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HomeMy WebLinkAbout2011-09-07; Planning Commission; ; GPA 11-06|ZCA 11-05|LCPA 11-06|PDP 00-02E|SP 144N - CHANGES TO POWER PLANT STANDARDSThe City of Carlsbad Planning Division A REPORT TO THE PLANNING COMMISSION Item No. P.C. AGENDA OF: September 7, 2011 Application complete date: N/A Project Planner: Scott Donnell Project Engineer: N/A SUBJECT: GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(EVSP 144(N) - CHANGES TO POWER PLANT STANDARDS - Request for recommendations of approval to adopt (1) a General Plan Amendment to modify the description of the Public Utilities (U) land use designation and clarify "generation of electrical energy" may be a primary function of the U designation if it is located outside the Coastal Zone but only if it is conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission; (2) a Zone Code Amendment to the Public Utility (P-U) Zone to clarify (a) generation of electrical energy must be by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission, is permitted as a primary use outside the Coastal Zone only, and is permitted as an accessory use in or outside the Coastal Zone only if it is limited to a generating capacity of fewer than 50 megawatts; (b) generation of 50 megawatts or more is prohibited in the Coastal Zone; and (c) transmission of electrical energy is a permitted use if conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission; (3) a Local Coastal Program Amendment to the Agua Hedionda Land Use Plan to eliminate a requirement for a report that would address whether preservation of land east of Interstate 5 is needed for power plant expansion; (4) an amendment to the Encina Power Station Precise Development Plan as necessary to be consistent with the General Plan and Zoning Ordinance amendments proposed and to make housekeeping changes; and (5) an amendment to the Encina Specific Plan as necessary to achieve consistency with the proposed amendments, delete standards regarding future power plants, and make housekeeping changes. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolutions No. 6803, 6804, 6805, 6806, and 6807 RECOMMENDING APPROVAL of a General Plan Amendment (GPA 11-06), Zone Code Amendment (ZCA 11-05), Local Coastal Program Amendment (LCPA 11- 06), Precise Development Plan Amendment POP 00-02(E) and Specific Plan Amendment SP 144(N) subject to the findings contained therein. II.INTRODUCTION The City of Carlsbad proposes amendments to its land use standards regarding the generation and transmission of electrical energy. The amendments primarily regard the generation of electrical energy. As proposed, generation of electrical energy would be allowed in the Coastal O GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 2 Zone only as an accessory use, among other limitations. For both generation and transmission of electrical energy, the changes proposed would clarify that they must be conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission. The proposed changes affect the General Plan's Public Utilities land use designation and the Public Utility Zone as these are the only land use designation and zone that specifically regulate generation and transmission of electrical energy. The applications also propose changes to the Agua Hedionda Land Use Plan, a segment of Carlsbad's Local Coastal Program, the Encina Specific Plan, and the Encina Power Station Precise Development Plan. These three documents provide additional land use standards for the Agua Hedionda Lagoon area and the existing Encina Power Station. Attachment 7 is a map displaying the boundaries of these and other planning documents (besides the General Plan and Zoning Ordinance) in relation to the Encina Power Station and the lagoon. Filing of applications to amend generation and transmission of electrical energy standards respond to recent City Council actions to prohibit, through limited term urgency ordinances, the location or expansion of thermal electrical generation facilities in Carlsbad's Coastal Zone and to declare through resolutions the Council's intent to consider amendments to the General Plan, Zoning Ordinance, and other regulations regarding these facilities. "Thermal electrical generation facilities," as referenced in the Council urgency ordinances, generate power using any source of thermal (or heat) energy, such as coal, natural gas and fuel oil. The Encina Power Station is a thermal facility that uses natural gas. In turn, the Council's actions respond to the 2007 filing with the California Energy Commission to construct a new power plant, the Carlsbad Energy Center Project (CECP), at the Encina Power Station. Because the CECP is a natural gas-fired thermal facility with a generating capacity of at least 50 megawatts (the CECP's proposed output is 540 megawatts), it is subject to the Energy Commission's, rather than City of Carlsbad's, jurisdiction. The City of Carlsbad and its Housing and Redevelopment Commission have expressed strong and continuous opposition to the proposed CECP and have urged the Energy Commission to deny the project. Carlsbad finds the project does not comply with all land use policies, does not require a coastal location to function, and does not comply with Carlsbad's desired vision for the EPS property, among other things. The Energy Commission will discuss the remaining review schedule of the CECP at a meeting on September 13, 2011. The amendments proposed consist entirely of text changes. No changes to the General Plan or zoning maps would occur. Further, the proposals would not approve any development. III. PROJECT DESCRIPTION AND BACKGROUND Presently, the General Plan states the generation of electrical energy is considered to be a primary function of the Public Utilities designation. Similarly, the Zoning Ordinance permits generation and transmission of electrical energy in the Public Utility Zone without regard to location, generating capacity, or conductor. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 3 As proposed, the General Plan would state generation of electrical energy "may" be considered a primary function of the Public Utilities designation "outside the Coastal Zone but only if it is conducted by a government entity or by a company and such use is authorized or approved by the California Public Utilities Commission". Accordingly, the proposed Zone Code Amendment would change the Public Utility Zone to permit generation of electrical energy based on its location in relation to the Coastal Zone. If inside the Coastal Zone, the use could be acceptable only if it were accessory to another use and limited in generating capacity to under 50 megawatts. In fact, the Zone Code Amendment would further clarify that a generating capacity of 50 megawatts or more is prohibited in the Coastal Zone. This specific capacity limit is proposed as facilities generating 50 megawatts or more are within the jurisdiction of the California Energy Commission, not the city. Permitting power generation as an accessory use in the Coastal Zone also enables agencies such as the Encina Wastewater Authority to generate electricity as an incidental part of their operations. If outside the Coastal Zone, the Zone Code Amendment clarifies generation of electrical energy could be either a primary, permitted use (with no generating capacity limit) or an accessory use (with a capacity limit of fewer than 50 megawatts). However, and regardless of location, generation of electrical energy would only be considered a permitted, primary or accessory use if it were by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission. Transmission of electrical energy would continue to be identified as a permitted use anywhere in the P-U Zone and without regard to the Coastal Zone. As with the generation of electrical energy, proposed Zoning Ordinance changes would require transmission of energy by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission. San Diego Gas and Electric is a company authorized for transmission of electrical energy by the California Public Utilities Commission. Because the Agua Hedionda Land Use Plan, Encina Specific Plan, and the Encina Power Station Precise Development Plan all contain information and standards regarding the Encina Power Station, revisions are also proposed to these documents to ensure they are consistent with the General Plan and Zoning Ordinance, as proposed for amendment. These documents do not contain provisions regarding transmission of electrical energy that would need change. The Encina Power Station and the proposed CECP, each in the Coastal Zone, would not be considered consistent with the Public Utilities land use designation as proposed. Both facilities are or would generate electrical energy as their primary function and independent of another use. Likewise, they would not be consistent with the Zoning Ordinance Public Utility Zone, as proposed, because they are not accessory uses and because they generate 50 megawatts or more. Additionally, neither Cabrillo Power I LLC, owner of the existing Encina Power Station, nor Carlsbad Energy Center LLC, owner of the proposed power plant, is a government entity. Furthermore, while Cabrillo Power does generate electricity at the Encina Power Station as authorized by the California Public Utilities Commission, the proposed CECP does not currently have California Public Utilities Commission approval. In 2009, the City Council adopted and extended urgency ordinances prohibiting or establishing a moratorium on the expansion or location of thermal electric power generation facilities in the GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 4 Coastal Zone pending studies and changes in various land use regulations. Along with its urgency ordinance actions, the Council passed resolutions directing staff to study whether present land use provisions regarding such facilities need amendment, arid to consider alternative land uses and a conceptual master plan for the EPS site. An additional urgency ordinance adopted in October 2010 extended the prohibition on the expansion or location of power generation facilities to October 20, 2011. The moratorium cannot be extended again. A related resolution also continued to express both the city's opposition to power plants in the Coastal Zone and the Council's direction to staff regarding land use studies and objectives. The two-year moratorium on the expansion or location of such facilities has helped to reinforce the city's opposition to the proposed CECP, provide an opportunity to study the issues associated with power generation in Carlsbad, and develop land use recommendations. In 2009 and 2010, staff prepared reports outlining measures taken to alleviate the conditions that led to the moratorium adoption. In summary, these reports find that power plants are not coastal dependent land uses and thus may be located in less sensitive, non-coastal locations (whether in Carlsbad or elsewhere), and that coastal Carlsbad, particularly the Encina Power Station, is not appropriate for heavy industrial use, including additional power generating facilities, because of public health, safety, and welfare concerns. The reports also identify potential land use options for the Encina Power Station, such as redesignating the site for travel recreation and open space uses and requiring a specific plan for its redevelopment, when and if that occurs. Further, the reports note the General Plan Update underway as a useful means to achieve the public outreach and input necessary for the future planning of this area as well as consideration of alternative power plant locations in Carlsbad. The applications filed to amend land use standards regarding the generation and transmission of electrical energy at the Encina Power Station and elsewhere in Carlsbad represent steps the City is taking to alleviate the conditions that led to the moratorium adoption. The proposed standards strengthen the city's position regarding the CECP and any other electrical generation facilities proposed in Carlsbad. For example, as part of its review of a new generating facility of 50 megawatts or more, the California Energy Commission will consider the regulations of the local jurisdiction in which the facility is proposed, including its applicable land use standards. If the Energy Commission proceeds to consider licensing a plant that is inconsistent with the jurisdiction's requirements, the Commission would need to make a finding to override the inconsistency. While the applications filed affect the generation of electrical energy as a land use in Carlsbad, they do not propose any changes to the Encina Power Station's Public Utilities land use designation or corresponding zone. Instead, the question of future land uses at the 95-acre facility will be considered as part of the General Plan Update. This consideration has already begun; one early update alternative, for example, designates the area for tourist commercial and retail uses and includes a pier. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 5 Attached City Council Agenda Bill 20,380 contains the most recently adopted Urgency Ordinance, resolution declaring the Council's intent to study and consider land use amendments, as well as the two moratorium reports. IV. ANALYSIS As discussed above, the applications respond to City Council ordinances and resolutions adopted to temporarily prohibit the expansion and location of thermal electric power plants in the Coastal Zone and help enable the city to consider its standards regarding the same. The amendments proposed consist entirely of text changes to policies and standards, and, as noted earlier, primary regarding the generation, versus transmission, of electrical energy. The recommendation for approval of the amendments was developed by analyzing their compliance/consistency with the following: A. Carlsbad General Plan; B. Zoning Ordinance; C. Encina Power Station Precise Development Plan (POP 00-02); D. Encina Specific Plan (SP 144); E. Local Coastal Program; and F. South Carlsbad Coastal Redevelopment Project Redevelopment Plan The resolutions attached contain the detailed findings needed to determine compliance with the appropriate land use document. For example, findings for the amendment to the Encina Power Station Precise Development Plan demonstrate how the amendment is consistent with the General Plan, Zoning Ordinance, and Encina Specific Plan. A. General Plan The amendment proposed to the General Plan, GPA 11-06, affects only the description of the "Public Utilities" land use designation found in the Land Use Element. Proposed changes to the description are simple and as follows, with proposed text additions underlined and bolded and proposed text deletions stricken: PUBLIC UTILITIES (U) This category of land use designates areas, both existing and proposed, either being used or which may be considered for use for public or quasi-public functions. Primary functions may include such uses things as the generation of electrical energy, treatment of waste water, public agency maintenance storage and operating facilities, or other primary utility functions designed to serve all or a substantial portion of the community. A primary function designed to serve all or a substantial portion of the community may also include the generation of electrical energy if it is located outside the Coastal Zone but only if it is conducted by a government entity or by a company and such use is authorized or approved by the California Public Utilities Commission. