HomeMy WebLinkAbout2022-12-07; Planning Commission; ; PCD 2022-0002 (DEV2022-0153) – OAK + ELIXIR - TIMELINESS APPEALItem No. 3
Application complete date: N/A
P.C. AGENDA OF:Dec. 7, 2022 Project Planner: Esteban Danna
Project Engineer: N/A
SUBJECT: PCD 2022-0002 (DEV2022-0153) – OAK + ELIXIR – TIMELINESS APPEAL – Request to
consider an appeal, filed on August 22, 2022, as to whether an earlier appeal, filed on August 5, 2022 (PCD
2022-0001) was considered timely. The appeal is associated with an establishment located at 2917 State
Street within Local Facilities Management Zone 1. The City Planner has determined that an action to
approve or deny the appeal is categorically exempt from the requirement for the preparation of
environmental documents pursuant to Enforcement Actions by Regulatory Agencies – Section 15321 of
the state CEQA Guidelines.
Two resolutions of approval have been prepared for this agenda item. Planning Commission Resolution,
Option A (Exhibit 1), affirms that the August 5 appeal was untimely. Planning Commission Resolution,
Option B (Exhibit 2), overturns the City Planner’s timeliness determination.
If Option A is approved, then the Planning Commission will announce that the earlier appeal, filed on
August 5, 2022 (PCD 2022-0001) will not be heard; and Item No. 4 will be removed as an item on the
agenda by motion and action. If the Planning Commission finds that the August 22 appeal (PCD2022-0002)
raises a substantial issue and the Planning Commission approves Option B, then the public hearing for Item
No. 4 will occur, during which time the Planning Commission will take public testimony on that appeal,
separately.
I. RECOMMENDATION
That the Planning Commission ADOPT a Planning Commission Resolution, Option A (Exhibit 1),
DENYING the subject appeal, and determining that the land use determination appeal (PCD 2022-0001)
was not made in a timely manner.
Since the Planning Commission’s decision on PCD 2022-0002 (timeliness appeal) establishes whether PCD
2022-0001 (use determination appeal) is valid and may be heard, staff has prepared an alternative
resolution, Option B (Exhibit 2).
II. DESCRIPTION AND BACKGROUND
The subject 0.09-acre site is located on the west side of State Street between Carlsbad Village Drive and
Grand Avenue. The site is within the Village Center (VC) district of the Village and Barrio Master Plan
(VBMP). Currently, a two-story commercial building is located on the property. Constructed in 2007, the
building has a total of 6,172 square feet, with a 3,296-square-foot first-story retail space and a 2,876-
square-foot second-story office space. There are no off-street parking spaces on the site. The
development of the site included the payment of parking in lieu fees for 100 percent of the required
parking spaces (21 parking spaces). A business license was issued by the city for a wine bistro/deli in 2010
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(Relm Wine and Beer Bistro). The establishment was subsequently acquired by the current owners, who
were issued a business license for Oak + Elixir in 2017.
In August 2021, Oak + Elixir applied for an entertainment license. The entertainment license was denied
through written correspondence on August 19, 2021. The letter explained that the establishment was
operating beyond the scope of the definition for a “restaurant, delicatessen,” as defined in Carlsbad
Municipal Code (CMC) section 21.04.106 and was instead operating as a “restaurant” (defined in Appendix
A in the VBMP) without the required permits, parking allowances, and payment of impact fees. Therefore,
the application would not be able to move forward.
In April of 2022, the city’s Code Enforcement Division issued Oak + Elixir a Notice to Inspect. The Notice
to Inspect identified CMC violations along with corrective actions for the Property. These included (1) the
requirement of an entertainment license for live music, and (2) a change to the certificate of occupancy
permit for change in use (from “delicatessen” to “restaurant”).
In May of 2022, Oak + Elixir allowed the city to conduct a code enforcement inspection of the property to
verify the establishment’s use and to determine what permits or other requirements might need to be
satisfied to bring the property into compliance. The city’s inspection and follow-up revealed the following:
1.The property contains unpermitted structural work, as well as unpermitted electrical, plumbing, and
mechanical systems.
2.The current certificate of occupancy permit does not match current use of the property. The property
currently has an M classification, which is rated for the stock of goods or merchandise that is
accessible to the public. Instead, the property’s classification needs to be A-2 or B for assembly group
(for restaurants, cafeterias, and similar dining facilities including associated commercial kitchens).
3.The Property’s use does not satisfy the definition of “restaurant, delicatessen,” as defined in the CMC
Section 21.04.106.
4.The establishment’s primary business is food and beverage service consumed on the premises, with
alcoholic beverage sales incidental to the primary restaurant establishment.
In July of 2022, the City Planner responded to a request to determine what uses or combination of uses
are allowed or substantially similar to the uses allowed in the VBMP. The City Planner determined that
the current use on the property is substantially similar and consistent with the definition of a “restaurant”
use. The City Planner’s use determination letter was issued, mailed, and e-mailed to appellants and their
lawyer on July 20, 2022 (Attachment 3). It stated, in pertinent part, the following related to the appeal of
the determinations in the letter (in bolded font):
“This determination may be appealed to the Planning Commission pursuant to CMC
§21.54.140 within ten days of the date of this letter. Appeals must be submitted in writing
to the Community Development Department; attention City Planner at 1635 Faraday
Avenue, Carlsbad, 92008 along with a payment of $786. Please be advised that the filing
of such appeal within such time limit does not stay any requirements, agreements,
deadlines, or enforcement action that may otherwise apply to this project or property.”
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On July 26, 2022, City Prosecutor Marissa Kawecki informed counsel for the appellants that the appeal
deadline was August 1, 2022 (Attachment 4).
On July 29, 2022, counsel for the appellants responded to City Prosecutor Marissa Kawecki, disagreed with
her interpretation, and advised he thought the appeal was due “no later than Thursday, August 4”
(Attachment 5).
On August 4, 2022, counsel for the appellants stated in an email to the city that “the physical copy [of the
land use determination letter] arrived at my office on July 24, 2022.”
On August 5, 2022, appellants submitted their appeal of the City Planner’s use determination (Attachment
6).
On August 11, 2022, the City Planner issued a letter determining the appeal as untimely. (Attachment 7)
The timeliness determination letter stated, in pertinent part, the following:
“The City of Carlsbad Planning Division is in receipt of your appeal of the City Planner
determination on various proposed uses and activities within the Village and Barrio
Master Plan: Village Center District (use determination). The use determination states on
page 4: ‘This determination may be appealed to the Planning Commission pursuant to
CMC §21.54.140 within ten days of the date of this letter." Carlsbad Municipal Code
section 21.54.140(B) states in pertinent part that, "Whenever the city planner is
authorized, pursuant to this title, Title 19, or Title 20 to make a decision or determination,
such decision or determination is final and effective when the city planner's written
determination is mailed or otherwise delivered to the person(s) affected by the
determination, whichever time is least restrictive. Within ten calendar days of the date
that a decision or determination becomes final, a written appeal may be filed with the city
planner by an interested person.’
The use determination was mailed and emailed to you on July 20, 2022. Since 10 calendar
days after the mailing date fell on a weekend, your appeal was due the following Monday,
or on August 1, 2022. Your appeal of the use determination was not filed with the Planning
Division until August 5, 2022. The appeal is, therefore, untimely.”
On August 11, 2022, counsel for the appellants informed the City Planner that he would not accept
electronic service and would only accept a physical mail copy of correspondence.
Concurrently, on Thursday, August 11, 2022, a copy of the timeliness determination letter was delivered
to counsel by hand delivery.
On August 22, 2022, the City Planner’s timeliness determination appeal was itself timely and properly
appealed to the Planning Commission in accordance with CMC section 21.54.140 (Attachment 8). The
timeliness appeal makes several arguments why their use determination appeal was timely, including:
1. The August 5 appeal was timely because California Code of Civil Procedure gives them five extra
days to appeal.
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2. The August 5 appeal should be deemed timely because they tried to appeal a different
determination last year.
3. The August 5 appeal should be deemed timely because the doctrine of equitable tolling extended
their appeal period.
4. The August 5 appeal should be deemed timely because the City Planner’s rejection was arbitrary,
capricious, and in bad faith.
The purpose of this item is to for the Planning Commission to review and consider the appeal of the City
Planner determination that appeal PCD 2022-0001 (land use determination) was untimely. The Planning
Commission Determination (PCD) is a vehicle to forward to the Planning Commission those matters which
are independent of planning applications and projects.
III. RELEVANT APPEAL PROVISION
Pursuant to Section 21.54.140(B) of the Carlsbad Municipal Code, deadline to appeal is calculated based
on the date on which the decision or determination becomes final:
““[The] decision or determination [of the City Planner] is final and effective when the city planner’s
written determination is mailed or otherwise delivered to the person(s) affected by the
determination, whichever time is least restrictive. Within ten calendar days of the date that a
decision or determination becomes final, a written appeal may be filed with the city planner by
an interested person.”
IV. HEARING PROCEDURES AND STANDARD OF REVIEW
Pursuant to Section 21.54.140(C) of the Carlsbad Municipal Code, the following rules apply to the Planning
Commission’s review of this matter:
“The appeal hearing before the planning commission is de novo; however, the Planning
Commission shall consider only the evidence presented to the city planner for consideration in
the determination or decision being appealed. The planning commission shall determine all
matters not specified in the appeal have been found by the city planner and are supported by
substantial evidence. 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.”
V. ANALYSIS
The analysis section discusses planning staff’s arguments in support of its interpretation of the application
of CMC provisions and analyses the appellant’s arguments.
A. The August 5 appeal was untimely because it was filed 16 days after the City Planner’s decision
became final.
Section 21.54.140(B) provides that the decision is final and effective when the decision is (1) mailed or
(2) otherwise delivered—whichever time is least restrictive.” This section allows for and contemplates
delivery of a written decision by means other than mailing. Although mail may be the default, the phrase
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“or otherwise delivered” also allows the city to convey the decision by alternative means, such as by hand
delivery or by e-mail.
City staff did both. Staff mailed the decision on July 20, 2022. Ten days after the decision was “mailed” was
Sunday, July 30, 2022. Because the deadline fell on a weekend, appellants’ deadline was extended to the
following business day, Monday, August 1. Appellants failed to meet this deadline when they appealed on
Friday, August 5. Further, staff also e-mailed the decision on July 20, 2022. Ten days after the decision was
“otherwise delivered” by e-mail was once again Sunday, July 30, 2022. Neither date is the “least restrictive”
because both were completed on the same date.
Under either of the permitted means of providing notice of the decision that city staff availed themselves
of, the decision was final on July 20, 2022, and the appeal deadline was Monday, August 1, which the
appellants failed to meet. This is a straightforward ordinance interpretation and timeliness calculation.
B. California Code of Civil Procedure section 1013 does not apply.
The State law provision relied upon by appellants to extend their deadline is not applicable to the City
Planner’s timeliness determination or their appeal. Local agencies are generally subject only to the
constitutional limitations of due process of law. All proceedings are governed by whatever procedures set
forth in local law. The California Code of Civil Procedure in general applies to civil lawsuits in a court of law
before a judge, not local administrative proceedings. Further, in context, California Code of Civil Procedure
section 1013 applies to methods for service of notices and other papers on a litigant after the party has
been properly served with a summons or has made a general appearance in a civil action. It serves to
extend the time one is entitled to perform an act or make a response within a period or on a certain date
prescribed by statute or court rule in an ongoing civil case. Notably, Section 1013 of the Code of Civil
Procedure is nested under Chapter 5 entitled “Notices and Filing and Service of Papers” and Part 2 entitled
“Of Civil Actions.” Section 1013 plainly does not apply to the City Planner’s timeliness determination or
extend their appeal deadline because it doesn’t apply to local administrative notices or proceedings. If
there were some binding caselaw that extended the reach of Section 1013 and required this extraordinary
result, the appellants should furnish it. No such authority was found to exist.
