HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (8)> -
STATE OF CALIFORNIA -THE RESOURCES AGE! PETE WILSON, Governor
C A L I FO R N I A CO ASTA L C 0 M M I S S I 0 N
SAN DIEGO AREA
3111 CAMINO DEL RIO NORTH, SUITE 200
SAN DIEGO, CA 92108-1725
(61 9) 521 -8036
Filed: July 27, 1998
49th Day: September 14, 1998
180th Day: January 23, 1998
Staff: WNP-SD
StafFReport: August 18, 1998
Hearing Date: September 8-1 1, 1998
STAFF REPORT AND RECOMMENDATION ON APPEAL
LOCAL GOVERNMENT: City of Carlsbad
DECISION: Approved With Conditions
APPEAL NO. : A-6-CII-98-98
APPLICANT: John Levy
PROJECT DESCRPTION: Construction of a 30-foot high, 2,713 .sq.ft. single family
residence and a 35-foot high, 1,633 sq.ft., detached garage with a 577 sq.ft.
second unit above on 1.9 acre lot of a 2.6 acre site. Estimated grading quantities
include 75 cubic yards of cut and 75 cubic yards of fill to be balanced on-site.
Also proposed is off-site private access improvements, the replacement of a gate
and fencing on the site.
PROJECT LOCATION: The south shore of Buena Vista Lagoon, west of the AT&SF
Railroad and north of Mountain View Drive, Carlsbad, San Diego County. APN
155-190-13, APN 155-101-65
APPELLANTS: California Coastal Commissioners Chnstine Kehoe and Pedro Nava
SUBSTANTNE FILE DOCUMENTS: Certified City of Carlsbad Local Coastal
Program Mello I1 segment; City of Carlsbad CDP 97-59, CDP #6-83-5 1
STAFF NOTES:
SUMMARY OF STAFF RECOMMENDATION:
The staff recommends that the Commission, after public hearing, determine that
substantial issue exists with respect to the grounds on which the appeal has been filed.
Staff also recommends that the Commission approve the de novo permit with special
Ad-CII-98-98
Page 2
conditions that require 100-foot habitat setbacks on the east and west sides of the site to
be secured through an open space condition, a public access easement on the south side of
Buena Vista Lagoon, revised plans that indicate the proposed residential development will
be redesigned to be subordinate to its lagoon setting to be no higher than 25 feet in height
and that building materials and colors be earth-tone colors, that fencing and gating plans
be revised to not adversely affect public access, that grading, drainage and runoff control
plans be submitted to ensure that downstream resources will not be indirectly affected
from proposed development and that a clapper rail protection plan be implemented which
ensures this endangered avian will not be adversely affected from residential development
in this scenic and sensitive area.
I. Appellant Contends That:
The City's decision is inconsistent with the certified LCP and the Coastal Act relative to
public access and visual resource protection.
II. Local Government Action
The coastal development permit was approved by the City of Carlsbad on July 1, 1998,
and the Notice of Final Action was received on July 13, 1998. Several special conditions
were attached pertaining to the protection of public access and environmental resources.
111. Appeal Procedures.
After certification of a Local Coastal Program (LCP), the Coastal Act provides for limited
appeals to the Coastal Commission of certain local government actions on coastal
development permits. Projects within cities and counties may be appealed if they are
located within mapped appealable areas. The grounds for appeal are limited to the
assertion that "development does not conform to the certified local coastal program."
Where the project is located between the first public road and the sea or within 300 A. of
the mean high tide line, the grounds of appeal are limited to those contained in Section
30603(b) of the Coastal Act. Those grounds are that the development does not conform
to the standards set forth in the certified local coastal program or the access policies set
forth in the Coastal Act.
Section 30625(b) of the Coastal Act requires the Commission to hear an appeal unless it
determines that no substantial issue is raised by the appeal. If the staffrecommends
"substantial issue" and no Commissioner objects, the Commission will proceed directly to
a de novo hearing on the merits of the project.
A-6-CII-98-98
Page 3
If the staff recommends "no substantial issue" or the Commission decides to hear
arguments and vote on the substantial issue question, proponents and opponents will have
3 minutes per side to address whether the appeal raises a substantial issue. It takes a
majority of Commissioners present to find that no substantial issue is raised. If substantial
issue is found, the Commission will proceed to a full public hearing on the merits of the
project. If the Commission conducts a de novo hearing on the permit application, the
applicable test for the Commission to consider is whether the proposed development is in
conformity with the certified Local Coastal Program.
In addition, for projects located between the sea and the first public road paralleling the
sea, Sec. 30604(c) of the Act requires that a finding must be made by the approving
agency, whether the local government or the Coastal Commission on appeal, that the
development is in conformity with the public access and public recreation policies of
Chapter 3. In other words, in regard to public access questions, the Commission is
required to consider not only the certified LCP, but also Chapter 3 policies when
reviewing a project on appeal.
The only persons qualified to testifl before the Commission at the "substantial issue" stage
of the appeal process are the applicant, persons who opposed the application before the
local government (or their representatives), and the local government. Testimony from
other persons must be submitted in writing. At the time of the de novo hearing, any
person may testifl.
IV. Staff Recommendation On Substantial Issue.
The staff recommends the Commission adopt the following resolution:
Staff recommends that the Commission determine that SUBSTANTIAL ISSUE exists
with respect to the grounds on which the appeal was filed, pursuant to PRC Section
30603.
MOTION
Staff recommends a vote on the following motion:
I move the Commission determine that Appeal No. A-6-CII-98-98 raises no substantial
issue with respect to the grounds on which the appeal has been filed.
A majority of the Commissioners present is required to pass the motion.
Ad-CII-98-98
Page 4
V. FINDINGS ON SUBSTANTIAL ISSUE
1. Project Description. Construction of a 30-foot high , 2,713 sq.ft. single family
residence and a 35- foot high, 1,633 sq.ft., detached garage with a 577 sq.ft. second unit
above on one lot of a 2.6 acre site. Estimated grading quantities include 75 cubic yards of
cut and 75 cubic yards of fill to be balanced on-site. Also proposed is off-site private
access improvements, the replacement of a gate and fencing on the site. The 2.6 acre
project site is comprised of 2 lots located along the south shore of Buena Vista Lagoon,
west of the AT&SF Railroad and north of Mountain View Drive in northern Carlsbad.
The project site is vacant and is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line. An existing unimproved lagoon
trail is located around the outer edge of the property running from its western edge and
continuing to circle the site like a loop. The AT&SF railroad right-of-way lies to the east
of the site, and multi-family housing is located to the south of the project site. The site is
designated Residential Low (RL, 0-1.5 ddac) and zoned R-1-30,000 in the certified Mello
I1 LCP.
2. Protection of Visual Resources. The project site is located at the confluence of the
mouth of Buena Vista Lagoon and the Pacific Ocean at the boundary between the cities of
Carlsbad and Oceanside. Although there is existing development in the area, because of
the site’s unique setting adjacent to the lagoon, it is like no other site in Carlsbad. Open
waters of Buena Vista Lagoon are on the west side to the site with some rip-rap on the
banks; fresh water marsh associated with lagoon environs occurs on the northwest and
eastern boundaries of the site below the rip-rap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and circles the site like a
loop.
The following policies and goals of the certified Mello II LCP address protection of public
views and are applicable to the proposed development:
Policy 8-1
The Scenic Preservation Overlay Zone should be applied where necessary throughout
the Carlsbad Coastal Zone to assure maintenance of existing views and panoramas.
Sites considered for development should undergo individual review to determine if the
proposed development will obstruct views or otherwise damage the visual beauty of
the area. The Plannins Commission should enforce appropriate height limitations and
see-through construction, as well as minimize any alterations to topography.
A-6-CII-98-98
Page 5
Policy 3-2 of the Mello I1 LCP also requires that development be clustered to preserve
open space for habitat protection which also serves to minimize the visual impacts of new
development.
The proposed 2,713 sq.ft. residence is over 30 feet tall, consists of two-stories, and
features a copper-colored metal roof and concrete block walls. Also proposed is a 1,633
sq.ft., with a 577 sq.fi. second unit above that will be 35 feet in height . Second dwelling
units are addressed in the City’s LCP. As approved in the LCP, such units are allowed by
right subject to restrictions on size (650 sq.fi. maximum), Bordability, etc. Second units
must also meet all the requirements of the local coastal program, with the exception of
base density.
