HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (21)i ;T-;>!5.>: -; Of
\ Applicants Response
to
California Coastal Comm ission
Prepared by:
John C. Levy, Jr.
Prepared for:
California Coastal Commission
100'WILDLIFE
HABITAT SETBACK
PER U.S. F*W
•ExhfcitJ"
•The
Beach Project*
Roof Height 33'
100' Wildlife Habitat Setback
25' Coastal Access Trail
Light Footed Clapper Rail Breeding Marsh
Open Space - ATSF Railroad
Open Space "The Beach HOA"
Access Easement
The Beach "Project1
Existing Apartment Property
Existing Apartments
Buena Vista Lagoon
Property Owned by
John C. Levy
T 1100' Wildlife Setback
Resident Site 12'MSL
Parcel B
r
August 25, 1998
RE: Coastal Development Permit (CDP 97-59)
CCC Appeal #A-6-98-98
Enclosures:
1) A letter of protest to Mr. Peter Douglas dated August 25, 1998.
2) My response to coastal staffs substantial issues appeal.
3) Applicant Response to Staff Report.
4) A chronology of CCC Correspondence and Meetings
5) Assorted site maps.
6) Letters of Support for the project and the withdrawal of Appeal #A-6-
98-98.
Dear Commissioners,
I have worked diligently for over three years with the respective resource agencies in an
attempt to build a home for my family adjacent to the Buena Vista Lagoon.
The attached chronology will attest to the facts that this process began on 10/26/95. After
fifteen months of site meetings, biology studies, correspondence, memos, and telephone
conversations the resource agencies and I met on 1/22/97 for our final meeting.
On that day Mr. Bill Ponder, coastal analyst for the CCC was a participant as he had been
for all of the meetings. In that meeting we finally agreed to ajl of the "conditions of
development for approval."
These conditions were spelled out in a letter (Exhibit I) and site plan (Exhibit J) from
USF&W dated 2/13/97.
Albeit the conditions were stringent we felt that they were a fair compromise in response
to the agencies' concerns to biological, environmental, public access and view sheds
questions.
They included:
1)100' setbacks on two of our three property boundaries.
2) An irrevocable offer to dedicate to CDF&G a 100' habitat setback area. This would
include the removal of non native plant materials, applying a native grass seed, and
installing a 6' chain link fence to prevent human or pet intrusion into this sensitive
habitat area.
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3) Dedicate a 25' wide public coastal access trail along the southern shore of the Buena
Vista Lagoon. This would include a 6' fence along the southern property boundary to
minimize the impact of pets into the marsh and lagoon environments.
4) Install low level lighting on the residence as to minimize it's impact on wildlife.
5) Due to the breeding season of the light footed clapper rail I would be allowed to
construct from 8-1 through 3-1 only.
Because of the setback requirements imposed upon us by the resource agencies it was
required for us to perform a boundary adjustment. If we had not done this it would have
been considered a "taking".
• On 2/6/97 the CCC was sent (Exhibit L) a memo which included the adjustment plat
for the two lots of the subject property. (Exhibit M). CCC did not comment.
• On 11/4/97 a certificate of compliance (COC) was recorded (Exhibits N&O) for the
two lots. CCC did not comment.
• On 12/20/97 CDP 97-59 for the property was submitted to the City of Carlsbad. Site
pirn (Exhibit P)
• In April of 1998 CDP 97-59 with an associated mitigated negative declaration was
sent to all of the resource agencies for comment. No agency commented including
CCC.
• On 5/12/97 the City of Carlsbad recorded a Notice of Exemption for the boundary
adjustment. CCC did not comment.
• On 7/1/98 CDP 97-59 was heard and approved unanimously by the Carlsbad Planning
Commission. Not a single person from the community attended the meeting nor were
there any protests received from noticing. CCC did not comment.
• On July 27, 1998 at 5:00, the last day of the appeal period we received a notice of
appeal from CCC. We were astonished! Coastal staff had been "part and parcel" to
each and every decision along the way!
Coastal staff's appeal:
1) Legal site access
2) The requirement for an additional CDP for a boundary adjustment.
3) Public view from the coast highway.
4) Public access to the lagoon.
• On July 31, Bob Sukup and I met with Bill Ponder and Lee McEachern from coastal
staff, and Craig Adams from Commissioners Kehoe's office to address the reasons for
the appeal. It became extremely obvious that staff had misplaced or lost the
entire file to this very sensitive site. We supplied them again with all of the
pertinent documents, site maps, and photographs, in an attempt to resolve this issue
at the staff level.
• On August 11, 1998 Commissioner Kehoe asked local staff to withdraw the appeal.
In a conversation with Mayor Lewis of Carlsbad Ms. Kehoe stated that "/oca/ staff
had misrepresented the facts of the appeal to her and she wished to withdraw her
appeal.
• On August 14th, 1998 Mayor Lewis states in a letter to Ms. Kehoe (Exhibit Q) that
we have met all of the conditions of the LCP, and he asks her to withdraw her appeal.
• On August 17, 1998 Bill Ponder states in a telephone conversation with me. "I feel
really bad about this whole thing, and it is my feeling that you are in fall compliance
with the LCP\
I had been led to believe that we had addressed all of the issues for the appeal.
August 21, 1998,1 received a telephone call from Mr. Ponder stating that staff will be
continuing the appeal with substantial issues, and a de novo hearing.
When I asked what the "substantial issues" were, he informed me as to the following:
1) Incompatibility of building materials including the copper roof.
2) Reduce the height of the residence from 31' to 25'. This would result in an
entire redesign and engineering of the residence.
3) Eliminate the USF&W conditioned 6' fence along the northern lagoon setback.
4) Create a pedestrian path in the USF&W conditioned wildlife setback area.
5) Place a pedestrian gate at Mountain View on a piece of land that is owned by
an adjacent neighbor.
All of these "substantial issues" had never been discussed prior to 8/21/98 as a condition
for development. More importantly two of the them are completely contrary to the
conditions placed upon us by USF&W and our consulting biologist recommendations.
Finally they were conditioning us to construct a public access pedestrian gate on a
neighbor's property!
The irony of this process is this.
1) Coastal staff was involved in each decision, and every meeting and kept
apprised of every development.
2) They were active participants in the 1/22/97 conditions for development
meeting with all of the resource agencies.
3) They were sent a memo and site plan on 2/6/97 as to the boundary adjustment
per the conditions of the resource agencies.
4) They were kept apprised of the certificate of compliance recorded 11/4/97.
5) They never commented on the mitigated negative declaration in April, 1998
during the resource agency review period.
6) They did not comment of the Notice of Exemption for the lot line adjustment
recorded by the City of Carlsbad on 5/21/97.
7) They did not comment during the eight month processing and issuance of CDP
97-59.
8) They elect to appeal CDP 97-59, although they have lost virtually every piece
of documentation to the site!
9) When Commissioner Kehoe asked staff to withdraw the appeal because "the
facts of the appeal were misrepresented to her", they declined to do so!
10) On 8/21 I am informed of what the "new substantial issues" are to be,
although they have never been raised before this date.
Commissioner, today is Tuesday August 25,1998, and I still do not have the staff report.
As you know it is essential that I respond to the 'substantial issues" in writing no later
than 8/28/98 for your review.
Unless three commissioners elect to verbally hear my arguments at the meeting, the entire
appeal will be based upon staffs 'substantial issues staff report" and my written response
to them.
Fairness in the process would dictate that I would have the opportunity to prepare my
response to a fifteen page report in less than one day! Staff has had 30 days to prepare
their argument.
I ask the following:
1) That this appeal be withdrawn.
2) If my written response is not compelling enough for withdrawal than the
Commissioners vote to allow an open discussion.
3) If "substantial issues" are found then the "de novo" hearing be commenced
immediately.
Commissioner, I am faced with the following hardships.
1) I have sold my current home in anticipation of breaking ground 8/15.
2) I have finished engineered plans ready to pull a permit.
3) I have a loan commitment for construction.
4) I have hired a building supervisor.
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5) I have retained a general building contractor
6) I have commitments to various subcontractors.
7) I have met all of the conditions of the LCP.
8) I was issued CDP 97-59 per the City of Carlsbad.
9) I am limited to a building window of 8/1 through 3/1 due to the light footed
clapper rail.
In closing I ask for you to withdraw the appeal and substantial issues. I have complied
with all of the resource agencies conditions to development. Even if there are "substantial
issues" found they are of a technical nature. The bottom line is what conditions would be
changed hi the process?
My family should not be held hostage, and delayed by an agency that was an active
participant in the placing of those conditions.
Thank you for your consideration.
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August 18, 1998
Aagust28,1998
Applicants Response to Staff Report
V. FINDINGS ON SUBSTANTIAL ISSUE
1. Project Description. Construction of a 30-foot high, 2,713 sq.ft. single family
residence and a 35-foot high, 1,633 sq.ft., detached garage with a 577 sq.ft. second unit
above on one lot of a 2.6 acre site. Estimated grading quantities include 75 cubic yards of
cut and 75 yards of fill to be balanced on-site. Also proposed is off-site private access
improvements, the replacement of a gate and fencing on the site. The 2.6 acre project site
is comprised of 2 lots located along the south shore of Buena Vista Lagoon, west of the
AT&SF Railroad and north of Mountain View Drive in northern Carlsbad.
Incorrect: The project site is 1.9 acres. There is cm adjoining vacant Jot that is not part
ofCDP 97-59 that represents .7 acres. The project site is vacant and is covered with
disturbed shrub habitat. There are no steep slopes or native vegetation on the project site.
Fresh water marsh occurs on the northwest and eastern boundaries of the site below the
rip-rap line. An existing unimproved lagoon trail is located around the outer edge of the
property running from its western edge and continuing to circle the site like a loop. The
AT&SF Railroad right-of-way lies to the east of the site, and multi-family housing is
located to the south of the project site. The site is designated Residential LOW (RL, 0-1.5
du/ac) and zoned R-l-30,000 in the certified Mello IILCP.
2. Protection of Visual Resources. The project site is located at the confluence of the
mouth of Buena Vista Lagoon and the Pacific Ocean at the boundary between the cities of
Carlsbad and Oceanside. Although there is existing development in the area, because of
the site's unique setting adjacent to the lagoon, it is like no other site in Carlsbad. Open
waters of Buena Vista Lagoon are on the west side to the site with some rip-rap on the
banks; fresh water marsh associated with lagoon environs occurs on the northwest and
eastern boundaries of the site below the rip-rap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and circles the site like a
loop.