Further, even if Section 1013 could apply to local ordinances and notices, it doesn’t apply to this ordinance
or decision. By its terms, California Code of Civil Procedure section 1013 expressly applies only to “service”
of papers, not “mailing.” Courts have strictly limited the application of the Section 1013 extension to
“service” of papers. (See Department of Indus. Relations v. Atlantic Baking Co. (2001) 89 Cal.App.4th 891,
894 [an appeal from the State Labor Commissioner’s findings was not extended by Section 1013 when a
deadline ran from “mailing” of findings rather than “service” as used in Section 1013]).
C. Appellants’ deadline extension argument fails on its own terms.
Even if the appellants had an extra five days to appeal, they still missed the deadline. Section 1013(a)
provides that “[s]ervice is complete at the time of the deposit, but…any right…to do any act or make any
response…shall be extended five calendar days.” The city’s use determination letter was mailed on July 20,
2022. Under Section 1013, service was complete on the date it was deposited in the mail. Under Section
21.54.140(B), a person has 10 days to appeal. Ten days after the decision was “mailed” was Sunday, July
30, 2022. If that deadline is “extended five calendar days” per Section 1013, giving then 15 total days to
appeal, then their deadline to appeal was August 4. But the appeal was submitted on August 5, 2022.
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Again, 15 days after July 20 was Thursday, August 4. But they filed their appeal on Friday, August 5, which
is 16 days after July 20. So, assuming for the sake of argument that their erroneous claim that Section 1013
applies, their appeal was still untimely.
D. Appellants’ attempted appeal in 2021 of the denial of the entertainment permit is irrelevant.
Simply stated, the appellants’ attempted appeal of an unappealable decision in August 2021 has no
bearing on whether their August 5 appeal of the use determination was timely. Again, the timeliness
decision requires a simple application of the CMC and calculation of 10 days after July 20.
E. The doctrine of equitable tolling does not apply.
As with California Code of Civil Procedure section 1013, appellants misunderstand or have misconstrued
the applicability of the doctrine of equitable tolling. Again, local agencies are generally subject only to the
constitutional limitations of due process of law. All proceedings are governed by whatever procedures set
forth in local law.
Equitable law, including claims, defenses, and doctrines such as equitable tolling, applies only in civil cases
pending before a judge, where a party is claiming some equitable relief under applicable common law
caselaw. None of the cases cited by appellants involve the application of equitable tolling in an
administrative hearing proceeding under local law, such as this one. Unless appellants can provide some
authority for the notion that equitable tolling applies to local zoning appeals, the issue and argument
should be disregarded.
F. The rejection of the August 5, 2022 appeal as untimely was fair and proper.
As set forth above, the August 5, 2022 appeal was untimely because it was filed 16 days after the City
Planner’s decision became final. As a factual matter, nothing occurred that shows bad faith or arbitrary or
capricious actions on the part of the City Planner. As a legal matter, if there were some identifiable
misconduct (which there is not), appellants have provided no support for their contention that their late
appeal was not deemed timely because of arbitrary or capricious conduct. The Planning Commission is
required to make the same straightforward ordinance interpretation and timeliness calculation as the City
Planner did, regardless of any supposed or unsubstantiated bad faith.
The appellants’ wish that the city would have hand delivered the use determination letter doesn’t render
their appeal timely. Moreover, staff only resorted to hand delivery to avoid any gamesmanship on the part
of counsel for appellants who suddenly declared he did not accept e-mails from the city (despite sending
and receiving emails before and after such declaration).
It was both fair and proper for staff to mail and e-mail the use determination letter on July 20. Rather than
only provide one means of notice, staff elected to avail themselves of both means of service permitted
Section 21.54.140(B) when it “mailed” and “otherwise delivered” by e-mail the letter on July 20, 2022.
Appellants had 10 days to appeal as provided by the ordinance. This deadline was fairly and conspicuously
highlighted in the letter itself with bold font. Further, on Tuesday, July 26, 2022, City Prosecutor Marissa
Kawecki informed counsel and the appellants that the deadline was August 1, 2022, at 5:00 p.m., which
was six days prior to the deadline. In addition to having fair notice of the city’s deadline well in advance,
on Friday, July 29, 2022, counsel for the appellants responded to City Prosecutor Marissa Kawecki,
acknowledge receipt of the deadline, disagreed with her interpretation, and advised he thought the appeal
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was due “no later than Thursday, August 4.” Even if appellants disagreed, the reasonably prudent course
of action would have been to file the appeal by the stated deadline.
Ultimately, appellants failed to appeal within 10 days after the decision was “mailed” and “otherwise
delivered” by e-mail. Neither means was the “least restrictive” because both were completed on the same
date.
VI.ENVIRONMENTAL REVIEW
The California Environmental Quality Act (“CEQA”), and its implementing regulations (“CEQA Guidelines”)
adopted by the Secretary of the California Natural Resources Agency, list classes of projects that have
been determined not to have a significant effect on the environment and as a result are exempt from
further environmental review under CEQA. City staff completed a review of the project and potential
environmental impacts associated with the project pursuant to CEQA and concluded that the project
qualified for an exemption pursuant to CEQA Guidelines section 15321 (Enforcement Actions by
Regulatory Agencies), which includes enforcement of a law, general rule, standard, or objective
administered or adopted by the regulatory agency.
A notice of intended decision regarding the environmental determination was advertised on November
8, 2022 and posted on the city’s website. The notice included a general description of the project, the
proposed environmental findings, and a general explanation of the matter to be considered. The findings
and determination contained in that notice was declared as final on the date of the noticed decision,
unless appealed as provided by the procedures commencing in Chapter 21.54 (Procedures, Hearings,
Notices, and Fees) of the Zoning Ordinance.
During the 10-day public review period, the city received no comment letters from the public regarding
the prospective environmental determination. Since no appeal was filed and no substantial evidence was
submitted that would support a finding that the exemption requirements would not be satisfied, the
project was determined by the city planner to not have a significant effect on the environment. The CEQA
Determination letter is attached to this staff report as Attachment 9 and demonstrates that the project is
categorically exempt from further environmental review. The city planner’s written decision is final and
the CEQA determination is not within the Planning Commission’s purview. With the appropriate
environmental clearances in place, all of the city’s procedural requirements and relevant aspects of CEQA
have been satisfied.
EXHIBITS:
1.Planning Commission Resolution - Denial of the appeal to the City Planner’s Determination –
Exhibit 1 (Option A)
2.Planning Commission Resolution - Approval of the appeal to the City Planner’s Determination -
Exhibit 2 (Option B)
3.July 20, 2022 Use Determination Letter
4.July 26, 2022 E-mail from City Prosecutor Marissa Kawecki to Counsel
5.July 29, 2022 E-mail from Counsel to City Prosecutor Marissa Kawecki
6.August 5, 2022 Use Determination Appeal
7.August 11, 2022 Appeal Timeliness Determination Letter
8.August 22, 2022 Timeliness Determination Appeal
9.CEQA Determination
Dec. 7, 2022 Item #3 7 of 61
EXHIBIT 1
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, DENYING THE APPEAL TO THE CITY PLANNER’S
DETERMINATION THAT THE LAND USE DETERMINATION APPEAL (PCD
2022-0001) WAS UNTIMELY, WHICH IS ASSOCIATED WITH PROPERTY
LOCATED 2917 STATE STREET IN LOCAL FACILITIES MANAGEMENT ZONE
1.
CASE NAME: OAK + ELIXIR – TIMELINESS APPEAL
CASE NO: PCD 2022-0002 (DEV2022-0153)
WHEREAS, Matt Harrison, legal counsel for Carrie Hansen and Annie Rammel,
“Appellants,” has filed a verified application with the City of Carlsbad regarding property owned by Leor
Lakritz, “Owner,” described as
LOT 14 AND A PORTION OF LOT 13 IN BLOCK I OF CARLSBAD, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 535, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 2, 1888.
(“the Property”); and
WHEREAS, said verified application constitutes an appeal of the City Planner’s
determination, filed on August 22, 2022, PCD 2022-0002 (DEV2022-0153), as to whether an earlier
appeal, filed on August 5, 2022, PCD 2022-0001, was considered timely, as provided in Chapter 21.54
of the Carlsbad Municipal Code; and
WHEREAS, the Planning Division studied the Appeal to the City Planner’s Determination
application and performed the necessary investigations to determine if the project qualified for an
exemption from further environmental review under the California Environmental Quality Act, (CEQA,
Public Resources Code section 21000 et. seq.), and its implementing regulations (the State CEQA
Guidelines), Article 14 of the California Code of Regulations section 15000 et. seq. After consideration of
all evidence presented, and studies and investigations made by the city planner and on its behalf, the
city planner determined that the project was exempt from further environmental review pursuant to
PLANNING COMMISSION RESOLUTION NO. __
OPTION A
Dec. 7, 2022 Item #3 8 of 61
PC RESO DENIAL - Exhibit 1 (Option A) -2-
State CEQA Guidelines Section 15321 (Enforcement Actions by Regulatory Agencies). The action will not
have a significant effect on the environment and all of the requirements of CEQA have been met; and
WHEREAS, on November 8, 2022, the city distributed a notice of intended decision to adopt the
“Enforcement Actions by Regulatory Agencies” exemption. The notice was circulated for a 10-day
period, which began on November 8, 2022 and ended on November 18, 2022. The city did not receive
any comment letters on the CEQA findings and determination. The effective date and order of the city
planner CEQA determination was November 19, 2022; and
WHEREAS, the Planning Commission did on December 7, 2022, hold a duly noticed public
hearing as prescribed by law to consider said request;
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Commission considered all factors relating to the consider
said request; and
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) That based on the evidence presented at the hearing, the Commission DENIES appeal
PCD 2022-0002 (DEV2022-0153) – OAK + ELIXIR – TIMELINESS APPEAL, and determines
that appeal PCD 2022-0001 (land use determination) was untimely based on the
following findings:
Findings
1. City staff mailed and otherwise delivered (emailed) the written determination of land use on
July 20, 2022 pursuant to Carlsbad Municipal Code Section 21.54.140(B).
2. The determination of land use was appealable to the Planning Commission within ten days of
the date of the determination of land use letter (July 20, 2022) pursuant to Carlsbad Municipal
Code Section 21.54.140. Ten days after the decision was “mailed” or otherwise delivered
(emailed) was Sunday, July 30, 2022. Because the deadline fell on a weekend, appellants’
deadline was extended to the following business day, Monday, August 1.
3. Appellants filed their appeal on Friday, August 5, 2022, thereby failing to meet the August 1,
2022 deadline.