The subject site is visible from the beach, the railroad and portions of Old Highway 101
(Carlsbad Boulevard), which is designated as a Scenic Road in the LCP. Old Highway
101 is heavily used by beachgoers to get to the beaches of northern Carlsbad. Existing
cattails and the elevated railroad berm are high enough to block views to the west from
the portion of Old Highway 101 that is along side the site. The site is however, visible
both from the highway as it descends south from the City of Oceanside into Carlsbad and
at a point close to the Buena Vista Lagoon pump station going north on the highway. As
noted above, the approximately 2.6 acres under the applicant’s ownership constitutes a
unique, low-lying area immediately adjacent to the lagoon where no development has
occurred. As such, the proposed project, consisting of two large structures located
directly adjacent to the lagoon, has the potential to adversely impact public views in this
scenic area by presenting a significant structure in an otherwise natural setting.
policy /- 8-1 .Qf_the City’s LCP p~~des that -_ the I___ Scenic Preservation - Overlay Zone- sho~ld
be applied where necessary to assure the maintenance of existing views and panoramas,
‘which requires that sites be evaluated for potential public views that should be preserved
and enhanced. Its purpose is to provide regulations in areas which possess outstanding
scenic qualities or would create buffers between incompatible land uses which enhance the
appearance of the environment and contribute to community pride and community
prestige. The subject site does not represent an infill area but rather should be viewed as
an extension of development northward at a critical scenic interface between the ocean
and the lagoon which is visible from Highway 101. Therefore, the site is located in a
highly scenic area that meets the criteria for application of the Scenic Preservation Overlay
Zone.
Based on the above, the Commission finds that there is a substantial issue as to the
proposed project, as approved by the City and conformity with Policy 8-1 of the LCP. As
approved by the City, the proposed structures are 30 - 35 feet high which will represent a
project that is out of character with the setting of the surrounding lagoon environment.
The LCP requires that appropriate height limitations be enforced. While the proposed
A-6-CII-98-98
Page 6
development is within the current required height limit, by allowing the project to extend
to the maximum height limit allowed by zoning, the City failed to recognize the unique
setting where the residence is to be sited. Additionally, the California Department of Fish
and Game has indicated that structures this high at this location could discourage shore
and migrating birds from visiting the area, or act as “predator perches” affecting sensitive
avian species in the area. Moreover, the proposed exterior treatment includes copper-
colored metal roofs and concrete block walls. These design features will degrade the
natural beauty of this area. That is, the project will “stand out” rather than blend in or be
subordinate to the surrounding natural environment. Therefore, the Commission finds the
project as approved by the City raises a substantial issue with regard to consistency with
the visual resource policies of the certified LCP.
3. Public AccessRecreation. The Coastal Act contains policies that call for protecting
public access to the coast. The following Coastal Act policies are applicable to the
proposed development.
Section 30210.
In carrying out the requirement of Section 4 of Article X of the California
Constitution, maximum access, which shall be conspicuously posted, and recreational
opportunities shall be provided for all the people consistent with public safety needs
and the need to protect public rights, rights of private property owners, and natural
resource areas from overuse.
Section 302 1 1.
Development shall not interfere with the public’s right of access to the sea where
acquired through use or legislative authorization, including, but not limited to, the use
of dry sand and rocky coastal beaches to the first line of terrestrial vegetation,
Section 30212.
(a) Public access from the nearest public roadway to the shoreline and along the coast
shall be provided in new development projects except where:
(1) it is inconsistent with public safety, military security needs, or the protection of
fragile coastal resources,
(2) adequate access exists nearby, or,
(3) agriculture would be adversely affected. Dedicated accessway shall not be
required to be opened to public use until a public agency or private association
A-6-CII-98-98
Page 7
agrees to accept responsibility for maintenance and liability of the accessway.
In addition, several policies of the Mello I1 LCP apply to the project site.
Policy 7-3 - ACCESS ALONG SHORELINE
The City will cooperate with the state to ensure that lateral beach access is protected
and enhanced to the maximum degree feasible, and will continue to formalize shoreline
prescriptive rights. Irrevocable offers of dedication for lateral accessways between the
mean high tide line and the base of the coastal bluffs, and vertical accessways where
applicable, shall be required in new development consistent with Section 30212 of the
California Coastal Act of 1976. There is evidence of historic public use adjacent to
Buena Vista Lagoon. Paths criss-cross the area near the railroad tracks to the ocean
shoreline. Development shall provide access and protect existing access consistent
with the needs to protect the habitat.
Policy 7-6 - BUENA VISTA LAGOON
An access trail shall be provided along the southern shoreline of Buena Vista Lagoon
(ehbit 4.10, page 63) to facilitate public awareness of the natural habitat resources of
the Lagoon. To protect sensitive resources of this area, access development shall be
limited and designed in consultation with the State Department of Fish and Game. In
permitted development of properties adjacent to the Lagoon, offers of dedication of
lateral accessways, irrevocable for a term of 2 1 years, shall be required to be provided
to the City of Carlsbad, State Coastal Conservancy, or other appropriate public
agencies. Such access dedications shall be of at least 25 feet in width upland from
environmentally sensitive areas and any required buffers thereto. In addition, the City
of Carlsbad, State Coastal Conservancy and Wildlife Conservation Board shall seek to
obtain lateral accessways across developed lands.
The subject site is located between the first public roadway and the sea ( reference Exhibit
#1 attached). The beach area to the west of the project site can be reached via a public
access stairway on Ocean Street. To reach the lagoon area immediately adjacent to the
subject site, due to a well-worn path, it is apparent that visitors to this area use a path near
Mountain View Drive which leads behind tennis courts on the adjacent lot and then down
to the lowland area that comprises the subject property. The beach and lagoon areas are
currently used by walkers, fishermen and naturalists. As noted above, the Mello 11 LCP
envisions an areawide pathway along the south shoreline of the lagoon. The City of
Oceanside is planning pathways on the northern side of the lagoon along with a bird
sanctuary. The Department of Fish and Game owns properties on the south side of the
lagoon, east of the subject site and on the north side. Because of its location, the project
,-
A-6-CII-98-98
Page 8
site is located at a crucial point in any potential linkage between public beach areas and the
public lagoon areas.
There is evidence of historic public use of this site. This evidence is the existence of a
well-worn path around the perimeter of the site. The path is evident in numerous aerial
photographs of the site taken as early as 1972. In recognition of the existing trail on the
south side of the lagoon, the City has required that the applicant record an offer to
dedicate a public access easement along the south shore of Buena Vista Lagoon, along the
western edge of the site consistent with Policy 7-6 of the Mello I1 LUP. The City’s
approval also required that the development maintain a 100 foot setback from the lagoon’s
edge, consistent with input provided by the resource agencies and LCP requirements.
This 100-foot setback would then function as a wetlands buffer. The existing worn path
on the site is located within the 100- foot wetland buffer. However, the agencies found
that the trail was a permitted use within the buffer. In order to further protect the
resources, the resource agencies also required that the applicant construct a fence at the
inland edge of the buffer to keep domestic pets out of the buffer area to protect wildlife
that occurs near the water’s edge. However, the City’s approval does not address other
public access issues raised by the proposed development.
First, the City’s approval authorized a gate across the southern lagoon trail that is the
subject of an offer to dedicate a public access easement. The gate is proposed within a
fence on Parcel B (exhibit #7), the other lot under the applicant’s ownership which is not
proposed for residential development at this time. As approved, the gate would be open
from dawn to dusk. The Commission found in a recent permit decision, (Ref. CDP # 6-
96- 159/Cade), that regulating hours of beach access along property fronting Agua
Hedionda Lagoon through a time lock gate was inappropriate. The Commission finds that
a time-lock gate raises a substantial issue as to conformity with as the certified LCP as
policies 7-3 and 7-6 do not contain a provision which would permit such a device. On the
contrary, both policies recognize public use in the area and provide for a public trail. The
only restrictions the policies make on access is that it should be provided without requiring
habitat impacts. No restrictions on what time of day access should be restricted are
stated. Time lock gates are also inconsistent with the public access policies of the Coastal
Act.