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 6 Sites identified with a "U" designation indicate that the City is studying or may in the future evaluate the location of a utility facility which could be located within a one kilometer radius of the designations on a site for such a facility. Specific siting for such facilities shall be accomplished only by a change of zone, and an approved Precise Development Plan adopted by ordinance and approved only after fully noticed public hearings. Besides clarifying that generation of electrical energy may be considered as a primary function only outside of the Coastal Zone, the amendment adds the word "may" to the Public Utilities (U) description. This addition is recommended to clarify that generation of electrical energy is only allowed as a primary function in some instances and that the city has discretion in determining whether all uses described in the U designation are primary functions of that designation. Furthermore, the addition of the word "may" and of the word "uses" instead of "things" parallels the wording used in the descriptions of several other General Plan land use designations. Overall, GPA 11-06, particularly because of its restrictions on generation of electrical energy in the Coastal Zone, is consistent with overall Land Use Element goals to preserve and enhance Carlsbad's coastal resources and land. Proposed changes to the General Plan text are included as an exhibit to Planning Commission Resolution 6803. B. Zoning Ordinance Similar to the proposed General Plan Amendment, changes recommended to the Zoning Ordinance are straightforward and affect only the Public Utility (P-U) Zone. Presently, the generation and transmission of electrical energy are permitted uses regardless of location, generating capacity, or owner/operator. As proposed, generation of electrical energy in the P-U Zone would be listed as two separate uses (primary and accessory) and permitted only as described below. Proposed text additions are underlined and bolded and proposed text deletions are stricken: Generation and transmission of electrical energy, primary, by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission outside the City's Coastal Zone only. Generation of electrical energy, accessory^ by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission in or outside the Coastal Zone and limited to a generating capacity of fewer than 50 megawatts. Generating capacity of 50 megawatts or more is prohibited in the Coastal Zone. As shown above, since the Zoning Ordinance currently lists generation as well as transmission of electrical energy together as a permitted use, for clarity, the amendment would remove "transmission of electrical energy" and list it separately. As proposed, the transmission of electrical energy would continue to be listed as a permitted use as follows, with proposed text underlined and bolded. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 7 Transmission of electrical energy if conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission The addition of "if conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission" to transmission of electrical energy is proposed to clarify the appropriate conductor of such use and to match the language proposed for the generation of electrical energy Recommended changes to the General Plan and other land use documents are important because they clarify Carlsbad's position regarding the transmission and generation of electrical energy. Regarding the generation of electrical energy in particular, Zoning Ordinance changes are significant because they specify clearly what is acceptable both in and outside the Coastal Zone. P-U zoned properties are scattered about Carlsbad; the largest are located in the Coastal Zone and include the Encina Power Station, the Encina Wastewater Authority treatment plant, and two vacant parcels south of the Agua Hedionda Lagoon and in the Agua Hedionda Land Use Plan. With regards to the two vacant parcels, one, a 45-acre property east of Interstate 5, has a General Plan designation of Travel/Recreation Commercial (see the Local Coastal Program discussion below for more information on this property). The other property, east of Cannon Road and north of the Sheraton Resort, is General Plan designated Open Space and is dominated by a cluster of transmission line support towers. A third, approximately six-acre vacant property is located on the north shore of Agua Hedionda Lagoon and is designated for open space and residential uses. Three, small P-U zoned properties are outside the Coastal Zone. These properties are no larger than five acres and are either developed with Vallecitos Water District facilities or are vacant and city-owned. Because of property size, land use designation, and location, it is unlikely that future generation of electrical energy will be developed in the P-U Zone (subject to the limitations proposed) unless it is part of an existing facility or an amendment is proposed to designate new or additional property. The Commercial/Visitor-Serving Overlay Zone applies to areas of Carlsbad primarily in the Coastal Zone; this includes the P-U zoned properties discussed above, with the exception of the six acre parcel on the north shore of the lagoon. Uses permitted in the Overlay Zone are those permitted by the underlying zone, except for uses that primarily serve visitors and tourists. ZCA 11-05 does not propose changes that would conflict with the Overlay Zone. Revisions proposed to the Public Utilities Zone are included as an attachment to Planning Commission Resolution 6804. C. Encina Power Station Precise Development Plan (PDP 00-02) Section 21.36.030 of the P-U Zone prevents the issuance of any building permits or entitlements "until a precise development plan has been approved for the property." Consistent with this GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 PageS requirement, the City approved PDF 00-02 for the Encina Power Station in 2006; it was last amended in 2009 for the desalination plant. PDP 00-02 catalogs existing and approved uses and provides basic development and land use standards for the power plant property only. It also serves as the primary entitlement for uses proposed in the plan area, including the approved desalination plant. Precise development plans are adopted and amended by ordinance. The proposed amendment to the Encina Power Station Precise Development Plan, PDP 00- 02(E), does not change the purpose of the plan. Instead, the amendment's primary purpose is to bring the plan into consistency with the proposed changes to the General Plan and Zoning Ordinance; this requires revisions throughout the plan document. In so doing, PDP 00-02(E) identifies the limitations on generation of electrical energy in the Coastal Zone and within the PDP 00-02 planning area, including that generation of 50 megawatts or more of electrical energy is prohibited. It also notes the following about the existing Encina Power Station: 1. The existing Encina Power Station, because it is in the Coastal Zone, generates 50 megawatts or more of electrical energy, and is not an accessory use, is not consistent with the Public Utilities land use designation or Public Utility Zone. 2. The expansion of the current Encina Power Station or addition of a new power facility (unless consistent with the proposed Zoning Ordinance limitations) would not be consistent with the General Plan. Part of the revisions proposed also delete a precise development plan statement that the Agua Hedionda Land Use Plan "acknowledges the coastal dependent nature of the Encina Power Station and existing land uses, which are considered to be consistent with supported coastal policies and objectives." The Land Use Plan does not make this acknowledgment. The latter part of this statement is also proposed for deletion as it is not consistent with this project to amend the city's land use standards regarding generation of electrical energy. For example, the Zoning Ordinance and Agua Hedionda Land Use Plan are components of the city's Local Coastal Program and part of its coastal policies and objectives. Moreover, and as discussed in greater detail in the Local Coastal Program section below, the Agua Hedionda Land Use Plan actually contains little discussion about the Encina Power Station or generation of electrical energy; the one policy about the Encina Power Station actually regards expansion opportunities of the facility east of Interstate 5; this policy is recommended for deletion. PDP 00-02(E) also makes housekeeping changes, including updated information regarding Encina Specific Plan 144 and the desalination plant. The Encina Power Station Precise Development Plan, as amended by PDP 00-02(E), is an exhibit to Planning Commission Resolution No. 6806. The Precise Development Plan's appendix items are not attached for the sake of briefness, because they provide background information only, and because the only revisions to them are to incorporate the proposed amendment to the Encina Specific Plan and proposed Planning Commission resolution and City Council ordinance regarding PDP 00-02(E). GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 9 D. Encina Specific Plan (SP 144) The City Council adopted the Encina Specific Plan 144 on August 3, 1971, to provide rules and regulations for the orderly development of 680 acres of land owned by San Diego Gas and Electric. Centered on the Agua Hedionda Lagoon and located generally east of the Pacific Ocean, south of the north shore of Agua Hedionda Lagoon, and north of Cannon Road, SP 144 is entirely in the Coastal Zone. Because SP 144 encompasses the Encina Power Station and land designated and zoned for public utility uses and contains standards regarding future power generation, its amendment is a necessary action to adequately respond to the concerns expressed by the City Council. Over the years, the City has amended SP 144 several times. Many of the amendments occurred in the 1970s to address proposed changes at the Encina Power Station, the dominant land use within the specific plan; accordingly, much of the plan's content regards the power plant. Since 2006, the specific plan has been revised three times, twice for the desalination plant and once in 2011 to incorporate the provisions of the new Cannon Road Agricultural and Open Space (CR-A/OS) Zone. Within SP 144, the CR-A/OS provides regulation for agricultural and open space properties between Cannon Road and the Agua Hedionda Lagoon. In 2002, the City Council directed that any applicant of a proposed project within SP 144 be required to prepare a comprehensive update of the specific plan; the Council has waived this requirement for some proposals, including the desalination plant. As the amendment proposes only minor text changes, does not change any General Plan Land Use designations within the boundaries of the Specific Plan, and does not propose any development, the processing of an amendment to, rather than a comprehensive update of the Encina Specific Plan, is appropriate. The amendment to the Encina Specific Plan, SP 144(N), responds to and is consistent with the concerns and intent expressed in the City Council urgency ordinances and resolutions in that it incorporates and/or reflects wording from the General Plan (as amended by GPA 11 -06) and Zoning Ordinance (as amended by ZCA 11-05) to make clear the limitations on generation of electrical energy on Public Utilities-designated, Public Utility-zoned property in the Coastal Zone. The proposed amendment also eliminates provisions regarding future power generation at the Encina Power Station and elsewhere within the Encina Specific Plan and incorporates the Encina Power Station Precise Development Plan, as amended by POP 00-02(E). SP 144(N) also notes the inconsistency of the existing Encina Power Station with the recommended amendments. Since the Encina Specific Plan does not contain any provisions regarding the transmission of electrical energy, SP 144(N) proposes no change in this regard. Further, SP 144(N) eliminates an inconsistency with Policy 1.9 of the Agua Hedionda Land Use Plan. The amendment revising condition 5 of the Specific Plan so that any future buildings permitted at the Encina Power Station may not exceed a height of 35 feet, which is consistent with the allowed height limit of the policy. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 10 Finally, SP 144(N) makes housekeeping changes. These minor changes update and revise the description of specific plan amendments, both withdrawn and approved; amend text regarding the status of infrastructure in the specific plan and the need to analyze development for Growth Management Program consistency; and clarify that formal amendments to PDF 00-02(E) may trigger a comprehensive update of the specific plan, as opposed to just an amendment. The Encina Specific Plan, as amended by SP 144(N), is an exhibit to Planning Commission Resolution No. 6807. E. Local Coastal Program Carlsbad's Coastal Zone, encompassing more than one-third of the city's area, contains land designated Public Utilities in only two locations: the Encina Wastewater Authority's treatment plant on Avenida Encinas south of Palomar Airport Road and the Encina Power Station. However, only one of the Coastal Zone's seven geographic segments, the Agua Hedionda Land Use Plan, specifically addresses generation of electricity and power plants and no segments specifically address transmission of electrical energy. Furthermore, other than descriptive statements about the existing Encina Power Station, the Land Use Plan has no standards and only a single policy regarding generation of electricity. Land Use Plan Policy 2.3 regards a 45-acre vacant property located east of and across Interstate 5 from the Encina Power Station. Situated at the northeast corner of Cannon Road and Interstate 5, this parcel is designated for Travel/Recreation Commercial (General Plan) and Travel Services Commercial (Local Coastal Program), and has a Public Utility zoning. The property is not subject to Proposition D ("Proposition D - Preserve the Flower and Strawberry Fields and Save Taxpayer's Money") or the recently approved Cannon Road Agricultural/Open Space (CR- A/OS) Zone, although it is next to property that is. At the time of the Land Use Plan's adoption in 1982, part b) of Policy 2.3 was established to enable consideration and preservation of eastward expansion opportunities for the Encina Power Station. Then, the 45-acre parcel, the power plant, and the entire Agua Hedionda Lagoon and all properties along its south shore were owned by San Diego Gas and Electric. While SDG&E currently retains ownership of south shore properties east of Interstate 5, it sold the Encina Power Station to Cabrilto Power I LLC in 1999. To be consistent with the other proposed amendments, LCPA 11 -06 proposes deletion of part b) of Policy 2.3. Deletion eliminates the requirement of SDG&E to demonstrate as part of a development proposal on the 45-acre parcel that (1) the parcel is not necessary to ensure reasonable expansion opportunities of the Encina Power Station and (2) such expansion could be accommodated at the present plant. As the relevant findings show in attached Planning Commission Resolution 6804, power generation is currently not permitted on the parcel (based on its General Plan and Local Coastal Program land use designations), power plant expansion has already been proposed twice within the Encina Power Station in 1989 and 2007 (the proposed Carlsbad Energy Center Project), and power generation is not a coastal-dependent use requiring a location on or near the coast. Further, adoption of the recommended Local Coastal Program Amendment potentially enhances GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 11 opportunities for public access and protection of coastal resources by eliminating the possibility of a primary, non-public power generating use with air quality, land use, and visual impacts in a sensitive area. Recommended revisions to part b) of Policy 2.3 are indicated as part of an exhibit to the Planning Commission Resolution 6805. F. South Carlsbad Coastal Redevelopment Project Redevelopment Plan The South Carlsbad Coastal Redevelopment Project Redevelopment Plan (SCCRP) encompasses coastal portions of Carlsbad from the Encina Power Station south to the Encinitas border. Adopted in 2000 and amended in 2005, permitted uses in the SCCRP are those identified in the General Plan and Zoning Ordinance. The SCCRP also permits generation and transmission of electrical energy subject to a redevelopment permit, precise development plan, and finding of extraordinary public purpose. Further, the plan identifies goals, including developing new recreational opportunities and parking and redeveloping the Encina Power Station into a smaller, more efficient plant. Proposed amendments are consistent with the SCCRP. Changes to the Zoning Ordinance, for example, maintain the requirement for a precise development plan. Both the Zoning Ordinance and the Encina Power Station Precise Development Plan would continue to permit generation of electrical energy, subject to the size, use, and operator restrictions proposed. They would also continue to permit transmission of electrical energy subject to the restriction proposed on the entity and company that may conduct such use. These restrictions may also facilitate achievement of SCCRP goals. Findings for project consistency with the Redevelopment Plan are contained in Planning Commission Resolution 6804, the resolution for ZCA 11-05. V. ENVIRONMENTAL REVIEW The Planning Director has determined the project is exempt from the California Environmental Quality Act (CEQA) because it will not have a significant effect on the environment. The project proposes no development and merely clarifies existing land use standards. This determination is pursuant to State CEQA Guidelines Section 15061(b) (3). This section states "when it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." Furthermore, the determination is exempt from CEQA based on Municipal Code Section 19.04.070 A.l.c.