HomeMy WebLinkAbout1983-05-11; Planning Commission; MinutesMeeting of:
Date of Ml..-eting:
Time of Meeting:
Place of Meeting:
CALL 'ro ORDER:
MINUTES
~IN:; <XHIISSIOI
May 11, 1983
7:00 p.m.
City Council Charmers
'l'he Meeting was called to order by Chainnan Schlehuber
at 7:00 p.m.
PI.EtX;E OF AI.LmIANCE was led by Chairman Schlehuber.
PIANN~ CCHHSSIOI PRXIDffiE: --·--
Olairman Schlehuber announced the Planning Conmission
Procedure as printed on the reverse side of the Agenda
and gave a short summary of the Procedure.
ROLL CALL:
Present: <llairman Schlehuber, Conmissioners
loltx>tis, Marcus, Farrow, Rawlins, Jose
and Friestedt.
Absent: !llenE,.
Staff Ment)ers Present.
Bill Hofman, Principal Planner
Mike HCM:!S, A!,Sistant Planner
Ex--Officio Ment>ers Present:
Mike Holzmiller, Land Use Planninq Manager
!by Kackley, City Engineer
Dan Hentschlce, Assistant ~ity Attorney
Olairman Schlehuber announced the awJicant had
requested a oontinuance on Item t2, V-347 -Burmeister.
'l'he Planning Co.,mission voted to continue Item 12,
-Burmeister, until the next regular rreeting.
Pll3LIC ~:
V-347
1. a.JP-~~ !Dml -Conditional Use Permit
f<r a ni e golf course.
Bill Hofman, Principal Planner, gave the presentation
at this item, using a transparency showing the site,
bMioally as oontained in the staff report.
In aniiswer to query, staff irdicated there was
~iaately me-half mile between the proposed golf
cx,uree and the re idences to the north.
o:..niaaiooer Jooe questiooed the validity of a C"UP fcx
thia project ard alao the time limit, or lack thereof,
of. the CUP.
Staff indicated that a CUP was reauired by the La Costa
Maat.er Plan.
Schlehuber X
loltx>tis X X
Marcus X
Farrow X
Rawlins X
Jose X
Friestedt X
•
MINUTES
PIANNIN:i CXHUS5I~ May 11 , 1983 Page 2
PUBLIC HFARDC5:
Oiainnan Schlehuber opened the public hearing at 7:09
p.m. and issued the invitation to speak.
Mr. Barry Bender, Rick Engineering Conpany, addressed
the Coomission, representing the awlicant. Mr. Bender
an.':!Wered a question fran the City Engineer reqarding
the inprovement to Alga Road. HP stated the
oonstruction will be made to Alga Road and the
undercrossing between the existing golf oourse and the
proposed golf oourse at the same time. One project
loOUld not precede the other.
Mr. Bender answered the question reqarding the CTlP by
statinq they were in favor of the CUP and felt it was
required to awrove the concept of the golf oourse and
the qraning penri.t and the CUP was needed to get the
permit.
Coomissioner Farrow questioned whether Mr. Grah.Jlll, in
his letter of April 6, 1983, had meant to indicate the
golf rourse would be q,en to the public.
Mr. Paul Graham, La Costa Hotel & SPA, addresf.led the
Carmission, clarifying the statement in his letter, by
statif'K:j the golf courses would be q,en to ment>ers and
hotel guests only.
Since no one else wished to speak on this item, the
public testurony was closed at 7:14 p.m.
'Ille Planning Ccmnission awroved the Neqative
Declaration issued by the Land Use Planning Manager and
adopted the following Reoolution:
RESOUJI'IOO NJ. 2114, APPJO\.TIN:; A CCNDITICNAL USE
PERMIT FOR A NINE-fOLE CXLF COORSE AOOITIOO ID 'IHE LA
a:eI'A CXLF CXXJRSE 01 PR)PERTY GENERALLY I.JXATED ~ 'IHE
NJRm SIDE OF AffiA IOIID, F.ASl' OF EL CAMINO REAL IN THE
P-C ZOO£.