As noted above, Policy 7-3 of the LUP states that ”...There is evidence of historic public
use adjacent to Buena Vista Lagoon. Paths criss-cross the area near the railroad tracks to
the ocean shoreline. Development shall provide access and protect existing access
consistent with the needs to protect the habitat ....” Due to the fact that there is historic
use by the public on this site, the City required that the applicant record an offer to
dedicate for the path on the west. However, the City’s decision did not recognize the
remainder of the perimeter path on the site that appears to be historically used by the
public (as noted previously, a well worn path is evident on the site and is also evident in
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aerial photos dating back to 1972). The City’s approval includes a fence across the 100-
foot buffer with a dawn to dusk gate and a fence fiom the proposed cul-de-sac to the
marsh to the east. As such, the City’s approval will adversely affect continued use of the
on-site trails by the public. These proposed fences are not needed for security as the
entire building area will be fenced. In addition, such fences close to the lagoon and the
marsh may have adverse impacts on birds and wildlife by restricting movement in the
buffer and providing potential perches for birds of prey.
In addition, the City’s permit decision did not recognize the public’s use of an existing trail
from Mountain View Drive to the existing trail on the south shore of the lagoon and the
ocean shoreline to the west. The City’s approval included replacement of an existing
manually operated gate with an electric gate near Mountain View Drive for access for the
proposed residehce, fire and maintenance vehicular access. The existing fenced and
locked gate are located just off Mountain View Drive on property that is not owned by the
applicant. However, the applicant has a private access easement over the property. The
installation date of the gate is unknown. The fencdgate appears on a 198 1 tentative map
for a neighboring project. In addition, representatives of the City have verbally stated that
it has been in place since the 1960s. The gate/fence limits public access from Mountain
View Drive to the applicant’s site. This gate is where the applicant will take access to the
subject site via an existing private access easement. According to the City, it is the only
beach vehicle access in northern Carlsbad and has been used by lifeguard personnel and
city maintenance crews to maintain the lagoon weir which regulates the water level in
Buena Vista Lagoon.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums (ref exhibit #6). In its
approval of CDP #6-83-51, the Commission required Lot 3, the lot over which the
applicant must take access to get to the project site, to be reserved as open space through
an offer to dedicate an open space easement. In its open space easement condition, the
Commission prohibited all development except for development needed to allow for
vehicle access across Lot 3 to the lagoon weir and for public projects that were planned
on this low-lying area, including wetland restoration and possibly as a depository site for
beach replenishment projects. The condition did not recognize any private vehicular
access across Lot 3 which is needed for the applicant to get to the project site. However,
the applicant has demonstrated the right of private vehicular access across Lot 3 to the
project site through an easement that was initially granted in 1971 and then recorded again
n 1984. In its approval of CDP 6-83-51, the Commission also required a public access
easement over the entirety of Lot 3. Neither the offer to dedicate an easement for public
access nor the offer to dedicate an open space easement have been accepted by a public
agency or private association. The City’s decision on this project formalizes lateral access
along the lagoon but does not address how the public will access the trail, lagoon and
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ocean from Mountain View Drive. Section 30212 of the Coastal Act and Policy 7-6 of
the LUP require that vertical access to and along the shoreline be provided where
appropriate. The City’s action failed to provide public vertical access from Mountain
View Drive to the trail on the south shore of the lagoon which is inconsistent with these
provisions. As such, the Commission finds that replacement of the existing manual gate
with a new electric gate will give the impression that this area is private which could
hrther limit access by the public, inconsistent with Coastal Act and LCP policies.
In summary, because the proposed fencing and gating plans would adversely affect public
access, the Commission finds the development as approved by the City raises a substantial
issue with regard to consistency with the public access and recreation policies of the
certified LCP and Chapter 3 of the Coastal Act.
4. Environmentally Sensitive Habitat Areas.
Policy 3-2 of the certified Mello I1 LUP addresses the protection of this environmentally
sensitive area and provides the following:
Policy 3-2 - Buena Vista Lasoon
Developments Iocated along the first row of lots bordering Buena Vista Lagoon,
including the parcel at the mouth of the Lagoon (see Exhibit 4.5, Page 61), shall be
designated for residential development at a density of up to 4 dwelling units per acre.
Proposed development in this area shall be required to submit topographic and
vegetation mapping and analysis, as well as soils reports, as part of the coastal
development permit application. Such information shall be provided as a part of or in
addition to any required Environmental Impact Report, and shall be prepared by
qualified professionals and in sufficient detail to enable the City to locate the boundary
of wetland and upland areas and areas of slopes in excess of 25%. Topographic maps
shall be submitted at a scale sufficient to determine the appropriate developable areas,
generally not less than a scale of 1” - 100’ with a topographic contour interval of 5
feet, and shall include an overlay delineating the location of the proposed project.
Criteria used to identi@ wetlands existing on the site shall be those of Section 30121
of the Coastal Act and based upon the standards of the Local Coastal Program
Mapping Regulations, and shall be applied in consultation with the State Department
of Fish and Game.
Development shall be clustered to preserve open space for habitat protection.
Minimum setbacks of at least 100 feet from wetlands shall be required in all
development, in order to buffer such sensitive habitat areas from intrusion. Such
buffer areas, as well as other open space areas required in permitted development to
preserve habitat areas, shall be permanently preserved for habitat uses through
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provision of an open space easement as a condition of project approval. In the event
that a wetland area is bordered by steep slopes (in excess of 25%) which will act as a
natural buffer to the habitat area, a buffer setback of less than 100 feet in width may be
permitted.
The density of any permitted development shall be based upon the net developable
area of the parcel, excluding any portion of a parcel which is not within wetlands.
Storm drain alignments as proposed in the Carlsbad Master Drainage Plan which
would be carried through or empty in to Buena Vista Lagoon shall not be permitted,
unless such improvements comply with the requirements of Sections 30230, 3023 1,
30233, and 30235 of the Coastal Act by maintaining or enhancing the functional
capacity of the lagoon in a manner acceptable to the State Department of Fish and
Game.
Land divisions shall only be permitted on parcels bordering the lagoon pursuant to a
single planned unit development permit for the entire original parcel.
Additionally, the Coastal Resource Protection Overlay Zone, an implementing ordinance
of the City of Carisbad LCP, contains identical language to Policy 3-2 above with respect
to Buena Vista Lagoon.
Numerous other policies of the LCP provide that new development not contribute to
erosion and sedimentation of sensitive resources, including Buena Vista Lagoon. Policy
4-3 and Policy 4-6 address this issue.
Policv 4-3 - ACCELERATED SOIL EROSION
(A) Areas West of 1-5 and the existing Paseo del Norte and Along El Camino Real
Upstream of Existing Storm Drains
For areas west of the existins Paseo del Norte, west of I-and along El Camino Real
immediately upstream of the existing storm drains, the following policy shall apply:
A site specific report prepared by a qualified professional shall be required for all
proposed development, identifylng mitigation measures needed to avoid increased
runoff and soil erosion. The report shall be subject to the requirements of the model
erosion control ordinance contained in the appendix to the Carlsbad Master Drainage
Plan (June, 1980), and to the additional requirements contained herein. Such
mitigation shall become an element of the project, and shall be installed prior to initial
grading. At a minimum, such mitigation shall require construction of all improvements
shown in the Master Drainase Plan for the area between the project site and the
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Page 12
lagoon (including a debris basin), as well as : restriction of grading activities to the
months of April through September of each year; revegetation of graded areas
immediately after grading; and a mechanism for permanent maintenance if the City
declines to accept the responsibility. Construction of drainage improvements may be
through formation of an assessment district, or through any similar arrangement that
allots costs among the various landowners in an equitable manner.
Policy 4-6 - SEDIMENT CONTROL PRACTICES
Apply sediment control practices as a perimeter protection to prevent off-site
drainage. Preventing sediment from leaving the site should be accomplished by such
methods as diversion ditches, sediment traps, vegetative filters, and sediment basins.
Preventing erosion is of course the most efficient way to control sediment runoff.
The 2.6 acre project site consists of two lots located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The project site is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line.