(l). This section identifies minor zone or municipal code amendments that refine or clarify existing land use standards as being exempt from CEQA because they also are not considered to have a significant environmental effect. The Planning Director will file a CEQA Notice of Exemption with the County Clerk. GPA 11-06/ZCA 11-05/LCPA 11-06/PDP 00-02(E)/SP 144(N) - CHANGES TO POWER PLANT STANDARDS September?, 2011 Page 12 ATTACHMENTS; 1. Planning Commission Resolution No. 6803 (GPA) 2. Planning Commission Resolution No. 6804 (ZCA) 3. Planning Commission Resolution No. 6805 (LCPA) 4. Planning Commission Resolution No. 6806 (PDP) 5. Planning Commission Resolution No. 6807 (SP) 6. Strike-out/underline version of proposed Zoning Ordinance changes 7. Planning Documents - Agua Hedionda Lagoon Area 8. City Council Agenda Bill 20,380 Attachment 6 ZCA 11-05/LCPA 11-06 - Changes to Power Plant Standards Revisions to Zoning Ordinance Chapter 21.36 P-U Public Utility Zone. (Note: Proposed text additions are shown as bold and underlined. Proposed deletions are shown as strike-outs.) 21.36.020 Permitted Uses Table A Permitted Uses In the table, below, subject to all applicable permitting and development requirements of the municipal code: "P" indicates use is permitted. "CUP" indicates use is permitted with approval of a conditional use permit. 1 = Administrative hearing process 2 = Planning Commission hearing process 3 = City Council hearing process "Ace" indicates use is permitted as an accessory use. Use Agricultural farm worker housing (temporary) (subject to Section 21 .42.140(B)(2)) Agriculture: only the following agricultural uses, and buildings accessory to such agricultural uses, are permitted in the P-U zone: (a) field and seed crops, (b) truck crops, (c) horticultural crops, (d) orchards and vineyards, (e) pasture and rangeland, (f) tree farms, (g) fallow lands, (h) greenhouses Airports Alcoholic treatment centers Any other use which the planning commission or city council may determine to be similar to the permitted uses in the zone and to fall within the intent and purposes of the zone (see note 1) Aquaculture (defined: Section 21.04.036) Aquaculture stands (display/sale) (subject to Section 21.42.140(B)(10)) Biological habitat preserve (subject to Section 21.42.140(B)(30)) (defined: Section 21.04.048 Campsites (overnight) (subject to Section 21.42.140(B)(40)) Cemeteries Columbariums, crematories, and mausoleums (not within a cemetery) Energy transmission facilities, including rights-of-way and pressure control or booster stations for gasoline, electricity, natural gas, synthetic natural gas, oil or other forms of energy sources Fairgrounds P X X X CUP 3 3 2 2 2 2 2 3 2 3 Ace Attachment 6 ZCA 11-05/LCPA 11-06 - Changes to Power Plant Standards Revisions to Zoning Ordinance Chapter 21.36 P-U Public Utility Zone. (Note: Proposed text additions are shown as bold and underlined. Proposed deletions are shown as strike-outs.) Generation and transmission of electrical energy, primary, by a government entity or bv a company authorized or approved for such use by the California Public Utilities Commission outside the City's Coastal Zone only. Generation of electrical enerqy, accessory, by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission in or outside the Coastal Zone and limited to a generating capacity of fewer than 50 megawatts. Generating capacity of 50 megawatts or more is prohibited in the Coastal Zone. Golf courses Governmental maintenance and service facilities Greenhouses >2,000 square feet (subject to Section 21 ,42.140(B)(70)) Hazardous waste facility (subject to Section 21.42.140(B)(75)) (defined: Section 21.04.167) Hospitals (defined: Section 21.04.170) Hospitals (mental) (defined: Section 21 .04. 1 75) Mobile buildings (subject to Section 21.42.140(B)(90)) (defined: Section 21.04.265) Packing/sorting sheds >600 square feet (subject to Section 21.42.140(B)(70)) Petroleum products pipeline booster stations Processing, using and storage of: (a) natural gas, (b) liquid natural gas, (c) domestic and agricultural water supplies; Public utility district maintenance, storage and operating facilities Radio/television/microwave/broadcast station/tower Recreation facilities Recreational facilities (public or private, passive or active) Recycling collection facilities, large (subject to Chapter 21.105 of this title) (defined: Section 21. 105.015) Recycling collection facilities, small (subject to Chapter 21.105 of this title) (defined: Section 21. 105.015) Recycling process/transfer facility Satellite television antennae (subject to the provisions of Section 21.53.130 of this code) Signs subject to the provisions of Chapter 21 .41 Stadiums X X X X X X X X 2 1 3 2 2 2 1 2 2 2 1 2 3 X Attachment 6 ZCA 11-05/LCPA 11-06 - Changes to Power Plant Standards Revisions to Zoning Ordinance Chapter 21.36 P-U Public Utility Zone. (Note: Proposed text additions are shown as bold and underlined. Proposed deletions are shown as strike outs.) Transit passenger terminals (bus and train) Transmission of electrical energy if conducted by a government entity or by a company authorized or approved for such use by the California Public Utilities Commission Using and storage of fuel oils Wastewater treatment, disposal or reclamation facilities Windmills (exceeding height limit of zone) (subject to Section 21,42.140(B)(160)) Wireless communications facilities (subject to Section 21 .42.140(B)(165)) (defined: Section 21. 04.379) Zoos (private) (subject to Section 21.42.140(B)(170)) (defined: Section 21.04.400) Note: 1 . Providing there shall not be permitted any use which creates noxious gas or odor, excessive sound vibration or significant atmospheric pollution. X X X 2 2 1/2 2 Planning Documents - Agua Hedionda Lagoon Area \ {X ^ xV\N \ > '( h- . CAMINO iP$*S5- ^^__ r_ ^.^ -^ ^ '..-. ySfey> f-^.A /A •j S~~*.-^c^-&//.• PACIFIC OCEAN '?>• i4&% ' ^>v?^S-v£*&<5S Vy ;/ /I 'A \ r //,'1 . ^&. .'. *,v-. f y s'X??S/:l<,"„! •>'rV;'^;r^?^ vyi?>KbOf ///x/^ •x/.•'///.'////:• ^i^^4^?-^txt.-^r -.^•. tfi-K' K^/^••v: V^..^.K'-$&-Tfr '^A / //-V, rx/2-- y x x^Xx /x 77/^^^4xv' , .' V-* /' -X ,,k^Xy-^, Encina Power Station Precise Development Plan I I Specific Plan 144 Boundary Agua Hedionda Land Use Plan/Deferred Certification m&A '.?••/• K^v ^V? '&/.>•7; "S x'"vXxxx^',' "'X 'x' x.x xx; X XVS s S XyV:.i^•XI •<XXx,Xx.xxy, ^v*'.w^fe: p; x >,•/?;•«.'>^^•.•X *•.*: : X- X-Xv-'-l /•^i sn/ix', XV' XXX^ ' v"'>rx-xx<' 'XV• / •„ XX, XV 'XV •V,- X XX ' j,' X V ,/"•^s s s,X Xv X ,Xv . X'X V//7//-//-//,• Xx / X X "-™5™«™s S//.//s //• '% f;%V , <\ T-%.-?> South Carlsbad Coastal Redevelopment Area Commercial Visitor \xj Serving Overlay Zone i I Coastal Zone ^ Encina Power Station J:\Reauests\Plannina\4103790 09 <,veS,e§^ C¥.^,v Si3^: ST ! AIRRORT RD \900 ]Feet 1,800 CITY OF CARLSBAD - AGENDA BILL 20.380AB# MTG. DEPT. CED 10/12/2010 EXTENSION OF URGENCY ORDINANCE PROHIBITING ANY NEW OR EXPANDED THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN CARLSBAD'S COASTAL ZONE AND AUTHORIZATION FOR RELATED LAND USE STUDIES DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: That the City Council hold a public hearing and ADOPT Ordinance No.CS-110. EXTENDING Urgency Ordinance CS-070 for twelve (12) months (through October 20, 2011) to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. That the City Council ADOPT Resolution No. CONCURRING with the preliminary land use recommendation for the power plant site and direct staff to prepare the necessary amendments to the General Plan, Zoning Map, Non-Conforming Use chapter of the Zoning Ordinance, Specific Plan 144, South Carlsbad Coastal Redevelopment Plan, and Encina Power Station Precise Development Plan, and to prepare an EIR for the land use changes and legislative actions to implement the preliminary study. ITEM EXPLANATION: On December 1, 2009, the City Council approved Ordinance CS-070 which extended CS-067 which declared a moratorium on any new or expanded thermal-electric power plants within Carlsbad's coastal zone. A companion resolution was also approved (Resolution No. 2009-299) which directed City staff to review the existing Public Utility (P-U) zone designations and to revise them accordingly, including Specific Plan 144 (which includes the Encina Power Station). Staff has completed its study and recommendations and is, therefore, recommending that Urgency Ordinance CS-070 be extended twelve months through October 20, 2011 in order to prepare an EIR and legislative actions (GPA, ZC, ZCA, SPA, PPA) to implement the recommendations. Ordinance CS-067 is effective until October 20, 2010. Per California Government Code Section 65858, the City Council can extend that ordinance for an additional 12 months if it finds that there is a current and immediate threat to the health, safety, and welfare of the citizens of Carlsbad. California Government Code Section 65858(d) requires that a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance be issued no less than 10 days prior to the expiration of the adopted urgency ordinance in order to consider an extension of the moratorium. The report is attached as Exhibit 3 and was available to the public as of October 1, 2010. The City Council formally issued the report at the City Council Meeting held on October 5, 2010. FISCAL IMPACT: The project budget is estimated not to exceed $200,000 for the land use study and/or related environmental review consistent with either Option 1B or 1C of the Encina Power Plant Land Use DEPARTMENT CONTACT: Christer Westman 760-602-4614 christer.westman@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED K DENIED O CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D Da Page 2 Options Analysis (Exhibit 5 of the City Manager Report). It is anticipated that these funds will be expended by the Redevelopment Agency to obtain the professional services of an environmental consultant to prepare an Environmental Impact Report to evaluate the environmental impacts of the proposed actions. ENVIRONMENTAL IMPACT: This action does not constitute a project as defined under CEQA (California Environmental Quality Act section 15378) pursuant to Public Resources Code Section 21065 in that the proposed ordinance would not cause any direct or indirect physical change in the environment because the Moratorium prohibits the approval of any development application for thermal electric power generation facilities in the Coastal Zone. EXHIBITS: 1. City Council Ordinance No. CS-110 2. City Council Resolution No. 2010-238 3. Encina Power Plant Land Use Analysis/City Council Written Report dated September 27, 2010. 4 COASTAL ZONE FOR TWELVE MONTHS. 28 EXHIBIT 1 ORDINANCE NO. CS-110 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, EXTENDING URGENCY ORDINANCE NO. CS-067 PROHIBITING THE EXPANSION OR LOCATION OF THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN CARLSBAD'S WHEREAS, at its regular meeting of October 20, 2009, the City Council 6 adopted Urgency Ordinance No. CS-067 prohibiting any new or expanded thermal electric 7 power generation facilities located in Carlsbad's Coastal Zone; and 8 WHEREAS, Government Code section 65858 authorizes extension of said 9 emergency interim ordinance, after notice and hearing, by a four-fifths vote for up to ten (10) 10 11 12 13 14 15 16 17 18 19 20 21 22 months and fifteen (15) days; and a subsequent extension for up to one additional year; and WHEREAS, at its regular meeting of December 1, 2009, the City Council adopted Urgency Ordinance No. CS-070 extending Urgency Ordinance CS-067 by ten (10) months and fifteen (15) days to expire October 20, 2010, prohibiting any new or expanded thermal electric power generation facilities located in Carlsbad's Coastal Zone; and WHEREAS, pursuant to Government Code section 65858(d), a written report prepared by planning staff describing the measures taken to alleviate the conditions which led to the adoption of the interim ordinance was made available to the public on October 1, 2010, and was issued by the City Council in substantially the same form on October 5, 2010, more than ten days prior to the expiration of CS-070 on October 20, 2010; and WHEREAS, this interim ordinance is adopted pursuant to Government Code section 65858(a) allowing the extension of such urgency ordinance by a four-fifths vote of its 23 legislative body for a subsequent one additional year, and WHEREAS, the Public Utility Zone was established and created in 1971; and 25 WHEREAS, that zone has not been studied or substantially amended since 26 that time; and 27 ' -1- 1 2 3 WHEREAS, the City needs additional time to comprehensively study both the4 5 6 7 8 10 11 23 24 25 26 27 28 WHEREAS, the General Plan designation establishing a public utilities land use classified "U" was established October 15,1974 and has not been substantially reviewed or amended since that time; and General Plan and Public Utilities Zones in order to determine whether or not, due to the passage of time and advances in technology, existing standards are no longer appropriate or sufficient to protect the health, safety and welfare of its citizens; and WHEREAS, public utilities, without distinction between electrical energy generation, gas generation, water utilities, treatment of waste water processing and disposal utilities and other public utilities are permitted within that designation upon obtaining a Specific