HomeMy WebLinkAboutCDP 97-59; Levy Residence; Coastal Development Permit (CDP) (2)1
Response to
“‘Substantial Issues”
Prepared by:
John C. Levy, Jr.
Prepared for:
California Coastal Commission
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Response to “Substantial Issues”
Substantial Issues
Issue A .............................................................................................. Page 3-9
Substantial Issue with regard to consistency with the visual resource policies of the certified LCP.
I. Proposed elimination of the “dusk to dawn” gate.
2. Removal of the 6’ chain link fence along the southern property boundary in the
100’ northern open space set back area.
3. Incorporate a public access trail within the eastern 100’ habitat setback.
Issue B .............................................................................................. Page 9-10
Public View Sheds and Corrihrs.
Issue C .............................................................................................. Page 10-12
Substantial Issue with regard to consistency with the visual resource policies of the certified LCY?
Spec$cah?y: Reduce the elevation of the residence to 25’.
Issue D .............................................................................................. Page 12-13
Substantial issue with regard to consistency with the visual resource policies of the certified LCP.
SpecificaZly: Eliminate block as an exterior material and copper roof.
Issue E .............................................................................................. Page 13-15
Substantial Issue with regard to consistency with the public access and recreation policies of the
certified LCP and Chapter 3 of the Coastal Act
Speczjcally: Deny the applicant the installation of an electric gate on Mountain View Drive.
Incorporate a pedestrian gate into the design.
Issue F .............................................................................................. Page 15-16
The City’s decision cannot be found consistent with Policy 3-2 of the Mello 11 LCP and substantial
issue must be found
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Response to
Findings on Substantial Issues
ISSUE A: Subsbmtial Is rd to con sua1
resource policies of the certified LCP.
1. Proposed elimination of the “dusk to dawn” gate.
2. Removal of the 6’ chain link fence along the southern property boundary in
the 100’ northern open space set back area.
3. Incorporate a public access trail within the eastern 100’ habitat setback.
RESPONSE:
A single response is made for these three issues as they are closely related.
The response addresses wildlife, biological, environmental, and public safety
concerns as the reasons for rejecting these issues.
In the three years of planning ths project our objective was to balance the
needs of public access, biological, wildlife, and public safety concerns. I
believe that we achieved a proper balance that addresses all of these issues.
The “substantial issues” raised by the staff report do not address the
“conditions of development” that were agreed upon by all of the resource
agencies on 1/22/97 and the fourteen months of work prior to that meeting.
Wildlife, Biological, and Environmental Concerns:
The three points at issue were discussed and resolved by all of the resource
agencies (USF&W, CDF&G and CCC) in attendance at the 1/22/97 USF&W
meeting, where conditions for development were established and
documented. Of principal concern is the protection of the federally listed
endangered California light-footed clapper rail and other sensitive fish and
wildlife resources. Foot traffic and pets must be excluded along the 100’
buffer area to minimize impact on these resources. The restrictions the
policies make on access is that it should be provided without requiring
habitat impacts.
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The terms of this agreement are contained in the USF&W letter dated 2/13/97
(Exhibit 1) and are dustrated bY the 11271
97 site plan (Exhibit J). The conditions are supported by the Biological report
(Exhibit H) and are reiterated in the USF&W letter of 8/25/98 (Exhibit R).
Applicable References
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 1):
“A 100-foot buffer from the mean high water level to all structures, roads
and fences shall be established as described in the 1-7-97 plan. The property
owner shall make an irrevocable offer of dedication for this buffer area to the
CDF&G. This offer should be a recorded in a standard easement document
signed by the CDF&G and the property owner, and should include language
that requires the offer of dedication prior to obtaining a development permit
fiom the City of Carlsbad.”
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 2):
“Restoration of the 100- foot buffer area shall occur prior to development and
shall include removal of non-native plant species and applying a native
coastal scrub grass seed mix.”
USF&W Letter of 2/13/97 (Exhibit I, page 2, section 4):
“Installing a 72 inch high solid perimeter fence along the west, north, and,
east portions of project site (as described in the 1-7-97 plan) to reduce the
likelihood of pets, such as cats. from entering the marsh.” (emphasis added)
These conditions imposed by USF&G are aimed at avoiding and/or
minimizing potential impacts to the rail and other sensitive resources by
restricting access by foot traffic and pets. The conditions were adopted
based on the recommendations in the biological report of environmental
conditions.