The following policies and goals of the certified Mello II LCP address protection of public
views and are applicable to the proposed development:
Policy 8-1
The Scenic Preservation Overlay Zone should be applied where necessary
throughout the Carlsbad Coastal Zone to assure maintenance of existing views and
panoramas. Sites considered for development should undergo individual review to
determine if the proposed development will obstruct views or otherwise damage
the visual beauty of the area. The Planning Commission should enforce
appropriate height limitations and see-through construction as well as minimize
any alterations to topography^!
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In fact this site is not applicable to the Scenic Preservation Overlay Zone. The
only part of Carlsbad that has adopted this zoning ordinance is the El Camino
Policy 3-2 of the Mello II LCP also requires that development be clustered to preserve
open space for habitat protection which also serves to minimize the visual impacts of new
development.
The proposed 2.713 sq.ft. residence is over 30 feet tall, consists of two-stories, and
features a copper-colored (This is a real copper roof) metal roof and concrete block
walls. Also proposed is a 1,633 sq.ft., with a 577 sq.ft. second unit above that will be 35
feet in height. Second dwelling units are addressed in the City's LCP. As approved in the
LCP, such units are allows by right subject to restrictions on size (650 sq.ft. maximum),
affordability, etc. Second units must also meet all the requirements of the local coastal
program, with the exception of base density.
The subject site is visible from the beach, the railroad and portions of Old Highway 101
(Carlsbad Boulevard), which is designated as a Scenic Road in the LCP. Incorrect: From
the west the views to the building site are blocked by tules> and the railroad tracks.
Looking south from Oceanside the tules block the site. Looting northwest from Carlsbad
the trees and the sewage pump station obscure the building site. Please see
accompanying photos.
Old Highway 101 is heavily used by beachgoers to get to the beaches of northern
Carlsbad. Existing cattails and the elevated railroad berm are high enough to block views
to the west from the portion of Old Highway 101 that is along side the site. The site is
however, visible both from the highway as it descends south from the City of Oceanside
into Carlsbad and at a point close to the Buena Vista Lagoon pump station going north on
the highway. Incorrect; Please^fee c&pjftm&bove.
As noted above, the approximately 2.6 acres under the applicant's ownership constitutes a
unique, low-lying area immediately adjacent to the lagoon where no development has
occurred. As such, the proposed project, consisting of two large structures located
directly adjacent to the lagoon, has the potential to adversely impact public views in this
scenic area by presenting a significant structure in an otherwise natural setting. Incorrect:
The site is surrounded by 30-35 * homes to the north and west, 33 ' apartment buildings to
the south, and 34 'homes to ihe southwest
Policy 8-1 of the City's LCP provides that the Scenic Preservation Overlay Zone should
be applied where necessary to assure to the maintenance of existing views and panoramas,
which requires that sites by evaluated for potential public views that should be preserved
and enhanced. Its purpose is to provide regulations in areas which possess outstanding
scenic qualities or would create buffers between incompatible land uses which enhance the
appearance of the environment and contribute to community pride and community
prestige. The subject site does not represent an infill area but rather should be views as an
extension of development northward at a critical scenic interface between the ocean and
the lagoon which is visible from the Highway 101. Therefore, the site is located in a
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highly scenic area that meets the criteria for application of the Scenic Preservation Overlay
Zone. Incorrect: This site is nWini^
Based on the above, the Commission find that there is a substantial issue as to the
proposed project, as approved by the City and conformity with Policy 8-1 of the LCP. As
approved by the City, the proposed structures are 30 - 35 feet high which will represent a
project that is out of character with the setting of the surrounding lagoon environment!
Incorrect: As stated above all of the surrounding properties are Intilt upon hillsides and
are in excess of 30'. CMC 21.10.020 allows houses to be built to 35' and three stories
with a 3:12 roof pitch. I am in fall compliance with the LCP.
The LCP requires that appropriate height limitations be enforced. While the proposed
development is within the current required height limit, by allowing the project to extend
to the maximum height limit allowed by zoning, the City failed to recognize the unique
setting where the residence is to be sited. Additionally, the California Department of Fish
and Game has indicated that structures this high at this location could discourage shore
and migrating birds from visiting the area, or act as "predator perches" affecting sensitive
avian species in the area Unsubstantiated conjecture: There are no documented reports
to this effect, nor was there any mention of this in the Pacific Southwest (Exhibit H)
biological report. Moreover, the proposed exterior treatment includes copper-colored
metal roofs and concrete block walls. These design features will degrade the natural
beauty of this area. That is, the project will "stand out" rather than blend in or be
subordinate to the surrounding natural environment Incorrect; Iff the f#o years that
went into the design of the project, our main design criteria was to create a residence
that maintained the environmental integrity of this very unique site. Furthermore there
are many examples of this type of building materials utilized in the surrounding area.
Please see accompanying photos. Therefore, the Commission finds the project as
approved by the City raises a substantial issue with regard to consistency with the visual
resource policies of the certified LCP.
3. Public Access/Recreation. The Coastal Act contains policies that call for protecting
public access to the coast. The following Coastal Act policies are applicable to the
proposed development.
Section 30210.
In carrying out the requirement of Section 4 of Article X of the California Constitution,
maximum access, which shall be conspicuously posted, and recreational opportunities shall
be provided for all the people consistent with public safety needs and the need to protect
public rights, rights of the private owners, and natural resource areas from overuse.
Section 30211.
Development shall not interfere with the public's right of access to the sea where acquired
through use or legislative authorization, including, but not limited to, the use of dry sand
and rocky coastal beaches to the first line of terrestrial vegetation.
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Section 30212.
(a) Public access from the nearest public roadway to the shoreline and along the coast
shall be provided in new development projects except where:
(1) It is inconsistent with public safety, military security needs, or the protection
of fragile coastal resources,
(2) adequate access exists nearby, or,
(3) agriculture would be adversely affected. Dedicated accessway shall not be
required to be opened to public use until a public agency or private association
agrees to accept responsibility for maintenance and liability of the accesswayfs In
fact the below described irrevocable offer to dedicate open space easement (lot
#3) was recorded August 15, 1984. In 14 years the dedication has never been
accepted by a public agency or private association.
In addition, several policies of the Mello IILCP apply to the project site.
Policy 7-3 - ACCESS ALONG SHORELINE
The City will cooperate with the state to ensure that lateral beach access is
protected and enhanced to the maximum degree feasible, and will continue to
formalize shoreline prescriptive rights. Irrevocable offers of dedication for lateral
accessways between the mean high tide line and the base of the coastal bluffs, and
vertical accessways where applicable, shall be required in new development
consistent with Section 30212 of the California Coastal Act of 1976. There is
evidence of historic public use adjacent to Buena Vista Lagoon. Paths criss-cross
the area near the railroad tracks to the ocean shoreline. Development shall provide
access and protect existing access consistent with the needs to protect the habitat.
Policy 7-6 - BUENA VISTA LAGOON
An access trail shall be provided along the southern shoreline of Buena Vista
Lagoon, page 63) to facilitate public awareness of the natural habitat resources of
the Lagoon. In our conditions to development we agreed to provide this trail and
are conditioned by CDP-97-59. On (exhibit 4.10To protect sensitive resources of
this area, access development shall be limited and designed in consultation with the
State Department of Fish and Game. We have spent three years working with all
of the resource agencies including USF&W, CDF&G, and the CCC. In permitted
development of properties adjacent to the Lagoon, offers of dedication of lateral
accessways, irrevocable for a term of 21 years, shall be required to be provided to
the City of Carlsbad, State Coastal Conservancy, or other appropriate public
agencies. Such access dedications shall be of at least 25 feet in width upland from
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environmentally sensitive areas and any required buffers thereto. In addition, the
City of Carlsbad, State Coastal Conservancy and Wildlife Conservation Board
shall seek to obtain lateral accessways across developed lands.
The subject site is located between the first public roadway and the sea (reference Exhibit
#1 attached). The beach area to the west of the project site can be reached via a public
access stairway on Ocean Street. To reach the lagoon area immediately adjacent to the
subject site, due to a well-worn path, it is apparent that visitors to this area use a path near
Mountain View Drive which leads behind tennis courts on the adjacent lot and then down
to the lowland area that comprises the subject property. This is the path that has
historically been used as the southern access to the open space. It sits directly to the east
of the proposed electric gate. The beach and lagoon areas are currently used by walkers,
fishermen and naturalists. As noted above, the Mello II LCP envisions an areawide
pathway along the south shoreline of the lagoon. This is conditioned in CDP 97-59. The
City of Oceanside is planning pathways on the northern side of the lagoon along with a
bird sanctuary. The Department of Fish and Game owns properties on the south side of
the lagoon, east of the subject site, an on the north side. Because of its location, the
project site is located at a crucial point in any potential linkage between public beach areas
and the public lagoon areas. Incorrect: The public access linkage to the. beach area is
along the four acres of open space on lot #3. Linkage to the east along the southern trail
is impossible due to tules, wetlands, and the rail road tracks.
There is evidence of historic public use of this site. This evidence is the existence of a
well-worn path around the perimeter of the site. The path is evident in numerous aerial
photographs of the site taken as early as 1972. In recognition of the existing trail on the
south side of the lagoon, the City has required that the applicant record an offer to
dedicate a public access easement along the south shore of Buena Vista Lagoon, along the
western edge of the site consistent with Policy 7-6 of the Mello HI LUP. The city's
approval also required that the development maintain a 100 foot setback from the lagoon's
edge, consistent with input provided by the resource agencies and LCP requirements.
This 100-foot setback would then function as a wetlands buffer. The existing worn path
on the site is located within the 100- foot wetland buffer. However, the agencies found
that the trail was permitted use within the buffer. In order to further protect the resources,
the resource agencies also required that the applicant construct a fence at the inland edge
of the buffer to keep domestic pets out of the buffer area to protect wildlife that occurs
near the water's edge. Per USF&W conditions of development 2/13/97 Exhibit 1, J, R.
However, the City's approval does not address other public access issues raised by the
proposed development.