3. aJP-227i BANI( OF SAN OI&D -Request for awroval
of a Condit aia1 Use Permit for a terrporary bank with
drive-thru facilities on the sout'1west rorner of
Palanar. Airport Road and Camino Vida Roble in the P--M
s::ne.
Bill Hofman, Principal Planner, gave the presentation
er, this item, using a wall exhibit showing the location
of t:''lfl property, as contained in the staff report, with
a,~ oonditicr, as follows:
":a9. .e applicant shall obtain a letter of permission
fraa Ban Diego Gas , Electric for the driveway
encroachment into the easement prior to the
iaauana-of a grading permit."
Staff indicated thf! ltA)licant had agreed to this
a&!itional oondil,utl.
Schlehuber X
Rontx>tis X
Marcus X
Farrow X
Rawlins X
,lose X X
Friestedt X
'
MINUTES
May 11, 1983 Page 3
Chairman Schlehuber ope.ned the public hearing at 7: 17
p.m. and issued the invitation to speak.
Mr. Bob Evans, 2171 India Street, San Diego, with the
architects, representing the Bank of San Diego,
addressed the Camtissioo, oonmenting on the one-year
tenporary status and the ability to apply for an
extensioo at the end of one year. He stated
they would take advantage of that extension privilege
and would apply for it, as it would take two or three
years to get into the permane•,t structure.
Camlissioner Rawlins asked where the permanent structure
would be located, and Mr. Evans used a wall map to
indicate that locatioo, stating the terrporary building
had been set bade as {ar as possible to allow the
oonstruct ioo of the permanent building. Mr. Evans added
the tenporary building would be a nodular-type building.
Camlissioner Jose indicated to Mr. Evans that the reasoo
for the one-year time limit was to eliminate the
possibility of a project: going on and on for as long as
five years.
Since no one else wished to speak oo this item, the
public test uoony was closed at 7:20 pm.
The 1 lanning Camtission approved the Negative
Declaratioo issued by the Land Use Planning Manager and
adopted the following Resolution, with the additional
O::nUtion 29 as an exhibit:
RESOimIOO 00, 21 19, APPRJVni:; A CCNDITIOOAL USE PERMIT
'IO IIJ.JD,1 A ~ ~ WI'lll DRIVE-'IHRU FACILITIES 00
PRlPERTY GNERAI.LY UXA.TED 00 'lliE fnmiWEST OOllNER OF
PAI.JJ9.R ,IJRP(RI' m.t.D AND C'AMilO VIn.a. IOBLE.
4. SP-182(A), EU! PKPERTIES -Request for an amendment
to an existing specific plan to revise a previously
~roved conditioo oo the northeast oorner of Elm and El
camino Real.
Bill Roflnan, Principal Planner, ga,-e the staff
pcesentation on this item, using a transparency
showing the locet ion of the property, as contained in
the staff report.
O\airman Schlehuber opened the public hearing at 7:23
p.111. and issued the invitation to speak. Since no one
wished to speak on this item, the public testinony
portion WU cloeed.
on-. Pl.-url.ng cc.rl.ssion acq:>ted the following
Rl90lution:
_..,_,.,,.. I«), 2120, RECDMH)IM, APPRJIJAL OF SP-132(A)
0 Ml ·---··~c; '10 '11IE EXISTDE SPEX:IFIC PI.\N 00
GllNDALLY LOCM'BD ~ 'IHE tamlF~ <XlmER OF EL
(MDI) aAI. Ma> BlJt AVIHJE.
oca-tuioner JON queationed staff as to why this
..a MCMH,Y in the fkst place, and staff agreed tht-.•
thoU!Jht it wea not really neoesaar:y.
Schlehuber
~tis
Marcus
Farrow
Rawlins
Jose
Friestedt
Schlehuber
laltx>tie
Marcus
Farrow
Rawlins
Jose
Frieetedt
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X
MINUTES
"'-'IV 11, 1983 Page 4
\~ .. ~1,
COMMISSIONERS ,4\ ~\_ m.\
Cllairman SchlEtmber announced he would step cnwn as
Olairman for th~ remainder of the neeting. Vice-
Cllairmar RCll'botis conducted the remainder of the
neetil"lg.