In recognition of the sensitive nature of the project area, the City approved the project
with several conditions regarding the protection of coastal resources. The City found that
the project was consistent with the certified Mello I1 Coastal Resource Protection Overlay
Zone (Chapter 21.203 of the zoning ordinance) in that the project would adhere to the
City’s Master Drainage and Storm Water Quality Management Plan and Grading
Ordinance to avoid increased runoff and soil erosion, no steep slopes or native vegetation
is located on the subject property and, the site is not located in an area prone to landslides,
or susceptible to accelerated erosion, floods or liquefaction. The adjacent Buena Vista
Lagoon wetlands have been delineated and the project has been designed to include a
minimum 100 foot setback between the wetlands and all structures. The City’s approval
required the applicant to record an open space deed restriction over the entire wetland
buffer setback area and to make an irrevocable offer of dedication of the wetlands buffer
to the California Department of Fish and Game.
Although the existing vegetation on the site consists primarily of non-native grasses and
weeds, two regionally significant habitats, a coastal lagoon and fieshwater marsh
community, do occur near the subject property. Thus, activities on the property could
affect the quality of these habitats. Buena Vista Lagoon provides nesting and foraging
habitat for the California least tern and other avian species; although the quality of this
habitat is decreasing due to continuous development along the edge of the lagoon. The
City approved a sedimentation catch basin on the southeast corner of the site which will
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Page 13
direct surface runoff to the east of the site within the freshwater marsh which is part of
Buena Vista Lagoon. Policy 3-2 provides that no direct discharges to the lagoon can
occur without approval of the Department of Fish and Game. That permission has not
been obtained from the Department in writing. Urban runoff and pollutants at this
location could endanger plants and animals that reside in the marsh, including the
endangered clapper rails. Therefore, the City's decision cannot be found consistent with
Policy 3-2 of the Mello I1 LCP and substantial issue must be found.
STAFF RECOMMENDATION ON THE COASTAL PERMIT:
The staff recommends the Commission adopt the following resolution:
I. Approval with Conditions.
The Commission hereby grants a permit for the proposed development, subject to the
conditions below, on the grounds that the development will be in conformity with the
provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability
of the local government having jurisdiction over the area to prepare a Local Coastal
Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have
any significant adverse impacts on the environment within the meaning of the California
Environmental Quality Act.
II. Standard Conditions.
See attached page.
III. Special Conditions.
The permit is subject to the following conditions:
1. Final Revised Plans. Prior to the issuance of the coastal development permit, the
applicant shall submit for the review and written approval of the Executive Director, final,
revised site, fencing and building plans approved by the City of Carlsbad which
demonstrates compliance with the following requirements:
a. The proposed residence and garage/second unit shall be redesigned to not
exceed 25 feet in height.
b. No fencing shall be located along the south buffer area as shown on Exhibit 7
(attached). No fencing shall be located along the access drive turnaround on the
east side of the site such that it precludes continued public access in its current
A-6-CII-98-98
Page 14
location. No fencing of the access drive is permitted.
c. The proposed off-site electric gate off Mountain View Drive is not approved.
2. Future Development/Deed Restriction. Prior to the issuance of the coastal
development permit, the applicant shall execute and record a restriction in a form and
content acceptable to the Executive Director against the subject 2.6 acre property. The
deed restriction shall reflect the following: (1) The subject permit is only for the
development described in CDP #A-6-CII-98-98. Pursuant to Title 14 California Code of
Regulations Section 13250(b)(6), the exemptions otherwise provided in Public Resources
Code Section 306 1 O(a) shall not apply to the area governed by this coastal development
permit. (2) This approval limits the height of the residences to no higher than 25 feet. (3)
No copper roof or concrete block materials are permitted. (4) Residential structures and
garagehecond units shall be painted with earth tone colors (deep shades of green brown
and gray with no white or light shades, and no bright tones) to minimize the
development’s contrast with the surrounding scenic area. (5) The south buffer area shall
not be fenced. (6) Fencing along the access drive turnaround on the site shall not
preclude continued public access in its current location, along the eastern side of the site.
The document shall run with the land, binding all successors and assigns, and shall be
recorded free of prior liens that the Executive Director determines may affect the
enforceability of the restriction. This deed restriction shall not be removed or changed
without a Coastal Commission-approved amendment to this coastal development permit
unless the Executive Director determines that no amendment is required.
3. Open Space Deed Restriction. Prior to the issuance of the coastal development
permit, the applicant shall record a restriction against the subject property. The restriction
shall prohibit any alteration of landforms, erection of structures of any type and removal of
vegetation, except as permitted herein, for any purposes in the proposed habitat buffer
areas as shown on the site plan dated 7/17/98 (Exhibit 8) and generalIy described as the
area between the water’s edge of Buena Vista Lagoon and the 42” high chain link fence
on the west side of the project site and the area between the freshwater marsh habitat and
the 72” high chain link fence on the east side of the project site. Native drought-resistant
vegetation required herein, public access and the existing public trail shall be permitted
within the buffer. Construction of the permitted development shall not be used or
construed to interfere with any public prescriptive rights or public trust rights that may
exist on the property. The document shall include legal descriptions of both the applicant’s
entire parcel(s) and the easement area. The document shall run with the land, binding all
successors and assigns, and shall be recorded free of prior liens that the Executive
Director determines may affect the enforceability of the restriction. This deed restriction
shall not be removed or changed without a Coastal Commission-approved amendment to
A-6-CII-98-98
Page 15
this coastal development permit unless the Executive Director determines that no
amendment is required.
4. Lateral Public Access. Prior to the issuance of the coastal development permit, the
applicant shall execute and record a document, in a form and content acceptable to the
Executive Director, irrevocably offering to dedicate to a public agency or private
association approved by the Executive Director an easement for lateral public access and
passive recreational use along the lagoon shoreline. The easement shall be located along
the entire width of the property along the Buena Vista Lagoon shoreline and shall be a
minimum of 25-feet wide over the public access trail shown on the site plan dated 7/17/98
(Exhibit 2)
The document shall provide that the offer of dedication shall not be used or construed to
allow anyone, prior to acceptance of the offer, to interfere with any rights of public access
acquired through use which may exist on the property. It shall be recorded free of prior
liens which the Executive Director determines may affect the interest being conveyed, and
free of any other encumbrances which may affect said interest. The offer shall run with
the land in favor of the People of the State of California, binding all successors and
assignees, and shall be irrevocable for a period of 21 years, such period running from the
date of recording. The recording document shall include legal descriptions of both the
applicant's entire parcel(s) and the easement area.
5. Drainane/RunofVSedimentation Control. Prior to the issuance of the coastal
development permit, the applicant shall submit for the review and written approval of the
Executive Director, final drainage and runoff control plans for the project, approved by
the City of Carlsbad and reviewed in consultation with the Department of Fish and Game
and designed by a licensed engineer qualified in hydrology and hydraulics, which would
assure no increase in peak runoff rate from the developed site over runoff from the natural
site, as a result of a ten-year frequency storm over a six-hour duration (10 year, 6 hour
rainstorm). The plan shall document that runoff from the impervious surfaces of the site
will be collected and discharged at a non-erosive velocity and elevation. Energy
dissipating measures at the terminus of any proposed outflow drains shall be constructed.
Any vegetation removed to install such measures shall be replanted with native
vegetation.. The applicant shall also submit a written commitment indicating that all
devices shall be installed and maintained by the applicant in accordance with the approved
plan.
6. Grading; and Erosion Control. Prior to the issuance of the coastal development
permit, the applicant shall submit, for the review and written approval of the Executive
Director, final grading plans, approved by the City of Carlsbad which shall be subsequently
implemented and conform to the following requirements:
A-6-CII-98-98
Page 16
a) No grading activities shall be allowed during the rainy season (the period from
November 15 to March 3 1st of each year). All disturbed areas will be replanted
immediately following grading and prior to the beginning of the rainy season. The
applicant shall undertake the development in accordance with the approved
grading and erosion control plan. Prior to commencement of any grading activity,
the applicant shall submit a grading schedule to the Executive Director.
b) The installation of temporary and permanent runoff and erosion control devices
shall be developed and installed prior to or concurrent with any on-site grading
activities.
c) All areas disturbed, but not completed, during the construction season, including
graded pads, shall be stabilized in advance of the rainy season. The use of
temporary erosion control measures, such as berms, interceptor ditches,
sandbagging, filtered inlets, debris basins, and silt traps shall be utilized in
conjunction with plantings to minimize soil loss from the construction site.