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PC RESO DENIAL - Exhibit 1 (Option A) -3-
4.California Code of Civil Procedure section 1013 does not apply to the appeal. The State law
provision relied upon by appellants to extend their deadline is not applicable to the City
Planner’s timeliness determination or their appeal. Local agencies are generally subject only
to the constitutional limitations of due process of law. All proceedings are governed by
whatever procedures are set forth in local law. The California Code of Civil Procedure in
general applies to civil lawsuits in a court of law before a judge, not local administrative
proceedings. Further, in context, California Code of Civil Procedure section 1013 applies to
methods for service of notices and other papers on a litigant after the party has been properly
served with a summons or has made a general appearance in a civil action. It serves to extend
the time one is entitled to perform an act or make a response within a period or on a certain
date prescribed by statute or court rule in an ongoing civil case. Section 1013 of the Code of
Civil Procedure is nested under Chapter 5 entitled “Notices, and Filing and Service of Papers”
and Part 2 entitled “Of Civil Actions.” Section 1013 does not apply to the City Planner’s
timeliness determination or extend their appeal deadline because it doesn’t apply to local
administrative notices or proceedings. By its terms, California Code of Civil Procedure section
1013 expressly applies only to “service” of papers, not “mailing.” Courts have strictly limited
the application of the Section 1013 extension to “service” of papers. (See Department of
Indus. Relations v. Atlantic Baking Co. (2001) 89 Cal.App.4th 891, 894 [an appeal from the
State Labor Commissioner’s findings was not extended by Section 1013 when a deadline ran
from “mailing” of findings rather than “service” as used in Section 1013]).
5.Appellants’ attempted appeal in August of 2021 of the denial of the entertainment permit is
irrelevant and is on a separate matter, having no bearing on whether on the timeliness of their
August 5, 2022 appeal of the land use determination.
6.The doctrine of equitable tolling does not apply to the subject appeal. Local agencies are
generally subject only to the constitutional limitations of due process of law. All proceedings
are governed by whatever procedures set forth in local law. Equitable law, including claims,
defenses, and doctrines such as equitable tolling, applies only in civil cases pending before a
judge, where a party is claiming some equitable relief under applicable common law caselaw.
7.The untimeliness determination of the August 5, 2022 appeal (PCD 2022-0001, land use
determination) was fair and proper because it was filed 16 days after the City Planner’s
decision became final. Nothing occurred that shows bad faith or arbitrary or capricious actions
on the part of the City Planner. If there were some identifiable misconduct, the appellants
have provided no support for their contention that their late appeal was not deemed timely
because of arbitrary or capricious conduct.
8.It was both fair and proper for staff to mail and e-mail the use determination letter on July 20,
2022. Rather than only provide one means of notice, staff elected to avail themselves of both
means of service permitted Section 21.54.140(B) when it “mailed” and “otherwise delivered”
by e-mail the letter on July 20, 2022. Appellants had 10 days to appeal as provided by the
ordinance. This deadline was fairly and conspicuously highlighted in the letter itself with bold
font. Further, on Tuesday, July 26, 2022, the City Prosecutor informed counsel and the
appellants that the deadline was August 1, 2022, at 5:00 p.m. The appellants had fair notice of
the city’s deadline well in advance.
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PC RESO DENIAL - Exhibit 1 (Option A) -4-
NOTICE TO APPLICANT
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, California, held on Dec. 7, 2022, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JOSEPH STINE, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
MIKE STRONG
Assistant Director of Community Development
Dec. 7, 2022 Item #3 11 of 61
EXHIBIT 2
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE APPEAL AND OVERTURNING
THE CITY PLANNER’S DETERMINATION THAT THE LAND USE
DETERMINATION APPEAL (PCD 2022-0001) WAS UNTIMELY, WHICH IS
ASSOCIATED WITH PROPERTY LOCATED 2917 STATE STREET IN LOCAL
FACILITIES MANAGEMENT ZONE 1.
CASE NAME: OAK + ELIXIR – TIMELINESS APPEAL
CASE NO: PCD 2022-0002 (DEV2022-0153)
WHEREAS, Matt Harrison, legal counsel for Carrie Hansen and Annie Rammel,
“Appellants,” has filed a verified application with the City of Carlsbad regarding property owned by Leor
Lakritz, “Owner,” described as
LOT 14 AND A PORTION OF LOT 13 IN BLOCK I OF CARLSBAD, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 535, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 2, 1888.
(“the Property”); and
WHEREAS, said verified application constitutes an appeal of the City Planner’s
determination, filed on August 22, 2022, PCD 2022-0002 (DEV2022-0153) as to whether an earlier
appeal, filed on August 5, 2022, PCD 2022-0001 was considered timely, as provided in Chapter 21.54 of
the Carlsbad Municipal Code; and
WHEREAS, the Planning Division studied the Appeal to the City Planner’s Determination
application and performed the necessary investigations to determine if the project qualified for an
exemption from further environmental review under the California Environmental Quality Act, (CEQA,
Public Resources Code section 21000 et. seq.), and its implementing regulations (the State CEQA
Guidelines), Article 14 of the California Code of Regulations section 15000 et. seq. After consideration of
all evidence presented, and studies and investigations made by the city planner and on its behalf, the
city planner determined that the project was exempt from further environmental review pursuant to
PLANNING COMMISSION NO. __
OPTION B
Dec. 7, 2022 Item #3 12 of 61
PC RESO – Approval - Exhibit 2 (Option B) -2-
State CEQA Guidelines Section 15321 (Enforcement Actions by Regulatory Agencies). The action will not
have a significant effect on the environment and all of the requirements of CEQA have been met; and
WHEREAS, on November 8, 2022, the city distributed a notice of intended decision to adopt the
“Enforcement Actions by Regulatory Agencies” exemption. The notice was circulated for a 10-day
period, which began on November 8, 2022 and ended on November 18, 2022. The city did not receive
any comment letters on the CEQA findings and determination. The effective date and order of the city
planner CEQA determination was November 19, 2022; and
WHEREAS, the Planning Commission did on December 7, 2022, hold a duly noticed public
hearing as prescribed by law to consider said request;
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Commission considered all factors relating to the consider
said request; and
WHEREAS, at said hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Commission considered all factors relating to the Planning
Commission Determination.
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) That based on the evidence presented at the hearing, the Commission APPROVES appeal
PCD 2022-0002 (DEV2022-0153) – OAK + ELIXIR – TIMELINESS APPEAL, and determines
that appeal PCD 2022-0001 (land use determination) was timely based on the following
findings:
Findings
1. City staff mailed and otherwise delivered (emailed) the written determination of land use on
July 20, 2022 pursuant to Carlsbad Municipal Code Section 21.54.140(B).
2. The determination of land use was appealable to the Planning Commission within ten days of
the date of the determination of land use letter (July 20, 2022) pursuant to Carlsbad Municipal
Dec. 7, 2022 Item #3 13 of 61
PC RESO – Approval - Exhibit 2 (Option B) -3-
Code Section 21.54.140. Ten days after the decision was “mailed” or otherwise delivered
(emailed) was Sunday, July 30, 2022. Because the deadline fell on a weekend, appellants’
deadline was extended to the following business day, Monday, August 1.
3. Appellants filed their appeal on Friday, August 5, 2022.
4. The Planning Commission finds that the appeal was timely in that (Note: Planning Commission
shall make additional findings and conclusions therefrom. This/these finding(s) are to be
completed once the Planning Commission expresses findings and reads them into the record at
the December 7, 2022 meeting).
NOTICE TO APPLICANT
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, California, held on Dec. 7, 2022, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JOSEPH STINE, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
MIKE STRONG
Assistant Community Development Manager
Dec. 7, 2022 Item #3 14 of 61
July 20, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
( City ofCarlsbad
VIA EMAIL AND MAIL
SUBJECT: DETERMINATION OF THE CITY PLANNER ON VARIOUS PROPOSED USES AND ACTIVITIES WITHIN
THE VILLAGE AND BARRIO MASTER PLAN: VILLAGE CENTER DISTRICT
Dear Mr. Harrison:
The Community Development (CD) Department is in receipt of your emails dated June 9, 2022 and June 29, 2022
(Attachments A and B) as well as through information discussed at our meeting on June 30, 2022, requesting an
interpretation of the Village and Barrio Master Plan (Plan) Standards relating to what uses are allowed at 2917
State Street, Carlsbad, California, which is in the Village Center District.
In the meeting and correspondence, the request is for an interpretation of a new or combined use related to
those that are outlined in the Plan Section 2.2.2 Master Plan Districts, where "Restaurant" and "Restaurant,
Delicatessen" are identified as Permitted Uses within the Village Center District. (Page 2-6) As part of that
request, the City Planner was asked to evaluate the parking standards associated with those defined uses.
Section 2.3 states that, "Any use not identified within Table 2-1 is not permitted unless the City Planner
determines that such use falls within the vision and intent of the district in which it is proposed and is
substantially similar to an allowed use in the district." (Page 2-5) This determination is only related to
interpretation of the uses authorized in the Plan and should not be used for any other purpose.
OVERVIEW
Use Regulations
The Plan sets forth the uses that are permitted in each district. The property is within the Village Center District
that is intended to be a mix of commercial, residential, and mixed-use building types. By the nature of that area,
it allows some of the highest densities and most permitted uses. Permitted uses are allowed in these zones, but
completion of a planning process is required unless it meets one of the exemptions outlined in Section 6.3.2.
Section 6.3.3 sets forth the permit requirements for a Minor Site Development Plan (approved by the City
Planner) or Site Development Plan (approved by the City Council). Two related uses are permitted within the
Village Center District, with definitions and analysis below:
Restaurant, Delicatessen: This use is not defined in the Plan; however, it is defined in Carlsbad Municipal Code
(CMC)section 21.04.106:
"Delicatessen" means a type of restaurant, totaling less than one thousand six hundred square feet in
total floor area, selling ready-to-eat food and canned or bottled beverages to the public. Food is pre-
Community Development Department
Planning Division I 1635 Faraday Avenue I Carlsbad, CA 92008 I 442-339-2600
EXHIBIT 3
Dec. 7, 2022 Item #3 15 of 61
Dec. 7, 2022 Item #3 16 of 61
Mr. Harrison
July 20, 2022
Page 2
cooked or prepared at another location and only heated or toasted on the site. No stoves or ovens for
the cooking or preparation of food nor tableware or dishwashing facilities (other than a standard sink}
are permitted. No waiters or waitresses are employed on the premises.
Based on the evidence submitted, this use is not appropriate because waiters/waitresses are employed and the
floor area is larger than one thousand six hundred square feet.
Restaurant: The Plan defines a Restaurant as:
An establishment at which the primary business is the preparation, service and retail sale of meals
comprising a varied selection of foods and nonalcoholic beverages prepared, served and consumed on
the premises. The sale of any alcoholic beverages must be incidental to the primary restaurant business
at all times that the business is open. "Incidental alcoholic beverage sales" means that these sales are
subordinated to a minor position to the sale of meals. The intent is for any alcoholic beverage to be
purchased with a meal. No more than twenty five percent (25%} of the interior area of the restaurant
shall be used, designed, arranged or devoted to a use commonly associated with a bar or other
establishment primarily engaged in the on-premises sale of alcoholic beverages.
The "interior area" shall include only those portions of the establishment devoted to regular use by the
public. These establishments may not offer live music (unless incidental to the restaurant and providing
background music for dining guests}, recorded music for dancing, comedy or other entertainment at any
time.
No cover charge is permitted at any time for access to the restaurant. These establishments must operate
in a manner which is consistent with this definition at all times during posted business hours. (Page A-4}
Based on the presentation of information, there is no evidence submitted that the current operations do not
meet this definition, or the standards established by the Plan and CMC. Alcoholic beverages are sold at the site,
and through a discretionary permit process the development could be found to be in compliance with these
standards based on the application process.
