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HomeMy WebLinkAbout2022-10-19; Planning Commission; ; PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Item No. Application complete date: N/A P.C. AGENDA OF: October 19, 2022 Project Planner: Kyle Van Leeuwen Project Engineer: N/A SUBJECT: PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Confirmation of appeal and adoption of a resolution to complete the appeal process to allow various uses and related outdoor activities as accessory to “crop production” or allowed by-right as “recreational facilities” within the Public Utility (P-U) Zone, which was already voted on by the Planning Commission at the September 21, 2022 hearing. I. RECOMMENDATION That the Planning Commission APPROVE the Planning Commission resolution, GRANTING the appeal of Jimmy Ukegawa, which was already voted on at the September 21, 2022 hearing, overturning the City Planner’s determination, and determining that stages, inflatable bounce houses, face painting and games of chance or skill, are accessory to “crop production” or allowed by-right as “recreational facilities” within the Public Utility (P-U) zone. This item is regarding the Planning Commission’s confirmation of approval. A resolution of approval is needed to complete the record of the proceeding. It is not necessary nor recommended to open this item up for public discussion since this item only formalizes the earlier action to grant the appeal. II. PROJECT DESCRIPTION AND BACKGROUND The Planning Commission met on September 21, 2022 to hear an appeal of a City Planner’s determination related to the types of uses and activities permitted or conditionally permitted on the area of land located east of Interstate 5 (I-5), north of Cannon Road, and south and west of the Agua Hedionda Lagoon, typically referred to as the “Strawberry Fields.” The staff report and meeting minutes are provided as Exhibits 2 and 3 and a video recording of the hearing is available on the City of Carlsbad website1. After hearing public comments and deliberating on the appeal, the Planning Commission approved a motion, made by Commissioner Luna and seconded by Commissioner Meenes, on a 7-0 vote, to overturn the City Planner’s determination and directed staff to prepare a resolution granting the appeal filed by the appellant. The Commission’s direction specified that the appealed uses and activities (i.e., stages, inflatable bounce houses, face painting and games of chance or skill) are allowed by-right in the Public Utilizes zone in that they are substantially similar to “crop production.” Part of Commissioner Luna’s motion specified that, “the uses identified in the appeal are consistent with the General Plan; are substantially similar to “crop production,” as practiced today; and are allowed by-right under the P-U Zone as Recreational Facilities.” The resolution, provided as Exhibit 1 to this staff report, formally overturns the City Planner’s determination as it applies to the specified uses. 1 September 21, 2022, Planning Commission Video Recording: https://carlsbadca.new.swagit.com/videos/184916 1 PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Oct. 19, 2022 Page 2 II. ENVIRONMENTAL REVIEW Pursuant to the California Environmental Quality Act Guidelines 15378(b)(2), adoption of the resolution, granting the appeal and overturning the City Planner’s determination is not a project, as it is general policy and procedure making related to interpreting the Zoning Ordinance. EXHIBITS: 1. Planning Commission Resolution 2. Planning Commission Staff Report, September 21, 2022 3. Planning Commission Meeting Minutes, September 21, 2022 4. Location Map PLANNING COMMISSION RESOLUTION NO. 7467 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD CALIFORNIA GRANTING THE APPEAL OF THE DETERMINATION OF THE CITY PLANNER THAT CERTAIN USES ARE SUBJECT TO REGULATION AS A FAIRGROUNDS AND THAT THOSE USES ARE ALLOWED AS ACCESSORY TO CROP PRODUCTION OR ALLOWED AS RECREATIONAL FACILITIES CASE NAME: STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE CASE NO.: PCD2022-0003 (DEV2022-0168) EXHIBIT 1 WHEREAS, Jimmy Ukegawa (appellant) is the operator of the agricultural operation on the area of land located east of Interstate 5 (1-5), north of Cannon Road, and south and west of the Agua Hedionda Lagoon, typically referred to as the "Strawberry Fields;" and WHEREAS, the subject property is designated Public Utilities in the Zoning Ordinance, Title 21 of the Carlsbad Municipal Code, which allows "agricultural" i.e., "crop production", and "Recreational Facilities" as permitted uses, otherwise referred to as by-right; and WHEREAS, on May 4, 2022, Mike Howes, the operator's representative, submitted a request for a determination on what uses were allowed as by-right within the Public Utility Zone; and WHEREAS, the City Planner, on July 18, 2022, under authority granted by Carlsbad Municipal Code 