First, the City's approval authorized a gate across the southern lagoon trail that is the
subject of an offer to dedicate a public access easement. As we are condition by the
resource agenciesat ine direction of Southwest Biological Service report. The gate is
proposed within a fence on Parcel B (exhibit #7), the other lot under the applicant's
ownership which is not from dawn to dusk. The Commission found in a recent permit
decision, (Ref. CDP #6-96-15 9/Cade), that regulating hours of beach access along
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property fronting Agua Hedionda Lagoon through a time lock gate was inappropriate.
The Commission finds that a time-lock gate raises a substantial issue as to conformity with
as the certified LCP as policies 7-3 and 7-6 do not contain a provision which would permit
such a device. On the contrary, both policies recognize public use in the area and provide
for a public trail. The only restrictions the policies make on access is that it should be
provided without requiring habitat impacts. We were conditioned by tfie resource
agencies to fence these boundaries to restrict domestic animals from entering the lagoon
and marsh habitats. No restrictions on what time of day access should be restricted are
stated. Time lock gates are also inconsistent with the public access policies of the Coastal
Act. The cited Cade decision that regulating hours of beach access, is inapplicable to
this case. The Buena Vista Lagoon is a completely different watershed than the Agua
Hedionda Lagoon. The Agua Hedionda lagoon is a public use facility with water sports
permitted within the lagoon environment. There is very limited impact to plant or animal
species. The Buena Vista Lagoon on the other hand is a designated wildlife habitat and
public use is prohibited within the watershed except for fishing. . The Buena Vista
Lagoon site has well documented biological, wildlife, and public safety concerns. The
Cade property borders a restaurant to the west and condominiums to the east.
Additionally the residence sits 40' away from the public access The internal security
fence is only 42" high, and actually touches the residence on the northeast corner.
Furthermore we are conditioned to low level lighting to protect the lagoon and marsh
environments at night. This precludes any security lighting to warn my family of an
intruder. The public access trail along the southern boundary of the lagoon ends in a
wildlife habitat marsh that is virtually impassable. Therefore it does not create an
ingress/egress to another property as the Cade property does. Finally because of the
remote nature of this site it has a well documented history of transients, drugs, and gang
activity. Therefore compelling public safety issues exist to protect not only the residents
but the wildlife habitat as well.
As noted above, Policy 7-3 of the LUP states that"... There is evidence of historic public
use adjacent to Buena Vista Lagoon. Paths criss-cross the area near the railroad tracks to
the ocean shoreline. Development shall provide access and protect existing access
consistent with the needs to protect the habitat..." Due to the fact that there is historic
use by the public on this site, the City required that the applicant record an offer to
dedicate for the path on the west. However, the City's decision did not recognize the
remainder of the perimeter path on the site that appears to be historically used by the
public (as noted previously, a well worn path is evident on the site and is also evident in
aerial photos dating back to 1972). In fact they did. Per thePacfa^Souinwest Biological
report and the subsequent resource agencies conditions this area has been designated a
wildlife habitat setback area due to the presence of a pah- of California light footed
clapperrail 's in the eastern marsh. We are conditioned to the following:
1) Remove all non native plant material and seed with a native material approved by
CDF&G.
2) Offer to dedicate to CDF&G a 100' wildlife buffer from the edge of the eastern
marsh.
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3) Place along the entire setback a 6' chain link fence that will prohibit human or
4) Place light shields along the southern cul de sac fence to prevent car lights from
disturbing the habitat at night. Additionally limit exterior residence lighting to low
level or scmenedjights.
The City's approval includes a fence across the 100-foot buffer with a dawn to dusk gate
and a fence from the proposed cul-de-sac to the marsh to the east. As such, the City's
approval will adversely affect continued use of the on-site trails by the public. LCP
policies 7-3 and 7-6 states: "Development shall provide access and protect existing
access consistent with the needs to protect the habitat.
These proposed fences are not needed for security as the entire building area will be
fenced. Incorrect: The northern boundary fence is only 42" tall arid actually touches the
northeast portion of the residence. It would be extremely easy for an intruder to enter the
property along this fence tine. Additionally I am conditioned to low level lighting on the
residence which precludes security lighting which could warn my family of an intruder.
In addition, such fences close to the lagoon and the marsh may have adverse impacts on
birds and wildlife by restricting movement in the buffer and providing potential perches for
birds of prey. Uri^sta^ated cc^ctuf^KJnis statement is not supported by any
resource do^cunje^^
In addition, the City's permit decision did not recognize the public's use of an existing trail
from Mountain View Drive to the existing trail on the south shore of the lagoon and the
ocean shoreline to the west. This is a unimproved prescribed trail that runs to the east of
the tennis courts on private property that is owned by the Army Navy Academy and
adjoins the open space of lot #3. Consequently the city would have no way of
documenting it. The City's approval included replacement of an existing manually
operated gate with an electric gate near Mountain View Drive for access for the proposed
residence, fire and maintenance vehicular access. The existing fenced and locked gate are
located just off Mountain View Drive on property that is not owned by the applicant.
However, the applicant has a private access easement over the property. The installation
date of the gate is unknown. The fence/gate appears on a 1981 tentative map for a
neighboring project. In addition, representatives of the City have verbally stated that it has
been in place since the 1960s. The gate/fence limits public access from Mountain View
Drive to the applicant's site. Incorrect: This access gate sits adjacent to the western side
of the tennis courts. (See accompanying photos) It has been closed to pedestrian and
public vehicular traffic since the 1950 's! Pedestrian access has always been along the
eastern side of the tennis courts. This gate is where the applicant will take access to the
subject site via an existing private access easement. According to the City, it is the only
beach vehicle access in northern Carlsbad and has been used by lifeguard personnel and
city maintenance crews to maintain the lagoon weir which regulates the water level in
Buena Vista Lagoon.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums (ref. Exhibit #6). In its
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approval of CDP #6-83-51, the Commission required Lot 3, the lot over which the
applicant must take access to get to the project site, to be reserved as open space through
an offer to dedicate an open space easement As stated previously this dedication has
never been accepted by a private association or public organization which precludes it's
legal public access, In its open space easement condition, the Commission prohibited all
development except for development needed to allow for vehicle access across Lot 3 to
the lagoon weir and for public projects that were planned on this low-lying area, including
wetland restoration and possibly as a depository site for beach replenishment projects.
The condition did not recognize any private vehicular access across Lot 3 which is needed
for the applicant to get to the project site. However, the applicant has demonstrated the
right of private vehicular access across Lot 3 to the project site through an easement that
was initially granted in 1971 and then recorded again in 1984. Prior to the issuance of the
offer to dedicate as open space on 8/15/84. In its approval of CDP 6-83-51, the
Commission also required a public access easement over the entirety of Lot 3. Neither the
offer to dedicate an easement for public access nor the offer to dedicate an open space
easement have been accepted by a public agency or private association. The City's
decision on this project formalizes lateral access along the lagoon but does not address
how the public will access the trail, lagoon ocean from Mountain View Drive. Section
30212 of the Coastal Act and Policy 7-6 of the LUP require that vertical access to and
along the shoreline be provided where appropriate. The City's action failed to provide
public vertical access from Mountain View Drive to the trail on the south shore of the
lagoon which is inconsistent with these provisions.
Incorrect: Pub^Kc access is maintained as follows:
1) From the west along lot #3 and the beach, there is coastal public access
adjacent Ocean Street, which is an extension of Mountain View,
2) From the east there is a trail that begins atMaxon Brown Park on State St.,
crosses the highway at the sewer pump station, continues west across the
railroad fracts to let #3,
3) From the south adjacent to the tennis courts is a prescribed trail that leads to
As such, the Commission finds that replacement of the existing manual gate with a new
electric gate will give the impression that this area is private which could further limit
access by the public, inconsistent with Coastal Act and LCP policies? Incorrect' The
above mentioned access trails are well known and have been in place for years. They are
used daily by the public to access the beach and open space.
In summary, because the proposed fencing and gating plans would adversely affect public
access, the Commission finds the development as approved by the City raises a substantial
issue with regard to consistency with the public access and recreation policies of the
certified LCP and Chapter 3 of the Coastal Act.
4. Environmentally Sensitive Habitat Areas.
Policy 3-2 of the certified Mello II LUP addresses the protection of this environmentally
sensitive area and provides the following:
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Policy 3-2 Buena Vista Lagoon
Developments located along the first row of lots bordering Buena Vista Lagoon
including the parcel at the mouth of the Lagoon (see Exhibit 4.5, Page 61), shall be
designated for residential development at a density of up to 4 dwelling units per
acre. Proposed development in this area shall be required to submit topographic
and vegetation mapping and analysis, as well as soils reports, as part of the coastal
development permit application. Such information shall be provided as a part of or
in addition to any required Environmental Impact Report, and shall be prepared by
qualified professionals and in sufficient detail to enable the City to locate the
boundary of wetland and upland areas and areas of slopes in excess of 25%.
Topographic maps shall be submitted at a scale sufficient to determine the
appropriate developable areas, generally not less than a scale of 1" - 100' with
topographic contour interval of 5 feet, and shall include an overlay delineating the
location of the proposed project. Criteria used to identify wetlands existing on the
site shall be those of Section 30121 of the Coastal Act and based upon the
standards of the Local Coastal Program Mapping Regulations, and shall be applied
in consultation with the State Department of Fish and Game. In fact we diet please
refer to Pacific Southwest Biological report dated W 15/96 (Exhibit H). The
resource agencies included in consultation were CCC, USF&W, and the CDF&G.
Development shall be clustered to preserve open space for habitat protection. The
site has been clustered from 1.9 acres to .43 acres due to set back conditions.
Minimum setbacks of at least 100 feet from wetlands shall be required in all
development, in order to buffer such sensitive habitat areas from intrusion. We
have cowManed to1QQ' setbacks on two of our three property boundaries! Such
buffer areas, as well as other open space areas required in permitted development
to preserve habitat areas, shall be permanently preserved for habitat uses through
provision of an open space easement as a condition of project approval. In the
event that a wetland area is bordered by steep slopes (in excess of 25%) which will
act as a natural buffer to the habitat area, a buffer setback of less than 100 feet in
width may be permitted.
The density of any permitted development shall be based upon the net developable
area of the parcel, excluding any portion of a parcel which is not within wetlands.
Storm drain alignments as proposed in the Carlsbad Master Drainage Plan which
would be carried through or empty in to Buena Vista Lagoon shall not be
permitted, unless such improvements comply with the requirements of Sections
30230, 30231, 30233, and 30235 of the Coastal Act by maintaining or enhancing
the functional capacity of the lagoon in a manner acceptable to the State
Department of Fish and Game.