Pacific Southwest Biological Services Report of 10/15/96 (Exhibit H,
page 15, section 7.0, item 3):
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“A Habitat Protection Fence is moposed along the 100’ buffer to ensure that
foot traffic and pets are excluded fiom the buffer area. This fence would be
3-4 feet tall and may include an additional biological barrier along it (e.g.,
Bougainvillea sp., Rosa sp., or Carissa sp.).” (emphasis added)
The conditions were reiterated by USF&W as necessary for their
concurrence on this project.
USF&W Letter of 8/25/98 (Exhibit R, page 2, paragraph 2):
“These recommendations were made part of the biological mitigation
measures set forth in the City’s mitigated Negative Declaration (ND) for CDP
97-59/SDU 98-03. Because of this, the Service did not need to comment on
the ND when it was sent to us for review on April 6, 1998. Should my of
the biologJcal mitimted measures incorporated into the ND as art of the
project be modified. in articular Dlacement of a trail wih the 100’ buffer
area or deletion of the fencine; reauirement. the Commission needs to be
aware that the Service could not concur with the issuance of the City’s ND or
CDP 97-59. (emphasis added)
USF&W Letter of 8/25/98 (Exhibit R, page 2, paragraph 3):
“It is also our understanding that you wish to install a “dusk to dawn” gating
system for the fbture trail. This system would not restrict access by the Dubbc
during daylight hours. but rather is intended to meclude access after dark and
habitation bv transients. The Service would SURDO~~ the use of such a system
as such unauthorized access into the marsh and lagoon can result in imDacts
to sensitive habitats and listed species.” (emphasis addeq
Section 30212 (a) Pwblic access fiom 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 fkade coastal resources. (emphasis added)
Policy 7-3 of the LCP states: “Development shall provide access and
protect existing access consistent with the needs to motect the habitat.”
(emphasis added)
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Adopting any or all of these three “substantial issues,” that is,
eliminating the “dusk to dawn” gate, removing the fencing along the
southern property boundary, and/or incorporating a public access trail,
would run contrary to the mutual goals of avoiding and minimizing
potential impacts on the endangered clapper rail and other sensitive
species.
Public Safety Concerns:
There are compelling public safety reasons for the “dusk to dawn” gate and
fencing. The site is adjacent to a four acre open space area (lot 3) to the
south, rail road tracks to the east, and the Buena Vista Lagoon to the north.
The area has been a virtual no man’s land for years because of its remote
nature and difficulty in access for policing. This has been a notorious staging
area for drugs, alcohol, robberies, public nuisances, taggmg and transients
living in the wetlands and marshes.
In the attached letters of support, all of the neighbors and resource agencies
make note of the need for “dusk to dawn” gated access to the public trail
along the Buena Vista Lagoon.
The security of my own family is of a major concern to me. The staff report
makes note on Page 9 paragraph one: “These proposed fences are not needed
for security as the entire building area will be fenced.” This is incorrect!
If I am conditioned against the proposed “dusk to dawn” gate, and
subsequent elimination of the 6’ chain link fence along the entire southern
boundary of the north open space setback, it will be quite simple for an
intruder to jump the northern 42” fence to enter my propaty and home. In
fact the northeast 100’ setback fence sits directly adjacent to the residence.
All adjacent property owners, City of Carlsbad, and USF&W are in full
agreement of the need for these public safety measures. The accompanying
photographs attest to the fact that all adjoining properties enjoy the same 6’
security fencing along their respective boundaries.
Furthermore on Page 9 paragraph one of the staf€ report: “In addition, such
fences close to the lagoon and marsh may have adverse impacts on birds and
wildlife by restricting movement in the buffer and providing perches for birds
of prey.” This is unsubstantiated rhetoric! I am conditioned to provide these
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fences to protect the habitat firom human and domestic animals intrusion into
the lagoon and marsh.
The property is currently conditioned to low level exterior lighting (see
Exhibit I, page 5): “To prevent lighting of the marsh and lagoon
environments, the project shall include a combination of shields and low
level lights on all outdoor lighting fixtures.”). The use of security lights to
fixher warn my family of intruders is precluded. Th~s increases the need for
“dusk to dawn” access gate and fencing.
Conclusion: Through the recommendation of the Pacific Southwest
Biological Services study, the respective resource agencies (includmg the
CCC) conditioned the site to include 6’ fencing along all three property
boundaries.
1) The eastern 100’ wildlife habitat setback area has been designated as a
nesting area to the federally listed endangered CaMornia light-footed
clapper rail. The introduction of humans or animals into this area is
strictly conditioned by USF&W and supported by Pacific Biological
Services report. Additionally, Section 302 12 (a) addresses the protection
of fragile coastal resources which this wildhfe habitat setback clearly
constitutes.