21.36.020((), provided a determination of what land use activities are similar in intent and purposes of the Public Utility Zone under the "Agricultural" and "Recreational" uses that are permitted, or allowed "by-right", and certain uses that are allowed under the "fairgrounds" classification that requires a Conditional. Use Permit to be reviewed and considered by the City Council; and WHEREAS, on July 28, 2022, the City Planner's determination was timely appealed by the appellant under Section 21.54.140 of the Carlsbad Municipal Code. Additional information was provided through correspondence from Mike Howes, the operator's representative, on August 3, 2022; and WHEREAS, an appeal made to the Planning Commission must specify the decision appealed, the alleged error made in connection with the decision being appealed, and the reasons the appellant claims the decision to be made in error as it is the appellant's burden to prove that the decision made by the City Planner was PC RESO NO. 7467 incorrect. The appellant has specified the Title 21 interpretations that are the subject of the appeal and the grounds for the appeal in the July 28, 2022, and August 3, 2022, letters; and WHEREAS, on September 21, 2022, the Planning Commission of the City of Carlsbad held a duly noticed public hearing to consider the appeal of the City Planner's determination; and WHEREAS, at said public hearing, upon hearing all evidence, testimony and arguments, of all persons desiring to be heard, said Commission considered all factors relating to the appeal of the City Planner's determination; and WHEREAS, on a motion by Commissioner Luna and seconded by Commissioner Meenes, the commission voted 7-0 to overturn the City Planner's determination and directed staff to prepare a resolution granting the appeal filed by the appellant; and WHERAS, pursuant to the California Environmental Quality Act Guidelines 15378(b)(2), administrative rulemaking or making interpretations of existing codes, or affirming the City Planner's determination in this instant, is not considered a "project" pursuant to CEQA, as it is general policy and procedure making related to interpreting the Zoning Ordinance; and WHEREAS, the Planning Commission of the City of Carlsbad, held a duly noticed public hearing to consider the resolution drafted as directed by the Commission's motion. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad as follows: A) That the foregoing recitations are true and correct. B) The Planning Commission reviewed the City Planner's decision based on applicable standards (Carlsbad Municipal Code, Chapter 21.54) and determined that there was an error on the part of the City Planner in that the decision was not supported by the facts presented to the City Planner prior to the decision being appealed. C) The appeal of the City Planner's determination is granted. D) The uses identified in the appeal, inflatable bounce houses, games, face painting, and stage, are consistent with the General Plan; are substantially similar to crop production and recreational facilities, which is a permitted use allowed by right under the Public Utilities Zone. PC RESO NO. 7467 -2- E) The Planning Commission supports the claims made by the appellant regarding use consistency, in that the appealed uses are substantially similar with the operation of, and impacts created from, crop production. F) The crop production use, and associated accessory uses, furthers the Core Value of the City's General Plan for Open Space and the Natural Environment, in that the City of Carlsbad supports efforts that promote the economic viability of the Strawberry Fields and Flower Fields. G) The decision of the Planning Commission, as to which land use activities are allowed as "crop _production" in the Public Utility Zone is final unless timely appealed to the City Council. NOTICE An appeal of this decision to the City Council must be filed with the City Clerk at 1200 Carlsbad Village Drive, Carlsbad, California, 92008, within ten (10) calendar days of the date of the Planning Commission's decision. Pursuant to Carlsbad Municipal Code Chapter 21.54, section 21.54.150, the appeal must be in writing and state the reason(s) for the appeal. The City Council must make a determination on the appeal prior to any judicial review. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, held on October 19, 2022, by the following vote, to wit: AYES: Commissioners Luna, Kamenjarin, Meenes, Merz, Sabellico, Lafferty, and Stine NOES: ABSENT: JOESEPH STINE, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: MIKE STRONG Assistant Community Development Director PC RESO NO. 7467 -3- Item No. Application complete date: N/A P.C. AGENDA OF: Sept. 21, 2022 Project Planner: Kyle Van Leeuwen Project Engineer: N/A SUBJECT: PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Request to consider a timely appeal of the City Planner’s determination that various uses and related outdoor activities within the Public Utility (P-U) Zone require the approval of a Conditional Use Permit. I. RECOMMENDATION That the Planning Commission APPROVE Planning Commission Resolution No. 7463, DENYING the appeal of Jimmy Ukegawa, upholding the City Planner’s determination that only the uses outlined in the City Planner’s determination are allowed by-right; and that a Conditional Use Permit is required to establish a fairgrounds use and related outdoor activities, such as stage performances, inflatable bounce houses, on- site alcohol sales and consumption, and games of chance or skill, within the Public Utility (P-U) zone. II. PROJECT DESCRIPTION AND BACKGROUND Jimmy Ukegawa (appellant) is the operator of the agricultural operation on the area of land located east of Interstate 5 (I-5), north of Cannon Road, and south and west of the Agua Hedionda Lagoon, typically referred to as the “Strawberry Fields”. In addition to a variety of agricultural crops produced on site, the site has also been historically utilized for various agriculturally based activities and agrotourism, including but not limited to strawberry picking, tractor rides, and corn mazes. Over the last few years these additional activities have expanded to include seasonal installations such as a mechanical bull, inflatable slides and “bounce houses”, small games, and mobile food trucks. The site has also hosted special events sponsored by third party groups such as Rotary Club and the Agua Hedionda Lagoon Foundation. As the additional onsite activities have expanded, concerns have been raised about additional impacts created by this expansion and to what extent these additional uses are accessory. In early 2022, a code enforcement complaint was received related to the uses at the location. Given the continued state of emergency for the novel coronavirus pandemic (COVID-19) and ongoing recovery and business relief efforts, no code enforcement action was taken at that time. However, on May 4, 2022, a letter was provided from Mike Howes (on behalf of Jimmy Ukegawa) to Jeff Murphy, Community Development Director, requesting a determination as to whether specific uses would be authorized “by-right” within the definitions and allowances of the Public Utilities Zone (i.e., where a permit application is not required) (attached to Exhibit 2). On July 18, 2022, the City Planner, under authority granted through Carlsbad Municipal Code (CMC) 21.36.020 (C), provided a determination of what land use activities are similar in intent and purposes of the Public Utility Zone under the “Agricultural” and “Recreational” uses that are permitted, or allowed “by-right” without additional discretionary permitting. (Exhibit 2). 1 y,//dϮ PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Sept. 21, 2022 Page 2 On July 28, 2022, Jimmy Ukegawa, the operator of the Strawberry Fields, timely filed a written appeal of the City Planner’s determination to the Planning Commission, which is attached hereto as Exhibit 3. The appeal stated that all additional onsite uses are “ancillary” to the agricultural use and should be allowed without any additional permitting. Subsequently, on August 3, 2022, additional information was provided through correspondence from the operator’s representative (Exhibit 4) outlining specific requests based on the tables of uses within the determination. The issues raised in the appeal, and the requests of the August 3, 2022, letter, and staff’s responses to each item are outlined in the “Analysis” section. Letters and emails received prior to the publish date of this report are included as Exhibit 5. One item that is part of many of the letters is Proposition D: Preserve the Flower and Strawberry Fields and Save Carlsbad Taxpayers' Money. Proposition D required the city to develop special zoning standards for all lands located within the voter initiative area. In response, the City Council adopted Chapter 21.209 which created the Cannon Road Agricultural/Open Space Zone. Two important points of clarification based on comments received are: 1) The 50-acre parcel north of Cannon Road that includes most of the current operation, along I-5 was not included in Proposition D, and 2) While Proposition D did apply to the remaining properties North of Cannon Road and west of the 50-acre parcel. The Zoning standards implementing Proposition D for these properties was not approved by the Coastal Commission. Therefore, while the restrictions of the proposition are in effect on this area, the land use and zonings for this area is still within Coastal Commission’s jurisdiction and subject to their review and approval for future uses. Table A below includes the General Plan designations, zoning and current land uses of the project site and surrounding properties. Exhibit 6 provides a location map of the property. TABLE A – SITE AND SURROUNDING LAND USE Location General Plan