Plan, Precise Development Plan or similar actions adopted by ordinance and none 12 of these uses are a conditional use within that designation; and 13 WHEREAS, the San Diego Gas and Electric Company (SDG&E) constructed 14 the existing Encina Power Station in approximately 1952 and prior to the General Plan 15 designation establishing a public utilities land use and implementing zone; and 16 WHEREAS, the Agua Hedionda Local Coastal Plan (LCP) was adopted in 17 1982 which pertained to the properties then owned by SDG&E including the Encina Power 18 Station; and 19 WHEREAS, the LCP contains numerous regulations and restrictions which 20 impact the Encina Power Station site including those related to public access, land use, 21 recreation, agriculture, aquaculture, visual impacts and uses of the lagoon; and WHEREAS, in 1999, SDG&E sold a significant portion of its holdings within Specific Plan 144 to Cabrillo Power LLC, now known as the Carlsbad Energy Center LLC, including the Encina Power Station and outer, middle, and inner basins of the Agua Hedionda Lagoon; and -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the Carlsbad Energy Center LLC ("Applicant") filed a Notice of Intention on September 14, 2007 with the California Energy Commission ("CEC") for the development of the Carlsbad Energy Center Project (CECP), a 558-megawatt (MW) gross combined-cycle power generating facility; and WHEREAS, the CECP represents an expansion of the Encina Power Station; and WHEREAS, the CEC has notified the City that the proposed Encina Power Station site is the prime candidate for expansion because of the ready availability of land and existing electric utility related infrastructure; and WHEREAS, at the time the existing Encina Power Station was established it required a daily need for hundreds of millions of gallons of once-through cooling ocean water to operate the plant and generate electricity; and WHERAS, with current technology, thermal electric power generation facilities no longer require ocean water for cooling and as such are no longer considered coastal- dependent land uses; and WHEREAS, the construction of the addition to the existing plant will have significant effects on the environment including impacts to existing visual blight; and WHEREAS, the construction and expansion of the existing plant will add pollutants and noxious emissions to the environment affecting the health, safety and welfare of the citizens of Carlsbad and its environs; and WHEREAS, the construction and expansion of the existing plant will affect the fish and wildlife ecosystem of the Agua Hedionda Lagoon; and WHEREAS, expansion of the Encina Power Station may be prejudicial to other proposed nearby land uses; and -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the expansion to the Encina Power Station will require increased fossil fuel consumption and expose the citizens of Carlsbad to additional environmental n'sks; and WHEREAS. The City intends to study the appropriateness of the General Plan land use designation for the site; and WHEREAS, construction of the CECP may be in conflict with a zoning proposal which the City Council intends to study; and WHEREAS, processing and approval of the CECP, until these studies are completed and the General Plan and zoning districts amended, would severely prejudice the ability of the City to permit, conditionally permit or prohibit expansion or location of thermal electric power generation facilities at this location or at other locations; and WHEREAS, the City Council has determined for the reasons stated above, such expansion of the existing Encina Power Station represents a current and immediate threat to the public health, safety and welfare. NOW, THEREFORE, the City Council of the City of Carlsbad ordains as follows: SECTION 1: That the above recitations are true and correct. SECTION 2: That the proposed CECP represents a current and immediate threat to the public health, safety, and welfare to the Citizens of Carlsbad. SECTION 3: No development application shall be accepted, processed or approved which would increase the size, location, generating capacity or use of the existing Encina Power Station or allow the establishment of any other thermal electric power generation facility within the Coastal Zone. SECTION 4: That the Memorandum to the City Manager dated September 27, 2010 titled "Encina Power Plant Land Use Analysis" constitutes the written report of the City Council describing the measures taken to alleviate the condition which led -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the adoption of the Urgency Ordinance as required by Section 65858(d) of the California Government Code. SECTION 5: That Ordinance No. CS-067 is extended for twelve (12) months. DECLARATION OF URGENCY: This ordinance is hereby declared to be an emergency ordinance adopted as an urgency measure to protect the public health, safety and welfare and shall take effect immediately upon its adoption. The facts constituting the emergency are set forth in Ordinance No. CS-067 and Council Resolution No. 2009-263, dated 10/20/2009 on file with the City Clerk and made a part of hereof and represent a current and immediate threat to the public health, safety and welfare of the citizens of Carlsbad. EFFECTIVE: This interim ordinance as amended shall be effective immediately upon passage and shall be of no further force and effect after twelve (12) months of the date of its adoption unless extended by the City Council according to law. The City Clerk of the City of Carlsbad shall certify to the adoption of this ordinance and cause it to be published within 15 days after its adoption. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of October 2010, by the following vote to wit: AYES:Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Council Member Lewis. APPROVED AS TO FORM AND LEGALITY PAUL EDMONSON, Assistant City Attorney ANN ATTEST: (SEAL) ayor Pro Tem EXHIBIT 2 1 RESOLUTION NO. 2010-238 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA DECLARING ITS 3 INTENTION TO STUDY AND CONSIDER AMENDMENTS TO THE LAND USE ELEMENT OF THE GENERAL PLAN, 4 ZONING ORDINANCE AND OTHER REGULATIONS PERTAINING TO THE LOCATION AND OPERATION OF 5 THERMAL ELECTRIC POWER GENERATION FACILITIES WITHIN THE CITY. 6 WHEREAS, at its regular meeting on October 20, 2009, the City Council adopted 7 Resolution No, 2009-263 which declares its intention to consider amendments to the General 8 Plan, the Zoning Ordinance and other regulations pertaining to the location and operation of 9 thermal electric power generation facilities within Carlsbad's Coastal Zone; and 10 WHEREAS, at its regular meeting on December 1, 2009, the City Council adopted Resolution No. 2009-299 which further declares its intention to consider amendments 12 to the General Plan, the Zoning Ordinance and other regulations pertaining to the location and operation of thermal electric power generation facilities within Carlsbad's Coastal Zone; and 14 WHEREAS, City staff was authorized and directed to study and prepare recommendations and to set public hearings before the Planning Commission and City Council 16 to determine whether the present General Plan and Zoning designations for thermal electric power generation facilities within the City, including the Encina Power Station site, should be I o amended; and WHEREAS, the study may include preparing land use alternatives and/or a "Conceptual Master Plan or Land Use Development Strategy" for the properties included in the _7 Encina Power Station site and, may include the use of consulting firms to assist city staff in ,,- preparing said land use alternatives for the Encina Power Station site and/or preparing ~4 appropriate environmental review documents; and -c- WHEREAS, staff is also directed to consider the repeal or amendments to 26 Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the non- 27 conforming use provisions to the Zoning Ordinance, as appropriate; and 28 1 WHEREAS, City staff have developed land use study options. 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 3 Carlsbad, California as follows: 4 1. That the above recitations are true and correct. 2. That pursuant to Section 21.52.020 of the Carlsbad Municipal Code and Section 65358 of the State Government Code, the City Council of the City of Carlsbad declares its intention to consider amendments to the Land Use Element of the General Plan, the Zoning _ Ordinance and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City of Carlsbad. 8 3. That the City Manager and/or designee is hereby authorized and directed to 9 prepare an EIR and legislative actions (GPA,ZC,ZCA,SPA,PPA) to implement the land use recommendations. 10 4. That the City Manager and/or designee is also directed to repeal or amend 11 Carlsbad Municipal Code section 21.48.100 regarding Public Utility exemptions from the non- conforming use provisions to the Zoning Ordinance, as appropriate. 12 "NOTICE TO APPLICANT" 13 The time within which judicial review of this decision must be sought is governed 14 by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a 16 request for the record is filed with a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA. 92008." 20 "' 21 '" 22 "' 23 '" 24 '" 25 '" 26 '" 27 28 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of October 2010, by the following vote to wit: AYES: Council Members Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: Council Member Lewis. !ayor Pro Tern ATTEST: EXHIBITS '^CARLSBAD Memorandum September 27, 2010 To: Lisa Hildabrand, City Manager From: Christer Westman, Senior Planner Via: Gary Barberio, Community and Economic Development Directo Don Neu, City Planner ^?? Re: Encina Power Plant Land Use Analysis BACKGROUND The City Council took several actions in response to Carlsbad Energy Center LLC filing a Notice of Intention on September 14, 2007 with the California Energy Commission ("CEC") to construct and operate the Carlsbad Energy Center Project (CECP), an additional 558-megawatt power generating facility, at the existing Encina Power Station site. These include: October 20. 2009 • The City Council adopted Urgency Ordinance CS-067 to: 1) declare that the CECP (expansion of the existing Encina Power Station) represents a current and immediate threat to public health, safety and welfare; and 2) adopted a 45 day moratorium to prohibit any new or expanded thermal electric power generation facilities within Carlsbad's Coastal Zone. Urgency Ordinance CS-067 would expire on December 4, 2009, unless extended. • The City Council adopted Council Resolution 2009-263, directing staff to prepare a land use analysis that: 1) evaluates what appropriate land use designations and zones should be applied to Specific Plan Area 144 (Which includes the Encina Power Station and the proposed CECP project site); and 2) identifies where, if any, locations are acceptable for power generation in Carlsbad. As shown on Exhibits 1 and 2, both properties are currently designated Public Utility (U) and zoned Public Utility (P-U). November 16, 2009 • Consistent with California Government Code Section 65858(d), a written report describing the measures taken to alleviate the subject urgency ordinance condition was provided to the City Manager (See Exhibit 4) no less than 10 days prior to expiration of the adopted urgency ordinance (by November 24, 2009) in order to consider an extension of the moratorium. Measures taken by the City to alleviate the subject urgency ordinance condition included the City's written objections to the CEC regarding the Carlsbad Energy Center Project (CECP). In response to Council Resolution 2009-263, staff identified five (5) Encina Power Plant Land Use Study Processing Options and a recommendation for the City Council (See Exhibit 5). Staff indicated that it would require additional time to complete the Land Use Studies and therefore recommended that the City Council extend Urgency Ordinance CS-067. Community & Economic Development 1635 Faraday Ave. I Carlsbad, CA 92008 I 760-602-2710 I 760-602-8560 fax I www.carlsbadca.gov Encina Power Plant Land Use Analysis September 27, 2010 Page 2 December 1. 2009 • The City Council adopted Ordinance CS-070 to extend Urgency Ordinance CS-067 for 10 months and 15 days (through October 20, 2010). • The City Council also adopted Council Resolution 2009-299, directing staff to 1) prepare a Land Use Study consistent with a combination of Land Use Study Processing Options IB (Redesignate the site as a Combination General Plan District) and 1C (Designate the site as a Special Planning Consideration Area in the General Plan); 2) complete a review of alternative sites within the City that may accommodate and are acceptable to the city for the location and operation of thermal electric power generation facilities including public outreach and input through the City's General Plan Update; and 3) take up to 24 months to complete. (Including General Plan, Zone Code and zoning amendments; and 3) consider the repeal of C.M.C. Section 21.48.100 (Nonconforming Buildings and Uses) regarding Public utility exemptions; and, environmental review). PROJECT DESCRIPTION Under this direction, the Planning Division has undertaken a land use study to evaluate the appropriateness of the existing Public Utilities (U) land use designation as well as alternatives which may be more appropriate. The Public Utilities designation primarily allows for such uses as power generation facilities, wastewater treatment facilities, fuel oil storage facilities and public district maintenance, storage and operating facilities. Phase I of this Land Use Study (this memorandum) includes a number of land use findings and a preliminary land use recommendation. Prior to preparing a Request for Proposal (RFP) to hire an environmental consultant to assist staff in preparing an EIR and implementing ordinances for this land use change, staff is recommending that the City Council first review and concur with the preliminary land use recommendation. FINDINGS 1. While there is likely to be continuing future demand for additional power generating capacity, power plants are not coastal dependent land uses; they may be built and operated at any location where cooling water can be supplied, including desert locations. 2. The existing Encina facility currently creates significant environmental impacts, not only for Carlsbad, but for the entire region. The proposed second plant would significantly exacerbate these impacts. 3. Coastal resources are today understood to be fragile and very susceptible to damage from such impacts as oil spills, water pollution, and visual degradation. Through creation of the Coastal Act and other actions the people of the State of California and the people of Carlsbad have pledged both to protect remaining un-impacted coastal resources and to rehabilitate degraded and impacted resources. Encina Power Plant Land Use Analysis September 27, 2010 PageS 4. Carlsbad continues to grow while retaining its village/resort orientation. The economy is very dependent upon the long-term protection of the City's extraordinary environmental assets, especially along the coast. Heavy industry ought not to be located along the coast unless it is coastal dependent. Where not coastal dependent, heavy industry should be precluded from coastal areas. Under no circumstances should heavy industry be permitted in coastal areas when such industry requires offshore tanker delivery and shore-side transfer of large amounts of raw or processed petroleum. Instead, other uses, incorporating benign use of coastal resources, should be developed along coastal areas whenever possible. 