7. Clapper Rail Protection Plan. Prior to the issuance of the coastal development
permit, the applicant shall submit for the review and written approval of the Executive
Director, a clapper rail protection plan which has been developed in consultation with the
Department of Fish and Game. The plan shall document that no construction activities
shall be allowed during the breeding season of the light-footed clapper rail within the
wetlands adjacent to the project site. Project construction shall be prohibited during the
breeding season, March 1 through August 1, unless a focused survey for the clapper rail is
conducted immediately prior to project construction and determines that no clapper rails
were observed during the study.
The wetlands buffer area shall be staked and flagged in the field by a licensed surveyor and
shall be shown on the submitted clapper rail protection plan. A minimum of three notices
shall be posted within this area to specifl that this area is off-limits to construction
activity.
8. Final LandscaueLightingExterior Treatment Plan. Prior to the issuance of the
coastal development permit, the applicant shall submit for the review and written approval
of the Executive Director, in consultation with the Department of Fish and Game, a
revised landscape/lighting/exterior treatment plan, approved by the City of Carlsbad,
which shall incorporate the following:
a. Building - Materials/Colors. No copper roof or concrete block materials are
permitted. The proposed residence and garage/second unit shall utilize colors and
building materials with earth tone colors (deep shades of green brown and gray
A-6-CII-98-98
Page 17
with no white or light shades, and no bright tones) to minimize the development’s
contrast with the surrounding scenic area.
b. Lighting. An exterior lighting plan shall be submitted, developed in consultation
with the Department of Fish and Game, which indicates all exterior lighting shall
include a combination of low-level lights and shields to minimize the amount of
light entering the adjacent wetlands and wetland buffer area.
c. Revised Landscapinq Plans. The plan shall indicate the type, size, extent and
location of all plant materials, the proposed irrigation system and other landscape
features and be subject to review by the Department of Fish and Game. The
landscaping plan shall consist of native, drought-resistant landscaping acceptable
to the Executive Director in consultation with the Department of Fish and Game.
1. The revised landscape plan shall indicate the placement of a minimum of
one specimen size tree (24-inch box minimum) for every 10 feet of pad area
lagoonward of the proposed building sites and arranged to maximize screening
of the structures from views from Buena Vista Lagoon, its public trail, Old
Highway 101 and the railroad. A minimum of 8-trees shall be provided
lagoonward of the building pad for Parcel A.
2. At maturity the trees shall approximate the height of the roofline of the
residences.
3. The required trees shall be planted within 60 days of completion of
residential construction and be maintained in good growing condition for the
life of the residences. Maintenance requirements to assure no blockage of
public views must be incorporated into the approved plan.
4. The plan must also indicate non-native plant species shall be removed
from the wetland buffer area and the wetland buffer area shall be revegetated
with a hydro-mulched coastal sage scrub seed mix.
The permittee shall undertake development in accordance with the approved final plans.
Any proposed changes to the approved final plans shall be reported to the Executive
Director. Proposed changes to the approved final plans shall not occur without a Coastal
Commission-approved amendment to this coastal development permit unless the
Executive Director determines that no amendment is required.
V. Findings and Declarations.
The Commission finds and declares as follows:
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Page 18
1. Detailed Pro-iect Description. Proposed is the construction of a 2,713 sq.ft.
residence, consisting of two-stories over 30 feet tall, and features a copper-colored metal
roof and concrete block walls. Also proposed is a 1,633 sq.ft., 35-foot high garage with a
577 sq.ft. second unit above. Estimated grading quantities include 75 cubic yards of cut
and 75 cubic yards of fill to be balanced on-site. Also proposed is off-site private access
improvements, the replacement of gate and fencing on the site. The proposed project site
is made up of two lots comprising 2.6 acres located along the south shore of Buena Vista
Lagoon, west of the AT&SF Railroad and north of Mountain View Drive in northern
Carlsbad. The project site is covered with disturbed shrub habitat. There are no steep
slopes or native vegetation on the project site. Fresh water marsh occurs on the northwest
and eastern boundaries of the site below the rip-rap line. The property is vacant and an
existing unimproved lagoon trail is located along its western edge and continues to circle
the site like a loop. The AT&SF railroad right-of-way lies to the east of the site, and
multi-family housing is located to the south of the project site. The site is designated
Residential Low (RL, 0-1.5 ddac) and zoned R-1-30,000 in the certified Mello I1 LCP.
2. Visual Resources. The previously cited visual resource policies of the Mello 11 LUP
provide for the protection of scenic coastal areas and for the compatibility of existing and
new development. The project site is in an area of scenic beauty as it lies at approximately
12 MSL adjacent to the Pacific Ocean, Buena Vista Lagoon and its associated open water
and freshwater marsh habitats. The project site is an approximately 2.6-acre vacant and
flat parcel that sits in the lowlands near the mouth of the south shore of Buena Vista
Lagoon. It is bordered by the lagoon to the north and west and a freshwater marsh to the
east with residential development to the south at higher elevations.
While existing apartment and condominium structures located south of the subject site
present an urban backdrop, when looking west from old highway 10 1 across the project
site to the ocean, the unique setting of this area was not considered by the City in its
approval. Although ocean views would not be significantly altered by this project (except
from passenger trains on the adjacent rail line), the City approved residential structures
that are large and as such will “stand out”at this location. The bulk and scale of the
proposed 30 - 35 foot high structures is out of character with this unique, low-lying site
given its proximity to the lagoon and ocean. In addition, the proposed development
includes a copper colored roof and a concrete block wall facade.
Policies 3-2 and 8-1 of the Mello I1 LUP require that new development be visually
subordinate to its setting. The Commission finds that the project, as proposed, is out of
character with its setting and is inconsistent with the policies. It would be visible Erom a
number of public locations (beach, railroad, and Old Highway 101 from City of Oceanside
and near the Carlsbad pump station to the east of the site) and is not appropriate for its
lagoon setting. In that regard, the Commission finds the proposed residence and
A-6-CII-98-98
Page 19
garagelsecond unit must be redesigned to be no higher than 25 feet high. This height is
consistent with the San Malo residential project, located immediately north of the project
site across the lagoon in the City of Oceanside, which is known not only for its French
Normandy architecture but for its modest scale which makes it subordinate to the
oceadlagoon setting. In several other permit decisions in Carlsbad, the Commission has
also required a 25-foot height limit to reduce the visual impacts of new development.
These actions primarily concerned larger residential subdivisions in the Aviara and Sammis
Property projects on Batiquitos Lagoon in southern Carlsbad. While this project is of less
intensity, it nonetheless has a great visual impact on the surrounding environs of Buena
Vista Lagoon. For that reason, the Commission finds the height reduction is warranted,
As such, Special Condition #1 requires revised plans that limit project height to 25 feet
high. Additionally, Special Condition #8 requires building materials/colors to be
subordinate to the lagoon setting by requiring the proposed residence and garagehecond
unit shall be painted with earth tone colors (deep shades of green brown and gray with no
white or light shades, and no bright tones) to minimize the development’s contrast with
the surrounding scenic area. The height reduction and color changes will result in a
smaller, less visually obtrusive project that is compatible with its setting. Special
Condition #2 requires the entirety of the property - which includes the other .72 acre
adjacent lot under the applicant’s ownership - to be subject to the above provisions in the
form of a deed restriction. This restriction is necessary to insure fkture property owners
are aware of condition requirements.
The applicant has submitted a landscaping plan that indicates a number of non-native trees
and shrubs would be planted. These trees and shrubs may be noxious or invasive to the
existing sensitive habitat area surrounding the project site. Special Condition #8 requires
that a landscaping plan be developed in consultation with the Department of Fish and
Game. The Commission hrther finds that landscaping upland of the buffer shall be
designed to mitigate the visual impact of the structures as viewed from the lagoon and
public access trail, while preserving views from the homes. the natural character of the
surrounding environment (i.e., non-invasive or noxious). The revised landscape plan shall
indicate the placement of a minimum of one specimen size tree (24-inch box minimum) for
every 10 feet of pad area lagoonward of the proposed building sites and arranged to
maximize screening of the structures from views from Buena Vista Lagoon and its public
trail and Old Highway 101 and the railroad. A minimum of 8-trees shall be provided
lagoonward of the building pad and be compatible with the existing lagoon environment.