Expressly Prohibited Uses: It is also important to highlight that there are uses expressly prohibited in the Plan,
specifically, "Bars and Cocktail Lounges Not Part of a Restaurant" are listed in Table 2-1 as prohibited in all zones
(Page 2-8) within the Plan. CMC 21.35.060 specifically states that, " ... the City Planner shall not find that a use
substantially similar to an expressly prohibited use is permitted in any district". This is an additional important
consideration and contained in this determination, any "restaurant" or "restaurant, delicatessen" must also
substantially comply with the requirements outlined in 21.04.056 as a "Bona fide public eating establishment".
If those standards are not able to be met, the use would be defined as a Bar or cocktail lounge under CMC
21.04.041 and the use would not be permitted.
Parking Requirements and Options
The request for a City Planner determination also included evaluation of parking standards for the use types.
On-site parking requirements, like any development standard, are typically included in a Zoning Ordinance or
Master Plan and are tailored to each specific use in order to limit parking impacts to the surrounding community.
Within the Plan, "The minimum parking standards found in Section 2.6.6 have been tailored to reflect the more
compact, walkable and mixed-use character of the Master Plan area. The parking ratios were developed by
considering the results of the 2016 parking study, reviewing the parking 'best practices' of peer cities, and
validated by computer modeling software (l<imley-Horn's Park+ model)." (Page 4-74)
Dec. 7, 2022 Item #3 17 of 61
Mr. Harrison
July 20, 2022
Page 3
Table 1 shows the result of those reduced parking standards and parking study, as compared to what is the
requirement for a similar use in another location within the City.
Table 1: Parking Requirements
Use Type Inside Plan Area Outside Plan Area
(Plan, Table 2-3) (CMC 21.44.020)
One Space per 100 square feet (4,000
One Space per square feet or less), or
Restaurant 170 square feet 40 spaces plus One space per 50 square
feet of area in excess of 4,000 square feet.
Restaurant, One Space per One Space per 250 square feet Delicatessen 300 square feet
The standards in both the Plan and CMC are both adopted by the City Council and the existence of standards
that are difficult to meet on-site do not give the City Planner authority to either create a new use with reduced
standards or allow for reductions of standards in a determination on what uses are allowed consistent with the
VBMP Section 2.3. However, in addition to the already reduced parking standards in the Plan, there are several
methods that an applicant could reduce these standards or provide for alternate compliance. These methods
are as follows:
Village and Barrio Master Plan: as part of a Minor Site Development Plan or Site Development Plan an
applicant could request:
A parking option be utilized: Plan Section 2.6.6 {B) provides parking options that are allowed under the
applicable decision-making authority {City Planner for a Minor Site Development Plan and City Council
for a Site Development Plan) through a permit application. A complete list of parking options is provided
in Table 2-4, but includes use of common parking facilities, payment of the parking in-lieu fee program,
substitution with bicycle parking, or use of a valet parking plan.
A standards modification: A parking standards modification could be allowed as defined in the Plan
Section 2.6.7. A standard modification would be required to comply with the findings outlined in Section
2.6.7 (C) and be approved by the applicable decision-maker {City Planner for a Minor Site Development
Plan and City Council for a Site Development Plan).
Carlsbad Municipal Code: includes two additional potential options to review the standards in the following
sections:
Submission of a variance request under CMC 21.50, consistent with the findings of fact required under
Section 21.50.050, or
Submission of a request to waive or modify parking standards prepared by a registered traffic engineer
subject to the findings included and allowed under CMC 21.44.040 (B).
CONCLUSION
The request is for the City Planner to make a determination on what uses or combination of uses are allowed or
substantially similar to the uses allowed in the Village Center District under the Plan section 2.3. The requested
use is substantially similar to a "restaurant", which is a permitted use in the Village Center District; therefore, it
is not necessary or appropriate to use Section 2.3 of the plan to make a determination another use is allowed.
Furthermore, Section 2.3 does not give the City Planner authority to create reduced parking standards through
creation of a new use that is substantially similar to a use that is already allowed. This is further supported by
Dec. 7, 2022 Item #3 18 of 61
Mr. Harrison
July 20, 2022
Page 4
the summary of parking standards in this determination, that identifies already reduced parking requirements
within the plan area, and that multiple options exist for alternate compliance or reduction of parking standards.
The method to define a new use or make a standard change in the Plan would be through amendments to the
Plan, approved by resolution of the City Council after consideration by the Planning Commission; outlined in
Section 6.5 of the Plan, and Chapters 21.35 and 21.52 of the CMC. There is nothing in the Community
Development Work Program that would examine these uses or make modifications to these requirements.
Additionally, the Plan clearly outlines "Permitted Uses are those which are permitted because they are
consistent with the vision and intent of the district(s) in which they are located. Although these land uses may
be permitted, satisfactory completion of the minor site development plan or site development plan process is
still required for the permitted use unless the use is exempt from discretionary permit requirements." (2.3.1)
There are options for the business owner to continue operations through an application and approval consistent
with the standards or alternative· compliance outlined in the Plan or CMC. As part of an application, any of the
options presented in this determination could be considered, consistent with the findings and determinations
required by t he applicable decision-maker.
This determination may be appealed to the Planning Commission pursuant to CMC §21.54.140 within ten days
of the date of this letter. Appeals must be submitted in writing to the Community Development Department;
attention City Planner at 1635 Faraday Avenue, Carlsbad, 92008 along with a payment of $786. Please be
advised that the filing of such appeal within such time limit does not stay any requirements, agreements,
deadlines, or enforcement action that may otherwise apply to this project or property.
If you have any questions regarding this matter, please feel to contact me at 442-339-2717 or via email at
Eric.Lardy@Carlsbadca.gov
Sincerely,
ERIC LARDY, AICP
City Planner
Attachments:
A -Email dated June 9, 2022,
B -Email dated June 29, 2022
c: Carrie Hansen
Annie Rammel
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Robbie Hickerson, Code Enforcement Manager
Marissa Kawecki, Deputy City Attorney
Cliff Jones, Principal Planne r
From:Marissa Kawecki
To:Mike Strong; Robbie Hickerson; Jamie Zeller; Annie Rammel; Oak and Elixir; Matt Harrison
Cc:matt@simplegov.com
Subject:Revised code compliance agreement with options; meeting requested
Attachments:image001.gif
Code Compliance Agreement--with options.doc
NOTE: MODIFIED TIME AT REQUEST OF MATT HARRISON. HE INDICATED HIS CLIENTS ARE NOT AVAILABLE 7/27/22 AT 10AM.
Good Afternoon Matt, Carrie and Annie,
Attached please find a revised proposed code compliance agreement in light of the City Planner’s use determination letter, which as you know wasissued on July 20, 2022. The Code Enforcement Division, Assistant Community Development Director Mike Strong, and myself would like to meetwith you and your client on Wednesday, 7/27/22 at 10am to discuss any proposed edits that you might have to the proposed agreement.
Given the relatively lengthy history of this code enforcement case to date, the amount of time the parties have had to consider the code complianceagreement (the revised version essentially only modifies the building permit section by providing three different options for obtaining these buildingpermits), and the significant amount of time your client has had to submit a building permit application, we ask that your client (the Lessee) executesthis agreement no later than August 1, 2022 at 5PM. This is the same deadline to appeal the City Planner’s use determination letter. A failure to executethe code compliance agreement by the August 1, 2022 deadline may result in enforcement action by the city.
We kindly ask that you share this proposed agreement with the Property Owner so that following your client’s execution, we can pass the agreementalong to the Property Owner for signature without surprise.
Thank you,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
www.carlsbadca.gov <http://www.carlsbadca.gov/>
442-339-5351| 760-434-8367 fax | Marissa.kawecki@carlsbadca.gov <mailto:Marissa.kawecki@carlsbadca.gov>
Facebook <http://www.facebook.com/cityofcarlsbad> | Twitter <http://twitter.com/#!/carlsbadcagov> | You Tube<http://www.youtube.com/user/CityofCarlsbadCA?feature=watch> | Pinterest <http://pinterest.com/cityofcarlsbad/> |Enews<http://visitor.r20.constantcontact.com/d.jsp?llr=8fos7zcab&p=oi&m=1102527936699&sit=n4wm6mbeb&f=52ee8054-7885-4f02-bde5-d681801d2600>
________________________________________________________________________________
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EXHIBIT 4
Dec. 7, 2022 Item #3 19 of 61
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Dec. 7, 2022 Item #3 20 of 61
From:Matt Harrison
To:Oak and Elixir
Cc:Marissa Kawecki; Annie Rammel; Robbie Hickerson; Mike Strong; Jamie Zeller
Subject:Re: Revised code compliance agreement with options; meeting requested
Date:Friday, July 29, 2022 10:02:09 AM
Marissa - Given the recent conflicts, I think it is best that we reschedule a time for next week. I amworking with Carrie to identify times in her schedule that work and I will advise. (I am happy to havea quick phone call with you at 10:30 to discuss any urgent/outstanding issues.). Also, Annie will bedropping off the building permit at City Hall later today.
Regarding our appeal, the Municipal Code states that the Planner's "determination" becomes "finaland effective" for purposes of the 10 days when it is "mailed or otherwise delivered" to the person(s)affected, "whichever time is least restrictive". (21.54.140(B)) As I stated, your office mailed a letterwhich was not received in my office until Tuesday, July 26. I did not read the digital version until Ireceived the letter. Your attempt to use the "most restrictive" time frame is improper. Even using thestandard five-day mailing period under the Code of Civil Procedure would establish a date of finalityof July 25, making the appeal due no later than Thursday, August 4.
It is most notable that in the end, we are appealing this new "determination" on virtually identicalgrounds to the prior "decision" by Mike Strong back in 2021, since the original decision, as we statedpreviously, still "substantially affects the rights, duties or privileges of an aggrieved person". (1.20.310). After nearly a year of this frustratingly circular dialogue, I am glad we will finally get achance to appeal the same "decision" we asked to appeal back when it originally aggrieved my clients(and was timely appealed).
Among the issues to discuss next week, we will need to amend the draft agreement, at minimum, toaccount for the submission of the Building Permit and the pending appeal. I also repeatedly andclearly stated the fact that my clients are neither willing nor able to pay the assessed impact fees, andthat I do not represent the landlord nor am I able to provide any assurances that he will agree to themeither (in fact, all indications appear that he will refuse to sign any agreement). Attempts to pressuremy clients to bind themselves to such void, ultra vires, impossible or otherwise unconscionable termsdoes not get us any closer to executing the agreement.
Thank you and I will let you know as soon as I have details regarding next week's availability, thebuilding permit status, and/or any other updates of note.
Kind regards,Matt
On Fri, Jul 29, 2022 at 9:08 AM Oak and Elixir <carrie.oakandelixir@gmail.com> wrote:Hello MarissaI just let Matt know that I have an executive review meeting today for my day job that I am requiredto attend. I will not be on the call today. My only comment regarding the agreement, I am askingagain for the City to remove references to our business license that are not accurate. I believe wediscussed this point a few weeks ago. I can send over my red-lined version if that would behelpful.
thank youCarrie
Carrie HansenOak + Elixir, Owner/Operator2917 State Street
EXHIBIT 5
Dec. 7, 2022 Item #3 21 of 61
Carlsbad, CA 92008760-473-1032
On Thu, Jul 28, 2022 at 11:43 AM Marissa Kawecki <Marissa.Kawecki@carlsbadca.gov> wrote:
Good Morning,
I received Matt’s calendar acceptance for our meeting tomorrow at 10:30am, “declined” by Annie,and no response from Carrie. Can you please confirm that Carrie or Annie will be present?