5. MP-150 ( E), 'mEE'la>s UNLIMITED -A request for a
mioor master plan amendment to change the develOEJnent
standards of Villages O t P-1 of the Calavera Hills
Master Plan located in the P-C zone.
Mike Howes, Assistant Planner, gave the present at iun on
this item, using a transparency showing the Calavera
Hills developnent, as contained in the staff report.
Vice-<:hainnan Rartx>tis opened the public hearinq at 7:25
p.m. and issued the invitatior. to speak.
Mr. Gary Carter. Pacific Scene, Inc. , addressed the
C'amtission, referring to the letter teceived by the
Planning Ccmnission yesterday, stating Pacific Scene
<bes oot agree with the conditions placed with reference
to the two law suits the City is engaqed in, and
requested the Ccmnission grant the minor master plan
without the oondition. In the event they did not grant
this, it was requested they concur with the 1oOrding of
the letter.
'Itle letter referred to was Attorney 'Itlanas Nelson 's
letter of May 9, 1983 t o the Pi anning CcmrJ.ssion,
relating to Anel'llh!nt to Master Han 1 50 ( E) •
carmissioner Schlehuber stated he felt the letter fran
South Coast Asphalt Products C'-• , Inc. , dated May 9,
1983, should also be inCX>rporated into the reCX>rd.
Vice-<:hainnan Rartotis stated the letter fran South
Coast Asphalt Products Co., Inc., indicated there should
be -,ording in the oovenants regarding the mining and
rock crushing q>erations to make the buyers aware there
might be vitratio...s, dust, ooise, etc., in that area.
Mr. Howes stated the Master Plan mentioned the CC&R's on
P-1 and P-2 should mention the rock quarry was in the
1-diate vicinity.
'!he Assistant City Attorney stated there had been two
telepha\e conversations with Mr. Nelsoo regarding his
letter and the specific request by Pacific Scene. He
had provided the Ment>ers of the camlission with a oopy
ot hie IIBIIX'antllll respooding to that letter. Staff
i.-.ireed with Mr. Neleon's analysis and felt that for
the City to be in the beet condition, the condition
o:,noeminJ agnment foe payment of any reinb.trsement
auat be iJlp:JINd. 'Itlis was iJll)08ed on another Master
Pllln Aal.-Ot-~ on tht' plaintiff in litigationi
aid until the Ci !" gets a oourt order resolving the l aw
a1it, thia oondition ahoold be placed on all projects in
the caavera Hilla MiNter Plan area.
'11w City #JL.ed to md!fy the language of the condition,
aid it ahould be u stated in the City Att«ney's
..-ran4111 dated~ 10, 1983, to th Planning
oa-tutm, • ~ ot Whict'I is att.ad\ed to the Minutes
-• part ot the record.
MINUTES
May 11, 1983 Page 5
Since no one else wished t o speak on this matter, the
?,lblic testi.no'ly was closed at 7:30 p.m.
Camussioner Farrow called attention to the fact that
all papers shcold r ead MP-150 (E) and not "D". '!he
Assistant City At torney ack:rowledged this was an error
and should be changed.
1'le Planning Camrlssion approved the Negative
Declaration issued by the Land Use Planning Manager and
adopted the following Resolution as amended by the
Assistant City Attorney's menorandum and Mr. Nelson's
letter:
RESOI.11I'Irn 00. 2 11 7, APP~ A MilOR ~ 'ID 'llIB
IAKE CAI.AVERA HILI.S M.\STER PIAN ~IN:; 'llIB DEVl.i:LOPHEl'IT
STANDMOO OF VILLAGES O and P-1 rn PIOPERI'Y GlliERALLY
LOCA'i'ED IN 'llfE to~ PORTirn OF 'llIB CAI.AVERA HILLS
~ PIAN ARF.A.
6. SP-40, CITY Of' CARISBAD -Request for a Specific
Plan Amenanent to rescind an e xisting specific plan on
prq:>erty located on the west side of Interstate 5
beboleen Krndes Avenue and Laguna Drive in the R-3 zone.