At maturity the trees must approximate the height of the roofline of the residences. The
revised landscape plan must include provisions requiring the trees to be planted within 60
days of completion of residential construction and be maintained in good growing
condition for the life of the residences . Maintenance requirements must also be provided
to assure no blockage of public views.
A-6-C1I-98-98
Page 20
In summary, as required to redesign proposed residential development to be subordinate
to its lagoon setting to be no higher than 25 feet in height and that building materials and
colors be earth-tone colors, and that appropriate screening vegetation is provided to
hrther reduce the visual impact of the proposed project, the Commission finds the
proposed project can be found consistent with the visual resource protection policies of
the certified LCP.
3. Public Access/Recreation. Both the certified LCP and the Coastal Act contain
policies protecting physical access to the beach and ocean. Policies 7-3 and 7-6 of the
LUP and Section 30212 of the Coastal Act require that access to and along the shoreline
be maintained. The subject site is located between the first public roadway and the sea at
the ocean entrance to Buena Vista Lagoon. There is evidence of use of a trail on the site.
There is a system of trails on the applicant’s property which together form a loop around
the subject property. These trails are well-worn footpaths which appear on numerous
aerial photographs dating back to 1972. Presently, based on these existing paths, it
appears that access to this loop trail is fiom the ocean and from an informal path to the
east through the fresh water marsh from Carlsbad Blvd and next to tennis courts on
Mountain View Drive.
In CDP #6-83-51, the Commission approved the subdivision of the property immediately
adjacent to and south of the subject site. The permit allowed subdivision of a 7.65 acre
parcel into three lots and construction of 14 condominiums (ref. exhibit #6). In its
approval of CDP #6-83-51, the Commission required Lot 3, the lot over which the
applicant must take access to get to the project site, to be reserved as open space through
an offer to dedicate an open space easement. In its open space easement condition, the
Commission prohibited all development except for development needed to allow for
vehicle access across Lot 3 to the lagoon weir and for public projects that were planned
on this low-lying area, including wetland restoration and possibly as a depository site for
beach replenishment projects. The condition did not recognize any private vehicular
access across Lot 3 which is needed for the applicant to get to the project site. However,
the applicant has demonstrated the right of private vehicular access across Lot 3 to the
project site through an easement that was initially granted in 1971 and then recorded again
n 1984. In its approval of CDP 6-83-51, the Commission also required a public access
easement over the entirety of Lot 3. Neither the offer to dedicate an easement for public
access nor the offer to dedicate an open space easement have been accepted by a public
agency or private association. The City’s decision on this project formalizes lateral access
along the lagoon but does not address how the public will access the trail, lagoon and
ocean from Mountain View Drive. Section 30212 of the Coastal Act and Policy 7-6 of
the LUP require that vertical access to and along the shoreline be provided where
appropriate. The City’s action failed to provide public vertical access fiom Mountain
View Drive to the ocean and the shore of the lagoon which is inconsistent with these
provisions. As such, the Commission finds that replacement of the existing manual gate
A-6-CII-98-98
Page 21
with a new electric gate will give the impression that this area is private which could
hrther limit access by the public, inconsistent with Coastal Act and LCP policies.
As stated the policies of the Coastal Act and the Mello II LCP protect public access both
to and along the shoreline, including the shoreline of Buena Vista Lagoon. Policies 7-3
and 7-6 specifically provide that access shall be provided along and near Buena Vista
Lagoon on the applicant’s property. The City’s approval secured the access path
identified in Policy 7-6 by requiring the applicant to dedicate an easement over the existing
trail near the water’s edge. The Commission’s requirement mirrors that approved by the
City in Special Condition #4 and provides that the easement shall be located along the
entire width of the property along the Buena Vista Lagoon shoreline as shown on the site
plan dated 7/17/98.
In addition, the Commission finds additional steps must be taken to preserve and protect
existing public access opportunities consistent with the above LUP policies. For example,
the applicant is proposing the installation of 42’’ high chain link fencing across the required
100 foot setback (exhibit 7). The applicant is also proposing the installation of a time-lock
gate within this fence which would extend across the existing trail and be open from dawn
to dusk. In two recent decisions by the Commissian in Carlsbad (CDP 6-96-159, Cade/
and LCPA 1-984 Poinsettia Properties Specific Plan), the Commission found that time
lock gates were inappropriate. In its action to prohibit them, the Commission found that
unrestricted public access was warranted for coastal visitors to be able to access coastal
resources. Time lock gates are also subject to mechanical failures and vandalism which
limit their effectiveness. In the former decision, the Commission allowed the applicant
security fencing at the upper limit of a habitat buffer to protect against vandalism. In this
way both public access and private security was maintained. This case is similar in that the
Commission is allowing the applicant to fence the site for security reasons but is not
allowing fencing or gates that would preclude existing public access. Special Condition #1
requires that the gate and fence be deleted so that the public access trail will remain open
at all times along the shoreline of Buena Vista Lagoon.
The applicant is also proposing the installation of 6’ high chain link fencing and vegetation
on the eastern portion of the site around the access turnaround. Again, fencing at this
location could preclude continued movement by the public. Presently, there is a foot path
that provides access along the eastern portion of the project site in the 100-foot habitat
setback. While the Commission recognizes the need for the setback, it also recognizes
that historic public use has occurred along this portion of the trail. Policy 7-3 of the Mello
I1 LUP requires that access be maintained in this area consistent with resource protection.
For this reason the Commission is requiring in Special Condition #1 that the applicant
submit a fence plan which provides fencing such that the public will not be precluded from
using this area as they have in the past. Implementation of this condition will require that
Ad-CII-98-98
Page 22
passage through a portion of the fence be provided so that the trail in the eastern buffer
will remain accessible for public use.
As noted, access to the project site must come over a lot which is not under the
applicant’s ownership (Lot 3). Presently, a gate precludes public access over this lot fi-om
Mountain View Drive. In 1983, the Commission approved a public access easement over
this lot. Thus, the present situation is inconsistent with the Commission’s previous
approval. The applicant desires to replace this gate with an electric gate, but does not
include a provision for public pedestrian access. The Commission finds that replacement
of the existing manual fence with a new electric gate will give the impression that this area
is private and would hrther limit access by the public, inconsistent with the public access
policies of the Coastal Act and the LCP. In summary, as required to revise fencing and
gating plans and record a lateral access easement? the Commission finds the project will
not have adverse public access impacts. Only as conditioned, can the Commission find the
proposed project in conformance with the access policies of the certified Mello I1 LCP and
the Coastal Act.
4. Environmentallv Sensitive Habitat Areas. The project site is an approximately 2.6-
acre vacant and flat parcel that sits in the lowlands near the mouth of the south shore of
Buena Vista Lagoon. It is bordered by the lagoon to the north and west and a fieshwater
marsh to the east. Coastal lagoons offer habitat and a resting place for many sensitive
plants and animals, including the endangered light footed clapper rail which resides in the
freshwater marsh immediately adjacent to the applicant’s site. In recoption of these
resources? the certified LCP establishes development setbacks from the resource and
requires these setbacks to be reserved as open space. Special Condition #3 requires
development setbacks from both the open waters of Buena Vista Lagoon and its
associated fieshwater marsh.
In its findings for approval, the City found that the project was consistent with the
certified Mello I1 Coastal Resource Protection Overlay Zone (Chapter 2 1.203 of the
zoning ordinance) in that the project would adhere to the City’s Master Drainage and
Storm Water Quality Management Plan and Grading Ordinance to avoid increased runoff
and soil erosion, no steep slopes or native vegetation is located on the subject property
and the site is not located in an area prone to landslides, or susceptible to accelerated
erosion, floods or liquefaction. The adjacent Buena Vista Lagoon wetlands have been
delineated and the project has been designed to include a minimum 100 foot setback
between the wetlands and all structures. The developer has been conditioned to record an
open space deed restriction over the entire wetland buffer setback area and to make an
irrevocable offer of dedication of the wetlands buffer to the California Department of Fish
and Game.