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Land divisions shall only be permitted on parcels bordering the lagoon pursuant to
a single planned unit development permit for the entire original parcel.
Additionally, the Coastal Resource Protection Overlay Zone, an implementing ordinance
of the City of Carlsbad LCP, contains identical language to Policy 3-2 above with respect
to Buena Vista Lagoon.
Numerous other policies of the LCP provide that new development not contribute to
erosion and sedimentation of sensitive resources, including Buena Vista Lagoon. Policy
4-3 and Policy 4-6 address this issue.
Policy 4-3 - ACCELERATED SOIL EROSION
(A) Areas West of 1-5 and the existing Paseo del Norte and Along El Camino Real
Upstream of Existing Storm Drains
For areas west of the existing Paseo del Norte, west of I-and along El Camino
Real immediately upstream of the existing storm drains, the following policy shall
apply:
A site specific report prepared by a qualified professional shall be required for all
proposed development, identifying mitigation measures needed to avoid increased
runoff and soil erosion. The report shall be subject to the requirements of the
model erosion control ordinance contained in the appendix to the Carlsbad Master
Drainage Plan (June, 1980), and to the additional requirements contained herein.
Thet^rtte^add^
Such mitigation shall become an element of the project, and shall be installed prior
to initial grading. At a minimum, such mitigation shall require construction of all
improvements shown in the Master Drainage Plan for the area between the project
site and the lagoon (including a debris basin), as well as : restriction of grading
activities to the months of April through September of each year; revegetation of
graded areas immediately after grading; and mechanism for permanent maintenance
if the City declines to accept the responsibility; Jibe site is extremely flat and the
only grafting that will be required is a R&R for the pad sites. Construction of
drainage improvements may be through formation of an assessment district, or
through any similar arrangement that allots costs among the various landowners in
an equitable manner.
4-6 - SEDIMENT CONTROL PRACTICES
Apply sediment control practices as a perimeter protection to prevent off-site
drainage. Preventing sediment from leaving the site should be accomplished by
such methods as diversion ditches, sediment traps, vegetative filters, and sediment
basins. Preventing erosion is of course the most efficient way to control sediment
runoff. We have proposed, and wit! incorporate, a sedimentation basin with a
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fossil filler to prevent contaminants from entering the lagoon. There is very Stile
hardscape proposed for the site. In fact the driveway easement will be DG in lieu
of concrete or asphalt. Additionally the site is very flat, with sandy soil. We
with are conditioned to 100' setbacks on two of the three boundaries, therefore
accelerated soil erosion is extremely unlikely.
The 2.6 acre project site consists of two lots located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The site is 1.9 acres. The project site is covered with disturbed shrub habitat.
There are no steep slopes or native vegetation on the project site. Fresh water marsh
occurs on the northwest and eastern boundaries of the site below the rip-rap line.
In recognition of the sensitive nature of the project area, the City approved the project
with several conditions regarding the protection of coastal resources. The City found that
the project was consistent with the certified Mello II Coastal Resource Protection Overlay
Zone (Chapter 21.203 of the zoning ordinance) in that the project would adhere to the
City's Master Drainage and Storm Water Quality Management Plan and Grading
Ordinance to avoid increased runoff and soil erosion, no steep slopes or native vegetation
is located on the subject property and, the site is not located in an area prone to landslides,
or susceptible to accelerated erosion, floods or liquefaction. The adjacent Buena Vista
Lagoon wetlands have been delineated and the project has been designed to include a
minimum 100 foot setback between the wetlands and all structures. The City's approval
required the applicant to record an open space deed restriction over the entire wetland
buffer setback area and to make an irrevocable offer of dedication of the wetlands buffer
to the California Department of Fish and Game.
Although the existing vegetation on the site consists primarily of non-native grasses and
weeds, two regionally significant habitats, a coastal lagoon and freshwater marsh
community, do occur near the subject property. Thus, activities on the property could
affect the quality of these habitats. Buena Vista Lagoon provides nesting and foraging
habitat is decreasing due to continuous development along the edge of the lagoon. The
City approved a sedimentation catch basin on the southeast corner of the site which will
direct surface runoff to the east of the site within the freshwater marsh which is part of
Buena Vista Lagoon. Policy 302 provides that no direct discharges to the lagoon can
occur without approval of the Department of Fish and Game, We addressed ail of the
drainage mitigation issues to the resource agencies in CDP 97-59. On April 1, 1998 the
mitigated Negative Declaration was presented to the respective resource agencies
(including CDF&G) for their review. No comment was received by any of the agencies
(including CDF&G). That permission has not been obtained from the Department in
writing. No comment from a state agencies constitutes approval on their part and written
permission is not required. Urban runoff and pollutants at this location could endanger
plants and animal s that reside in the marsh, including the endangered clapper rails.
Therefore, the City's decision cannot be found consistent with Policy 3-2 of the Mello II
LCP and substantial issue must be found. Policy 3-2 of the Mello H LCP has been
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m compliedwith. Asprevioiistystc&dlhec^^
fossil filter mil negate possible pollutants from entering the lagoon.
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'.IffP^
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Prepared by:
John C. Levy, Jr.
Prepared for:
California Coastal Commission
Response to "Substantial Issues"
Substantial Issues
Issue A Page 3-9
Substantial Issue with regard to consistency with the visual resource policies of the certified LCP.
1. Proposed elimination of the "dusk to dawn" gate.
2. Removal of the 6' chain link fence along the southern property boundary in the
100' northern open space set back area.
3. Incorporate a public access trail within the eastern 100' habitat setback.
Issue B Page 9-10
Public View Sheds and Corridors.
Issue C Page 10-12
Substantial Issue with regard to consistency with the visual resource policies of the certified LCP.
Specifically: Reduce the elevation of the residence to 25'.
Issue D Page 12-13
Substantial issue with regard to consistency with the visual resource policies of the certified LCP.
Specifically: Eliminate block as an exterior material and copper roof.
Issue E Page 13-15
Substantial Issue with regard to consistency with the public access and recreation policies of the
certified LCP and Chapter 3 of the Coastal Act
Specifically: Deny the applicant the installation of an electric gate on Mountain View Drive.
Incorporate a pedestrian gate into the design.
Issue F Page 15-16
The City's decision cannot be found consistent with Policy 3-2 of the Metto II LCP and substantial
issue must be found.
Response to
Findings on Substantial Issues
, in
the 100' northern open space set back area.
3* Incorporate a pubKc access trail within the eastern TOO1 habitat setback.
RESPONSE:
A single response is made for these three issues as they are closely related.
The response addresses wildlife, biological, environmental, and public safety
concerns as the reasons for rejecting these issues.
In the three years of planning this project our objective was to balance the
needs of public access, biological, wildlife, and public safety concerns. I
believe that we achieved a proper balance that addresses all of these issues.
The "substantial issues" raised by the staff report do not address the
"conditions of development" mat were agreed upon by all of the resource
agencies on 1/22/97 and the fourteen months of work prior to that meeting.
Wildlife, Biological, and Environmental Concerns:
The three points at issue were discussed and resolved by all of the resource
agencies (USF&W, CDF&G and CCC) in attendance at the 1/22/97 USF&W
meeting, where conditions for development were established and
documented. Of principal concern is the protection of the federally listed
endangered California light-footed clapper rail and other sensitive fish and
wildlife resources. Foot traffic and pets must be excluded along the 100'
buffer area to minimize impact on these resources. The restrictions the
policies make on access is that it should be provided without requiring
habitat impacts.
The terms of this agreement are contained in the USF&W letter dated 2/13/97
(Exhibit I) and are illustrated by the 11211
97 site plan (Exhibit J). The conditions are supported by the Biological report
(Exhibit H) and are reiterated in the USF&W letter of 8/25/98 (Exhibit R).
Applicable References
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 1):
"A 100-foot buffer from the mean high water level to all structures, roads
and fences shall be established as described in the 1-7-97 plan. The property
owner shall make an irrevocable offer of dedication for this buffer area to the
CDF&G. This offer should be a 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."
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 2):
"Restoration of the 100- foot buffer area shall occur prior to development and
shall include removal of non-native plant species and applying a native
coastal scrub grass seed mix."
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 4):
"Installing a 72 inch high solid perimeter fence along Hie 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." (emphasis added)
These conditions imposed by USF&G are aimed at avoiding and/or
minimizing potential impacts to the rail and other sensitive resources by
restricting access by foot traffic and pets. The conditions were adopted
based on the recommendations in the biological report of environmental
conditions.
Pacific Southwest Biological Services Report of 10/15/96 (Exhibit H,
page 15, section 7.0, item 3):
"A Habitat Protection Fence is proposed along the 100' buffer to ensure that
foot traffic and pets are excluded from the buffer area. This fence would be
3-4 feet tall and may include an additional biological barrier along it (e.g.,
Bougainvillea sp., Rosa sp., or Carissa sp.)." (emphasis added)
The conditions were reiterated by USF&W as necessary for their
concurrence on this project
USF&W Letter of 8/25/98 (Exhibit R, page 2, paragraph 2):
"These recommendations were made part of the biological mitigation
measures set forth in the City's mitigated Negative Declaration (ND) for CDP
97-59/SDU 98-03. Because of this, the Service did not need to comment on
me ND when it was sent to us for review on April 6, 1998. Should any of
the biological mitigated measures incorporated into the ND as part of the
project be modified, in particular placement of a trail within the 100' buffer
area or deletion of the fencing requirement the Commission needs to be
aware that the Service could not concur with the issuance of the City's ND or
CDP 97-59. (emphasis added)
USF&W Letter of 8/25/98 (Exhibit R, page 2, paragraph 3):
"It is also our understanding that you wish to install a "dusk to dawn" gating
system for the future trail. This system would not restrict access bv the public
during daylight hours, but rather is intended to preclude access after dark and
habitation bv transients. The Service would support the use of such a system
as such unauthorized access into the marsh and lagoon can result in impacts
to sensitive habitats and listed species." (emphasis added)
Section 30212 (a) Public access from the nearest public roadway to the
shoreline and along the coast shall be provided in new development projects
except where:
(l)It is inconsistent with public safety, military security needs, or the
protection of fragile coastal resources. (emphasis added)
Policy 7-3 of the LCP states: "Development shall provide access and
protect existing access consistent with the needs to protect the habitat."