Additionally, the city has made one change throughout the code compliance agreement to make iteffective upon execution by the Lessee and City (see attached). Per my email last week whichinitially scheduled this meeting, followed by my email below, that date of execution must beAugust 1, 2022 to avoid enforcement action by the city.
Thank you,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
www.carlsbadca.gov
442-339-5351| 760-434-8367 fax | Marissa.kawecki@carlsbadca.gov
Facebook | Twitter | You Tube | Pinterest |Enews
Dec. 7, 2022 Item #3 22 of 61
-----Original Appointment-----From: Marissa Kawecki Sent: Tuesday, July 26, 2022 1:44 PMTo: Mike Strong; Robbie Hickerson; Jamie Zeller; Annie Rammel; Oak and Elixir; Matt HarrisonCc: matt@simplegov.comSubject: Revised code compliance agreement with options; meeting requestedWhen: Friday, July 29, 2022 10:30 AM-11:30 AM (UTC-08:00) Pacific Time (US & Canada).Where: Microsoft Teams Meeting
NOTE: MODIFIED TIME AT REQUEST OF MATT HARRISON. HE INDICATED HISCLIENTS ARE NOT AVAILABLE 7/27/22 AT 10AM.
Good Afternoon Matt, Carrie and Annie,
Attached please find a revised proposed code compliance agreement in light of the City Planner’suse determination letter, which as you know was issued on July 20, 2022. The Code EnforcementDivision, Assistant Community Development Director Mike Strong, and myself would like tomeet with you and your client on Wednesday, 7/27/22 at 10am to discuss any proposed edits thatyou might have to the proposed agreement.
Given the relatively lengthy history of this code enforcement case to date, the amount of time theparties have had to consider the code compliance agreement (the revised version essentially onlymodifies the building permit section by providing three different options for obtaining thesebuilding permits), and the significant amount of time your client has had to submit a buildingpermit application, we ask that your client (the Lessee) executes this agreement no later thanAugust 1, 2022 at 5PM. This is the same deadline to appeal the City Planner’s use determinationletter. A failure to execute the code compliance agreement by the August 1, 2022 deadline mayresult in enforcement action by the city.
We kindly ask that you share this proposed agreement with the Property Owner so that followingyour client’s execution, we can pass the agreement along to the Property Owner for signaturewithout surprise.
Thank you,
Dec. 7, 2022 Item #3 23 of 61
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
www.carlsbadca.gov
442-339-5351| 760-434-8367 fax | Marissa.kawecki@carlsbadca.gov
Facebook | Twitter | You Tube | Pinterest |Enews
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Dec. 7, 2022 Item #3 24 of 61
________________________________________________________________________________
-- Matt HarrisonSimpleGov / SPQV, LLCc. (949) 436-4500
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Dec. 7, 2022 Item #3 25 of 61
EXHIBIT 6
Dec. 7, 2022 Item #3 26 of 61
PROMETHEUS
Via Personal Delivery
City Clerk {appeals filing), City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Planning Department
1635 Faraday Avenue
Carlsbad, CA 92008
cc: Carrie Hansen, Laura Anne Rammel
Oak + Elixir
2917 State Street
Carlsbad, CA 92008
Monday,August1 , 2022
AUG O 5 2022
Re: Appeal of City Action, Citv Planner's Determination of Use Inconsistency
and Fee Assessment -Hearing Requested
City of Carlsbad:
On behalf of Carrie Hansen, Annie Rammel, and Hansen Rammel Braun Corp d/b/a Oak
+ Elixir (herein, "Oak + Elixir"), this letter constitutes the formal official appeal of the Carlsbad
City Planner Eric Lardy's determination1, received on July 24, 2022, and all related decisions
and actions, pursuant to the applicable provisions of the Carlsbad Municipal Code.2 By
reference, this appeal also incorporates my previous letter appealing the August 19, 2021
decision of Community Development Officer Mike Strong,3 and objections asserted thereto.
Accordingly, this letter further establishes the formal basis for Oak + Elixir's appeal of the
decision and all related or underlying actions deriving from the alleged "use inconsistency".
The question before the Planning Commission is as follows: Is Oak + Elixir's use, as a
combination wine bar, limited-service family restaurant, and event space, substantially similar to
the authorized use of "restaurant-delicatessen", in a manner consistent with the purposes and
intent of the Village and Barrio District?
Among myriad deficiencies in the Planner's determination, it failed to address the crucial
question of whether Oak + Elixir's "use" is "substantially similar" to the authorized use of
1 Exhibit A
2 C.M.C. 1.10.120, 1.10.310., 8.09.1 50, 21 .54.140
3 Mike Strong, Assistant Director of Community Development, "Entertainment License
Application Request Denial," August 19, 2021 {herein, "Strong Denial") Exhibit B
Prometheus Civic Law, P.C.
120 Vantis, Suite 300 I Aliso Viejo, CA 92656
C. 949.436.4500 0. 949.330.7356
Matthew Sean Harrison, Esq.
SBN 305019
matt@procivlaw.com
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Dec. 7, 2022 Item #3 32 of 61
Dec. 7, 2022 Item #3 33 of 61
Very truly yours,
By:~~
Matthew Sean Harrison, Esq.
Attorney and Authorized Agent
By: Isl Carrie Hansen
Carrie Hansen, Hansen Rammel
Braun, et al, d/b/a Oak+ Elixir
Dec. 7, 2022 Item #3 34 of 61
EXHIBIT A
AUG Q 5 ·202.2.
Dec. 7, 2022 Item #3 35 of 61
July 20, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
AUG O 5 2022
( City of
Carlsbad
VIA EMAIL AND MAIL
SUBJECT: DETERMINATION OF THE CITY PLANNER ON VARIOUS PROPOSED USES AN D ACTIVITIES WITHIN
THE VILLAGE AND BARRIO M ASTER PLAN: VILLAGE CENTER DISTRICT
Dear Mr. Harrison:
The Community Development (CD) Department is in receipt of your emails dated June 9, 2022 and June 29, 2022
(Attachments A and B) as well as through information discussed at our meeting on June 30, 2022, requesting an
interpretation of the Village and Barrio Master Plan (Plan) Standards relating to what uses are allowed at 2917
State Street, Carlsbad, California, which is in the Village Center District.
In the meeting and correspondence, the request is for an interpretation of a new or combined use related to
those that are outlined in the Plan Section 2.2.2 Master Plan Districts, where "Restaurant" and "Restaurant,
Delicatessen" are identified as Permitted Uses within the Village Center District. (Page 2-6) As part of that
request, the City Planner was asked to evaluate the parking standards associated with those defined uses.
Section 2.3 states that, "Any use not identified within Table 2-1 is not pe rmitted unless the City Planner
determines that such use falls within the vision and intent of the district in which it is proposed and is
substantially similar to an allowed use in the district." (Page 2-5) This determination is only related to
interpretation of the uses authorized in the Plan and should not be used for any other purpose.
OVERVI EW
Use Regulations
The Plan sets forth the uses that are permitted in each district. The property is within the Village Center District
that is intended to be a mix of commercial, residential, and mixed-use building types. By the nature of that area,
it allows some of the highest densities and most permitted uses. Permitted uses are allowed in these zones, but
completion of a planning process is required unless it meets one of the exemptions outlined in Section 6.3 .2.
Section 6.3.3 sets forth the permit requirements for a Minor Site Development Plan (approved by the City
Planner) or Site Development Plan (approved by the City Council). Two related uses are permitted within the
Village Center District, with definitions and analysis below:
Restaurant, Delicatessen: This use is not defined in the Plan; however, it is defined in Carlsbad Municipal Code
(CMC) section 21.04.106:
"Delicatessen" means a type of restaurant, totaling less than one thousand six hundred square feet in
total floor area, selling ready-to-eat food and canned or bottled beverages to the public. Food is pre-
Community Development Department
Planning Division I 1635 Faraday Avenue I Carlsbad, CA 92008 I 442-339-2600
Dec. 7, 2022 Item #3 36 of 61
Mr. Harrison
July 20, 2022
Page 2
cooked or prepared at another location and only heated or toasted on the site. No stoves or ovens for
the cooking or preparation of food nor tableware or dishwashing facilities (other than a standard sink}
are permitted. No waiters or waitresses are employed on the premises.
Based on the evidence submitted, this use is not appropriate because waiters/waitresses are employed and the
floor area is larger than one thousand six hundred square feet.
Restaurant: The Plan defines a Restaurant as:
An establishment at which the primary business is the preparation, service and retail sale of meals
comprising a varied selection of foods and nonalcoholic beverages prepared, served and consumed on
the premises. The sale of any alcoholic beverages must be incidental to the primary restaurant business
at all times that the business is open. "Incidental alcoholic beverage sales" means that these sales are
subordinated to a minor position to the sale of meals. The intent is for any alcoholic beverage to be
purchased with a meal. No more than twenty five percent (25%} of the interior area of the restaurant
shall be used, designed, arranged or devoted to a use commonly associated with a bar or other
establishment primarily engaged in the on-premises sale of alcoholic beverages.
The "interior area" shall include only those portions of the establishment devoted to regular use by the
public. These establishments may not offer live music (unless incidental to the restaurant and providing
background music for dining guests}, recorded music for dancing, comedy or other entertainment at any
time.
No cover charge is permitted at any time for access to the restaurant. These establishments must operate
in a manner which is consistent with this definition at all times during posted business hours. (Page A-4}
Based on the presentation of information, there is no evidence submitted that the current operations do not
meet this definition, or the standards established by the Plan and CMC. Alcoholic beverages are sold at the site,
and through a discretionary permit process the development could be found to be in compliance with these
standards based on the application process.
Expressly Prohibited Uses: It is also important to highlight that there are uses expressly prohibited in the Plan,
specifically, "Bars and Cocktail Lounges Not Part of a Restaurant" are listed in Table 2-1 as prohibited in all zones
(Page 2-8) within the Plan. CMC 21.35.060 specifically states that, " ... the City Planner shall not find that a use
substantially similar to an expressly prohibited use is permitted in any district". This is an additional important
consideration and contained in this determination, any "restaurant" or "restaurant, delicatessen" must also
substantially comply with the requirements outlined in 21.04.056 as a "Bona fide public eating establishment".
If those standards are not able to be met, the use would be defined as a Bar or cocktail lounge under CMC
21.04.041 and the use would not be permitted.
Parking Requirements and Options
The request for a City Planner determination also included evaluation of parking standards for the use types.
On-site parking requirements, like any development standard, are typically included in a Zoning Ordinance or
Master Plan and are tailored to each specific use in order to limit parking impacts to the surrounding community.
Within the Plan, "The minimum parking standards found in Section 2.6.6 have been tailored to reflect the more
compact, walkable and mixed-use character of the Master Plan area. The parking ratios were developed by
considering the results of the 2016 parking study, reviewing the parking 'best practices' of peer cities, and
validated by computer modeling software (l<imley-Horn's Park+ model)." (Page 4-74)
Dec. 7, 2022 Item #3 37 of 61
Mr. Harrison
July 20, 2022
Page 3
Table 1 shows the result of those reduced parking standards and parking study, as compared to what is the
requirement for a similar use in another location within the City.
Table 1: Parking Requirements
Use Type Inside Plan Area Outside Plan Area
(Plan, Table 2-3) (CMC 21.44.020)
One Space per 100 square feet (4,000
One Space per square feet or less), or
Restaurant 170 square feet 40 spaces plus One space per 50 square
feet of area in excess of 4,000 square feet.