Mike Howes, Assistant Planner, gave the presentation on
this item, using a transparency to show the location of
the property, bas ioally as contained in the staff
report.
Vice-Olairman Raltx>tis opened the public hearing at 7:36
p.m. and issued the i nvitation to speak. Since no one
wished to speak on this matter, ~.he public testim:iny
port ioo was closed.
'!he Planning Camrlssion !lR)roved the Negat ive
Declaration issued by t.he Land Use Planning Manager and
a:topted the following Resolutioo:
~ 00. 2115, RECD':4ffiDIN:; 'llIB RESCISSirn OF SP-,o WC\TBD 0. 'ME NEST SIDF. OF ~ATE 5 ~
ICNJNLES AvtHJE I.NO l.AGfiA Cll!VE.
Outirman Schlehuber was present for the first s ix ite!IB,
b.lt left following the vote oo Item 16.
oISC,U;SIO. ITl!NS:
7. am> 83-41 mAYBR -'Ihe IIR'.l.ioant is requesting to
oonatruct an a&lltlonal single fmni l y resident i al unit
oo • .22 acre lot oo property generally located at 946
i.w.,una Drift.
Nike ec.,ea, AUiatant Planner, gave the presentatioo for
this it•,• oontained in the staff report.
oa-1uioner NaraJa questioned C<n!ition 17 of the
RNolution, -4 ■taff agreed C'Jnditioo f7 ehoold be
u,ted, A aapy of the revised Resolution ie attached
tl0 the Ninlta.
IAUic.nt, Chuck Trayer, we present, b.lt had
nothil11J to a&, to the taff report.
Schlehuber X
Raltx>tis X
Marcus X X
Farrow X
Rawlins X
Jose X
Friestedt X
Schlehuber X
lo!tx>tis X
Marcus X
Farrow X X
Rawlins X
Jose X
Friestedt X
MINUTES
Maj 11, 1983 Page 6
'l'he Conrllissioo asked Mr . Trayer if he understood he was
to int:>rove his portioo of Laguna in front of his
~rty, and Mr . Trayer added the ooly thing needed was
a sidewalk.
'l'he City Engi neer stated a sidewalk was the ooly
additioo to be made for the iJlt:>rovements to Laguna in
front of Mr. Trayer's Prct>erty.
'l'he Planning ccmnission aa,pted the following
Resolutioo, as revi sed with the prct>er wording:
RESOU11'ICN 00. 2118, APPRJVIN:i A SITE DE.VEIDPMENI' PIAN
00. 83-4, 'l'O All) A SINGLE FAMILY RE.5IDENI'IAL UNIT 00
PR:>PERTY GffiERALLY LOCATED AT 946 LJliGllNA DRIVE.
'1'le Mir,••tes of the Meeting held April 27, 1983, were
a(Jl'rovej as presented.
~:
By proper notion, the ireeling of May 1 1 , 198 3, was
adjourned at 7:47 p.m.
Respectfully sul::rnitted,
~
Land Use Planning Manager
Harriett Babbitt, Minutes Clerk
MEETDGS ARE A1S) TAPID AND KEPT CN FILE UNI'IL APPRJVfD.
~-~~ ~
COMMISSIONERS ~i~~
lolbotis X
Marcus X
Farrow X X
Rawlins X
Jose X
Friestedt X
lolbotis X
Marcus X
Farrow X
Rawlins X X
Jose X
Friestedt X
DATE:
'1.'0:
FROM:
SUBJECT:
MEMORANDUM
May 11, 1983
Planning Commission
Michael Holzmiller, Land Use Planning Manager
CUP-227 -BANK OF SAN DIEGO
Staff recommends the addition of the following condition:
"29. The applicant shall obtain a letter of
permission from San Diego Gas & Electric
BH/MJH/ar
for the driveway encroachment into the
easement prior to the issuance of a grading.
permit."