A-6-CII-98-98
Page 23
The Commission finds that similar provisions are necessary as part of this coastal
development permit. That is, the Commission finds an open space deed restriction over
sensitive areas of the site is warranted. Special Condition #3 requires the restriction shall
prohibit any alteration of landforms, erection of structures of any type and removal of
vegetation, except as permitted herein, for any purposes in the proposed buffer areas as
shown on the site plan dated 7/17/98 (Exhibit 8). Also, removal of the fence within the
buffer is necessary because it could limit wildlife movement and provide a predator perch.
Several policies of the certified LCP also require that project construction not indirectly
adversely impact coastal resources by way of erosion and sedimentation. The Commission
finds in Special Condition #5 that final drainage and runoff control plans must be
submitted to assure no increase in peak runoff rate from the developed site over runoff
from the natural site, as a result of a ten-year frequency storm over a six-hour duration (10
year, 6 hour rainstorm). The plan shall document that runoff from the impervious surfaces
of the site will be collected and discharged at a non-erosive velocity and elevation.
A sedimentation catch basin is proposed on the southeast corner of the site to direct
surface runoff to the east of the site within the freshwater marsh which is part of Buena
Vista Lagoon. Policy 3-2 of the Mello II LUP provides that no direct discharges to the
lagoon can occur without approval of the Department of Fish and Game. Therefore,
Special Condition #5 requires the applicant to consult with the Department of Fish and
Game to ensure drainage in this sensitive area can be found consistent with Policy 3-2 of
the Mello II LCP.
Also, in Special Condition #6 the Commission finds that although there is only minor
grading being proposed @e., 75 cubic yards of balanced grading) based on the location
and the surrounding resources, final grading plans must be submitted which indicate no
grading activities shall be allowed during the rainy season (the period from November 15
to March 3 1st of each year). Typically, the rainy season begins on October 1 of any year;
however, because of wildlife concerns, the rainy season restriction can be extended to
November 15 in this case. Also, all disturbed areas will be replanted immediately
following grading and prior to the beginning of the rainy season. The installation of
temporary and permanent runoff and erosion control devices shall be developed and
installed prior to or concurrent with any on-site grading activities.
Finally, as noted, a nesting pair of clapper rails is known to exist within the freshwater
marsh area located immediately east of the project site. The Commission is requiring that
development be setback 100-feet from this marsh and that this setback be secured
through an open space deed restriction. Additionally, as hrther protection to this
endangered species and as requested by the Department of Fish and Game, the
Commission is requiring in Special Condition #7 that no construction activities be allowed
during the breeding season of the light-footed clapper rail within the wetlands adjacent to
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Page 24
the project site. Thus, project construction shall be prohibited during the breeding season,
March 1 through August 1, unless a focused survey for the clapper rail is conducted
immediately prior to project construction and determines that no clapper rails were
observed during the study. Special Condition #8 requires an exterior lighting plan shall
also be submitted which indicates all exterior lighting will include a combination of low-
level lights and shields to minimize the amount of light entering the adjacent wetlands and
wetland buffer area. Further, the wetlands buffer area shall be staked and flagged in the
field by a licensed surveyor. A minimum of three notices shall be posted within this area
to specifjr that this area is off-limits to construction activity. In summary, as conditioned
to mitigate project related impacts to surrounding resources through the provision of
habitat buffers preserved as open space and an appropriate location for project drainage,
the Commission finds the project consistent with the resource protection policies of the
Coastal Act and the Mello II LCP.
In summary, the Commission finds that with 100-foot habitat setbacks on the east and
west sides of the site to be secured through an open space condition, a public access
easement on the south side of Buena Vista Lagoon, revised plans that indicate the
proposed residential development will be redesigned to be subordinate to its lagoon setting
by being no higher than 25-feet high and that building materials and colors be earth-tone
colors, that existing public trails on the site be preserved so as to not preclude existing
public rights, that fencing and gating plans be revised to not adversely affect public access,
that grading, drainage and runoff control plans be submitted to ensure that downstream
resources will not be indirectly affected from proposed development and that a clapper rail
protection plan be implemented which ensures this endangered avian will not be adversely
affected from residential development in this scenic and sensitive area the project can be
found consistent with all applicable Coastal Act and Mello I1 LCP provisions. Only as
conditioned above is the proposed project consistent with the resource protection policies
of the certified LCP.
5. Local Coastal Planning. Section 30604(a) also requires that a coastal development
permit shall be issued only if the Commission finds that the permitted development will not
prejudice the ability of the local government to prepare a Local Coastal Program (LCP) in
conformity with the provisions of Chapter 3 of the Coastal Act. In this case, only as
conditioned, can such a finding be made.
As noted above, the project as submitted has been found inconsistent with a number of
Coastal Act and LCP policies. As conditioned, the project will establish open space and
public access easements to protect existing coastal resources and public trails, control
runoff to mitigate any potential sedimentation of the adjacent lagoon, and provide
adequate landscaping and design revisions to preserve the scenic amenities of the area.
The proposed project is also consistent with the land use designation and density
Ad-CII-98-98
Page 25
permitted in the LCP. Therefore, the Commission finds project approval, as conditioned,
will not seriously prejudice the implementation of the Carlsbad LCP.
6. Consistency with the California Environmental Ouality Act (CEOA).
Section 13096 of the Commission’s Code of Regulations requires Commission approval of
Coastal Development Permits to be supported by a finding showing the permit, as
conditioned, to be consistent with any applicable requirements of the California
Environmental Quality Act (CEQA). Section 21080.5(d)(Z)(A) of CEQA prohibits a
proposed development from being approved if there are feasible alternatives or feasible
mitigation measures available which would substantially lessen any significant adverse
effect which the activity may have on the environment.
The proposed project has been conditioned in order to be found consistent with the visual
resource, public access and environmentally sensitive habitat policies of the Coastal Act
and the certified LCP. In this case, there are no feasible alternatives available which can
lessen the significant adverse impact the project will have on public views, public access
and the environment. The proposed conditions addressing landscaping, fencing, gating ,
building design and protection of public access and environmentally sensitive habitat, will
minimize all adverse environmental impacts. As conditioned, there are no feasible
alternatives or feasible mitigation measures available which would substantially lessen any
significant adverse impact which the activity may have on the environment. Therefore, the
Commission finds that the proposed project is the least environmentally-damaging feasible
alternative and can be found consistent with the requirements of the Coastal Act to
conform to CEQA.
STANDARD CONDITIONS:
1.
2.
3.
Notice of Receipt and Acknowledgment. The permit is not valid and development
shall not commence until a copy of the permit, signed by the permittee or authorized
agent, acknowledging receipt of the permit and acceptance of the terms and
conditions, is returned to the Commission office.
Expiration. If development has not commenced, the permit will expire two years from
the date on which the Commission voted on the application. Development shall be
pursued in a diligent manner and completed in a reasonable period of time.
Application for extension of the permit must be made prior to the expiration date.
Compliance. All development must occur in strict compliance with the proposal as set
forth below. Any deviation from the approved plans must be reviewed and approved
by the staff and may require Commission approval.
A-6-CII-98-98
Page 26
4. Interpretation. Any questions of intent or interpretation of any condition will be
resolved by the Executive Director or the Commission.
5. Inspections. The Commission staff shall be allowed to inspect the site and the
development during construction, subject to 24-hour advance notice.
6. Assinnment. The permit may be assigned to any qualified person, provided assignee
files with the Commission an affidavit accepting all terms and conditions of the permit.
7. Terms and Conditions Run with the Land. These terms and conditions shall be
perpetual, and it is the intention of the Commission and the permittee to bind all kture
owners and possessors of the subject property to the terms and conditions.
(9898R.doc)
I
. JUL-22-98 WED 14:01 CITY OF CARLSBAD COtlfl DE FAX NO. 4380894 -. -
- APPLICATION NO.
A-6-CI 1-98-98
Location Maps
P. 15 __.
LEVY RESIDENCE
CDP 97-59
STATE OF CALIFORNIA-THE RESOURCES AGENCY PETE WILSON, &=mor
CALIFORNIA COASTAL COMMISSION
SAN DlEGO COAST AREA
3111 CAMINO DEL RIO NORTH, SUITE 200
APPEAL FROM COASTAL PERMIT
DECISION OF LOCAL GOVERNMENT SAN DIEGO, CA 92108-1725
(619) 521-8036
P1 ease Rev! ew Attached Appeal Informati on Sheet Prior To Compl eti ng
This Form.