Restaurant, One Space per One Space per 250 square feet Delicatessen 300 square feet
The standards in both the Plan and CMC are both adopted by the City Council and the existence of standards
that are difficult to meet on-site do not give the City Planner authority to either create a new use with reduced
standards or allow for reductions of standards in a determination on what uses are allowed consistent with the
VBMP Section 2.3. However, in addition to the already reduced parking standards in the Plan, there are several
methods that an applicant could reduce these standards or provide for alternate compliance. These methods
are as follows:
Village and Barrio Master Plan: as part of a Minor Site Development Plan or Site Development Plan an
applicant could request:
A parking option be utilized: Plan Section 2.6.6 {B) provides parking options that are allowed under the
applicable decision-making authority {City Planner for a Minor Site Development Plan and City Council
for a Site Development Plan) through a permit application. A complete list of parking options is provided
in Table 2-4, but includes use of common parking facilities, payment of the parking in-lieu fee program,
substitution with bicycle parking, or use of a valet parking plan.
A standards modification: A parking standards modification could be allowed as defined in the Plan
Section 2.6.7. A standard modification would be required to comply with the findings outlined in Section
2.6.7 (C) and be approved by the applicable decision-maker {City Planner for a Minor Site Development
Plan and City Council for a Site Development Plan).
Carlsbad Municipal Code: includes two additional potential options to review the standards in the following
sections:
Submission of a variance request under CMC 21.50, consistent with the findings of fact required under
Section 21.50.050, or
Submission of a request to waive or modify parking standards prepared by a registered traffic engineer
subject to the findings included and allowed under CMC 21.44.040 (B).
CONCLUSION
The request is for the City Planner to make a determination on what uses or combination of uses are allowed or
substantially similar to the uses allowed in the Village Center District under the Plan section 2.3. The requested
use is substantially similar to a "restaurant", which is a permitted use in the Village Center District; therefore, it
is not necessary or appropriate to use Section 2.3 of the plan to make a determination another use is allowed.
Furthermore, Section 2.3 does not give the City Planner authority to create reduced parking standards through
creation of a new use that is substantially similar to a use that is already allowed. This is further supported by
Dec. 7, 2022 Item #3 38 of 61
Mr. Harrison
July 20, 2022
Page 4
the summary of parking standards in this determination, that identifies already reduced parking requirements
within the plan area, and that multiple options exist for alternate compliance or reduction of parking standards.
The method to define a new use or make a standard change in the Plan would be through amendments to the
Plan, approved by resolution of the City Council after consideration by the Planning Commission; outlined in
Section 6.5 of the Plan, and Chapters 21.35 and 21.52 of the CMC. There is nothing in the Community
Development Work Program that would examine these uses or make modifications to these requirements.
Additionally, the Plan clearly outlines "Permitted Uses are those which are permitted because they are
consistent with the vision and intent of the district(s) in which they are located. Although these land uses may
be permitted, satisfactory completion of the minor site development plan or site development plan process is
still required for the permitted use unless the use is exempt from discretionary permit requirements." (2.3.1)
There are options for the business owner to continue operations through an application and approval consistent
with the standards or alternative· compliance outlined in the Plan or CMC. As part of an application, any of the
options presented in this determination could be considered, consistent with the findings and determinations
required by t he applicable decision-maker.
This determination may be appealed to the Planning Commission pursuant to CMC §21.54.140 within ten days
of the date of this letter. Appeals must be submitted in writing to the Community Development Department;
attention City Planner at 1635 Faraday Avenue, Carlsbad, 92008 along with a payment of $786. Please be
advised that the filing of such appeal within such time limit does not stay any requirements, agreements,
deadlines, or enforcement action that may otherwise apply to this project or property.
If you have any questions regarding this matter, please feel to contact me at 442-339-2717 or via email at
Eric.Lardy@Carlsbadca.gov
Sincerely,
ERIC LARDY, AICP
City Planner
Attachments:
A -Email dated June 9, 2022,
B -Email dated June 29, 2022
c: Carrie Hansen
Annie Rammel
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Robbie Hickerson, Code Enforcement Manager
Marissa Kawecki, Deputy City Attorney
Cliff Jones, Principal Planne r
Dec. 7, 2022 Item #3 39 of 61
From:
To:
Cc:
Subject:
Date:
Matt Harrison
Marissa Kawecki
Annie Rammel; Robbie Hickerson; Jamie Zeller; Mike Strong: Oak and Elixir
Re: Follow up: Draft code compliance for review by Lessee and Property Owner
ll1ursday, June 9, 2022 1:41:14 PM
Thank you, Marissa. I apologize for the long delay, but I want to respond and give you as
much information as possible in advance of our meeting shortly. First, you are right to seek
the property owner's involvement in this process. Unfo1tunately, I do not represent
Mr. Lakritz and am not at this time authorized to make such agreements or guarantees on his
behalf. However, I (and my clients) wholeheattedly share your objective of obtaining his
involvement and look forward to subsequent meetings with his participation.
In fact, the permit documentation from Mike shows that the M occupancy designation dates
from the Bui ]ding Permit in 2007-08 at construction (CB 06-1008; Recitals, Paragraph C) .
While we appreciate the City's offer to correct the certificate of occupancy in consideration for
this agreement, the City's offer is ultimately only relevant from the Owner's perspective. In
fact, because the first tenants in the new building were actually retailers (thus satisfying the M
occupancy designation) it was the use by Reim (nrior to Oak's use) which first constituted the
sole impermissible change in occupancy type. (C.M.C. 2) .60.0 I 0) In purchasing the existing
business, Oak's operation did not constitute a "change of type or class of use" vis-a-vis Reim,
and thus was not required to apply foi· a new use designation.
Mr. Laluitz's involvement is crucially necessary for the. For instance, Mike's August 19, 2021
letter rejecting the Entettainment Permit noted potential deficiency in "parking allowances,
and"impact fees", which are still being sought in this agreement (Paragraph E). However,
such fees are ultimately the obligation of the "developer and/or property owner", not the lessee
(C.M.C. 13.10.100), and accordingly are based on an increased use which has not (as yet)
been demonstrably connected to Oak's use. Accordingly, it appears they would need to be
negotiated by the owner.
Most impo1tantly for the issues between Oak and the City the agreement relies on an alleged
"use inconsistency" in the current operation which is still disputed. As stated, to the contrary,
Oak operates in a manner which combines multiple existing permitted uses. (Table 2-1). To
the point, the Village and Barrio Master Plan expressly provides that a use "not identified
within Table 2-1 is not permitted unless the city planner determines that such use falls within
the vision and intent of the district in which it is proposed and is su bstantiaUy similar to an
allowed use in the district. (V-B M.P. 2.3 (2-5)). Without question, Oak's operation is
"substantially similar" to an allowed use (two, in fact), as the draft agreement expressly (and
implicitly) notes, and is "within the vision and intent" of the distTict. (As noted in Oak's
appeal)
Mike's August 19 letter (and the draft agreement) also inaccurately describes Oak's business
license as referring to a "deli." To the contrary, the business license actually references
NAICS code 722513 (limited service restaurants), which includes "delicatessens" among
several "Illustrative Examples" which include (most relevant for this action) "Family
Restaurants, Limited Service". Mike's letter (and the draft agreement) appear to conflate
this more expansive NAJCS definition with the far more naiTow definition of "delicatessen" in
the City code, in order to perpetuate allegations of an "inconsistency". However, the simple
fact that a "limited service restaurant" (like Oak) could qualify under the NAlCS classification
yet not meet the City's separate palpably arbitrary definition (such as, inter alia, the
Dec. 7, 2022 Item #3 40 of 61
"violation" of having a dishwasher or wait staff) does not rise to an actual violation of any
municipal code or land use provision. In fact, it simply provides more support for Oak's
argument above.
Perhaps most importantly, I would note that the City Planner, Don Neu, has not been involved
in any of our conversations, nor has he provided a written opinion on this issue. Because it is
his official responsibility to make such determinations, including, but not limited to, whether a
"use inconsistency" exists, or whether a discretionary permit is ultimately required for the
project as proposed by Oak ((V-B M .P. 6.3.4) we request a Guaranteed Second Opinion on
such "violation" issues (while reserving the option of Project Issue Review with Director
Murphy, as well as subsequent appeals to the Planning Commission and City Council). In
addition to the above, with all respect, it is difficult to read Paragraph J as anything but a
laundry list of "late hit" findings. (The ente1tainment on premises has long ceased, as you
know.) Leaving aside the issue of the fee assessment, such "violations" were all discovered in
a manner that is inconsistent with the Council's express intent in providing the Guaranteed
Second Opinion option. (B-11 0)
Because the agreement is contingent upon the parties' consent as to both the violations and the
remedies, it is of the utmost impo1tance to have them remedied as soon as possible. However,
despite the apparent need to address these issues in a slightly different manner, my client's
short and long-term objectives (viz., compliance and continued operation) remain unchanged.
Similarly, my clients are generally amenable to the proposed language in Paragraphs 2 and 3
(assuming the recitals are properly resolved). As things stand currently, we will be
submitting a Building Permit (for, at minimum, ensuring compliance with building, electrical
and pluinbing code), and depending on the result of the above, perhaps additional applications
for amendment. (21 .54.1 25) Because you originally noted that the draft indemnification
language in paragraph 15, page 8 was modified due to the "lack of multiple pennits for
structures, mechanical, electrical, and plumbing work on the prope1ty", presumably this would
be in all patties' interest to resolve as soon as possible. As an indication of this effort, we will
submit the Building Permit as soon as it is ready.
I look forward to our discussion shortly. Thank you and sony for the delay!
Kind regards,
Matt
On Mon, Jun 6, 2022 at I :25 PM Marissa Kawecki <Marissa.Kawecki@carlsbadca.gov>
wrote:
Good Afternoon Matt,
I am following up on my email be.low regarding property owner review and approval of the
code compliance agreement, as well as any tracked changes that you can send me before our
meeting on Wednesday. It would be helpful and most productive ifl can review your
proposed changes prior to the meeting, and we can discuss everything in more detail during
the meeting.
Dec. 7, 2022 Item #3 41 of 61
Thank you,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
,m.carisbadca.gov
442-339-5351 I 760-434-8367 fax I Marissa.kawecki@carlsbadca.gov
Facebook I Twitter I You Tube I Pinterest JEnews
From: Marissa Kawecki
Sent: Tuesday, May 31 , 2022 11 :26 PM
To: Matt Harrison <matt@procivlaw.com>; Annie Rammel <annie@oakandelixir.com>
Cc: Robbie Hickerson <Robbie.Hickerson@carlsbadca.gov>; Jamie Zeller
<Jam ie.Zel!er@carlsbadca.gov>; Mike Strong <M ike.Strong@carlsbadca.gov>
Subject: Draft code compliance for review by Lessee and Property Owner
Matt/Annie,
Dec. 7, 2022 Item #3 42 of 61
As promised, attached is the draft code compliance agreement, including all compliance
actions and deadlines, for your review. Note that we need the property owner's contact
agent, address, and email address. The property owner will also need to review this
agreement and execute it. Please confirm that you can explain the agreement to the properly
owner and obtaining a signature after our meeting next Wed., 6/8/22. The property is also
welcome to join our meeting on 6/8/22 if that would be helpful to clarify the agreement and
answer any questions.
Again, if you have any tracked changes to the agreement, we ask that you please send them
to me no later than next Monday, 6/6/22 EOB so that the city can internally review those
changes prior to our meeting on 6/8/22. You will note that the attached draft agreement has
proposed benchmark and final deadlines, so the sooner the agreement is executed, the more
time Lessee has to meet those deadlines.