(emphasis added)
Adopting any or all of these three "substantial issues," that is,
eliminating the "dusk to dawn" gate, removing the fencing along the
southern property boundary, and/or incorporating a public access trail,
would run contrary to the mutual goals of avoiding and minimizing
potential impacts on the endangered clapper rail and other sensitive
species.
Public Safety Concerns:
There are compelling public safety reasons for the "dusk to dawn" gate and
fencing. The site is adjacent to a four acre open space area (lot 3) to the
south, rail road tracks to the east, and the Buena Vista Lagoon to the north.
The area has been a virtual no man's land for years because of its remote
nature and difficulty in access for policing. This has been a notorious staging
area for drugs, alcohol, robberies, public nuisances, tagging and transients
living in the wetlands and marshes.
In the attached letters of support, all of the neighbors and resource agencies
make note of the need for "dusk to dawn" gated access to the public trail
along the Buena Vista Lagoon.
The security of my own family is of a major concern to me. The staff report
makes note on Page 9 paragraph one: "These proposed fences are not needed
for security as the entire building area will be fenced." This is incorrect!
If I am conditioned against the proposed "dusk to dawn" gate, and
subsequent elimination of the 6' chain link fence along the entire southern
boundary of the north open space setback, it will be quite simple for an
intruder to jump the northern 42" fence to enter my property and home. In
fact the northeast 100' setback fence sits directly adjacent to the residence.
All adjacent property owners, City of Carlsbad, and USF&W are in full
agreement of the need for these public safety measures. The accompanying
photographs attest to the fact that all adjoining properties enjoy the same 6'
security fencing along their respective boundaries.
Furthermore on Page 9 paragraph one of the staff report: "In addition, such
fences close to the lagoon and marsh may have adverse impacts on birds and
wildlife by restricting movement in the buffer and providing perches for birds
of prey." This is unsubstantiated rhetoric! I am conditioned to provide these
fences to protect the habitat from human and domestic animals intrusion into
the lagoon and marsh.
The property is currently conditioned to low level exterior lighting (see
Exhibit I, page 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."). The use of security lights to
further warn my family of intruders is precluded. This increases the need for
"dusk to dawn" access gate and fencing.
Conclusion: Through the recommendation of the Pacific Southwest
Biological Services study, the respective resource agencies (including the
CCC) conditioned the site to include 6' fencing along all three property
boundaries.
1) The eastern 100' wildlife habitat setback area has been designated as a
nesting area to the federally listed endangered California light-footed
clapper rail. The introduction of humans or animals into this area is
strictly conditioned by USF&W and supported by Pacific Biological
Services report. Additionally, Section 30212 (a) addresses the protection
of fragile coastal resources which this wildlife habitat setback clearly
constitutes.
2) The northern 100' wildlife setback along the southern shore of the Buena
Vista Lagoon incorporates a 25' public access trail. This trail ends just
100' from the marsh wildlife habitat at a cul de sac lookout. Public access
is fully maintained along the southern shore of the Buena Vista Lagoon.
The eastern marsh and the rail road "right of way" prevents travel to the
east along this trail. Public access to the beach and the coast highway is
maintained along the four acre open space (lot #3) adjacent to the
property.
3) The southern boundary fence should extend all the way into the lagoon to
prevent domestic animals from entering the lagoon habitat. This is a
public safety measure enjoyed by all adjacent properties, and restricts
public access during the night hours.
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4) The "dusk to dawn" gate allows public access along the public trail during
the daylight hours. It will be triggered by a solenoid that electronically
closes the gate when the sun goes down, and reopens it at first light.
5) The security of fencing the entire southern boundary, combined with a
dawn to dusk gate, still offers public access during the day. As a balance
it provides safety to my family and to the environment at night.
6) The cited (Ref. CDP#6-95-159/Cade) decision that regulating hours of
beach access along property fronting the Agua Hedionda Lagoon through a
time lock gate is inapplicable to this project. The Agua Hedionda Lagoon is a
completely different watershed than the Buena Vista Lagoon and the two can
not be compared. The Cade decision dealt with a property that did not share
the environmental, public safety, and wildlife issues that the Buena Vista
Lagoon site does. The Agua Hedionda Lagoon is a public use watershed
where watersports are allowed on the lagoon. Humans and pets are permitted
in the watershed. The Buena Vista Lagoon is designated as a wildlife habitat,
and public use is prohibited. Furthermore the Cade access trail is used by the
public to ingress/egress the adjoining properties, whereas the Buena Vista
site does not. Finally because of the remote nature of the Buena Vista site,
and its history of transient and gang related crime, the public safety issues
are compelling enough to permit a "dawn to dusk" gate. The Cade property
is surrounded by condominiums to the east and a restaurant to the west and
does not present these same public safety concerns. The house is sited 20'
above the public access trail.
The conditions set forth in the 2/13/97 USF&W letter strikes a good balance
in terms of the wildlife, environmental, public access, and public safety
concerns.
I ask the Commissioners to find that the "dusk to dawn" public access
gate and the fencing along the southern property boundary to concur
with the "conditions of development" found in the USF&W letters dated
2/13/97 and 8/25/98. These conditions provide public access yet protect
the endangered light footed clapper rail and other sensitive natural
resources from foot traffic and domestic pets. This additionally provides
security to area residents. I further ask the Commissioners to find that a
public access trail within the eastern 100* habitat setback would be
detrimental to this sensitive wildlife habitat.
I ask the Commissioners to find no "substantial issue" with regard to
consistency with the public access and recreation policies of the certified
LCP and Chapter 3 of the Coastal Act.
RESPONSE:
The property and siting of the home do not, in fact, interfere with any public
views to the ocean.
The Carlsbad Municipal Code 21.204.100 section C states: "Ocean views,
buildings, structures, and landscaping will be so located as to preserve to the
degree feasible any ocean views as may be visible from the nearest public
street."
The site is located at an elevation of 12' MSL. The railroad tracks are at
elevation 18'and the Pacific Coast Highway (PCH) sits at an elevation of 6'
MSL. I have attached a southern, western, and northern photograph taken
from the PCH for your review.
The western photo of the bicyclists best illustrates the perspective that the site
does not block any public views. The site sits directly to the west of the
bicyclists. Because the railroad tracks sit at a higher elevation (18 msl) the
only view corridor to the west is of the sky.
The southern perspective looking from Oceanside is blocked by Tules,
although parts of the lagoon are still visible in the view shed. The residence
sits to the south of the lagoon so this coastal view is not impacted.
The northern perspective is a much higher elevation, yet the photo illustrates
you can not even see the residence from the highway. The view corridor
through the open space and ocean on lot three is unobstructed as the
residence is nicked along the northeastern portion of the property The eastern
part of the lagoon watershed is not visible from this perspective.
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There are no ocean view sheds or corridors compromised. We were
conditioned to 100' setbacks on both our northern and eastern property lines.
Although Lot A contains 1.9 acres, setback conditions have reduced the site
to a 0.43 acre building envelope. The enclosed site plan illustrates the
"clustering" of the property. The residence foot print is only 3,060 feet
within a seven acre open space!
I ask the Commissioners to find that no substantial issues exist with
regard to with the visual resource policies of the LCP as the siting does
not adversely effect public coastal views.
RESPONSE:
The Carlsbad Municipal Code 21.10.020 regulates building height in this
R-l zone. Single family residences on lots with a lot area of twenty thousand
square feet or greater and within the R-l zone and specifying a -20 or greater
area zoning symbol shall not exceed thirty five feet and three stories with a
minimum roof pitch of 3:12 provided.
This plan is in full compliance with the LCP and the local zoning
requirements. The height of the main residence is 30 feet and the height of
the guest quarters at 33'1" is well below the maximum allowed. Only the
peak of the hip roof reaches a 33'1" height. The bulk of the structure (below
the top plate) is below 28'.
The attached photographs testify to the height and architecture of the
surrounding properties to the west, south, and north. All of the surrounding
properties are built on hillsides. Their roof lines are at the same height or
higher than we are proposing. Consequently the project is not out of
character with the setting of the surrounding lagoon environment.
In the siting of the residence one of our main goals was to preserve coastal
views along the Pacific Coast Highway. The stated "Scenic Preservation
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Protection Zone. Policy 8-1 of the City's LCP provides that the Scenic
Preservation Overlay Zone should be applied where necessary to assure the
maintenance of existing views and panoramas, which requires that sites be
evaluated for potential public views that should be preserved and enhanced."
This area of the city has not been implemented into the Scenic Preservation
Overlay Zone. The only portion of the city that has been adopted to include
this zoning ordinance is the El Camino Real Corridor. Therefore the Scenic
Preservation Overlay Zone is inapplicable to CDP-97-59.
The residence does not block coastal views from any part of the Coast
Highway. The public view from Ihe closest street, PCH, is not obstructed by
the building.
The view directly to the west is blocked by cattails and the railroad tracks
which sits at a much higher elevation than the site. The view looking south
from Oceanside is blocked by cattails and the railroad track as well.
Although there is a small window of the lagoon from this southern
perspective, the residence sits directly to the south of the lagoon so the view
corridor to the lagoon and ocean is not effected. The view looking
northwest from Carlsbad to the ocean, across the lot #3 open space, and the
lagoon is unaffected because the residence is sited at the most northeastern
portion of the lot. In fact the site can not be seen from this perspective due to
the blockage of trees and the pump station. Please refer to the attached
photographs.
I have attached a letter of support from Melvin McGee, MDM attesting to
these facts. Mr. McGee was the managing director of our architecture design
team and was an associate with Rob Wellington Quigley for over ten years.
Mr. Quigley designed the Solana Beach train station and the proposed San
Diego Downtown Public Library.
Additionally, I have attached a letter of support form Mr. Steve Adams of the
Adams Design Group who is the consulting landscape architect attesting to
our concern of preserving public views.
The statement on page 6 paragraph one of the staff report: "Additionally the
California Department of Fish and Game has indicated that structures this
high at this location could discourage shore and migrating birds from visiting
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the area, or act as "predator perches" affecting sensitive avian species in this
area."
This statement is unsubstantiated conjecture and is not supported by any
biological reports. I seriously doubt that a difference of an eight foot roof
height would support this statement.
The issue of building height was not raised by the CCC, (nor any of the other
resource agencies), during the review process until August 28, 1998 when
the staff report was made public. Ironically this was not cited in the original
appeal dated 7/27/98.
