site visit, waterfowl were observed loafing and foraging along the
southwestern portion of the property. To avoid impacts to these
species, the Service recommended that you explore the opportunity to
exchange the property parcel immediately adjacent to the Lagoon (AP#
155-101-65) for the property that abuts the southern boundary of the
two parcels. The property abutting the two parcels is designated as
open space. This designation could be transferred to parcel (AP# 155-
101-65) and your footprint of the Plan could be shifted to the south
and away from the shoreline of the Lagoon. At a minimum, there should
be a 100-foot setback from the mean high water level to all
structures, roads, and fences. This setback would be in compliance
with the setback requirement set forth in section IC in the letter
from the City of Carlsbad to you, dated November 1, 1995 (Attachment).
On February 2, 1996, immediately following the site visit, you
provided an amendment to the Plan which depicted the location of two
single-family homes, driveways, and a parameter fence. This amendment
to the Plan does not indicate the avoidance or minimization of impacts
to the rail. First, the Plan shows a fence within 30 feet and a
driveway within 40 feet of the existing marsh habitat that is occupied
by the rail. This does not conform with the 100-foot buffer discussed
during our field meeting. Second, the amendment to the Plan does not
include measures to avoid and/or minimize potential impacts to the
Mr. Robert 0. Sukup 3
rail by herbicides, pesticides, and insecticides. Finally, the
amended Plan does not clearly indicate how the proposed 42 inch fence
would prevent lighting of the marsh. Minimizing affects of lights
into the marsh and lagoon are often most effectively dealt with by
placement of back and/or side shields on all outdoor light fixtures.
The Service believes that additional measures should be incorporated
into your amended Plan to avoid and/or minimize potential impacts to
the rail and other sensitive fish and wildlife resources. These
should include: 1) moving the driveways and eastern fence in a
westward direction to conform with the 100-foot buffer, 2) grading the
slope of the property or constructing barriers along the parameter of
the property to prevent urban runoff containing herbicides,
insecticides, and pesticides from draining into the marsh and the
Lagoon, 3) raising the height of the fence along the eastern boundary
to reduce the likelihood of pets, such as cats, from entering the
marsh, and 4) the use of light shields to prevent lighting and light
glare from entering the marsh.
The Service recommends that you incorporate all prudent and practical
avoidance and-minimization measures listed above to protect the rail.
If , after these measures are included into the Plan and approved by
the Service, the Plan still requires the encroachment into the 100-
foot buffer, you should propose compensatory mitigation measures which
would reduce impacts below that of a level of significance.
Compensatory mitigation typically includes the acquisition, creation
of the same type and quality of habitat (in-kind habitat functions and
values) to that impacted, and the protection of that mitigation site
in perpetuity. Creation often includes the excavation of soils from a
non-wetland area approved by the Service.
Over 90 percent of California's coastal wetlands have been lost, and
the Service considers these habitats as biologically significant
public resources. For projects that impact coastal wetlands, the
Service typically requires replacement of habitat as high as four
times that which was impacted.
The Service recommends that you explore and propose acquisition,
creation, and protection of marsh habitat within the vicinity of the
Lagoon at a 4:l ratio for unavoidable impacts resulting from the Plan.
You may also wish to explore opportunities to provide an in-lieu fee
payment at an amount equal to that for acquisition, creation, and
protection.
We appreciate the opportunity to comment on your project. Since your
Plan for this development are still conceptual in nature, the Service
reserves the right to make additional comments regarding this
.-
Mr. Robert 0. Sukup 4
development in the future. You should be aware that your proposed
development will be subject to the review of the City of Oceanside,
CCC, and CDFCG. These entities may require additional requirements
beyond what is identified in this letter. If you have any questions
regarding these comments, please contact Jeff Manning of this office
at (619) 431-9440.
Sincerely,
/ Field Supervisor
cc: Corps Regulatory, San Diego Office, CA (Attn: David Zoutendyke)
CDF&G, Long Beach, CA (Attn: Tim Dillingham)
EPA, Region 9, San Fran., CA (Attn: Harriet Hill/Becky Tuden)
California Coastal Commission, San Diego, CA (Attn: Bill Ponder)
-.