Thank you,
Marissa Kawecki
City Prosecutor/Deputy City Attorney
Office of the City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
w-..vw .carlsbadca.gov
442-339-535 l I 760-434-8367 fax I Marissa.kawecki@carlsbadca.gov
Facebook I Twitter I You Tube I Pinterest IEnews
Dec. 7, 2022 Item #3 43 of 61
M. Sean Harrison, Esq.
Prometheus Civic Law
This message (including any atlnchment to this message) is confidential and may contain information thal is privileged or othem,jse legally protected
from disclosure. If you are nol the inlendcd recipient or if this message has been addressed lo you in error, please delete it ",jthout saving it and
separately notify the sender. Thank you.
CAUTION: Do not open attachments or click on links unless you recognize the sender and
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Dec. 7, 2022 Item #3 44 of 61
From:
To:
Cc:
Subject:
Date:
Matt Harrison
Marissa Kaweckj
Erjc Lardy; Mike Strong: Robbie Hickerson: carrie.oakandelixir@gmail.com: annie@oakandelixir.com
Re: Meeting -City Planner Use Determination
Wednesday, June 29, 2022 4:34:55 PM
As mentioned in the previous email, the sole question we have for the City Planner tomorrow
is whether there is a "use inconsistency" in the current operation by combining ce1tain aspects
of a "restaurant" use (like a dishwasher and quasi-servers) along with aspects of a "deli
restaurant" (everything else, including the NAICS classification). Our position is that Oak
operates in a manner which combines multiple existing permitted uses. (Table 2-l). Because
the Village and Barrio Master Plan allows uses not specifically identified within Table 2-1 if
the city planner determines that it "falls within the vision and intent of the district in which it
is proposed" and is "substantially similar to an allowed use in the district". (V-B M.P. 2.3 (2-
5)), the question for Mr. Neu is whether Oak's operation is thus "substantially similar" to an
allowed use (two, in fact), and '\vithin the vision and intent" of the district. We would
appreciate this determination in writing.
The meeting tomoLTow does not need to address any other issues in the proposed agreement,
as we do not concede that the Cettificate of Occupancy needs to be changed ( or, more
accurately, needed to be changed when Reim began the different use), nor the need for the
Building Penn it (which will be submitted shortly). Assuming the latter is completed, and we
get a favorable determination, we will not have any ongoing "violations" other than the
outdated occupancy classification. Also, because the in I ieu parking fees are entirely based on
the difference in use classification, the cost savings for this favorable result are substantial.
For everyone's lrnowledge, Carrie spoke to Mr. Lakritz and he is completely unwilling to pay
for any of the fees as proposed. In so many words, he told Carrie that she would either have to
pay it all herself or sell the business. I share this information because while you announce
new increases to the sums you have already presumed collectible, you have created a
circumstance where th e small business facing your strict liability regime simply cannot pay
the amounts you are (quite belatedly) demanding. I am well aware that none of you (nor any
department), is "intending" or "trying" to force businesses out of the City, and l am aware of
the code provisions; I am simply informing you that it is the direct and inevitable
consequence.
However, I am eternally optimistic that our meeting tomorrow will be a further step towards
fairness and reasonable dialogue toward resolution. Or, if not, l look forward to taking the
matter to the Council for their (long awaited) second opinion (after the Planning Commission,
of course). Thank you and I look forward to more productive dialogue tomorrow.
Kind regards,
Matt
On Tue, Jun 28, 2022 at 11 :02 AM Marissa Kawecki <Marissa.Kawecki@carlsbadca.gov>
wrote:
Eric/Mike,
I spoke with Matt via phone and he has confirmed the June 30 date from 9:30am-l Oam for
the use determination meeting with City Planner Eric Lardy. Eric will be sending out a
Zoom invitation for the meeting shortly.
Dec. 7, 2022 Item #3 45 of 61
Thank you all for coordinating.
Marissa Kawecki
From: Mike Strong
Sent: Thursday, June 23, 2022 11 :25 AM
To: 'Matt HatTison' <matt@procivlaw.com>; Annie Rammel
<annie@oakandel ixir.com>; Oak and Elixir <cauie.oakandelixir@gmail.com>
Subject: Meeting -City Plmrner Use Detennination
Annie, Carrie, and Matt:
The City Plam1er has agreed to meet with you on one of the following dates to
receive infonnation from you to make a use determination:
• June 27 from 3-3:30pm
• June 29 from 9-9:30am
• June 30 from 9:30-1 0am
Please advise which of the three following dates you would like to meet. I will
ask the City Planner to coordinate the details after you select the date/time.
Once a written use determination is issued by the City Planner, you will have 10
days to appeal that determination to the Planning Commission. The appeal fee
for such appeal is $786.
Additionally, we would like to apprise you that some city fees may be
increasing starting September 1, 2022. The revised Master Fee schedule will be
posted on the city's website on or about September 1, 2022 for your review of
these fee amounts.
Pending the use determination from the City Planner, please provide a red lined
version of the "Recitals" section of the code compliance agreement to reflect
Dec. 7, 2022 Item #3 46 of 61
your preferred wording of the prior and current use of the property. We also ask
that you prepare and submit your building permit application as soon as
possible to address the currently unpermitted structural, electrical, mechanical,
and plumbing systems on the property. This permit is required for both a deli
and restaurant use of any structure, irrespective of the City Planner's use
determination.
Please let me know if you have any questions.
Thank you.
image00 1 .gif •
Mike Strong
Assistant Director of Community Development
Community Development Department
1635 Faraday Ave.
Carlsbad, CA 92008
442-339-2721 direct I mike.strong@carlsbadca.gov
M. Sean Harrison, Esq.
Prometheus Civic Law
This message (including any attachment lo this message) is confidential and may contain information 1ha1 is privileged or otherwise legally protected
from disclosure. If you are not the in1cnded recipient or iflhis message has been addressed lo you in error, please delete it without saving it and
separately notify the sender. Thank you.
CAUTION: Do not open attachments or click 011 links unless you recognize the sender and
know the content is safe.
Dec. 7, 2022 Item #3 47 of 61
EXHIBITB
AUG O G 2022
Dec. 7, 2022 Item #3 48 of 61
August 19, 2021
Carrie Hansen
Laura Anne Rammel
Oak+ Elixir
2917 State Street
Carlsbad, CA 92008
Dear Ms. Hansen,
AUG O 5 2022
~ City of
Carlsbad
The city received of your Entertainment License application for Oak & Elixir, requesting the allowance of
live music with an anticipated 100 patrons inside and 50 patrons outside. As part of standard application
review, the application and details of the request were routed to several referral departments (including
the Fire and Police departments, and the Planning and Building divisions). Consistent with Carlsbad
Municipal Code ("CMC") Chapter 8.09, Entertainment License, Planning and Building Division staff
reviewed the proposed application and use for compliance with the land use and zoning provisions of the
applicable municipal code provisions and the Village and Barrio Master Plan, as well as to ensure that the
structure is suitable and safe for the proposed operation of an entertainment establishment.
City documentation and historical records show that the use of the property is limited to "wine bistro,
deli." Oak & Elixir's current business license also shows the use as a "deli." Under Section 21.04.106. of
the CMC, a "Delicatessen" means a type of restaurant, totaling less than one thousand six hundred square
feet in total floor area, selling ready-to-eat food and canned or bottled beverages to the public. Food is
pre-cooked or prepared at another location and only heated or toasted on the site. No stoves or ovens
for the cooking or preparation of food nor tableware or dishwashing facilities (other than a standard sink)
are permitted. No waiters or waitresses are employed on the premises.
Records show that neither planning or building permits were issued to allow a kitchen/cooking
stations/dishwasher when Reim Wine and Bistro occupied the space and no planning or building permits
have been issued since that time. Based on visual inspection (and the description of the business provided
online), Oak & Elixir has a kitchen, and is operating the business with servers. Furthermore, the
Entertainment License application that was submitted also reflects this activity and operation (i.e.
showing the use on site as a "restaurant" and shows a "kitchen" on the conceptual site plan). This "use"
inconsistency, "deli" versus "full service restaurant," prevents the City from approving this Entertainment
License application.
Although we have already reviewed the Entertainment License application, as a courtesy we will begin
processing a refund for the $236 in fees paid to the city for the review of the Entertainment License
application. You can expect a check next week.
While a change of use from a deli to a restaurant is allowed under our code, it requires additional parking,
building permits for tenant improvement work for kitchen and other improvements to the dining area, as
well as payment of certain impact fees. The city will allow you to continue operating as a restaurant,
provided diligent progress is made to secure all required permits and obtain a certificate of occupancy for
the "restaurant" use. To legalize the change of use to a restaurant, we have preliminarily estimated that
Community Development Department
I 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-4600 I 760-602 -8560 fax
Dec. 7, 2022 Item #3 49 of 61
the total building permit and development impact fee total would be approximately $31,334. Please note
that these preliminary amounts do not include sewer connection fees, which are based on seating. The
city will need to evaluate an actual floor plan that details the seating area to assess the sewer connection
fees associated with the change of use.
Pursuant to Table 2-4 of the Village & Barrio Master Plan, "building space may be converted from one use
to another without additional parking, provided both uses have the same parking requirements set forth
within section 2.6.6. If the new land use has a higher parking requirement than the existing use, SO
percent of the additional parking based on the higher parking requirement shall be provided." Table 2-3
(Parking Requirements) requires restaurant establishments to provide one parking space per 170 square
feet of floor area. Delicatessens are required to provide one space per 300 square feet. Pursuant to
section 2.6.6.A of the Village & Barrio Master Plan (Parking Spaced Required), "Parking requirement
calculations resulting in a fraction shall be rounded up to the next whole number if the fraction is 0.5 or
higher or rounded down if the fraction is below 0.5." At the "delicatessen" rate, the parking required is
8.3, which is rounded down to 8 spaces. At the "restaurant" rate, 14.7 spaces would be required (rounded
to 15). The parking rate requirements for a "deli" versus "full service restaurant" results in a difference
of 7 spaces. After making a SO percent adjustment to the parking required (authorized per Table 2-4), the
number of off-street parking spaces required in connection with the change of use shall not be less than
4 parking spaces. These parking spaces shall be a continuing obligation so long as the use requiring the
vehicle parking continues. However, the off-street parking spaces may be satisfied though participation
in the Parking In-Lieu Fee Program. As of this writing, the adopted parking in-lieu fee is $11,240 per
parking space, or $44,960 total.
A Code Enforcement Officer will be in touch to follow up on the details and issue a Notice of Violation
(Warning) of our findings and specify a reasonable date to secure compliance.
I can understand if you want to discuss this in more detail. Please feel free to call me directly at 760-602-
2721 to help you navigate your next steps.
Mike Strong
Assistant Director of Community Development
City of Carlsbad
mstrong@carlsbadca.gov
Dec. 7, 2022 Item #3 50 of 61
August 11, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
C cityof
Carlsbad
VIA EMAIL AND HAND-SERVED
SUBJECT: APPEAL OF CITY PLANNER DETERMINATION ON VARiOUS PROPOSED USES AND ACTIVITIES
WITHIN THE VILLAGE AND BARRIO MASTER PLAN: VILLAGE CENTER DISTRICT; TIMELINESS
DETERMINATION
Dear Mr. Harrison (Attorney and Authorized Agent for Carrie Hansen, Hansen Rammel Braun, et al,
d/b/a Oak+ Elixir):
The City of Carlsbad Planning Division is in receipt of your appeal of the City Planner determination on
various proposed uses and activities within the Village and Barrio Master Plan: Village Center District
(use determination). The use determination states on page 4: "This determination may be appealed to
the Planning Commission pursuant to CMC §21.54.140 within ten days of the date of this letter." _
Carlsbad Municipal Code section 21.54.140{8) states in pertinent part that, "Whenever the city planner
is authorized, pursuant to this title, Title 19; or Title 20 to make a decision or determination, such
decision or determination is final and effective when the city planner's written determination is mailed
or otherwise delivered to the person(s) affected by the determination, whichever time is least
restrictive. Within ten calendar days of the date that a decision or determination becomes final, a
written appeal may be filed with the city planner by an interested person."