(j)
DATE:
TO:
FROM:
SUBJECT :
MEMORANDUM
May 10, 1983
Planning Commission
City Attorney
LETTER FROM THOMAS C. NELSON CONCERNING
AMENDMENT TO MASTER PLAN 150(0) _ ' ---
Or o ffi c e has reviewed Mr. Nelson's letter dated May 9, 1983
regard ing a contested condition for MP-150(O). In our opinion
section 66 487(b) [mistakenly referred to as 6647(b)] of the
Governme nt rode does not authorize the levy of the charge
s uggested by Mr. Nelson unde r the facts of this particular
situation . I n a phone conversation Mr. Nelson agreed that
section 6648 7 (b) does not easily fit the factual situation of
this partic ular controversy . However, it is his opinion that if
Lake Calavera Hills As s ocia tes receives reimbursement at all then
the entire r eimbursement scheme established in the Map Act,
incl udi ng section 66487 (b ) must be deemed applicable. It is very
difficult to f it the re imbursement provisions of the Subdivision
Map Act to t he controversy ove r reimbursement for Tamarack Avenue
because the Subdivis ion Map Act provisions contemplate resolution
of the reimbu rseme nt issues before the developer gets development
approvals a nd b uild s the improvements . The situation will become
more complicated i f the Ci ty waits until the litigation is
resolved to est ablish t he mechani s m to recover from "benefitted"
property owners.
In order to pu t t he City i n the be st possible position we advise
that a condition conce rn i ng reimbursement for Tamarack Avenue
should be incl uded 0s a condition f or all projects within the
boundaries of t he Lake Ca lave ra Hills Master Plan, including
Master Plan Ame ndme nt 150(0). Th e r e is no doubt in our minds
that the City has t h~ a b i l i ty to impose such a cond ition under
ito general polic e power. By impos ing the condition on this and
all other projects within the boundaries of the Lake Calavera
Hills Master Plan , t he City will b e in a s ignif icantly more
protected position if i t t urns out that any r e imbursement is owed
to Lake Calavera Hills Associates . The City Council and the
PlanninQ Commission ha ve a l ready det ermined t hat Tamarack Av e nue
ia necessary to serve t he Master Pla n a rea, and conversely that
the Master ~lan area is t he p ropert y "be ne fitted" by the
road . The fact that Treetops ma y h ave a l ready paid Lake Calavera
Hills Associates for t he road e nt i t les Treetops to r e cover f rom
®
Planninq Commission -2-May 11 , 1983
Lake Calavera Hills Associates if it is required to pay any
amounts to the City. However, that fact should not prevent the
City from imposing the oblioation on Treetops to pay to the City
a proportionat~ share of any reimbursement order by this
particular lawsuit.
We strongly suggest that the Planning Commission impose the
suggested condition on this project. We have agreed with Mr.
Nelson that, for this project, the condition would ~ead as
follows:
rme
•The City is defending two lawsuits which seek to
collect reimbursement for tt.e cost of constructing
Tamarack Avenue from El Camino Real to the
boundar-ies of the Lake Calavera Hills i•taster Plan
area. The City believes that these cases are
without merit and that no reimbursement is owed.
Howevec, if reimbursement is ordered, awarded or
established, this applicant, as the owner of
property benefitted by the road, prior to obtainin~
a final map f0r the property which is the subject
of this action, shall execute an agreement with the
City whereby the applicant covenants to pay its
proportionate share of any reimbursement ordered,
awarded or established as a result of these or
other similar lawsuits."
by:
HENTSCHKE
City Attorney
cc1 Thomas C. Nelson
Land Use Planning Manager
@
SOUTH COAST ASPHALT PRUDUCTS CO., INC.
~ Subsidiary 01 Kappe,s Compnny Inc ASPHAL TIC PRODUCTS AND MIXTURES • MINERAL AGGREGATES • RIP RAP
l'.O BOX 1008 CA"L58AD. CALll"ORNIA 112008 8111· 757-2010 IESCONDIOO 811~·7•5·A2821
May 9, 1983
?-tr. Vernon J. Farrow, Jr.
