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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 2 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 3 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. 4 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): 5 “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) 6 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 7 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. 8 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 , 9 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. 10 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 11 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 12 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. 13 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 14 chain link gate at Mountain View and has been in place since the 1960's. There is public access to this open space from three points: a. From the west it is accessed 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 15 request to execute a standard Carlsbad Municipal Water District utility easement. They are aware of Section 30212 (a) 3. If the CCC would like to gain permission 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. c 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 16 Policy 3-2 provides that no direct discharges to the lagoon can occur without approval of the Department of Fish and Game. In the Mitigated Negative Declaration resource agency review period of 3-1 CDF&G did not comment as to the sedimentation catch basin or other mitigation efforts that address accelerated soil erosion. Written permission 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.