5. The City's long-term growth has resulted in all of the land north and south of the plant being developed with residential and open space uses thereby increasing the numbers of people living in ever-closer proximity to the power plant. As shown on Exhibits 1 and 2, the middle and outer basins of the Agua Hedionda Lagoon are located north of the power plant. The Lagoon is designated and zoned Open Space (OS). On the north shore of the lagoon are Hubb's Seaworld, which is a fish research facility, and residentially developed properties. The Land Use designations for the residentially developed properties are Residential Medium High (RMH 8-15 du/ac) and Residential High (RH 15- 23 du/ac) densities. Properties are developed predominantly with multi-family structures. Located to the south of the power plant and west of the railroad is an established single family residential neighborhood. To the east of the power plant is located the inner basin of the Agua Hedionda Lagoon and the south shore of the lagoon which is currently vacant and used for the production of strawberries. The north shore of the lagoon is developed with a variety of residential neighborhoods ranging from single family homes on large lots to stacked flat condominium buildings. 6. There is increasing potential for off-site effects from pollution and major industrial accidents at the plant. There is therefore increased concern for the maintenance of the health and safety of the surrounding residential uses. Other uses of the property would have far less potential for such adverse impact. 7. Therefore, the Planning Division believes that the existing Public Utilities general plan designation for the Encina power plant site are inadequate and inappropriate and should be changed to designations which do not support the type of heavy industrial development now occurring on the site. 8. There are few locations in Carlsbad that are appropriate for the development of large scale power plants. Most of the City is developed as residential which severely limits compatibility with heavy industrial type uses. Properties west of the Interstate 5 are less desirable for power plant development given their locational strength for tourist serving commercial and residential development. The single area of the City which has any potential for the development of smaller peak plants is the industrial corridor that Encina Power Plant Land Use Analysis September 27, 2010 Page 4 runs east-west roughly along the alignment of the airport. The only larger industrially zoned properties that are vacant and could be considered for peaker plant development are those located east of the airport and north of Palomar Airport Road. Two appropriate properties were identified in testimony provided by the City regarding the proposed CEC project. The first property is Oaks North Phase 3 and the second is Fleet Services. The Oaks North property is privately held and the Fleet Services property is owned by the City (See Exhibit 3). Regardless, a more in-depth proximity/compatibility analysis would be needed to determine the viability of any of these properties. 9. Carlsbad Municipal Code Section 21.48.100 regarding Public Utility exemptions from non-conforming use provisions may be replaced pursuant to the City Council adoption of CS-050 (attached as Exhibit 6) on 08/18/2009. However, the ordinance is pending California Coastal Commission action and is therefore not effective. As a result a change to the code section will require a Zone Code Amendment. RECOMMENDATION The Planning Division has identified General Plan designations which would serve as an appropriate alternative to the current Public Utilities (U) designation. A Combination District (authorized in the General Plan) of Travel Recreation Commercial (TR) and Open Space (OS) is recommended. This designation would allow coastal-oriented commercial uses which could include various combinations of resort, hotels, motels, restaurants, and limited retail and active/passive recreation facilities which might include athletic fields, bicycle paths, campsites, picnic areas, and parks, to be developed on the site as alternatives to the existing public utility/heavy industry uses. The new permitted uses are clearly more compatible with the surrounding residential uses. The balance of the two proposed land uses would be determined at the time development was proposed. This Combination District designation would permit a broad range of economic alternatives, when and if the site should be redeveloped. In addition to the Combination District Land Use designation, the site should be designated in the General Plan as a Special Planning Considerations Area. As a Special Planning Considerations area, site specific compatibility and goals can be established to guide development to be consistent with the City Council's intended direction. Should the City Council support the recommendation to process a change in the site's General Plan Land Use designation, it would be necessary also to re-zone the site, revise the Local Coastal Program Land Use and Zoning designations, amend the power plant Specific Plan (SP 144), South Carlsbad Redevelopment Plan, and Encina Power Station Precise Development Plan (POP 00-02), and prepare an Environmental Impact Report (EIR) analyzing the effects of the various actions. The various land use changes would be processed concurrently with the General Plan amendment so as not to create an inconsistency. The scope of work necessary to complete all of the tasks associated with the land use study, including the preparation of documents and holding the required public hearings, is extensive and cannot be completed prior to the expiration of the urgency ordinance moratorium adopted Encina Power Plant Land Use Analysis September 27, 2010 PageS on December 1, 2009 (with an October 20, 2010 expiration date). Consistent with California Government Code Section 65858(a), the urgency ordinance moratorium should therefore be extended by one (1) more year to expire October 20, 2011. DN:CW:bd Attachments Exhibit 1 - Encina Power Station Land Use map Exhibit 2 - Encina Power Station Zoning Map Exhibit 3 - Alternative Power Generation locations Exhibit 4 - City Manager Report (November 16,2009) Exhibit 5 - Encina Power Plant Land Use Options Exhibit* - Ordinance-No;rCS^OSO : " GENERAL PLAN LAND USE MAP City of Carlsbad Jtw Alternate Power Plant Sites 1. Fleet Services 2, Oaks North [H) MGHSCidOl HOOL [JJ JUMIOH HIGH SCHOOI pi PRIVATE SCtlOOi ,. iN!XlS"Rt.\t [G] «IOS) OPEN SPACE O[UAJ UMPIANNED AREAS PUBiSCUHUriES COMMUMITY r^c COMMERCIAL D(RJ CHLJLOCAI SHOPPING CfNTfR AVEl /RCKRMi'ON COMMtKCiAi 101 (V] VlLi.AGfc R6SIDENTIAL JHLJ LOWOf NSH V ;0 1 'J Uu/Ji; C3(RLMJ LOW-MEOIUM OEMSsTY (0-4 E3f«MJ MEDIUM DENSITY i' fHjRMHI MEORW-rtiaM DENSITY (8- I *i U6NCB ARSA 1S.'J SPECK KfSOURCE M5EA EXHIBIT 4 November 16, 2009 TO: CITY MANAGER VIA: COMMUNITY DEVELOPMENT DIRECTOR FROM: Planning Director SUBJECT: Power Plant Development in the Coastal Zone Moratorium The City Council adopted an urgency ordinance (CS-067) prohibiting the development of power generation plants within the coastal zone on October 20, 2009. This ordinance was in response to NRG's proposal to add additional power generation at the existing Encina Power Station site. Unless extended, the urgency ordinance is due to expire on December 4, 2009. California Government Code Section 65858(d) requires that a written report describing the measures taken to alleviate the subject urgency ordinance condition must be issued no less than 10 days prior to the expiration of the adopted urgency ordinance in order to consider an extension of the moratorium. The following-is intended to serve as the required report. As highlighted in the October 20, 2009 City Council meeting, the City has demonstrated a history of its desire to limit the expansion of the existing power plant and the development of new plants along the coast in favor of developing coastal properties with recreation, commercial, and tourism uses that are unique to the coast. Since the October 20 meeting, the City has conveyed its objections to siting a new power plant along its coastline to the California Energy Commission (CEC), which is the State agency responsible for licensing new power plants. The CEC recognizes the City's concerns in its Final Staff Analysis which was released on November 12, 2009. Additionally, during the October 20, 2009 council meeting, the City Council adopted Resolution No. 2009-263, which directs staff to prepare a land use analysis that studies where, if any, locations are acceptable for power generation in Carlsbad's coastal zone and to evaluate what appropriate land use designation(s) should be applied to Specific Plan Area 144 (this includes the Encina Power Station). Subsequent to the October 20 meeting, staff has met to identify and evaluate potential land use analysis options (Exhibit 1), which has resulted in a staff recommendation for City Council's consideration. Staff expects that it will lake several months to complete the above-mentioned land use study. For that reason, staff recommends that the City Council extend Urgency Ordinance CS-067. H S 11II v r* ^ *"\~ £ *• ti SSill! lii: I o u a *is!«* * -i 1 S 2 1*1s if i j|1|| ] fllllt! il i•5 5i S N § I! i! i u : * iti a I 1 ORDINANCE NO. CS-050 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A ZONE CODE 3 AMENDMENT TO: 1) REPEAL AND RE-ENACT THE NONCONFORMING BUILDINGS AND USES - CHAPTER 21,48 4 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04- 5 DEFINITIONS, 3) REPEAL SECTION 21.46.210 OF CHAPTER 21.46 - YARDS, 4) AMEND SECTION 21.44.010 OF CHAPTER 6 21.44 - PARKING AND, 5) AMEND SECTION 21.45.090A OF CHAPTER 21.45 - PLANNED DEVELOPMENTS. 7 CASE NAME: NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION 8 CASE NO.: ZCA 09-01/LCPA 09-01 9 The City Council of the City of Carlsbad, California, does ordain as follows: 10 SECTION!: That the title of Chapter 21.48, as referenced in the list of 11 Chapters contained in Title 21 of the Carlsbad Municipal Code, is amended to read as follows: 12 21.48 Nonconforming Lots, Structures and Uses 13 SECTION II: That Chapter 21.04 of the Carlsbad Municipal Code is amended14 by the addition of Sections 21.04.027, 21.04.140.1, 21.04.278, 21.04.281, 21.04.299.1, 21.04.299.2 and 21.04.354, and by the amendment of Sections 21.04.275, 21.04.280 and16 21.04.355, which shall read as follows: 18 21.04.027 Alter. "Alter" means any change to the interior or exterior of a structure that does not result in an increase to the gross floor area of the structure. 21 22 21.04.140.1 Expansion. "Expansion" means to enlarge or increase the size of an existing structure or use 2, including the physical size of the property, building, parking and other improvements. 24 25 21.04.275 Nonconforming structure. "Nonconforming structure" means a structure, or portion thereof, which was lawfully 25 erected or altered and maintained, but which, because of the application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it 27 is located. 28 1 21.04.278 Nonconforming lot. "Nonconforming lot" means a lot which was legally created, but which, because of the 2 application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it is located. 3 21.04.280 Nonconforming non-residential use. 4 "Nonconforming non-residential use" means a non-residential use which was lawfully established and maintained, but which, because of the application of this title to it, no longer 5 conforms to the current use regulations of the zone in which it is located. 6 21.04.281 Nonconforming residential use. "Nonconforming residential use" means a residential use which was lawfully established 7 and maintained, but which exceeds the Growth Management Control Point or the maximum density range of the underlying General Plan Land Use designation. 8 9 21.04.299.1 Repair. 10 "Repair" means any improvements to correct deficiencies in a building or structure. 11 21.04.299.2 Replace. "Replace" means to construct a structure that is substantially equivalent in size, shape 12 and location to a structure that has been destroyed or demolished. 13 14 21.04.354 Structure. "Structure" means anything constructed or erected which requires location on the ground 15 or attached to something having a location on the ground, but not including fences or walls used as fences six feet or less in height. All buildings are structures.16 21.04.355 Substandard lot 17 See "Nonconforming lot". 18 19 SECTION III: That Section 21.44.010.A of the Carlsbad Municipal Code is amended to read as follows: 21 21.44.010 Required off-street parking. A. Off-street parking, designed in accordance with the requirements of this chapter, 22 shall be provided for: 1. All newly constructed buildings; 23 2. Additions to existing buildings, except for: a. An existing single family residence which does not meet the required parking 24 standard (i.e. a two car garage) may expand floor area if a minimum of two off- street parking spaces are provided on-site in a location consistent with Section 21.44.060. 25 3. Any change of use within an existing building. 26 SECTION IV: That Section 21.45.090.A of the Carlsbad Municipal Code is 27 amended to read as follows: 28 -2- 1 21.45.090 Residential additions and accessory uses A. General. 2 1. Additions and accessory uses shall be subject to all applicable development standards of this chapter, unless otherwise specified in this section. 3 2. Additions to buildings that are legally nonconforming shall comply with the requirements of Chapter 21.48 of this code. 4 5 SECTION V: That Section 21.46.210 of the Carlsbad Municipal Code is 6 repealed. 7 SECTION VI: That Chapter 21.48 of the Carlsbad Municipal Code is repealed in 8 its entirety and reenacted as follows: 9 Chapter 21.48 10 NONCONFORMING LOTS, STRUCTURES AND USES 11 Sections: 12 21.48.010 Purpose and intent. 21.48.020 Applicability. 13 21.48.030 General provisions. 21.48.040 Nonconforming lots. 21.48.050 Nonconforming residential structures and uses. 21.48.060 Nonconforming non-residential structures. 15 21.48.070 Nonconforming non-residential uses. 21.48.080 Nonconforming construction permit 16 21.48.090 Abatement of nonconforming structures and uses. '' 21.48.010 Purpose and intent. A. The purpose and intent of this chapter is to:18 1. Allow for the development of nonconforming lots that were legally created. 2. Establish procedures for the abatement of structures and uses that do not comply with all of the requirements and development standards of this title and which may be _„ adverse to the orderly development of the city and to the public health, safety, or welfare of persons or property. 2, 3. Permit the continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the requirements and 22 development standards of this title, in a manner that is not adverse to the public health, safety or welfare of persons or property. 4. Permit the repair, alteration, expansion or replacement of nonconforming structures subject to the requirements of this chapter. 24 5. Permit the expansion or replacement of nonconforming uses subject to the requirements of this chapter. 25 21.48.020 Applicability. A. The provisions of this chapter apply to: 1. Legally created lots which do not conform to the current requirements and 27 development standards of the zone in which they are located. 28 -3- 1 2. Legally constructed structures and site development features (except for nonconforming signs which are addressed in Section 21.41.130) which do not comply with the 2 current requirements and development standards of the zone in which they are located. 3. Legally established uses which do not conform to the current permitted use 3 regulations of the zone in which they are located. 