Designation Zoning Current Land Use Site VC/OS – Visitor Commercial /Open Space P-U – Public Utility Agricultural North OS - Open Space OS – Open Space Agua Hedionda Lagoon South R - Regional Commercia C-2 – General Commercial Car Dealership East OS - Open Space OS – Open Space Open Space/ Agricultural West P – Public P-U – Public Utility 5 freeway/ Public Utility The site is within the Coastal Zone for the City of Carlsbad and currently designated as Tourist Services within the Local Coastal Program Land Use Map. The Local Coastal Program update would modify this designation to Visitor Commercial/ Open Space designation. The property is within the “deferred certification zone” in the Local Coastal Program. Therefore, any Coastal Development Permits would be reviewed and approved by the California Coastal Commission. III. ANALYSIS Pursuant to CMC Section 21.54.140, any written decision or determination of the City Planner may be appealed. The appeal stays the decision, and as such no Code Enforcement Action will be undertaken until the appeal is resolved. Furthermore, the code states that “the appeal shall specifically state the reason or reasons for the appeal. The burden of proof is on the appellant to establish by substantial evidence that the grounds for the requested action exist.” Grounds for appeal shall be limited to the following: 1) PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Sept. 21, 2022 Page 3 that there was an error or abuse of discretion on the part of the city planner in that the decision was not supported by the facts presented to the city planner prior to the decision being appealed; or 2) that there was not a fair and impartial hearing if applicable to the decision. Accordingly, the analysis included in the Sept. 21, 2022, Planning Commission Staff Report focuses on the issues raised in the original application, in this case the May 4, 2022, letter, and the appeal received. Pursuant to CMC Section 21.54.140.C, “The planning commission may affirm, modify, or reverse the decision of the city planner, and make such order supported by substantial evidence as it deems appropriate, including remand to the city planner with directions for further proceedings.” Additionally, the Planning Commission action could subsequently be appealed to the City Council. Uses generally and allowed in the Public Utility Zone Title 21 of the CMC is defined as the Zoning Ordinance for the City of Carlsbad. The Zoning Ordinance establishes the process and standards for the regulation of land uses and activities. The Zoning Ordinance consists of text and a map that classifies all land into various districts. Each district controls the manner in which land can be used. If a proposed land use activity is not specifically listed in the permitted use table (by zone district text, zones established by map, or combination thereof), the use or activity shall not be allowed (CMC 21.05.080) The City Planner may determine that a proposed land use activity may be allowed if such similar use falls within the intent and purposes of the zone, and is substantially similar to the specified permitted uses.(CMC 21.36.020(C).” Additionally, the evaluation also considered what land use activities will not involve a greater level of activity, population density, intensity, traffic generation, parking, dust, odor, noise, or similar impact. When the city planner determines that a proposed but unlisted land use or activity is equivalent to a listed use, the proposed use or activity will be treated in the same manner as the listed use in determining where the use or activity is allowed, what permits are required, and what other standards and requirements of this title apply. The zoning of the subject property is designated as Public Utility in the city’s zoning map. The divisions of districts relate to the applicable regulations of the Zoning Ordinance. The Public Utility Zone allows for a variety of uses that are either permitted, conditionally permitted subject to obtaining a Conditional Use Permit, or identified as Accessory uses to a permitted use. The zone is applied to properties owned by the city or other quasi-public agencies. Under the Zoning Ordinance, agriculture is allowed as a permitted use in many zones, including the Public Utility Zone. Recreational facilities (public or private, passive, or active) are also permitted use in the P-U zone, whereas most zones require a Conditional Use Permit to operate a recreational facility. The land use activities requested by the operator of the Strawberry Fields would more commonly be defined as agriculture tourism, or agritourism uses. The National Agricultural Law Center states that Agritourism is “a field that is growing in popularity as producers try to diversify and increase profits.” Many cities and counties in California have modified zoning ordinances to allow for broader uses in agricultural areas. As part of these