I ask that the commissioners find no substantial issues with regard to
consistency with the visual resource policies of the LCP as to the height
of the proposed residence.
RESPONSE:
The Carlsbad Municipal Code 21.204.100 section B states the requirements
for Appearance: "Buildings and structures will be so located on the site as to
create a generally creative appearance and be agreeably related to
surrounding development and the natural environment."
A team of four talented professionals spent over two years designing this
residence. Our "mission statement" was to create a home that was
environmentally balanced to the site, yet would offer integrity to the coastal
elements. The amount of time that went into the research of materials alone
was phenomenal!
The Carlsbad Planning Commission unanimously approved CDP-97-59.
There were no comments made any of the neighbors, in fact they are all in
support of the proposed architecture. Please refer to the attached letters of
support.
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The exterior material we finally chose was a sandstone 12 inch block that is
lightly sandblasted to soften its appearance. The color and matrix of the
material is of earth tones that will blend into the environment. Many of Frank
Lloyd Wright's greatest homes used the incredible simple symmetry of block.
Cooper roofs date back to the earliest examples of shelter. The natural patina
that "ages" with the elements is timeless. There is probably no other roofing
material that will blend and age into this unique setting than a copper roof.
Many buildings in the vicinity have employed block and copper materials in
their construction. I have enclosed photographs of the Carlsbad train station
and a recently completed residence in Del Mar that combine the elements of
block and the beautiful patina of a natural copper roof There is also a recent
example of the Walmart building (simulated copper) on the eastern watershed
of the lagoon. The city of Carlsbad recently completed a new restroom
facility at Tamarack Beach which is block with copper roof.
I ask the Commissioners to find no substantial issues with regard to
consistency with the visual resource policies of the LCP as to the use of
sandstone block and copper roofing.
Specifically: Deny the applicant the installation of an electric gate on
* ™ v ••> -. ff1 ™ / f ^ V t / } t , J <* ff ? 5 *M*j
RESPONSE:
My property is accessed off an easement from Mountain View Drive. This
easement and the open space (lot 3) is owned by "The Beach Homeowners
Association".
The easement is utilized by police, fire, and maintenance crews for access to
the beach via lot #3 open space, (see site map). There is currently a locked
14
chain link gate at Mountain View and has been in place since the 1960's.
There is public access to this open space from three points:
a. From the west it is accessed from the beach, via a public beach access
from Ocean St.
b. From the east there is a pathway that leads across the railroad tracks to the
Coast Highway.
c. From the south, adjacent to the locked gate, is a tennis court and public
access is obtained just to the east of that tennis court.
It is incorrect to state that" that replacement of the existing manual gate with
a new electric gate will give the impression that this area is private which
could further limit access by the public, inconsistent with the Coastal Act and
the LCP. This gate has been here for nearly forty years, and public access is
maintained directly to the east of the adjacent tennis courts.
Section 30212 (a) Public access from the nearest public roadway to the
shoreline and along the coast shall be provided in new development
projects except where: (3) Dedicated accesswav shall not be required to
be opened to public use until a public agency of private association
agrees to accept responsibility for maintenance and liability of the
accesswav. (emphasis added)
The open space (lot 3) was dedicated on August 15, 1984, albeit no
public agency or private association has agreed to accept the dedication.
Consequently the open space cannot be required for public use.
The intent of this condition by staff is to incorporate a pedestrian gate into the
electric gate plan. Because I do not own nor control the property at Mountain
View, I cannot be conditioned to construct a pedestrian gate. I have offered
to pay for the installation of an electric gate because it will simplify the
accessibility to my residence. The Beach Homeowners Association have
agreed to my request because it will allow the Carlsbad Police Department,
and San Diego Sheriffs Department to better patrol the open space, beach and
railroad tracks. In my past dealings with The Beach HOA they have
consistently denied every request I have made. In fact they recently denied a
15
request to execute a standard Carlsbad Municipal Water District utility
easement. They are aware of Section 30212 (a) 3.
If the CCC would like to gain permission from "The Beach" Homeowners
Association for a pedestrian gate, I would be more than happy to incorporate
it into my site plan.
I ask the Commissioners to find no substantial issues as to a the
proposed fencing and gating plans in that it would not affect public
access in a manner consistent with public access and recreational policies
of the certified LCP and Chapter 3 of the Coastal Act
Response: La the development of our plan, one of the key design criteria was
to maintain the integrity of the environment and its impact to the Buena Vista
Lagoon. I am an active member of the Buena Vista Lagoon Foundation, and
have been instrumental in negotiating the RFP and management plan currently
underway with the respective resource agencies.
A site specific report prepared by Pacific Southwest Biological Service was
prepared for the site. In that report PSBS identified all mitigation measures
needed to avoid increased runoff and soil erosion. Part of those mitigation
measures were 100' setbacks on the northern and eastern boundaries of the
property. Because of the nature of the sandy soil these setbacks would offer
ample protection to the lagoon from urban run off.
The site is generally flat, except for the access easement off of Mountain
View Drive. This easement was the only place susceptible to accelerated
erosion. Although this was not identified in the report we elected to place
decomposed granite along the easement in lieu of concrete or asphalt to
minimize the potential for erosion. Additionally very little hardscape is
proposed around the site. This would help maintain the natural integrity of
the environment as well.
Our site plan proposes a sedimentation catch basin. A Fossil Filter is
incorporated in the design to further control possible contamination.
16
Policy 3-2 provides that no direct discharges to the lagoon can occur without
approval of the Department of Fish and Game.
In the Mitigated Negative Declaration resource agency review period of 3-1
CDF&G did not comment as to the sedimentation catch basin or other
mitigation efforts that address accelerated soil erosion. Written permission
from CDF&G is not required.
I ask that the Commissioners find no "substantial issues" be found as to
Policy 3-2 of the Mello IILCP.
PROPERTY PHOTOGRAPHS
Lookina North ® Eastern 100' Wildlife Habitat.
.
Looking West Along Coastal Access Trail •
"Pedestrian Path"
San Malo 6' security fence into lagoon.
Adjacent Neighbor
1
I
I
i
1
I
I
~^4fc*IK ***. ..i*» i i-w ^^M8I5* *;6s$-<«»~5sr ^^^-s-srw j—" i, B- ~ tut*:!1***-::
Looking South at Apartments & Beach Project
Maximum Roof Heights 35'
I
Apartments to the South
35'Roof Ileieht
-•Sf-:
North West Meighbor "The Beach"
RoofHeiftht?5'
Recently Approved Wai Mart Copper Roof
Eastern Buena Vista Lagoon.
1
I
I
I
I
I
I
Building Site Here
Looking West Directly at Site.
Coast HWY 3MSL
Building Site 12MSL
No Public Views are Blocked
I
I
I
I
I
Looking South - Truck is on Site Project
ooking South on Coast Highway 101
easement. Owned by'The Beach
1
1
I
I
Looking South from Oceanside on Coast
Highway 101. NO COASTAL VFEWS
BLOCKED.
1
1
I
I
Solana Beach Train Station
Carlsbad Train Station
Block Construction and Copper Root.
/
Copper Roof & Block Construction in Del Mar.
North Carlsbad Beach Facility Concrete Block &
Copper Roof.
ransient Camps Adjacent to Marsh
:' • v-»"*:.-" •« •. -- «
Transient Camps Adjacent to Marsh
Tagging
Looking South on "The Beach HOA" Easement
San Malo Adjacent Northern Neighbor
Maximum Roof Height of 35'
Northern Neighbors 10 Property hence
LETTERS OF SUPPORT
AUG-27-98 THU 16:38 CITY OF CARLSBAD COHN DE FAX NO. 4380894 P.02
City of Carlsbad
" ^ ""' —VMHI^^HH^Hir*Mi^^HiH^BMMHHMPlanning Department
August 27,1998
Rusty Areias. Chairman
California Coastal Commission
3111 Camino Del Rio North, Suite 200
San Diego, CA 92108-1725
RE: California Coastal Commission Appeal #A-6-98-9S
Dear Mr. Areias:
The California Coastal Commission appeal of the Levy Residence and Second Dwelling Unit along Buena
Vista Lagoon appears to be based upon iwo incorrect "substantial issues" findings as discussed below;
Access to the subject property
The Coastal Commission staffs position is that There is no Commission approved access to the subject
property.
City review of any lot line adjustments includes a review of all easements on the subject property as well as
on property that serves to provide access and utilities. Our records show mat iot #3, adjacent and to the
south of the subject property is encumbered by a number of casements. Of particular importance is a 40
foot wide private easement from Mountain View Drive across lot #3 to the subject property for ingress,
egress, street improvements, drainage and utilities. This easement was recorded on August 2, 1984. On
August 7. I9&4 an irrevocable offer to dedicate a public access easement and declaration of restrictions in
favor of the California Coastal Commission was recorded. There is no record of a subordination agreement
affecting die access rights to the subject property. Therefore, when the City reviewed the lot line
adjustment, access requirements were satisfied. Our codes do not allow us to create "land locked" parcels,
(see attached adjustment plat and portion of the title report)
It should be noted that other private access easements to the subject property have existed since at least
197} and that the Cities of Carlsbad and Oceanside also have access and maintenance easements across lot
#3.
Your staffs appeal indicates concern that the siting of the road to the subject property should be in the least
environmentally damaging alignment. In feet that was a consideration in the City's review of the coastal
development permit (CDP). The proposed road, located in the 40 ft. easement is currently occupied by a
maintenance road. The location of the access road was fully reviewed by the appropriate state and federal
resource agencies. You should not* that the location of the public access easement that the Coastal
Commission holds is in a sloped and environmentally sensitive area.
Legality of the lot
The Coastal Commission staffs interpretation j$ that a coastal development permit (CDF) was required for
the lot line adjustment (ADJ 471) processed upon the subject property in October. 1997.
The City did not require a CDP for this Specific lot line adjustment for the following reasons:
The subject lot line adjustment, 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, greater
total lot acreage, or a greater intensity of development than existed prior to the lot line adjustment.
2O7G La Palmas Dr. - Carlsbad, CA 92009-1576 • (7SO) 438-1161 - FAX (760) 439-0894
AUG-27-98 THU 16:39 CITY OF CARLSBAD CQHH DE FAX NO. 4380894 P. 03
Pursuant to Section 21.201.030 Of the Carlsbad Municipal Code (CMC), "any applicant wishing to
undertake a development (defined in Section 21.04.107} in the coastal may shall obtain a coastal
development permit". Section 21.201.! 07 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 "development" in the coastal zone and
therefore did not require a coastal development permit. Please be reminded that mis is consistent with the
Supreme Court finding in I.3ndgate, Inc. VE. California Coastal Commission 17 Cat 4* 1006 (1998).