4 21.48.030 General provisions. A. It shall be the responsibility of the owner of a nonconforming lot, structure or use 5 to prove to the planning director that such lot, structure or use was lawfully established, existed on the date of adoption or amendment of this chapter, and has existed continuously as defined 6 herein. B. Nothing in this chapter shall be deemed to prevent the rehabilitation, repair, 7 alteration, strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any city official charged with protecting the public safety, upon order of such 8 official. Repairs and alterations may be made to restore a structure to the same condition that existed prior to damage or deterioration, provided that such repairs or structural alterations 9 conform to the provisions of this chapter. 10 21.48.040 Nonconforming lots. A. A nonconforming lot may be developed, provided that the development is 11 consistent with the General Plan and complies with all of the requirements and development standards of the zone, master plan, or specific plan in which it is located.12 21.48.050 Nonconforming residential structures and uses. 13 A. Specific Provisions. 1. A nonconforming residential structure and/or nonconforming residential use may 14 be continued and the structure and/or use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or15 replacement does not: a. Result in an additional structural nonconformity; and, 16 b. Increase the degree of the existing nonconformity of all or part of such structure or use (i.e. the addition of a new dwelling unit to an existing over density residential use except as otherwise allowed by the General Plan); and, c. Reduce the number and size of any required existing parking spaces. 18 2. Any expansion of floor area or the addition of a new dwelling unit that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand, in compliance with the parking requirements of Chapter 3. An existing single family residence which does not meet the required parking standard (i.e. a two car garage) may expand floor area if a minimum of two off-street parking spaces are provided on-site in a location consistent with Section 21.44.060(4). „ B. Repair or Alteration. 1, A nonconforming residential structure and/or a structure which is occupied by a nonconforming residential use may be repaired or altered, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 24 and 18. C. Expansion. 1. A nonconforming residential structure and/or a nonconforming residential use may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6). 28 -4- 1 2. Where a single-family residential structure is nonconforming only by reason of substandard yards, the provisions of this chapter requiring a nonconforming construction permit 2 for an expansion shall not apply provided that: a. The area of expansion is not more than 40% of the existing floor space prior to 3 the enlargement or a maximum of 640 square feet, whichever is less; and b. The area of expansion, when combined with prior expansions of the 4 nonconforming structure, does not exceed 40% of the floor space that existed prior to any expansions or 640 square feet, whichever is less; and 5 c. The area of expansion shall comply with all current development standards including, but not limited to, setbacks, lot coverage and height limitations; and 6 d. Expansions that exceed the limits of this exception shall require a nonconforming construction permit. 7 D. Replacement in the Event of a Disaster. 1. A nonconforming residential structure and/or nonconforming residential use that 8 is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a 9 nonconforming construction permit is submitted within two years of the date of the disaster and the planning director approves the findings of fact pursuant to Section 21.48.080(6). The 10 planning director may grant an extension to the above two-year application submittal limit upon demonstration of good cause by the applicant. 11 E. Voluntary Demolition and Subsequent Replacement. 1. A nonconforming residential structure and/or nonconforming residential use that 12 is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming 13 construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to the date of the demolition.14 21.48.060 Nonconforming non-residential structures. 15 A. Specific Provisions. 1. A nonconforming non-residential structure may be continued and the structure 16 repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: '' a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure; 18 and c. Reduce the number and size of any required existing parking spaces. '" 2. Any expansion of floor area that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking 2(3 demand. B. Repair or Alteration. 1. A nonconforming non-residential structure may be repaired or altered subject to „ issuance of all required discretionary and building permits, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 2- and 18. C. Expansion. ,,4 1. A nonconforming non-residential structure may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and 25 building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 26 21.48.080(6). D. Replacement in the Event of a Disaster. 27 1. A nonconforming non-residential structure that is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required 28 -5- 1 discretionary and building permits and provided that an application for a nonconforming construction permit is submitted within two years of the date of the disaster and the planning 2 director approves the findings of fact pursuant to Section 21.48.080(6). E. Voluntary Demolition and Subsequent Replacement. 3 1. A nonconforming non-residential structure that is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building 4 permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to 5 the date of the demolition. 6 21.48.070 Nonconforming non-residential uses. A. Specific Provisions. 7 1. A nonconforming non-residential use and/or structure which is occupied by a nonconforming non-residential use may be continued and the structure and/or use repaired, 8 altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: 9 a. Increase the degree of the existing nonconformity of all or part of such structure or use; and, 10 b. Reduce the number and size of any required existing parking spaces. 2. Any expansion of a non-residential use and/or structure which is occupied by a 1 nonconforming non-residential use that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand. 12 B. Repair or Alteration. 1. A structure which is occupied by a nonconforming non-residential use may be 13 repaired or altered subject to issuance of all required discretionary and building permits, provided that he repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18. C. Expansion of Use. 1. A nonconforming non-residential use may be expanded, so as to occupy a greater area of land or more floor area within a structure, subject to issuance of all required discretionary and building permits, provided that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 17 21.42.030(A). D. Relocation. ' ° 1. A nonconforming non-residential use may be moved, in whole or in part, to any other on-site structure, or to any other portion of the structure, lot or site within or upon which it19 is located, subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted and the planning commission20 approves the findings of fact pursuant to Section 21.42.030(A). E. Change of Use.21 1. A nonconforming non-residential use may be changed to a use that is permitted in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval of the planning director and the issuance of a business license. F. Replacement of Use. 1. A nonconforming non-residential use may be replaced with the same or a similar 24 use, as determined by the planning director, so long as the replacement use does not expand or in any other manner increase the degree of nonconformity with the use regulations of this title. G. Discontinuance. 1. If a structure or parcel of land which is occupied by a nonconforming non- residential use is, or hereafter becomes vacant and remains unoccupied for a continuous period of one year or more, the planning director shall determine and shall notify the owner of the 27 property, in writing, that the nonconforming use has been discontinued and the nonconforming use may not be renewed or reestablished. 28 -6- 1 H. Reestablishment of a Nonconforming Use in the Event of a Disaster. 1. A nonconforming non-residential use that is destroyed by fire, explosion, other 2 casualty or natural disaster, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit 3 is submitted within two years of the date of the disaster, and the planning commission approves the findings of fact pursuant to Section 21,42.030(A). 4 I. Voluntary Demolition and Subsequent Reconstruction. 1. A nonconforming non-residential use that is proposed to be voluntarily 5 demolished and subsequently reconstructed, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use 6 permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42,030(A) prior to the demolition. 7 21.48.080 Nonconforming construction permit. 8 A. Authority. 1. The planning director or his designee may approve, conditionally approve or 9 deny a nonconforming construction permit as prescribed in this chapter, upon making the findings of fact listed in Section 21.48.080(6) of this chapter. 10 B. Findings of Fact. 1. A nonconforming construction permit shall be granted only if the following facts 11 are found to exist in regard thereto: a. The expansion/replacement of the structure and/or use would not result in an 12 adverse impact to the health, safety and welfare of surrounding uses, persons or property. b. The area of expansion shall comply with all current requirements and 13 development standards of the zone in which it is located, except as provided in Subsection 21.48.050(A)(3) of this chapter. c. The expansion/replacement structure shall comply with all current fire protection and building codes and regulations contained in Titles 17 and 18. d. The expansion/replacement would result in a structure that would be considered an improvement to, or complementary to and/or consistent with the character of the 16 neighborhood in which it is located. C. Application and Fees. 17 1. Application for a nonconforming construction permit may be made by the owner of the property affected or the authorized agent of the owner. Application shall be made in writing on a form provided by the planning department. The application shall state fully the circumstances and conditions relied upon as grounds for the application and shall beIy accompanied by adequate plans, a legal description of the property involved and all other materials as specified by the planning department. ^ 2. At the time of filing the application, the applicant shall pay a processing fee in an amount as specified by city council resolution.21 D. Notices. 1. Upon the filing of an application for a nonconforming construction permit, the planning director shall give written notice by mail or personal delivery to the project applicant, the owner of the subject real property or the owner's duly authorized agent and to all property owners as shown on the latest equalized assessment roll within three hundred feet of the 24 subject property at least fifteen days prior to a decision on the application. E. Decision-Making Process. 1. Applications for nonconforming construction permits shall be acted upon in accordance with the decision process identified below: a. Any person so notified in accordance with Section 21.48.080(0) above may file written objections or a written request to be heard within ten days after the mailing or personal 27 delivery of the notice. If a written request to be heard is filed, the planning director shall 28 -7- 1 schedule an informal hearing and provide written notice to the applicant and the requestor at least five days prior to the hearing. The hearing is not a formal public hearing, 2 b. An application for a nonconfonming construction permit may be approved, conditionally approved or denied by the planning director based upon his/her review of the facts 3 as set forth in the application and review of the circumstances of the particular case, and the planning director may only approve, or conditionally approve, the nonconforming construction 4 permit if all of the findings of fact in Section 21.48.080(6) of this chapter are found to exist. F. Announcement of Findings and Decision. 5 1. Not more than twenty days following the termination of the proceedings for a nonconforming construction permit, the planning director shall announce his/her findings by 6 letter. The letter shall recite, among other things: a. The facts and reasons which, in the opinion of the planning director, make the 7 granting or denial of the nonconforming construction permit necessary to carry out the provisions and general purpose of this title; 8 b. That the nonconforming construction permit be granted or denied; and, c. If the letter orders that the nonconforming construction permit be granted, it shall 9 also recite such conditions and limitations as the planning director may impose. G. Mailing of Notice of Decision. 10 1. Not later than seven days following the announcement of a decision ordering that a nonconforming construction permit be granted or denied, a copy of the letter shall be mailed to the applicant at the address shown on the application filed with the planning director. H. Appeals. 1. In the case of nonconforming construction permits, the action of the planning director may be appealed to the planning commission in accordance with Section 21.54.140 of this title. The planning commission's action to approve, conditionally approve or deny is final. I. Expiration Period. 1. Expiration of Permit if Not Exercised. a. Any nonconforming construction permit becomes null and void if not exercised 15 within twenty-four months of the date of approval. 2. Extension of Permit if Not Exercised. a. Not more than ninety days or less than forty-five days prior to the expiration of a nonconforming construction permit the permittee may apply to the planning director for an *' extension of the permit. The planning director may extend the time, without public notice, within which the right or privilege granted under a nonconforming construction permit must be 1 ° exercised for one additional year upon receipt of a written request from the applicant prior to the expiration of such nonconforming construction permit. In granting such extension the planning director shall make a written finding that neighborhood conditions have not substantially „- changed since the granting of such nonconforming construction permit. J. Amendment. -. 1. Any approved nonconforming construction permit may be amended by following the same procedure as for approval of a nonconforming construction permit and upon payment 22 of the application fee contained in the most recent fee schedule adopted by the city council. 21.48.090 Abatement of nonconforming structures and uses. A. If a nonconforming use and/or structure is determined by the planning director to 24 be adverse to the orderly development of the city and/or to the public health, safety, or welfare of persons or property, the planning director shall schedule a public hearing before the planning 25 commission to establish the conditions of abatement and the abatement period. The abatement period shall start from the date of the applicable resolution and shall be: 1. For all Residential Uses. a. Not less than one or more than five years. 27 2. For all Non-Residential Uses. a. Not less than one or more than ten years. 