legislative actions, environmental impacts, standards for operations, and future permitting process are outlined in a public process. Agritourism is not a listed use in the permitted use table of the Public Utility Zone. The authority granted to the City Planner is limited in determining if the “agritourism” related land uses and activities can be considered either substantially similar or accessory to uses that are allowed under the existing Zoning Ordinance. As defined by the CMC, “Accessory means a building, part of a building or structure, or use which is subordinate to and the use of which is incidental to that of the main building, structure or use on the same lot. If an accessory building is attached to the main building by a common PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Sept. 21, 2022 Page 4 wall such building area is considered a part of the main building and not an accessory building or structure.” (CMC 21.04.020.) The City Planner evaluated the list of requested land use activities provided by the operator and issued a determination as to whether they were similar to other permitted land uses or would require special entitlements. As such, the determination provides for uses that are allowed, such as agriculture, u-pick operations, tractor rides, fruit and vegetable stands, mazes, food trucks, shaded tents, fire trucks, and story times. (There is only one minor disagreement and a majority of this portion of the determination was not appealed.) The determination also highlighted uses that are not permitted “by-right,” and would require special entitlements. This is the subject of the July 28, 2022, appeal. Those uses determined not to be considered substantially similar are: • Stage and musical performances • Inflatable bounce houses • Mechanical bull riding • Alcohol sales and consumption • Games and face painting • Food trucks (exceeding municipal code requirements) • High pressured cannon that shoots apples at targets The City Planner’s determination is that the above listed uses, when considered collectively or individually, are more reflective of the “fairgrounds” land use activity, which is allowed within the P-U Zone with the approval of a Conditional Use Permit approved by the City Council. The City Planner came to this determination because the characteristics of, and activities associated with, the above land uses and activities are not equivalent to other land uses permitted in the P-U Zone. Issues cited in appeal An appeal was filed timely requesting Planning Commission consideration of additional uses to be considered as “ancillary” to the main agricultural use. In this context, ancillary can have the same meaning as accessory. The additional letter received following the appeal requests specifically the following: x Requested change from “Shade Tents” to “Shade Structures” within the allowed uses x Requested allowances for the following to be considered as allowed by-right: o Modify the restriction on games of chance or skill to allow for bean bag toss (commonly known as “cornhole”) and large-scale chess sets. o Face Painting o Stage o Bounce houses The appeal did not request reconsideration of musical performances, alcohol sales, the mechanical bull, or the apple cannons. The appellant’s request and staff’s response are included in the remainder of this section. - Shade Tents o Appellant’s position PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Sept. 21, 2022 Page 5 Shade Tents are identified as an allowed use in the determination, subject to requiring a tent permit from the Fire Department. Applicant requested a modification to allow for Shade Structures. o Staff’s response The primary difference between the Shade Structures and Shade Tents would be the temporary versus permanent nature of them. Staff would not be opposed to allowance of Shade Structures, as long as they are either consistent with the uses allowed in City Planner’s determination and the applicable sections of the Carlsbad Municipal Code; the Fire Code (Title 17) and Building Code (Title 18). - Games of Change or Skill, Face Painting, Stage, and Bounce Houses o Appellant’s position The applicant requested that the determination be modified to interpret that the Zoning Ordinance allows for these uses by-right on the site. o Staff’s response None of the uses requested are defined in the Zoning Ordinance. The only similar instance of these specific uses is for “games of skill”, which is a permitted use with the approval of a Conditional Use Permit in the Residential Tourist (R-T) Zone. Multiple zones within the zoning ordinance allow for the “fairground” use, subject to a Conditional Use Permit issued by the City Council. No evidence was submitted prior to or as part of the appeal package outlining how these uses would be considered accessory or substantially similar to the uses that are allowed by-right within the public utility zone. The