2) The northern 100’ Wildlife setback along the southern shore of the Buena
Vista Lagoon incorporates a 25’ public access trail. This trail ends just
100’ fiom the marsh wildlife habitat at a cul de sac lookout. Public access
is fully maintained along the southern shore of the Buena Vista Lagoon.
The eastern marsh and the rail road “right of way” prevents travel to the
east along this trail. Public access to the beach and the coast highway is
maintained along the four acre open space (lot #3) adjacent to the
property.
3) The southern boundary fence should extend all the way into the lagoon to
prevent domestic animals from entering the lagoon habitat. This is a
public safety measure enjoyed by all adjacent properties, and restricts
public access during the night hours.
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4) The “dusk to dawn” gate allows public access along the public trail during
the daylight hours. It will be triggered by a solenoid that electronically
closes the gate when the sun goes down, and reopens it at first light.
5) The security of fencing the entire southern boundary, combined with a
dawn to dusk gate, still offers public access during the day. As a balance
it provides safety to my family and to the environment at night.
6) The cited (Ref. CDP#6-95-159/Cade) decision that regulating hours of
beach access along property fionting the Agua Hedionda Lagoon through a
time lock gate is inapplicable to this project. The Agua Hedionda Lagoon is a
completely different watershed than the Buena Vista Lagoon and the two can
not be compared. The Cade decision dealt with a property that did not share
the environmental, public safety, and wildlife issues that the Buena Vista
Lagoon site does. The Agua Hedionda Lagoon is a public use watershed
where watersports are allowed on the lagoon. Humans and pets are permitted
in the watershed. The Buena Vista Lagoon is designated as a wildlife habitat,
and public use is prohibited. Furthermore the Cade access trail is used by the
public to ingress/egress the adjoining properties, whereas the Buena Vista
site does not. Finally because of the remote nature of the Buena Vista site,
and its history of transient and gang related crime, the public safety issues
are compelling enough to permit a “dawn to dusk” gate. The Cade property
is surrounded by condominiums to the east and a restaurant to the west and
does not present these same public safety concerns. The house is sited 20’
above the public access trail.
The conditions set forth in the 2/13/97 USF&W letter strikes a good balance
in terms of the wildlife, environmental, public access, and public safety
Concerns.
I ask the Commissioners to find that the “dusk to dawn” public access
gate and the fencing along the southern property boundary to concur
with the “conditions of development” found in the USF&W letters dated
2/13/97 and 8/25/98. These conditions provide public access yet protect
the endangered light footed clapper rail and other sensitive natural
resources from foot traffic and domestic pets. This additionally provides
security to area residents. I further ask the Commissioners to find that a
public access trail within the eastern 100’ habitat setback would be
detrimental to this sensitive wildlife habitat.
r ,
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I ask the Commissioners to find no “substantial issue” with regard to
consistency with the public access and recreation policies of the certified
LCP and Chapter 3 of the Coastal Act.
RESPONSE:
The property and siting of the home do not, in fact, interfere with any public
views to the ocean.
The Carlsbad Municipal Code 21.204.100 section C states: “Ocean views,
buildings, structures, and landscaping will be so located as to preserve to the
degree feasible any ocean views as may be visible from the nearest public
street. ”
The site is located at an elevation of 12’ MSL. The railroad tracks are at
elevation 18’and the Pacific Coast Highway (PCH) sits at an elevation of 6’
MSL. I have attached a southern, western, and northern photograph taken
from the PCH for your review.
The western photo of the bicyclists best illustrates the perspective that the site
does not block any public views. The site sits directly to the west of the
bicyclists. Because the railroad tracks sit at a hgher elevation (18 msl) the
only view corridor to the west is of the sky.
The southern perspective looking fiom Oceanside is blocked by Tules,
although parts of the lagoon are still visible in the view shed. The residence
sits to the south of the lagoon so ths coastal view is not impacted.
The northern perspective is a much higher elevation, yet the photo illustrates
you can not even see the residence from the highway. The view corridor
through the open space and ocean on lot three is unobstructed as the
residence is tucked along the northeastern portion of the property The eastern
part of the lagoon watershed is not visible fiom this perspective.
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There are no ocean view sheds or comdors compromised. We were
conditioned to 100’ setbacks on both our northern and eastern property lines.
Although Lot A contains 1.9 acres, setback conditions have reduced the site
to a 0.43 acre building envelope. The enclosed site plan illustrates the
“clustering” of the property. The residence foot print is only 3,060 feet
withn a seven acre open space!
I ask the Commissioners to find that no substantial issues exist with
regard to with the visual resource policies of the LCP as the siting does
not adversely effect public coastal views.