28 -8- 1 3. For all Nonconforming Structures. a. Not less than three years or more than twenty-five years. 2 4. Nothing in these provisions shall preclude abatement of a nuisance pursuant to Section 6.16.150 of the Carlsbad Municipal Code. 3 B. Public Hearing Notice. 1. Notice of said public hearing shall be given as required by Section 21.54.060. 4 C. Public Hearing Evidence. 1. The planning commission shall consider at the public hearing, all pertinent data 5 to enable it to arrive at an equitable abatement period which will protect the public health, safety or welfare of persons or property, yet will allow the owner of record, or lessee if applicable, 6 sufficient time to amortize their investment. B. The owner or lessee shall be allowed to present any evidence related to the 7 case. C. When setting the abatement period, the planning commission shall take into 8 consideration the type of construction, age, condition, and extent of nonconformity of the structure or use in question; any structural alterations or expansions; and/or the installation of 9 major equipment designed into the structure prior to the date of nonconformity. D. Hearing Decision. 10 1. After the close of the public hearing, the planning commission shall determine and establish by resolution the abatement period, and shall set forth in said resolution all 11 findings and facts upon which the date of such abatement period is based: E. Notice of Decision to Owner. 12 1. The secretary of the planning commission shall formally notify the owner of the property of the action of the planning commission by mailing a copy of the resolution, via 13 certified return receipt mail, within ten days following the date of its adoption by the planning commission. 14 F. Appeal. 1. The above action of the planning commission shall be final unless an appeal to 15 the city council is filed in accordance with the procedure provided in Section 21.54.150. G. Recordation. 16 1. The secretary of the planning commission shall transmit a final signed copy of the resolution of the planning commission or city council, whichever is final, to the County 1' Recorder of San Diego for recordation. 18 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, but not until approved by the California Coastal Commission and the City Clerk shall _. certify to the adoption of this ordinance and cause it to be published at least once in a _2 publication of general circulation in the City of Carlsbad within fifteen days after its adoption. 23 "' 24 '" 25 "' 26 '" 27 '" 28 -9- 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 11th day of August, 2009, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 18th day of August, 2009, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard, Blackburn NOES: None ABSENT: None APPROVED AS TO FORM AND LEGALITY ID R. BALL, City Attorney 3E A. LEWTS, Mayor ATTEST: (SEAL) -10- PROOF OF PUBLICATION (2010 & 2011 C.CP.) This space is for the County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above- entitled matter. I am the principal clerk of the printer of Proof of Publication of North County Times Formerly known as the Blade-Citizen and Th Advocate and which newspapers havt adjudicated newspapers of general circulatior Superior Court of the County of San Diego, California, for the City of Oceanside and the Escondido, Court Decree number 171349, County of San Diego, that the notice of w annexed is a printed copy (set in type not sma nonpariel), has been published in each reg entire issue of said newspaper and not supplement thereof on the following dates, to-v October 02nd, 2010 I certify (or declare) under penalty of perjury foregoing is true and correct. Dated at Escondido, California This 04th, of October 20H ^ IS Y QIVS-N thnl ms c,ty Coyne,; o. the City of Carlsbad will nofd a public testing 4 ','03 fla-Haad VMwfl. Driw, Cwltort. CrtrttrfM. M 6:00 P.m. on Tu«'" which ttw preparalton oJ studies and consider amsndmBnis s. and otwsr refutations perW.ning to t'i« iocation a we» gwwrulioti fadrtrSes wilh-n tra Citj, w rattfv the report tiBScnoinj tt« 5 ssflais^ ted to t-s adf>p>tsors of Ifr statirsa-thai no aeve!ot»msn! apj Jtd ncrease IhftstM, KscaMai.. 3*n,»,k<hy c-apac*y or u» oS m» Mffitrng End,,a P: ncft! or any older wetmal etechic psww gtmuraMon facility within the Coasto- -Tons ac- n «bmng to mak w m.s p.oposal'o-. cw««V M«ed » aUer.0 tne putt«c tearng H you have .1 cai Chtister West-nan, Setito Pianne!-. M reO-802-4814. » p. soars, you may he lanrtsd to raisina only tdos» issues raisao by you APPEALS MO..OQ dw io Heating P-ojecc t'»«CHy ot ( ^oaiial Commissian App-'Olaote P-ojeef 5 i'hs site * tor.awd vsithin Wft Coastal 7<w* Apuaalablfe Arua Whs«« H» dii'Jsiy is a,upi>alabt«> to ih« Coastal CorriWrtsiOP, _r, be (lisa wttnW Coastal Commission within Wo (101 worhinp days aftet lh« Coastal Co^.«.s*.r«t> has m-^iwed « Nwl-c* OS Tina! Action tern the City of Ca»!sb«! At>r ,rr,-«B w«lf i» rK*'«»tl by t<» Coastal Commission ol tnsOMe thel ,S PI- ,ii.(.*i: ae> od Ail: tanilwia Tlta Ban Bago otfee o> <h* C«s!ai Goniiii>S4iC'r> « ifiijted at 7575 Mfrtropoiitati Drive, Suite 103, S«1 !>UB1.1&H-' Oetotser 8,2010 GUY Of CAHLSHAl.' CI1YCLiUKC.il v ^Jane Allshouse NORTH COUNTY TIMES Legal Advertising Impression antibourrage et a s£chage rapide Utilisezlegabarit5160® www.avery.com 1-800-GO-AVERY AVERY® 5160® CARLSBAD UNIF SCHOOL DIST 6225 EL CAMINO REAL CARLSBAD CA 92011 SAN MARCOS SCHOOL DISTRICT STE 250 255 PICO AVE SAN MARCOS CA 92069 ENCINITAS SCHOOL DISTRICT 101 RANCHO SANTA FE RD ENCINITAS CA 92024 SAN DIEGUITO SCHOOL DISTRICT 701 ENCINITAS BLVD ENCINITAS CA 92024 LEUCADIA WASTE WATER DIST TIM JOCHEN 1960 LA COSTA AVE CARLSBAD CA 92009 OLIVENHAIN WATER DISTRICT 1966OLIVENHAINRD ENCINITAS CA 92024 CITY OF ENCINITAS 505 S VULCAN AV ENCINITAS CA 92024 CITY OF SAN MARCOS 1 CIVIC CENTER DR SAN MARCOS CA 92069-2949 CITY OF OCEANSIDE 300 NORTH COAST HWY OCEANSIDE CA 92054 CITY OF VISTA 600 EUCALYPTUS AVE VISTA CA 92084 VALLECITOS WATER DISTRICT 201 VALLECITOS DE ORO SAN MARCOS CA 92069 I.P.U.A. SCHOOL OF PUBLIC ADMIN AND URBAN STUDIES SAN DIEGO STATE UNIVERSITY SAN DIEGO CA 92182-4505 CALIF DEPT OF FISH & GAME 4949VIEWRIDGEAV SAN DIEGO CA 92123 REGIONAL WATER QUALITY STE 100 9174 SKY PARK CT SAN DIEGO CA 92123-4340 SD COUNTY PLANNING STEB 5201 RUFFIN RD SAN DIEGO CA 92123 LAFCO 1600 PACIFIC HWY SAN DIEGO CA 92101 AIR POLLUTION CONTROL DISTRICT 10124 OLD GROVE RD SAN DIEGO CA 92131 SANDAG STE 800 401 B STREET SAN DIEGO CA 92101 U.S. FISH & WILDLIFE 6010 HIDDEN VALLEY RD CARLSBAD CA 92011 CA COASTAL COMMISSION STE 103 7575 METROPOLITAN DR SAN DIEGO CA 92108-4402 AIRPORT LAND USE COMMISSION SAN DIEGO COUNTY AIRPORT AUTHORITY PO BOX 82776 SAN DIEGO CA 92138-2776 CARLSBAD CHAMBER OF COMMERCE 5934 PRIESTLEY DR CARLSBAD CA 92008 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD, CA 92011-1009 (760)438-3941 CARLSBAD ENERGY CENTER LLC SUITE 104 1817 ASTON PLACE CARLSBAD CA 92008 CITY OF CARLSBAD PUBLIC WORKS/ENGINEERING DEPT- PROJECT ENGINEER CITY OF CARLSBAD PROJECT PLANNER STEVE MACIEJ - BIASD STE 110 9201 SPECTRUM CENTER BLVD SAN DIEGO CA 92123-1407 ®<ms ©AU3AV AN3AV-O9-008-1 ®091S 31VMI/\I31 <g,AJBAV asn 6uuuiM aafc aBoniuc DUB mer NOTICE OF PUBLIC HEARING EXTENSION OF URGENCY ORDINANCE RELATING TO THE PROHIBITION OF ANY NEW OR EXPANDED THERMAL ELECTRIC POWER GENERATION FACILITY WITHIN THE CITY OF CARLSBAD'S COASTAL ZONE NOTICE IS HEREBY GIVEN that the City Council of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, October 12, 2010, to declare its intention to continue the preparation of studies and consider amendments to the Land Use Element of the General Plan, Zoning Ordinance, and other regulations pertaining to the location and operation of thermal electric power generation facilities within the City, to ratify the report describing the measures taken to alleviate the conditions which ted to the adoption of the Urgency Ordinance, and to extend Ordinance No. CS-067 for twelve (12) months stating that no development application shall be accepted, processed or approved which would increase the size, location, generating capacity or use of the existing Enema Power Station or allow the establishment of any other thermal electric power generation facility within the Coastal Zone. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. If you have any questions regarding this matter, please call Christer Westman, Senior Planner, at 760-602- 4614. If you challenge the Urgency Ordinance in court, you may be limited to raising only those issues raised by you or someone else at the public hearing described in this notice, or in written correspondence delivered to the City of Carlsbad City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or prior to, the public hearing. APPEALS The time within which you may judicially challenge this project, if approved, is established by State law and/or city ordinance, and is very short If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described m this notice or in written correspondence delivered to the City of Carlsbad at or prior to the public hearing. a Coastal Commission Appealable Project: £3 This site is located within the Coastal Zone Appealable Area. Where the decision is appealable to the Coastal Commission, appeals must be filed with the Coastal Commission within ten (10) working days after the Coastal Commission has received a Notice of Final Action from the City of Carlsbad. Applicants will be notified by the Coastal Commission of the date that their appeal period will conclude. The San Diego office of the Coastal Commission is located at 7575 Metropolitan Drive, Suite 103, San Dfego, Cafifornia 92108-4402. PUBLISH: October 2,2010 CITY OF CARLSBAD CITY COUNCIL Y/A Designated Public Utility City of Carlsbad Public Notice Power Plant Moratorium Extension 0 f.OOO 2,000 N 4,000i Feet Map created by tie City of Carlsbad GIS. Portions of the DERIVED PRODUCT contain geographic information copyrighted by SartGIS. All Rights Reserved LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 San Diego, CA 92101 LUCE, FORWARD, HAMILTON & SCRIPPS LLP 619.236.1414 www.luce.com RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.6992572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse@luce.com October 12, 2010 HAND DELIVERED Mayor Lewis and Councilmembers City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: October 12,2010 Meeting Agenda Item #3 Proposed Extension of Urgency Ordinance (CS-110) and Adoption of Resolution 2010-238 Dear Mayor Lewis and Councilmembers: We are special counsel to Cabrillo Power I LLC, owner/operator of the entire Encina Power Station (EPS), and Carlsbad Energy Center LLC, applicant before the California Energy Commission (CEC) for certification of the Carlsbad Energy Center Project (CECP). Both entities are subsidiaries of NRG Energy, Inc. and will collectively be referred to in this letter as "Cabrillo". At the City Council's initial urgency ordinance on October 20, 2009, Cabrillo appeared and opposed adoption of the claimed "emergency" ordinance (CS-067) in furtherance of the City's continuing efforts to block and frustrate the CEC's careful and exhaustive consideration of the CECP. Cabrillo submitted a letter in opposition, which is incorporated herein by this reference. On December 1, 2009, the City adopted Urgency Ordinance (CS-070) extending the prior ordinance; again Cabrillo opposed the extension and submitted a letter, which is also incorporated herein by this reference. Tonight, Cabrillo restates its opposition to the further Extension of Urgency Ordinance (CS-110) and adoption of Resolution 2010-238. The CECP represents a long standing planned effort to improve the region's critical electrical energy production infrastructure through the construction of a new, modern, efficient, combined cycle gas fired generation facility and the concurrent retirement of three of the existing, older, less efficient boiler units at EPS. Locating modern efficient generation at the existing EPS is the best location as the regional electrical distribution grid and associated support facilities are well established at the site. SAN DIEGO • SAN FRANCISCO • Los ANGELES • CARMEL VALLEY/DEL MAR • ORANGE COUNTY • RANCHO SANTA FE LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 2 The City's staff report (Agenda Bill #20,380) and proposed further extension ordinance (CS- 110) acknowledges that existing zoning and associated land use regulations have consistently provided for electrical energy production at the EPS site for decades and the regional energy grid has developed around EPS to fully support it. The CECP would utilize a portion of the easterly approximately 32 acres of the EPS site, between Interstate 5 and the railroad tracks, leaving the balance of the overall EPS site westerly of the railroad tracks for potential future development when the balance of the existing facility can also be retired. Since the prior City Council meeting on October 20, 2009, the CEC Final Staff Assessment ("FSA") has been released. The FSA concludes that the CECP is fully consistent with all applicable laws, ordinances, regulations and statutes including all City ordinances, policies and regulations. Prior to the October 20 City Council meeting, the San Diego Air Pollution Control District ("SDAPCD") issued its Final Determination of Compliance ("FDOC"), concluding that the CECP will meet all ambient air quality standards and is protective of public health goals. Cabrillo remains steadfast that the City's original urgency ordinance (CS-067), its prior extension (CS-070) and tonight's proposed facilities further extension (CS-110) are legally inapplicable to the CECP, improper and factually unsupportable. Cabrillo also objects to claims that the CECP will be a threat to public health and safety. Moreover, Cabrillo and its corporate parent, NRG Energy, Inc., would not support a project that would threaten public health and safety and the CEC staff and SDAPCD have concluded the CECP will not harm the environment. FACTUAL INACCURACIES The staff report and the proposed extension ordinance contain many inaccurate and unsupported statements regarding the CECP. The only reason for the City to have embarked on this course of action at this late date is to bolster the City's long standing opposition to the CECP, notwithstanding the true state of affairs. Regrettably, the continuing inaccurate and unsupported statements and project renderings only serve to confuse the public and community and do not promote or protect the public interest. A major factually unsupportable theme throughout the staff report and proposed ordinance extension is that the CECP will have adverse unmitigable environmental effects and associated health and safety impacts. The FSA, however, represents the comprehensive environmental analysis undertaken by the independent CEC staff and concludes that the CECP will not have any unmitigable adverse environmental effects or pose any health and safety concerns. In fact, part and parcel of the CECP is the concurrent retirement of the three older, less efficient boiler units at EPS. As a result of the CECP, electrical power generation in the basin will be cleaner, LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 3 more efficient and emit fewer pollutants per megawatt of energy output than the existing EPS units. Further, the City continually suggests the CECP represents an additional new 540 MW of generating capacity. In fact, the CECP replaces approximately 320 MW of outdated, inefficient generation and produces a net increase in generating capacity of only about 220 MW. However, because the new combined cycle gas fired air cooled