Attachment
a Submit a biobgid resources sp~y ofthe propertg,
4322 Sea Bright Place + Carlsbad, CA 92008 4 Telephone/FAX 619-720-0098
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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Ecological Services Carlsbad Field Office
2730 Lokcr Avenue West Carisbad, California 92008
February 13, 1997
Robert 0. Sukup
The Sea Bright Company
4322 Sea Bright Place
Carlsbad, California 92008
Re: Revised conceptual development plan, dated January 27, 1997 for
the property located immediately south and east of the Buena
Vista Lagoon mouth, San Diego County, California.
c
Dear Mr. Sukup:
The U.S. Fish and Wildlife Service (Service) has reviewed your
revised, cbnceptual blue-lined plan, dated January 27, 1997 (1-7-97
Plan) to construct two single family homes, driveway, parameter fence,
and setbacks-on the property located immediately south and east of the
Buena Vista Lagoon (Lagoon) mouth. Your 1-7-97 Plan was prepared in
response to our avoidance, minimization, and mitigation
recommendations regarding potential impacts to the federally listed
endangered California light-footed clapper rail (Rallus longirostris
obsoletus) (rail) and other sensitive biological resources discussed in
previous correspondence with you. Correspondence includes a Service
letter addressed to you, dated April 9, 1997 (Attachment 11, a
document titled “Biological Report of Eslvironmental Conditions at a
Site Adjacent to Buena Vista Lagoon, Carlsbad, CA:prepared by Pacific
Southwest Biological Services and dated October 15, 1997 (Biological
Report), and an office meeting on January 22, 1997 with you, John Levy
(your client), Tim Dillingham of the California Department of Fish and
Game (CDF&G), and Bill Ponder of the California Coastal Commission
(CCC) and Martin Kenney and Jeff Manning of the Service.
The Service’s primary concern and mandate is the protection of fish
and wildlife resources and their habitats. A priority of the Fish and
Wildlife Service (Service) is to provide comments on any public
notices issued for a Federal permit or license affecting the nation‘s
waters (e-g., Clean Water Act, Section 404 and River and Harbor Act of
1899, Section 10). The Service is also responsible for administering
the Endangered Species Act of 1973, as amended (ESA).
Mr. Robert 0. Sukup 2
The Service has concerns regarding the future ecological viability of
the proposed 100 foot buffer areas that you would be required to
restore to native coastal scrub. In past correspondence with you, the
Service recommended that you explore options to have a resource agency
or a non-profit, conservation organization manage the area once you
have complied with any restoration requirements. During a February 6,
1997 telephone conversion with Mr. Levy, Mr. Manning explained that an
irrevocable offer of dedication for the 100 foot buffer areas
described in the 1-7-97 Plan be made to the CDF&G by the property
owner.
The Service is also aware of a project proposed by the City of
Oceanside to reconstruct the weir at the mouth of Buena Vista Lagoon
approximately 200 feet from your project boundary. The proposed weir
project may alter the elevation of the water and the shoreline
contours of Lagoon. The Service recommends that you should consult
with the City of Oceanside to identify potential conflicts between the
City’s proposed project and yours.
The Service would concur with a final version of the 1-7-97 Plan given
the following measures are incorporated into the final
plan to avoid and/or minimize potential impacts to the
sensitive fish and wildlife resources:
1.
2.
3.
4.
A 100-foot buffer from the mean high water level to
roads, and fences shall be established as described
Plan. The property owner shall make an irrevocable
dedication for this buffer area to the CDF&G. This
development
rail and other
all structures,
in the 1-7-97
offer of
offer should be
recorded in a standard easement document signed by the CDF&G and the
property owner, and should include language that requires the offer
of dedication prior to obtaining a development permit from the City
of Carlsbad.
Restoration of the 100-foot buffer area shall occur prior
development and shall include removal of non-native plant species
and applying a native coastal scrub grass seed mix.
Grading the slope of the property and/or constructing barriers along
the parameter of the property to prevent urban runoff containing
herbicides, insecticides, and pesticides from draining into the
marsh and the Lagoon.
Installing a 72 inch high solid parameter fence along the west,
north, and, east portions of project site (as described in the 1-7-
97 Plan) to reduce the likelihood of pets, such as cats, from
entering the marsh.
Mr. Robert 0. Sukup 3
5. To prevent lighting of the marsh and lagoon environments, the
project shall include a combination of shields and low level lights
on all outdoor lighting fixtures.
We appreciate the opportunity to comment on your project and your
cooperation in modifying your project to avoid and minimize adverse
effects to sensitive wildlife and habitats utilized by them. Since
your Plan for this development are still conceptual in nature, the
Service reserves the right to make additional comments regarding this
development in the future. You should be aware that your proposed
development will be subject to the review of the City of Carlsbad,
City of Oceanside, CCC, and CDF&G. These entities may require
additional requirements beyond what is identified in this letter. If
you have any questions regarding these comments, please contact Jeff
Manning of this office at (619) 431-9440.
Sincerely,
Field Supervisor
cc: * Corps Regulatory, San Diego Office, CA (Attn: David Zoutendyke) * CDFbcG, Long Beach, CA (Attn: Tim Dillingham) * EPA, Region 9, San Fran., CA (Attn: Harriet Hill/Becky Tuden) * California Coastal Commission, SD, CA (Attn: Bill Ponder) * City of Carlsbad, CA (Attn: Diane Vanleggelo, Planning
* City of Oceanside, CA (Attn: Micheal Holzmiller, Planning Dir.)
Department and Peter Weiss, Engineering Department)