2936 Gaviot ~ Circle
Carlsbad, California 92008
Dear Mr. Farrow:
You will "ue considering at the ?fay 11th meeting a Minor Master Plan
Amendment for Villages 0 and P-l of ~:P-150, Calavera Hills. Tlle subject
property is contiguous to the south property line of South Coast Asphalt
which includes our rock processing operations. We do no":. oppose this
request.
Since you are revieving a portion of the Calavera Hills develop~ent
nearest our optrations, I believe it is appropriate to bring to your atten-
tion the concerns that we at South Coast Asphalt have regarding the future
residential development along our southerly property line.
First, I vish t~ point out that we have an excellent relationship vi.th
Hr. Roy Ward, and have worked Iii.th him to mitigate impacts our industrial
operation may have on the Calavera Hills Development. We have also been
contacted by Pacific Scene and are developing a working relationship vitb
this compaey towar:l the same objective. We have also met vi tb l-Ir. l•!ike
Howes, Projec~ Planner in order to be kept updated on the development of
those portions of Calavera Hills that may most impact our operations.
I am enclosing vi.th this letter copies of page 9, paragraph 24, and
page 12, paragraph 43, from Ordinance No. 9517, approving J,!l'-150A for Lake
Calavera Hills. Although the current ~dster Plan for this development is
HP-150E, I understand the two paragraphs mentioned above have not changed.
These paraeraphs were included in the Master Plan approved at our request and
with the agreement of the original developers. Please keep these conditions
in mind when you consider the tentative and final maps for Villages o. P, P-1.
P-2, Q and R-1.
Al.so enclosed, for your consideration, is a suggested vording for in-
clusion in the Conditions, Covenants and Restricti ons for the appropriate
Villages.
Pl.ANT LOCAn:o :I I Mil.IS E AST OF 1-5 SOUTH 5 10[ 01" HIGHWAY.,. IVISTA WAV t CAIILS■AO
,,
If you have any questions or comments concerning this matter. I voul.d
be happy to respond.
Sincerely.
SOUTH COAST ASPHALT PRODUCTS CO.
DMH/klb
Enclosure
Copies: Planning Commissioners
...
' ,
ACKll'OWI..EDGF. OF EllSTEllCE. OF weir AND ASPHALT -PLANT
Each grantee or owner tor himsel:r., his heirs• assigns or· ■uccesaors
in interest be.reb7 a.cltnovled8es that he is aware or the ex.istance o~ South
Cout Asphalt Products Co •• a rock extraction. quarry. cruahing and asphalt.
plant vhicb ia. in operation ~ c!.1.i3, proximity to Ca.lavera Hilla• and that
aaid operatiOJ1.. has existed f or man,y years. and vill continue to exist. in
.its preaent location in accordance vi.th Conditional Use Permita.iuued-117
t.he Cities or C&r.l.sbad and Oceanside tor at least the next titty (50) years,
and that at time said use and operation m~ cau3e noise• vibration. and dust
vh:icb 1lllliT illpact :to aoma degree grantee or owner's prop~rty. By-the ...1.ncl.usiou
o~ tb±a ~.in.the-. Conditions• Coarenanta and Restrictions ~-Cal.a"Yera
Hilla.-e1Lch -grantee or o,mer-sha.l.l. be deemed to have acknovled8ed and coo-
' aented to ·tbe present and future e.xistence and continuation or this plant
and ita operation.
( )
. ,
•
McD n NALD, HECHT, \VoRLEY & SOLBERG
All'.a (" .._. "-f A I r,· TCLl:,.1-40 .. 1:
A J O ... ,., MCCMT•
OONA.l.0 111 WO"l.C"•
OA•••L 0 9Ol.9Ct10 ·
J~lltOl.0 H 00l.09ftt0,
H l.AWlltl:""C'C 81'.•UtA
•Aul. r 11tOa, ... s o,.,.
OAV10 ~ OA ... 1"l
THOMAS C ""CL.ON
HAND DELIVERED
Planning Commission
City of Carlsbad
1200 Elm Avenue
Carlsbad, California
ATTQqNCYS AT LAW
tlOO P't NANCIAL. SOVA.AC
SAN 011!:00. C A L IFORNIA 02101
May 9, 1983
92008 f ..