units are much more efficient and lower emitting per megawatt of energy output, the overall environmental benefits will be much greater as demonstrated and documented in the CEC FSA. The CEC's FSA and the SDAPCD's previously issued FDOC conclude that the CECP will not harm the environment and fully support the CECP as environmentally sound. Among other inaccuracies, the City's staff report infers that the CECP will harm the fish and wildlife ecosystem as a result of a modest (approximately 4.3 million gallons a day) ocean water purification process that will utilize the existing EPS discharge. Nothing could be further from the truth. In fact, the CECP application to the CEC originally proposed to use reclaimed water from the nearby Encina Wastewater Authority. The City, however, refused to provide the CECP reclaimed water thereby necessitating CECP's proposal to apply an ocean water purification process to a small portion of the existing EPS discharge. The City's objection to the CECP's use of this source directly contradicts the City's long standing support for the Poseidon desalination project. The City is on record for fully supporting Poseidon's reliance on the same water source (existing EPS ocean water discharge channel) yet the City's favored Poseidon project will use at least 80 times more water. Thus, the City cannot credibly raise "environmental" objections to CECP's modest ocean water purification while denying alternative reclaimed water sources to the CECP and supporting Poseidon's use of the same water sources. LEGAL OBJECTIONS 1. Power Plant Siting is Within Exclusive Jurisdiction of CEC. The siting and operation of the CECP is within the exclusive jurisdiction of the CEC under the Warren-Alquist Act. The City and the City's Redevelopment Agency are active interveners in that process and all activities regarding the CECP must be submitted and evaluated through the comprehensive process established by the CEC under California law. The CEC "occupies the field" in terms of jurisdiction and the City's attempted circumvention of California law is improper and beyond its legitimate powers. Further, it is impermissible under California law for the City to use an urgency ordinance adopted in reliance on Government Code Section 65858 to prohibit the submittal or processing LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LI/CE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12,2010 Page 4 of development applications. See Building Industry Legal Defense Foundation v. Superior Court (1999) 72 Cal.App.4th 1410. 2. No Urgency Exists to Support Ordinance. The City's efforts to continuously proceed under the "urgency ordinance" provisions are misplaced. The City's staff report and proposed extension ordinances each note the CECP application has been pending since September, 2007. Thus, the City fails to and cannot establish the requisite facts or circumstances necessary to establish any urgency or emergency justifying this action. The CEC administrative record is complete with multiple objections from the City for the better part of three years; common sense establishes the absence of any emergency conditions, particularly where, as here, the FSA and FDOC conclude no adverse environmental impacts will occur. 3. City Actions Inadequate to Support Extension. Under California Government Code Section 65858, the existing urgency ordinance may only be extended for a year if the City has meaningfully attempted to ". . . alleviate the condition which led to the adoption of the [urgency] ordinance. (Gov't Code Sec. 65858(d)). Here, the City purports to rely on the "Report" attached as Exhibit 3 to Agenda Bill 20,380. While the "Report" makes recommendations for future land use amendments, it does not demonstrate or identify any actions taken by the City over the previous twelve (12) months directed to "alleviate the condition" which led to original urgency ordinance. Therefore, the City has failed to establish the statutory prerequisite to further extension. 4. Illegal Spot Zoning. The proposed ordinance demonstrates a conscious, deliberate, arbitrary and capricious pattern of conduction in the form of impermissible/illegal "spot zoning" as it is clearly directed at a single pending project and a single landowner. The proposed action cannot be justified as general legislation; in essence, it represents an improper initial step toward retro-active zoning to illegally attempt to pre-empt the exclusive jurisdiction of the CEC regarding siting of power plants. The EPS is a long standing electrical power generation use. As illustrated by the City's multi-year effort to block the CECP application, the proposed extension ordinance is part of a conscious pattern and program of spot zoning. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12,2010 PageS 5. No Substantial Evidence to Support Ordinances. In the proposed extension ordinance, the City "resolves" that certain factual conclusions exist regarding the "need" for the ordinance. However, there are no facts in the administrative record supporting the City's unsubstantiated conclusions or claims for the urgency ordinance. The City's unsupported claims that the ordinance is needed to protect the immediate health and safety of the community is equally unsupported. 6. Failure to Comply with California Environmental Quality Act. The City has failed to comply with the California Environmental Quality Act (CEQA) by attempting to rely on an inapplicable "exemption" citing Admin. Reg. Sec. 15378 in its staff report. The City has made no effort to comply with CEQA, notwithstanding its prior urgency ordinance adoption a year ago. The City's staff report and ordinance extension allege adverse environmental effects justify the further urgency ordinance extension and Resolution 2010-238 proposes comprehensive rezoning. For the City to now assert that no environmental impacts are raised by its proposed extension ordinance inexplicably ignores the CEQA compliance requirements applicable to City actions. Clearly, the further urgency ordinance extension and actions contemplated by Resolution 2010-238 has the ". . . potential for resulting in either a direct physical in the environment, or a reasonably foreseeable indirect physical change. . ." and therefore, constitutes a "project" requiring CEQA compliance. 7. Unconstitutional Regulatory Taking/Inverse Condemnation. Cabrillo acquired the EPS in 1999. Subsequently, the City consistently encouraged Cabrillo to modernize the facility by constructing a modern, efficient power generation facility in the eastern portion of the larger EPS site between the railroad tracks and Interstate 5. The CECP is precisely the type of modernization project encouraged and promoted by the City. Further, the City encouraged Cabrillo to be the "host" for the City sponsored industrial use - Poseidon Desalination Plant - as part of a larger program to locate the Poseidon facility to use the existing ocean water cooling system operated by EPS and in immediate proximity to existing electrical power generation and transmission facilities as Poseidon's electrical energy and water consumption for desalination will be enormous. In reliance on the City's multi-year encouragement to modernize the existing EPS and eventually replace the entire EPS generating facility over time, Cabrillo developed and sought CEC approval for the CECP pursuant to the State mandated process the City has zealously opposed. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page 6 The City's opposition to the CECP, combined with the proposed urgency ordinance extensions, is part of a conscious effort to adopt new or revised land use ordinances and/or regulations intended to prohibit the long standing generation of electrical power at EPS; and more critically, a failure on the City's part to promote and protect the public health, safety and welfare by attempting to block and prohibit the construction of a modern, environmentally beneficial power plant that replaces an aging, inefficient set of generators in order to provide regionally critical electrical generating capacity. Simply stated, the Constitutions of the United States and California each limit local land use powers to avoid regulatory takings that have the effect of prohibiting existing beneficial uses of property, particularly when those uses are fully supported by applicable laws, ordinances, regulations and statutes and supported by legitimate investment backed expectations. Additionally, the City has made it plain in its various actions that it intends to prohibit electrical power generation at EPS in order to "redevelop" the site for undefined public uses and purposes. The City's course of conduct suggests an ongoing program and strategy to frustrate the existing power generation uses and the environmentally superior modernization thereof as part of a long range program to effectively take all or portions of the property for unspecified public uses not supportable by the public record, which conduct is impermissible under the United States and California Constitutions. CONCLUSION This late, illegal and factually unsupportable urgency ordinance extension is but another manifestation by the City of its opposition to the modernization of electrical power generation in our region and the efficient use of the existing electrical transmission infrastructure. This vital electrical generation infrastructure has been in place and represents the multi-million dollar development investment that has occurred over multiple decades in order to provide the local and regional community reliable, safe and clean electrical generation. The CECP, as presented and analyzed exhaustively by the FSA and FDOC, is environmentally superior to available options and has the following positive attributes and benefits: • Allows for the concurrent retirement of three older, less efficient boiler units at the existing EPS facility; • Provides clean, safe and rapid response local power generation capabilities necessary for increased grid penetration of renewable energy generation from locations outside the region; and LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Lewis and Councilmembers October 12, 2010 Page? • The smaller footprint, and lower profile natural gas fueled combined cycle CECP units will be located on the easterly 32 acres of the EPS property between Interstate 5 and the railroad tracks, thus allowing for future development options on the EPS property westerly of the tracks. Cabrillo objects and again respectfully asks the City to cease and desist in its efforts to adopt the unsupported and unlawful urgency ordinance extension. Instead, Cabrillo requests the City to work through the CEC State mandated process to make sure the CECP meets all legitimate environmental and land use policies to assure the most efficient, cost effective and reliable local and regional energy sufficiency. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/ldb cc: Carlsbad City Clerk, City Attorney and City Manager 101325189.2 (the §an Oif 90 llmon-ittbune. RO, Box 1 20 1 9 1 , San Diego. CA <?2 1 1 2-0 1 9 1 AFF1 DAVIT OF PlJ BLI CATION CITY Of- CARLSBAD i IMVIS .SR.T'ONTRAei'TVl: mane WORKS CONTRAI T CARLSBAD, CA 92008 STATE Ol: C'ALI PORNIA j 3*. Gumiy ufSan Diego! The Undersigned, declares muter penalty of perjury under the laws of the Stale of California: Thai she is a resident of the County of Sari Diego, Thai she is ami at all limes herein mentioned was a citi/cn of ihc United Stales, over ilie age of twenty-one years, and thai she is not a party to. nor interested in the above entitled matter; thai she is Chief Clerk tor the publisher of The San Diego Union-Tribune a newspaper of general circulation , primed and published daily in the Ciiy of San Diego, County of San Diego, and which newspaper is published lor the dissennnatton of local news and intelligence of a general character, and which newspaper ai all the times herein mentioned had and still has a bona fide subscription list of paying subscribers, and which newspaper has been established, printed and published at regular intervals in the said City of San Diego, County of San Diego, for a period exceeding one year nexl preceding the date t»t publication of the notice hereinafter referred to, and which newspaper is not devoted to nor published for the interests, entertainment or instruction of a particular class, profession, trade, calling, race, or denomination, or any number of same: that the notice of which ihc annexed is a printed copy, has been published in said newspaper in accordance will) the instruction;; of the personfs) requesting publication, and not in any supplement thereot'on the following dines, to wii: Oct 2.2010 10/25/10 „ r .CW.ce, NOTICE OF PUBLIC HEARING noNOf ANY NOTICE 8 HEREBY CHVEH A* Sbs City €«uod ci ti» CSy -si Carlsbad w-OJ hgld a putjfc tastriasj •* (be Council Chuohas, 1340 e&rbbad Vttlag* Drivs, C«tete4 CsHsmis, at $ 04 p.a aiwj! w it» Uod 0» Ilaa«* d <h» G«a«s) ?lsn, isdtof OnU&WEsS: i»ii tuning es it* teoakm *ad apasttoa «C tbsanil stecuto f«»a -jasiaclai Siialtes witlia! tte di*>} rst% di^ j'^pcrt ^^i&ing djg i8*asyi*s utesa to ^iils^ist* :he i^adijlsns whieb tefl to th* s<k*. i»a «f ft* Wg«5>' Otdmaace, iaS »extend OrdtoaiKe !l«, CS-OS? fa wsSve 1!Jj aiontte asttajtiaat &# ^v^ispnt^?. ^^i^aUoa sha!J fc« acDspt^ii, pjc*;«ss^l ;ji' appavsd which weski M t^&^Js§, Is^stjc^a ^^ssiiKg i'3^d^ m ij^ af sh*^s^tfes^EiidMB?w§rSi^s'ou^ <iibw th^^ Usiaieist «f »ny «ia sbaauJ si«<Bic («3W«f §«««i!aj aatfiy witbia sha Ceiuul 2a» ^ U ^ sitaiktip UM Orkney s)^j&aius ia a?«tt, \*w i&ay 1:^ U2ii£^ to rsuin^ *i^y tbss« i tone* d*Sv«*d to A« City «i CMabad City Oiit'» OtSiss. llflfl Ctrtsfcati Vfiao* D"">**, C* CA9J»'«,a*f C«bb«S at a jiria SB Sh* J CasstsJ Cosuois^s « Tbs^ s^t s is I02SIM ^atfcla th« Co: auot fc* fifed with th* Co«3tat fc*/ &a<s Csast^l Oc-aimissioa d Si^ das* that thsu f*»dwiil«»nclod8. Th* Jat Dtsgs sfflos a( th» Csa«tsd C^tratug^ian i? teiate4 at 1$7S> Mstmpslisaa t^iv*, Suit* 103, te« D»IJI», S»M?;'j«a S2108-4102 Q i CTITf OFi cm co BAB Affidavit of Publication of Legal Advertiseiticnt Ad's W)l«4,»720l> ORDERED BY; SHERRY I-K Extension ofCS-067 Christen Westman October 12, 2010 Ordinance CS-110 Extension of Urgency Ordinance Prohibiting Any New or Expanded Thermal Electric Power Generation Facilities Within Carlsbad's Coastal Zone and Authorization For Related Land Use Studies ,.,£:•• Ordinance CS-06 7 • Adopted October 20, 2009 • Extended December 2009 (CS-070) • Moratorium on the expansion of existing or the development of new thermal-electric power plants within the Coastal Zone •Valid until October 20, 2010 « May be extended for 12 months (CS-110) Carlsbad Coastal Zone CIT¥ OF CARLSBAD local Coaaul Land Use Analysis Companion Resolution: -No. 2010-238: • Analysis of properties zoned Public Utility (PU) • Analysis of Specific Plan 144 • Process will include: - Public Hearings » Planning Commission » City Council » California Coastal Commission - Public Review of CEQA Document SP144 Properties Zoned Public Utility Steps Necessary for Extension Report preparation Publish Report ten days prior to expiration — Measures include: • Conveying concerns regarding health, safety, and welfare including to the California Energy Commission including: - Increases to power plant emissions V Hazard? related to power generation - Visual blight - Potential negative impacts to coastal tourism Make Findings as described in Ordinance CS-110 City Council Action Adopt Interim Ordinance CS-110 -Extension of CS-067 for 12 months - Expiration October 20, 2011 Adopt Resolution No. 2010-238 - Prepare Land Use actions - Prepare an Environmental Impact Report