ISSUE e: Substantial Issue rt3ga con visual
resource poiicies of the certified LCP.
Specifically : Reduce the elevation of the roof to 25 feet.
RESPONSE:
The Carlsbad Municipal Code 21.10.020 regulates building height in this
R-1 zone. Single family residences on lots with a lot area of twenty thousand
square feet or greater and within the R-1 zone and specifying a -20 or greater
area zoning symbol shall not exceed thuty five feet and three stories with a
minimum roof pitch of 3: 12 provided.
Ths plan is in full compliance with the LCP and the local zoning
requirements. The height of the main residence is 30 feet and the height of
the guest quarters at 33’1” is well below the maximum allowed. Only the
peak of the hip roof reaches a 33’1” height. The bulk of the structure (below
the top plate) is below 28’.
The attached photographs testifjr to the height and arclutecture of the
surrounding properties to the west, south, and north. All of the surrounding
properties are built on hdlsides. Their roof lines are at the same height or
higher than we are proposing. Consequently the project is not out of
character with the setting of the surrounding lagoon environment.
In the siting of the residence one of our main goals was to preserve coastal
views along the Pacific Coast Highway. The stated “Scenic Preservation
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Protection Zone. Policy 8-1 of the City’s LCP provides that the Scenic
Preservation Overlay Zone should be applied where necessary to asswe the
maintenance of existing views and panoramas, which requires that sites be
evaluated for potential public views that should be preserved and enhanced.”
This area of the city has not been implemented into the Scenic Preservation
Overlay Zone. The only portion of the city that has been adopted to include
this zoning ordinance is the El Camino Real Comdor. Therefore the Scenic
Preservation Overlay Zone is inapplicable to CDP-97-59.
The residence does not block coastal views fkom any part of the Coast
Highway. The public view fiorn the closest street, PCH, is not obstructed by
the building.
The view directly to the west is blocked by cattails and the railroad tracks
which sits at a much higher elevation than the site. The view looking south
from Oceanside is blocked by cattails and the doad track as well.
Although there is a small window of the lagoon fiom this southern
perspective, the residence sits directly to the south of the lagoon so the view
corridor to the lagoon and ocean is not effected. The view looking
northwest fiom Carlsbad to the ocean, across the lot #3 open space, and the
lagoon is unaffected because the residence is sited at the most northeastern
portion of the lot. In fact the site can not be seen from this perspective due to
the blockage of trees and the pump station. Please refer to the attached
photographs.
I have attached a letter of support ftom Melvin McGee, MDM attesting to
these facts. Mi. McGee was the managing director of our architecture design
team and was an associate with Rob Wellington @gley for over ten years.
Mr. @gley designed the Solana Beach train station and the proposed San
Diego Downtown Public Library.
Additionally, I have attached a letter of support form Mr. Steve Adams of the
Adams Design Group who is the consulting landscape architect attesting to
our concern of preserving public views.
The statement on page 6 paragraph one of the staff report: “Additionally the
California Department of Fish and Game has indicated that structures this
high at this location could discourage shore and migrating birds fi-om Visiting
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the area, or act as “predator perches” affecting sensitive avian species in this
area.”
This statement is unsubstantiated conjecture and is not supported by any
biological reports. I seriously doubt that a difference of an eight foot roof
height would support this statement.
The issue of building height was not raised by the CCC, (nor any of the other
resource agencies), during the review process until August 28, 1998 when
the staffreport was made public. Ironically this was not cited in the original
appeal dated 7/27/98.
I ask that the commissioners find no substantial issues with regard to
consistency with the visual resource policies of the LCP as to the height
of the proposed residence.
RESPONSE:
The Carlsbad Municipal Code 21.204.100 section B states the requirements
for Appearance: “Buildings and structures will be so located on the site as to
create a generally creative appearance and be agreeably related to
surrounding development and the natural environment.”
A team of four talented professionals spent over two years designing this
residence. Our “mission statement” was to create a home that was
environmentally balanced to the site, yet would offer integrity to the coastal
elements. The amount of time that went into the research of materials alone
was phenomenal!
The Carlsbad Planning Commission unanimously approved CDP-97-59.
There were no comments made any of the neighbors, in fact they are all in
support of the proposed architecture. Please refer to the attached letters of
support.
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The exterior materia3 we finally chose was a sandstone 12 inch block that is
lightly sandblasted to soften its appearance. The color and matrix of the
material is of earth tones that will blend into the environment. Many of Frank
Lloyd Wright’s greatest homes used the incredible simple symmetry of block.
Cooper roofs date back to the earliest examples of shelter. The natural patina
that “ages” with the elements is timeless. There is probably no other roofing
material that will blend and age into this unique setting than a copper roof.