RE: AMENDMENT TO MASTER PLAN 150 (~ SUBMITTED
BY TREETOPS UNLIMITED
Dear Chairman a nd Members of the Planning Commission:
AACA CODE 71•
Z3G-3•••
I am writing this letter on behalf of Treetops Unlimited
regarding the Amendment before you as to Master Plan 150(0).
We understand that the City Attorney has recommended that you
require Treetops Unlimited to agree to e nter into a covenant to
pay a share of any obligation imposed upon the City in the two
lawsuits brought by Lake Calavera Hills Associates concerning
Tamarack Avenue as a condition for approving the Amendment.
Treetops respectfully requests that you not do so.
We agree with the opinion of your City Attorney that the two
lawsuits are without merit and that the City has no obligation
either for reimbursement or damages arising out of the construc-
tion of Tamarack Aven~e. We believe it is unlikely that Lake
Calavera Bills Associates will prevail for that reason. We also
think i t is premature for the City to impose a requirement that
Treetops pay a portion of an obligation which has not yet been
established.
It is also unnecessary for you to impose such a condition.
If Lake Calavera Bills Associates does establish a right to reim-
bursement, Government Code S6647(b) would permit Carlsbad to
determine the area benefited by Tamarack Avenue and to levy a
charge upon that benefited area to recover the cost of any reim-
bursement which the City is required to pay. We suggest that it
is more appropriate to wait until the litigation has been
resolved, and any right of reimbursement has been determined,
before the City considers the appropriate mechanism for
recovering any s uch reimbursement. The City would be better able
Planning Commission
City of Carlsbad
May 9, 1983
Page Two
at that time to determine what area has benefited from Tamarack
Avenue, as well as how the burden of reimbursement should be
apportioned.
Treetops Unlimited is, however, willing to accept such a con-
dition if the Planning Commission deems it necessary to impose
one, with the understanding that Treet ops Onlimited's ultimate
liability may be determined in the underlying lawsuits. The City
of Carlsbad is presently attempting to join Treetops, among
others, in the actions bro ught by Lake Calavera Hills Associates
in order to obtain a judici a! decla ~ation as to our obligation to
share in any reimbursement obligation . We have agreed with the
City Attorney's Office t hat the proposed condition would not
impose any liability on Treetops Unlimited which would be greater
than that determined in the lawsuit. To that end, the City
Attorney's Office has agreed to modify the language of the con-
dition so that it provides as follows:
•The City is defending t wo lawsuits which
seek to collect damages and reimbursement
for the cost of constructing Tamarack
Avenue from El Camino Real to the boundaries
of the Lake Calave ya Hills Master Plan Area
(MP-150 (A)) as s uch boundaries existed prior
to this Amendment. The City believes that
these cases are without merit and that no
damages or reimbur sements are owed.
However, if reimbursemen t is ordered,
awarded or established, this Applicant, as
the owner of p r operty benefi~ed by the
road, prior to obtaining a Final Map for
t he subject property, shall e xecute an
agreement with the City whereby the
Applicant covenants to pay its proportionate
share of any reimbursement ordered, awarded,
or established as a result o f these or other
similar lawsuits.•
We respectfully request that the Planning Commission adopt that
language if it decides to impose t he condition.
@
Planning Commission
City of Carlsbad
May 9, 1983
Page Three
Treetops also wishes to point out that it has a pre-e xisting
contractual agreement with Lake Calavera Hills Associates as to
the construction of Tamarack Ave:111e. That agreement was part of
Treetops' purchase of the property from Lake Calavera Bills.
Treetops does not i ntend its acceptance of the condition
discussed in this l etter to constitute a waiver of its right to
pursue Lake Calavera Hills Associates to recover any amount which
Treetops may become obligated to pay to the City of Carlsbad as a
result of that condition.
TCN:vb
c ci Daniel Bentschke, Esq.
Gary Carter
Very truly yours,
Thomas C. Nelson of
McDONALD, HECHT & SOLBERG
(!)