determination states that these uses, “considered collectively, are more reflective of the fairgrounds use type.” It can be further interpreted that the existence of the “fairground” use and its allowance in multiple zoning designations through a Process 3 Conditional Use Permit is a precedent established by the code, indicating that the intensity of the use has impacts that must be evaluated on a case-by-case basis before allowed in any location. CMC 21.41.010 states, “The purpose of the minor conditional use permit or conditional use permit is to allow special consideration for certain uses to be located in zones other than those in which they are classified as permitted because of their particular characteristics.” If the intention of the Zoning Ordinance was to allow these uses by-right in additional areas of the city, it would not require the additional permits. The authority of the City Planner is to determine which uses are substantially similar to an allowed use, and determined these uses are most similar to the “fairground” use type. In order to overturn this decision, the Planning Commission must determine if substantial evidence has been submitted that this determination in is error. A legislative action to amend the zoning ordinance to modify the Zoning Ordinance to allow for additional uses by-right would be the more appropriate method to allow these uses if the Conditional Use Permit is not pursued. Through a public process, conditions and thresholds could be clearly established within the Zoning Ordinance that apply to one or more zoning designations citywide; under the authority granted to the City Council after a recommendation from the Planning Commission. Standards around setbacks from roadways, hours of operations, lighting, definitions restrictions on size (such as percent of area allowed for non-agriculture attractions), PCD2022-0003 (DEV2022-0168) - STRAWBERRY FIELD OUTDOOR ENTERTAINMENT USE Sept. 21, 2022 Page 6 or types of games allowed (e.g., cornhole or large chess sets) would all be determined through this legislative process. Additional Options for Proposed Uses The City Planner does not dispute the public interest in these desired land uses, their entertainment value, and the marketability that these commercial enterprises might bring to attract visitors and help subsidize the continued operation of the Strawberry Fields. However, a permit and/or license under the Zoning Ordinance is required to ensure that the uses and activities are maintained in compliance with the provisions of the CMC, or any condition of approval granted by the city, to avoid minimize or reduce specific adverse impacts upon public health, safety, and welfare. As outlined in the City Planner’s July 18, 2022, determination, there are two additional options to allow the review and consideration of the desired uses on the property, they are as follows: Special Event Permit – There is an existing process outlined in CMC Chapter 8.17 to allow special events of various lengths and types. Special events are typically short-term in nature, occurring over a two-to- four-day period. They could be authorized through a Major or Minor Special Event, or through a Private Property Permit issued through Community Development. Additional information on these events is available in Info Bulletin 108 (IB-108) Conditional Use Permit - The uses not allowed by-right could be allowed under a Conditional Use Permit for a “fairground” as outlined in CMC Section 21.36.020. This use is allowed under a Process 3 permit, which would be approved by the City Council. Findings would be required to be made for compatibility with surrounding uses, the General Plan, the certified local coastal program, that the site is adequate to accommodate the uses, and the street system can adequately handle the traffic generated by the proposed use. Required findings are outlined in CMC 21.42.030. Additionally, once a proposed project is determined, Community Development would recommend a preliminary review to determine the level of documentation required under the California Environmental Quality Act and permitting that would be required from the California Coastal Commission. This area is in the deferred certification area; therefore, all Coastal Development Permits would need to be authorized by the California Coastal Commission. IV. ENVIRONMENTAL REVIEW Pursuant to the California Environmental Quality Act Guidelines 15378(b)(2), adoption of Resolution No. 7463, affirming the City Planner’s determination is not a project, as it is general policy and procedure making related delegated authority interpreting the Zoning Ordinance. EXHIBITS: 1. Planning Commission Resolution No. 7463 2. City Planner Determination dated July 18, 2022 3. Appeal dated July 28, 2022 4. Additional Appeal Materials dated August 4, 2022 5. Communication Received 6. 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