SECTION I. ADD^^ 1 ant
Name, mailing address and telephone number of appellant:
Commi ssioner Christine Kehoe
Citv of San Dieao 202 "C" s treet. S an Dieuo 9 2101 61 9 236-6633
Zip Area Code Phone No.
SECTION 11. Deci sion Bei nu ADueal ed
1.
2. Brief description of development being appealed: Construction of a
Name of local /port government: Ci tv o f Carlsbad
~ two-s or
sa.ft. second dwell ins unit over a detached uaraue won a 1.9 acre lot.
3. no., cross street.etc.1: South Shore of Buena Vista Laqoon. west of the AT&SF Railroad. north of Mountain View Drive. Ca rlsbad. San Dieao Cou ntv
Development's location (street address, assessor's parcel
4. Description of decision being appealed:
a. Approval ; no speci a1 condi ti ons :
b. Approval with special conditions: xxx
c. Denial:
decisions by a local government cannot be appealed unless the development is a major energy or public works project.
Deni a1 deci si ons by port governments are not appeal ab1 e.
Note: For jurisdictions with a total LCP, denial
TO BE COMPLETED BY COMMISSION:
DATE FILED: 7/27/g%
3
EXHIBITNO. 3
APPLICATION NO.
A-6-C I I -9 8 -98 2 5
Appeal Form 4
Appeal Summary
Page 2
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paae 2)
5. Decision being appealed was made by (check one):
a. -Planning DirectorIZoning c. JPlanning Commission Admi ni strator
b. -City Council/Board of d. Other Supervisors
6. Date of local government's decision: Julv 1. 1998
7. Local government's file number (if any): CDP 97-59
SECTION 111. Identification of Other Interested Persons
Give the names and addresses of the following parties.
(Use additional paper as necessary. 1
a. Name and mailing address of permit applicant:
1825 Aston Ave.
Carlsbad. Ca lifornia 9 2008
b. Names and mailing addresses as available of those who testified (either verbally or in writing) at the ci ty/county/port hearing(s1. Include other parties which you know to be interested and should
receive notice of this appeal .
SECTION IV. Reasons SUDDO rtina Thi s ADDeal
Note: Appeals of local government coastal permit decisions are
limited by a variety of factors and requirements of the Coastal
ct. Please review the appeal information sheet for assistance in completing this section, which continues on the next page.
Appeal Summary
Page 3
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paqe 3)
State briefly your reasons for this aooeal.
description of Local Coastal Program, Land Use Plan, or Port Master
Plan policies and requirements in which you believe the project is inconsistent and the reasons the decision warrants a new hearing.
(Use additional paper as necessary.)
Include a summary
The Droiect includes co nstruction of a residence and second dwelling unit on a 1
proiect reauires an access road to the subiect uarcel which extends across a 1 access in a De rmit for subdivision of the adjacent parcels (CDP #6-83-51). That oermit has not vet been amended to allow the access road in the ouen space.
of the road in the least environmentally damaains alianment and public use of
the road within the pub lic access looen soace lot. A second co ncern is the
leaalitv o f the lot on which the Drouosed residence is located. It amears
that redivision of two lots was required to reach the current confiquration of
lots on which the residence was aooroved: however. the City did not Drocess a
rthe time the Commission approved the adiacent subdivision, the number of existins legal
lots on this site and the aourouriate intensity of use on this site was
auestioned due to concerns associated with a develoDment's oroximitv to
wetlands, visual impact and the effects on public access to the laaoon. All
of these issue s should have been addressed at the subdivision staae throush
cdo review bv the Citv. AUDrOVal of a permit for an sfr on this lot which has > bccess road which has not been authorized bv the Commission throuah an 1
Issues which must be addressed in that amendment review include siting
Concerns related to the residential oroiect include the sitina and desisn to greserve existins Dublic views from Carlsbad Blvd.. the railroad and the
the laaoon: and the Droximitv of the develooment to wetlands. Therefore. the B r 0.1 e c t raises auestion reaardina consistency with the uublic access and recreation oolicies of the Coastal Act. and aoulicable LCP eolicies which
include address develooment ad. iacent to Buena Vista lasoon. protect oublic vistas. environmentallv sensitive habitat areas and oublic access.
1
Note: statement of your reasons of appeal; however, there must be
sufficient discussion for staff to determine that the appeal is allowed by law. The appellant, subsequent to filing the appeal, may
submit additional information to the staff and/or Commission to
support the appeal request.
The above description need not be a complete or exhaustive
SECTION V. Certification
The information and facts stated above are correct to the best of my
Appellant or Agent
PETE WILSON, Gommr STATE OF CALIFORNIA-THE RESOURCES AGENCY
CALI FORNl A COASTAL COMMISSION
SAN DIEGO COAST AREA APPEAL FROM COASTAL PERMIT 3111 CAMINO DEL RIO NORTH, SUITE 200 DECISION OF LOCAL GOVERNMENT SAN DIEGO, CA 92108-1725
(619) 521-8036
P1 ease Rev! ew Attached Appeal Information Sheet Prior To Completing This Form.
SECTION I. ADDellant
Name, mai 1 i ng address and telephone number of appel lant:
Commissioner Pedro Nava
Bauer. Harris. McEvov & C 1 i nkenbeard 925 De La Vina Street Santa Barbara, CA 93101 805 965-0043 Zip Area Code Phone No.
SECTION 11. Decision Beina Appealed
1. Name of local/port government: Citv of Carlsbad
2.
two-storv. 33 -feet hish and 2.713 sa .ft. sinsle family residence and 577
sa.ft. seco nd dwellina unit over a detac hed sa raae UDO n a 1.9 acre lot.
Brief description of development being appealed: Co nstruction of 3
3. Development's location (street address, assessor's parcel no., cross street,etc.): Sbf Mountain View Drive. Ca rlsbad. Sa n Dieso Cou ntv
4. Description of decision being appealed:
a. Approval ; no special conditions:
b. Approval wi th speci a1 condi ti ons : xxx
c. Denial:
Note: For jurisdictions with a total LCP, denial decisions by a local government cannot be appealed unless the development is a major energy or public works project.
Denial decisions by port governments are not appeal
TO BE COMPLETED BY COMMISSION:
Bc F0
_.
DATE FILED: 7h
01 STRICT : 5&
Appeal Summary
Page 2
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paae 2)
5. Decision being appealed was made by (check one):
a. -Planning Director/Zoning
b. -City Counci 1 /Board of
c. XPlanning Commission
d. Other
Administrator
Supervisors
6. Date of local government's decision: Julv 1. 1998
7. Local government's file number (if any): CDP 97-59
SECTION 111. Pers n
Give the names and addresses of the following parties.
(Use additional paper as necessary. 1
a. Name and mailing address of permit applicant:
1825 Aston Ave.
Carl sbad. Cal i forni a 92008
b. Names and mailing addresses as available of those who testified
(either verbally or in writing) at the ci ty/county/port hearing(s1.
Include other parties which you know to be interested and should
receive notice of this appeal.
SECTION IV. R/
Note: Appeals of local government coastal permit decis
limited by a variety of factors and requirements of the
ct. Please review the appeal information sheet for ass in completing this section, which continues on the next
ons are
Coastal stance
Page *
APPEAL FROM COASTAL PERMIT DECISION OF LOCAL GOVERNMENT (Paqe 31
State briefly your reasons for this amea 1. description of Local Coastal Program, Land Use Plan, or Port Master Plan policies and requirements in which you believe the project is inconsistent and the reasons the decision warrants a new hearing.
(Use additional paper as necessary.)
Include a summary
Note:
statement of your reasons of appeal; however, there must be
sufficient discussion for staff to determine that the appeal is
a1 lowed by law. The appellant, subsequent to filing the appeal, may submi t additional information to the staff and/or Commission to support the appeal request.
The above description need not be a complete or exhaustive
SECTION V. Certification
The information and facts stated above are correct to the best of my
know1 edge.
Signed
Date 1
Aaent Authorization:
act as my agent in a1 1 matters pertaining to this appeal.
I designate the above identified person(s1 to
Signed
Appel 1 ant
Date
001 6F
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