Also pursuant to PRC §30106 and CMC §21.04.107 , the subject tot line adjustment in 1997 did not
qualify as "Development" because it did not change the density or intensity of the use of the land, it did not
involve any construction or modification of the land and by itself it did not and could not affect public
access.
You should note mat the City shared the Commission's concents about the developability of the subject
property because of its proximity to the wetlands. To ensure sensitivity and compatibility, the City rezoned
the two existing legal parcels to R-1-30,000 (30,000 sq. ft. minimum lot size) in 1986. The rezoning was
also a LCP amendment that clearly Showed the two parcels and that was approved by the Commission.
The Commission also accepted the LCP zoning map in 1996 when CDP jurisdiction was transferred to the
City.
Based on the above, it appears that there are no substantial issues associated with the City's approval of
CDP 97-59. The project fully complies with all policies and provisions of the City of Carlsbad's Mello 11
LCP segment.
Sincerely,
MICHAEL J. HOLZMILLER
Planning Director
ATTACHMENTS
c: Carlsbad Mayor and Council Members
City Manager
Assistant Planning Director
Assistant City Attorney, Rudolf
Principal Planner. Chris DeCerbo
John Levy
Deborah Lee, Deputy Director tor South Coast
AUG-27-98 THU 16:39 CITY OF CARLSBAD COT! DE FAX NO. 4380894 P.04
ADJUSTMENT PLAT - CtT* OP OKLSftAb *°411
«fcrri.»«*nTM* 3oun uevy o. SO<UP /^u^i rss- ">!-cm >5&-190-13
AUG-27-98 THU 16:39 CITY OF CARLSBAD COW DE FAX NO. 4380894 P. 05
Policy No. 982430 - 05
Page 6
SCHEDULE B (COST.)
Part IT
GRANTED TO: SASCY KEITH TANAGI.IA
PURPOSE: (A) INGRESS AND EGRESS
(B) THE COHSTKUCTICIH, INSTALLATION, REPLACEMENT,
REPAIR, MAINTENANCE AND USE OF ROADS AND STREETS, AND
(C) THE CONSTRUCTION, INSTALLATION, REPAIR,
MAINTENANCE AND USE OF UNDERGROUND LINES, HIRES.
MAINS, PIPELINES, CONDUITS, CABLES AND FACILITIES FOR
UTILITY PURPOSES AND OSES. INCLUDING, BUT NOT LIMITED
TO SEWER, HATER, GAS, POWER, TELEPHONE AND TELEVISION
RECORDED: AUGUST I, IS75 AS FILE NO. 75-202537, OFFICIAL
RECORDS
AFFSCTS: THE ROUTE AFFECTS A PORTION OF SAID PARCELS 2 AND 3 AS
MORE FULLY DESCRIBED IN SAID DOCUMENT
AC 22. AN EASEMENT FOR THE PURPOSE SHOWS BELOW AND RIGHTS INCIDENTAL THERETO AS
SHOWN ON MAP OF SAID TRACT.
EASEMENT
PURPOSE: ACCESS EASEMENT TO MAINTAIN DRAINAGE FACILITIES
AFFECTS: LOT 3 OF MAP NO. 11007
AD 23. AN SASEMEHT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SHOWN ON MAP OF SAID TRACT.
EASEMENT
PURPOSE: "PROPOSED PRIVATE ROAD EASEMENT"
AFFECTS: LOT 3 OF MAP NO. Ii007
»E 2*. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO: NATIVE SUN INVESTMENT SROUP, A CALIFORNIA LIMITED
PARTNERSHIP
PURPOSE: INGRESS AND EGRESS, STREET IMPROVEMENTS, DRAINAGE AND
UTILITIES
RECORDED; AUGUST 2, 1984 AS FILE NO. 84-294255, OFFICIAL
RECORDS
AFFECTS: THE ROUTE AFFECTS A PORTION OF SAID PARCELS 2 AMD 3 AS
MORE FULLY DESCRIBED IN SAID DOCUMENT
AF 25. AH IRREVOCABLE OFFER TO DEDICATE PUBLIC ACCESS EASEMENT AND DECZARATZON OF
RESTRICTIONS, DATED AUGUST 7, 1984 BY AND BETWEEN NATIVE SUH-CAREW, a
General Partnership, AND THE CALIFORNIA COASTAL COMMISSION, UPON THE TERMS,
COVENANTS AND CONDITIONS CONTAINED THEREIN, RECORDED AUGUST 15, 1984 AS
FILE NO. 84-309895, OFFICIAL RECORDS.
CL.TAMC - u/ia/ft
AUG-27-98 THU 16:38 CITY OF CARLSBAD COI1M DE FAX NO. 4380894 P. 01
City of Carlsbad
Planning Department
FAX JRANSMITTAL
DATE:
PHONE#:
FAX#:
TIME SENT:
TO: IJohn Levy
COMPANY: '
NUMBER OF PAGES BRING TRANSMITTED:
(INCLUDING FAX TRANSMITTAL)
FROM-.30
DEPT: PLANNING
PHONE #: (760) 43g-l 161 ext.
FAX#: (760)438-0894
INSTRUCTIONS;
2O75 Las Palmas Dr. • Carlsbad, CA 92OO9-13TO • (76O) 438-1161 • FAX (760) 438-0894
r
r
r
City of Carlsbad
Office of the IVLayor
August 14,199S
Council Member Christine Kefaoe
California Coastal Commission
202 C Street, MS 10A
San Diego, CA 92101
SUBJECT: CALIFORNIA COASTAL COMMISSION APPEAL #A-6-98-98
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 mis project by my staff.
It appears mat 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:
1) Copy of the October 26,1995 memo to the CCC requesting a review of the initial proposed
she plan;
2) Copy of April 9,1996 letter from USF&W indicating that CCC was an active participant in
negotiating project design and required mitigation;
3) Copy of February 6, 1997 memo to CCC staff with copies of the proposed Adjustment
Plats/Certificate of compliance; and a
4) 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 mat 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 92008-1989 * (619) 434-2830 • FAX (619) 720-9461
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Ecological Services
Carlsbad Field Office
2730 Loker Avenue West
Carlsbad, 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.
V
Dear Mr. Sukup:
The U.S. Fish and Wildlife Service (Service) has reviewed your
revised, conceptual 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 (Callus longirostris
ojbsoletus) (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 1), a
document titled "Biological Report of Environmental 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 O. 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 development
plan to avoid and/or minimize potential impacts to the rail and other
sensitive fish and wildlife resources:
1. A 100-foot buffer from the mean high water level to all structures,
roads, and fences shall be established as described in the 1-7-97
Plan. The property owner shall make an irrevocable offer of
dedication for this buffer area to the CDF&G. This 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.
2. 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.
3. 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.
4. 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.
Kobetich
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, SD, CA (Attn: Bill Ponder)
* City of Carlsbad, CA (Attn: Diane Vanleggelo, Planning
Department and Peter Weiss, Engineering Department)
* City of Oceanside, CA (Attn: Micheal Holzmiller, Planning Dir.)
r UArun
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Ecological Services
Carlsbad Field Office
2730 Loker Avenue West
Carlsbad, California 92008
»„ TU or f AU6251998Mr. John C. Levy, Jr.
REFLEX Corporation
1825 Aston Avenue
Carlsbad, California 92008
Re: City of Carisbad Coastal Development Permit 97-59
Dear Mr. Levy:
The U.S. Fish and Wildlife Service (Service) is in receipt of your letter dated August 21,1998,
regarding our comments on Coastal Development Permit (CDP) 97-59 presented in a letter to
Robert O. Sukup on February 13,1998. It is my understanding from your letter and phone
conversation with Julie M. Vanderwier this morning that the California Coastal Commission
(Commission) is appealing the City's issuance of this CDP on a number of issues, at least two of
which were conditions set forth by the Service in our February letter. These include:
• Establishment of a 100-foot buffer from the mean high water level to all structures, roads,
and fences as described in the January 7,1997 plan. The property owner shall make an
irrevocable offer of dedication (IOD) for this buffer area to the California Department of
Fish and Game (Department). The IOD should be recorded in a standard easement
document signed by the Department and the property owner, and should include language
that requires the IOD to be obtained prior to the receipt of a development permit from the
City.
• Installation of a 72-inch high perimeter fence along the western, northern, and eastern
portions of the project sites as described in the January 7,1997 plan to reduce the
likelihood of pets, particularly cats, entering the marsh.
Also, the Service included these conditions:
• Slope grading for the property and/or construction of barriers along the perimeter of the
property be conducted so as to prevent urban runoff from draining into the marsh and
Buena Vista Lagoon.
Restoration of the 100-foot buffer areas prior to development which will include the
removal of non-native plant species and application of a coastal sage scrub-native
grassland seed mix.
Mr. John C. Levy, Jr.
• Incorporation of a combination of shields and low-level lights on its outdoor lighting
fixtures to prevent unnatural lighting of the marsh and lagoon environments.
These recommendations were made part of the biological mitigation measures set forth in the
City's mitigated Negative Declaration (ND) for CDP 97-59/SDU 98-03. Because of this, the
Service did not need to comment on the ND when it was sent to us for review on April 6, 1998,
Should any of the biological mitigation measures incorporated into the ND as part of project
approval be modified, in particular placement of a trail within the 100-foot buffer area or deletion
of the fencing requirement, the Commission needs to be aware that the Service could not concur
with the issuance of the City's ND or CDP 97-59.
It is also our understanding that you wish to install a "dusk to dawn" gating system for the future
trail. This system would not restrict access by the public during daylight hours, but rather is
intended to preclude access after dark and habitation by transients. The Service would support
the use of such a system as such unauthorized access into the marsh and lagoon can result in
impacts to sensitive habitats and listed species.
If you have any questions regarding the contents of this letter, please call Julie M. Vanderwier of
my staff at (760) 431-9440.