Many buildings in the vicinity have employed block and copper materials in
their construction. I have enclosed photographs of the Carlsbad train station
and a recently completed residence in Del Mar that combine the elements of
block and the beauw patina of a natural copper roof. There is also a recent
example of the Walmart building (simulated copper) on the eastern watershed
of the lagoon. The city of Carlsbad recently completed a new restroom
facility at Tamarack Beach which is block with copper roof.
I ask the Commissioners to find no substantial issues witb regard to
consistency with the visual resource policies of the LCP as to the use of
sandstone block and copper roofing.
RESPONSE:
My property is accessed off an easement fhm Mountain View Drive. This
easement and the open space (lot 3) is owned by “The Beach Homeowners
Association”.
The easement is utilized by police, fire, and maintenance crews for access to
the beach via lot #3 open space. (see site map). There is currently a locked
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chain link gate at Mountain View and has been in place since the 1960's.
There is public access to this open space from three points:
a. From the west it is accessed fiom the beach, via a public beach access
from Ocean St.
b. From the east there is a pathway that leads across the railroad tracks to the
Coast Highway.
c. From the south, adjacent to the locked gate, is a tennis court and public
access is obtained just to the east of that tennis court.
It is incorrect to state that " that replacement of the existing manual gate with
a new electric gate will give the impression that this area is private which
could Mer limit access by the public, inconsistent with the Coastal Act and
the LCP. This gate has been here for nearly forty years, and public access is
maintained directly to the east of the adjacent tennis courts.
Section 30212 (a) Public access from the nearest public roadway to the
shoreline and along the coast shall be provided in new development
projects except where: (3) Dedicated accesswav shall not be required to
be oDened to public use until a Dublic apencv of private association
aprees to accept responsibilitv for maintenance and liabilitv of the
accesswav. (emphasis added)
The open space (lot 3) was dedicated on August 15, 1984, albeit no
public agency or private association has agreed to accept the dedication.
Consequently the open space cannot be required for public use.
The intent of this condition by staff is to incorporate a pedestrian gate into the
electric gate plan. Because I do not own nor control the property at Mountain
View, I cannot be conditioned to construct a pedestrian gate. I have offered
to pay for the installation of an electric gate because it will simplie the
accessibility to my residence. The Beach Homeowners Association have
agreed to my request because it will allow the Carlsbad Police Department,
and San Diego Sheriffs Department to better patrol the open space, beach and
railroad tracks. In my past dealings with The Beach HOA they have
consistently denied every request I have made. In fact they recently denied a
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request to execute a standard Carlsbad Municipal Water District utility
easement. They are aware of Section 30212 (a) 3.
If the CCC would like to gain permission fiom “The Beach” Homeowners
Association for a pedestrian gate, I would be more than happy to incorporate
it into my site plan.
I ask the Commissioners to find no substantial issues as to a the
proposed fencing and gating plans in that it would not affect public
access in a manner consistent with public access and recreational policies
of the certified LCP and Chapter 3 of the Coastal Act.
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Response: In the development of our plan, one of the key design criteria was
to maintain the integrity of the environment and its impact to the Buena Vista
Lagoon. I am an active member of the Buena Vista Lagoon Foundation, and
have been instrumental in negotiating the RFP and management plan currently
underway with the respective resource agencies.
A site specific report prepared by Pacific Southwest Biological Service was
prepared for the site. In that report PSBS identified all mitigation measures
needed to avoid increased runoff and soil erosion. Part of those mitigation
measures were 100’ setbacks on the northern and eastern boundaries of the
property. Because of the nature of the sandy soil these setbacks would offer
ample protection to the lagoon fiom urban run off.
The site is generally flat, except for the access easement off of Mountain
View Drive. This easement was the only place susceptible to accelerated
erosion. Although this was not identified in the report we elected to place
decomposed granite along the easement in lieu of concrete or asphalt to
minimize the potential for erosion. Additionally very little hardscape is
proposed around the site. This would help maintain the natural integrity of
the environment as well.
Our site plan proposes a sedimentation catch basin.
incorporated in the design to Mer control possible contamination.
A Fossil Filter is
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Policy 3-2 provides that no direct discharges to the lagoon can occur without
approval of the Department of Fish and Game.
In the Mitigated Negative Declaration resource agency review period of 3-1
CDF&G did not comment as to the sedimentation catch basin or other
mitigation efforts that address accelerated soil erosion. Written permission
fiom CDF&G is not required.
I ask that the Commissioners find no “substantial issues” be found as to
Policy 3-2 of the Mello I1 LCP.