Sincerely,
S. Stevens
Field Office Supervisor
cc: Chris DeCerbo, City of Carlsbad
Tim Dillingham, California Department of Fish and Game
Bill Ponder, California Coastal Commission
M D M
MELVIN DALTON McGEE
ARCHITECT
24 August 1998
California Coastal Commission
Dear Coastal Commissioners,
I am writing in regard to the proposed John C. Levy residence on the Buena Vista
Lagoon in Carlsbad, California.
I appreciate the opportunity of being the Architect for this project, t was selected by
Mr. Levy in part for my 10 years as an architect with Rob Wellington Quigley, FAlA,
and for my numerous design awards. Mr. Levy has insisted that the project be of
the highest quality in design and construction.
The residence is designed as a direct response to its unique setting. The siting,
massing and choice of materials were all carefully considered to complement the
natural setting and to minimize impact on the site. The site configuration was a
result of multi-agency collaboration, including the Coastal Commission, City of
Carlsbad and Fish and Wildlife Service.
Unlike most residential properties, this site incorporates a significant amount of
dedicated open space around every side of the property. The remaining limited
building area restricts any view impact to a minimum. The main residence is raised
four feet above grade, to minimize possible adverse affects from potential hundred
year flooding. The roof height (30 feet) is well below the maximum 35 feet
permitted. The key concept of the design is to create interior spaces that relate to
the lagoon. Lowering the height of the structure would negatively impact the
interior spaces making them feel proportionately too low for the floor area. The
plan is multi-storied to preserve the remaining lot area for landscape area.
1530 WEST LEWIS STREET
SAN DIEGO CALIFORNIA 92103
PHONE. 619-299-91 1 1
FACSIMILE:619-260-1 1 12
M D M
MELVIN DALTON McGEE
ARCHITECT
The height of the guest quarters, also, is below the maximum allowed. Only the
peak of the hip roof reaches a 33 foot -i 1 inch height. The bulk of the structure
(below the top plate) is below 28 feet.
Materials for the project were selected for their suitability to withstand the relatively
harsh seaside environment while maintaining their inherent natural appearance.
The sand-colored concrete block is a natural finish material. Its variegated
aggregate evokes the surrounding beach sand. The copper roof was selected for its
longevity as well as its ability to weather and develop a natural patina over time.
The use of these materials are not of a particular architectural era, the result being
that the residence will feel more like it has been a part of its setting than most of its
neighbors.
Mr. Levy is proposing to build a residence that is sensitive to its setting and
respectful of its impact on surrounding properties and public space. He has enlisted
every applicable agency in its development and, as a result, limited severely the
possible scope of development on the property. The proposed residence is
consistent with the goals of the California Coastal Act. I urge you to approve the
project as submitted.
Sincerely,
Meivin Dalton McGee, Architect
California License No. C-15586
1
i
L
L
STATE CAPITOL
ROOM 3070
SACRAMENTO. CA 95814
PHONE: (916) 445-3731
DISTRICT OFFICE
2121 PALOMAR AIRPORT RD.
SUITE 100
CARLSBAD. CA 92009
PHONE: (760) 438-3814
FROM ESCONDIOO
AREA 744-2223
FROM AREA CODE 714 USE
800/481-5560
(Ealtf0rnra
WILLIAM A. CRAVEN
SENATOR
38TH DISTRICT
CHAIRMAN
COMMITTEE ON LOCAL GOVERNMENT
August 21,1998
98-310
Mr. Peter Douglas, Executive Director
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105
Re: California Coastal Commission Appeal (#A-6-98-98)
Coastal Development Permit (CDP 97-59)
Dear Director Douglas:
The City of Carlsbad has voiced strong support for the above mentioned project, the
proposed residence of Mr. John Levy on the Buena Vista Lagoon. I feel strongly that the
wishes of the City should be granted deference in this case.
As a longtime supporter of the California Coastal Commission as Chairman of the Senate
Local Government Committee, I am well aware of the need to balance competing
interests. The City of Carlsbad has had an excellent record of permitting environmentally
sensitive development and, accordingly, has been granted authority to issue Coastal
Development Permits (CDP's).
Your careful reconsideration is sincerely appreciated.
A. CRAVEN
38th District
WAC:ab:b
cc: Mayor Claude "Bud" Lewis, City of Carlsbad
r. John Levy
V. COMMITTEES: AGRICULTURE AND WATER RESOURCES • BUSINESS AND PROFESSIONS • ELECTIONS AND REAPPOHTIONMENT
VICE-CHAIR
JUDICIARY
MEMBER:
• EDUCATION
HEALTH
TRANSPORTATION
(Ealtfbrms JHemslafure\» ^/
STATE CAPFTOL
P.O. BOX 942849
SACRAMENTO, CA 942494001
(916)445-7678
DISTRICT OFFICES
COUNTY
BILL MORROWASSEMBLYMAN, SEVENTY-THIRD DISTRICT
27126A PASEO ESPADA, STE. 1625
SAN JUAN CAPISTRANO, CA 92675
PHONE (714) 489-2404
FAX: (714) 489-2969
SAN DIEGO COUNTY
302 NORTH COAST HWY.
OCEANSIDE, CA 92054PHONE: (619) 757-8084
FAX: (619) 757-6087
August 20, 1998
Rusty Areias, Chairman
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, California 94105
RE: CCC Appeal #A-6-98-89
Dear Chairman Areias:
I am writing you today to voice my support for Mr. John Levy's proposed residence on the
Buena Vista Lagoon in Carlsbad.
Mr. Levy has worked diligently for over three years with all of the resource agencies in
implementing a plan that recognizes public access, wildlife habitat, environmental and biological
concerns. After several meetings with USF&G, CCC, and CF&G an agreement was met on
environmental setbacks, wildlife habitat, and public access. Because the agreement required
100-foot setbacks on two of the three sides of the property a lot boundary adjustment was
necessary to comply with these setbacks. Coastal staff was an active participant in all of these
meetings.
Mr. Levy made the boundary adjustments. In fact, he has reduced the density of the buildable
area from 1.9 acres to .43 acres.
Mr. Levy submitted the revised plans to the City of Carlsbad Planning Department late last year.
The plans were unanimously approved on July 1,1998 and, therefore, issued a CDP. No
comment was received from any resource agency nor any neighbors.
On July 27, 1998, Mr. Levy received a notice of appeal from Commissioner Kehoe's office.
Needless to say that Mr. Levy was astounded since he hadn't heard one word from Coastal staff
during the resource agency mitigated negative declaration review period of nearly four months.
Their reasons were:
1) Legal site access;
2) The requirement for an additional CDP for a boundary adjustment;
3) Public siting from the coast highway;
4) Public access to the lagoon.
_ All issues that they had been part and parcel to.
fleprwentmg South Orange County. North San Diego County, Induing the following conmunillM: Aagnn HKI^ Also Vl*|o. BonnJI, Cwnp PcndMon, CapMrano Bauh,
Carlsbad, Dana Point Da Ua. FaUxooK, Laguna B«ach. Laguna HUU, Uguna Nlgual, Leton World. Mission Vtojo, Monarch Bay. OcMna,
Ocunsio*. San Clement*. San Juan CapJatrano, San Lul* Ray, San Luis Ray Height!, San Onofre. South Uguna, South Ocearuide. Three Arch Bay and Vista.
Printed on Recycled Paper
Mr. Levy has met with CCC coastal analyst Bill Ponder, Commissioner Kehoe, her alternate
Terry Johnson, the City of Carlsbad and Mayor Bud Lewis. All have agreed that the appeal
should be withdrawn. Please keep in mind that the proposed siting does not block any public or
private view and is situated to rninimize it's visual impact to the coast and the project has the
support of all neighbors.
In addition, I support a "dawn to dusk" gate along the public access trail of the southern sore of
the Buena Vista Lagoon for Public Safety concerns. Because of its remote nature and proximity
to the railroad tracks, this property has been a staging ground for transients and gangs who have
preyed on the adjacent property owners for years since it is extremely difficult to police.
Consequently, I am concerned about Mr. Levy and his family's security during the evening
hours. The primary users of the public trail are fisherman and naturalists who limit their use to
daytime hours. I strongly urge the commission to adopt a dawn to dusk gate to ensure Mr.
Levy's security.
In closing, I feel that this project would be an excellent addition to the City of Carlsbad and
strongly endorse its approval as to the CDP97-59.
Sincerely , //
Assemblyman^3rd District
BM:gap
cc: Penny Allen
David Armanasco
Nancy Flemming
Sara Wan
Mike Reilly
Shirley Dettloff
Pedro Nava
Andrea Turtle
Dave Potter
Christine Kehoe
all Coastal Commission staff
John C. Levy, Jr.
I- KUH • LltlNIN 1 3
Dennis Brandmeyer
Realtor
General Building Contractor
23Aug98
To: Coastal Commission
Re: CCC Appeal #A-6-98-98
Dear Commissioners:
I am a neighbor of Mr. Levy's proposed residence and would like to add my
support for his project. Of all possible uses of this land I believe his will have
the lowest impact and will immediately aid in helping the Carlsbad Police in
accessing this somewhat problematic area. Mr. Levy is one of the few people
with the tenacity and vision to see this project through the myriad of
governmental approvals and compromises. This last minute appeal by Staff
appears unfair and costly to Mr. Levy.
Thank you for your consideration.
Dennis Brandmeyer
2360 Rue des Chateaux, Carlsbad Ca. 92008 Tel. and FAX (760) 7292052
Donald £. Jackson
260 Normandy Lane
Carlsbad, California
92008-2222
August 25, 1998
California Coastal Commission
c/o Peter Douglas, Executive Director
45 Fremont Street, Suite 2000
San Francisco, California 94105-2219
Dear Commissioners:
I am writing this letter in reference to the California Coastal Commission Appeal #
A-6-98-98.
I am a third generation property owner in the northwest corner of Carlsbad,
located near the property in question. My wife and I are very aware of the past history of
that piece of land which is called "The Flat" created by an illegal fill of the lagoon in the
early '70's. I am also on the board of the Buena Vista Lagoon Foundation which keeps a
close eye on all aspects of the lagoon.
I have studied all the requirements which the City of Carlsbad, the Coastal
Commission staff, and the other regulatory agencies have imposed on the single family
residence proposed.
With all of the above in mind, we welcome this single family residence with its
present requirements as a positive move toward solving the many problems in that portion
of the lagoon of which you must be aware.
Should you have any questions pertaining to this matter, I would be quite willing
to respond. My telephone number is: 760-434-3675.
Sincerely,j^uj
Donald E. Jackson