The use determination was mailed and emailed to you on July 20, 2022. Since 10 calendar days after the
mailing date fell on a weekend, your appeal was due the following Monday, or on August 1, 2022. Your
appeal of the use determination was not filed with the Planning Division until August 5, 2022. The
. appeal is, therefore, untimely.
This determination on the timeliness of your appeal (timeliness determination) may be appealed to the
Planning Commission pursuant to Carlsbad Municipal Code Section 21.54.140 within ten days of the
date of this letter, which has been hand-delivered and emailed to you on this same date of August 11,
2022. The appeal, along with a $786 appeal fee, must be submitted in writing to: ·
City Planner
Community Development Department
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008 _
Pursuant to Carlsbad Municipal Code Section 21. 54.140{8), the filing of a timely appeal on the
timeliness deter_mination will stay the effect of the timeliness determination until the Planning
Commission has acted on the appeal. Accordingly, the city will retain the appeal form and fee for your
appeal of the use determination until the timeliness determination becomes final. The filing of appeals
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EXHIBIT 7
Dec. 7, 2022 Item #3 51 of 61
Dec. 7, 2022 Item #3 52 of 61
August 11, 2022
of the use determination and the timeliness determination does not stay any requirements,
agreements, deadlines, or enforcement action that may otherwise apply to this project or property,
unless there is a written agreement with the city stating otherwise.
If you have any questions regarding this matter, please feel to contact me at 442-339-2717 or via email
at Eric.Lardy@Carlsbadca.gov
Sincerely,
ERIC LARDY, AICP
City Planner
cc: Carrie Hansen
Annie Rammel
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Robbie Hickerson, Code Enforcement Manager
Marissa Kawecki, Deputy City Attorney
Cliff Jones, Principal Planner
EXHIBIT 8
Dec. 7, 2022 Item #3 53 of 61
PROMETHEUS
Via Personal Delivery
City Clerk (appeals filing), City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
City Planner, Community Development Department
1635 Faraday Avenue
Carlsbad, CA 92008
cc: Carrie Hansen, Laura Anne Rammel
Oak+ Elixir
291 7 State Street
Carlsbad, CA 92008
Monday,August22,2022
R ·rff=" ~.' .:D
AUG 2 2 2022
Re: Timeliness Appeal of City Action. City Planner's Determination of
Untimeliness -Hearing Requested Before Planning Commission
City of Carlsbad Planning Commission:
On behalf of Carrie Hansen, Annie Rammel, and Hansen Rammel Braun Corp d/b/a Oak
+ Elixir (herein, "Oak + Elixir"), this letter requests the Planning Commission process the timely
appeal filed on August 5, 2022 ("Appeal") with the Carlsbad City Clerk, originally challenging the
Carlsbad City Planner Eric Lardy's determination, which was mailed on July 20, 2022, and thus
appeals the City Planner's subsequent determination of untimeliness, dated August 11, 2022,
and attached as Exhibit A. By reference, this request also incorporates the Appeal filed with the
City Clerk, as well as the August 25, 2021 letter appealing the August 19, 2021 decision of
Community Development Officer Mike Strong, arguments contained therein, and all related
decisions and actions, pursuant to the applicable provisions of the Carlsbad Municipal Code.1
By necessity, this request further affirms the formal basis for Oak + Elixir's challenge of the
decision and all related or underlying actions deriving from the alleged "use inconsistency" of its
ongoing operations.
On August 11th, 2022, City Planner Eric Lardy sent a letter via personal delivery claiming
that Oak+ Elixir's August 5, 2022 Appeal was untimely.2 According to this letter, the Appeal was
due to be filed no later than August 1st, because it was mailed on July 20th, 2022. However,
the physical copy of the challenged determination was not actually delivered to the "responsible
1 C.M.C. 1.10.120, 1.10.310, 8.09.150, 21.54.140
2 Exhibit A
Prometheus Civic Law, P.C.
120 Vantis, Suite 300 I Aliso Viejo, CA 92656
C. 949.436.4500
Matthew Sean Harrison, Esq.
SBN 305019
111a1t@procivlaw.com
Dec. 7, 2022 Item #3 54 of 61
party" until July 25th, 2022. As discussed infra, this five-day period is consistent with the
expected delivery timelines of the United States Postal Service and the California Code of Civil
Procedure, as well as other applicable well-settled law. Accordingly, counsel immediately
communicated the discrepancy to City staff and the City attorney. Unfortunately, the City
disregarded these points and proceeded to blatantly ignore its own law in the process.
1) The Appeal Was Timely Under the Terms of the Carlsbad Municipal Code and
Applicable Law, Including, But Not Limited to, the Five-Day Mailing Extension Codified in
the California Code of Civil Procedure
The Carlsbad Municipal Code provides that the City Planner's determination becomes
"final and effective" when it is "mailed or otherwise delivered to th e person(s) affected by the
determination, whichever time is least restrictive."3 A timely appeal must be submitted within
1 O calendar days from this "least restrictive" date of effective finality. Here, while the City's letter
was mailed on July 20th, it was not "delivered to the person(s) affected" until July 25th, 2022.
Because the Carlsbad Municipal Code clearly requires the "least restrictive" timeframe be used,
there is no question that July 25th is the proper date, making the appeal due by August 5, 2022,
the date it was filed.
The City Planner's brazen use of the "most restrictive" interpretation to "find" a lack of
timeliness is in plain violation of the Carlsbad Municipal Code. In its attempted weaponization of
the mail notice procedures, the action also violates state law.
The California Code of Civil Procedure provides that "any period of notice [or] duty to do
any act or make any response" within a time period established by statute, "shall be
extended five calendar days, upon service by mail" between California addresses.4 The Code
states that this five-day extension "applies in the absence of a specific exception" in any other
statute or applicable law.5 Thus, even though the Carlsbad Municipal Code does not expressly
incorporate the provisions of the Code of Civil Procedure generally, the extension nevertheless
applies in full force tor the mailed notice to be legally effective. 6
Under the standards established by state and local law, there is simply no question that
the appeal was timely submitted on August 5, 2022, ten (10) days after the date of finality (or
receipt), which was five (5) days after the date of mailing.
2) In Addition Or In The Alternative, The Appeal Was Timely Due To The Original
(Attempted) Timely Appeal on August 25, 2021
As incorporated by reference in the Appeal, Oak and Elixir had previously challenged the
original decision by Mike Strong on August 19, 2021 . In denying an Entertainment Permit
application, the City claimed solely that there is an alleged viol ation posed by the business
3 C.M.C. 21.54.150(a) (emphasis add ed)
4 Code Civ. Proc. § 1013(a)
5 Ibid.
6 Ibid.; See also Code Civ. Proc. § 684.120 (providing five-day notice for "writ, notice, order, or
other paper")
Dec. 7, 2022 Item #3 55 of 61
operation. This decision, as stated, denied Oak + Elixir's application for an entertainment
license based solely on the same claim of "use inconsistency", and threatened a notice of
violation and substantial "impact fees". On August 25, 2021, Oak + Elixir submitted an appeal
on the form provided by the City along with the required fee, with many of the same arguments
it was forced to rehash again on August 5, 2022. In what is now apparently an annual tradition,
the City refused to process the appeal, claiming it did not constitute a 'final decision' subject to
its appeal procedures under the municipal code.
This (attempted) timely appeal a year prior provides an additional compelling justification
for Oak + Elixir, whether under the express terms of the Carlsbad Municipal Code or any
recognizable principle of due process of law.
3) In Addition Or In The Alternative, The Appeal Was Timely Because Equitable
Tolling Applies
The California Supreme Court has repeatedly affirmed that all statutes of limitations are
tolled "[w]hen an injured person has several legal remedies and, reasonably and in good faith,
pursues one."7 This doctrine, called equitable tolling, will "suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness."8 Though equitable
tolling "operates independently of the language of the Code of Civil Procedure and other
codified sources of statutes of limitations", "its legitimacy is unquestioned."9. As the California
Supreme Court stated, equitable tolling is now "part of the established backdrop of American
law."10
Equitable tolling applies when three elements are present: 1) timely notice; 2) lack of
prejudice, and 3) reasonable and good faith conduct.11 These requirements "balanc[e] the
injustice" caused by the rigid application of the timelines "against the effect upon the important
public interest or policy" under the applicable statute.12
Here, Oak + Elixir has satisfied all three of the elements for equitable tolling. Oak and
Elixir provided timely notice to the City of its objections to the challenged orders (in August of
7 McDonald v. Antelope Valley Community College Dist. (2008), 45 Cal.4th 88, 100; Collier v.
City of Pasadena (1983), 142 Cal.App.3d 917, 923; Elkins v. Derby (1974) 12 Cal.3d 410, 414;
Addison v. State of California (1978), 21 Cal.3d 313; Myers v. County of Orange (1970) 6
Cal.App.3d 626, 634
8 McDonald, supra, 99; Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370
9 McDonald, supra, 99-100; Addison, supra, 18-319
10 Saint Francis Mem'I Hosp. v. State Dep't of Pub. Health (2020), 9 Cal.5th 710,721; Young v.
United States (2002) 535 U.S. 43, 49
11 Saint Francis supra, 724-25; Addison, supra at 319
12 Ibid.
Dec. 7, 2022 Item #3 56 of 61
2021 and 2022), via both the City's standard forms and email13 and other direct communication
to the relevant city officials. There is no prejudice to the City by allowing equitable tolling, nor
has the City Planner (or other staff) even claimed any prejudice could possibly occur. Finally,
Oak and Elixir has acted reasonably in good faith at all times.
As an independent confirmation of these points, It is important to note that Oak and Elixir
recently executed a Code Enforcement Agreement with the City of Carlsbad. The Agreement
binds Oak + Elixir to make all necessary actions to remedy code violations, and seeks to
remedy all the issues identified in the challenged orders. It also provides the additional notice to
the City that equitable tolling applies. Furthermore, because the execution of the final
agreement constitutes an independent "legal remedy", its pursuit cannot be used to foreclose
the availability of the alternative statutory appeal procedure.
4) In Addition Or In The Alternative, The Appeal Was Timely Because the City
Planner's Rejection Was {and Challenged Actions Are) Arbitrary, Capricious and In Bad
Faith
In delivering the untimeliness determination letter on August 11, 2022, the City Planner
elected to use a personal courier service to hand-deliver the document to the undersigned
counsel. As noted in a subsequent email to the City Planner and other city staff, the use of this
method previously would have obviated any need for this (third) appeal, as there would be no
dispute regarding the date of receipt. The City Planner failed to city any citations or code
provisions authorizing a courier service for his determination of "untimeliness", but not the
original challenged determination regarding the alleged use inconsistency.
Because common sense dictates that one cannot respond to a letter without first
receiving it, even the most rudimentary notions of fair play and good faith require a sufficient
time period after receiving a physical copy. Moreover, since the City requires a physical copy of
the appeal be submitted to the City Clerk before 5PM on the date due, it is of paramount
importance to provide the necessary flexibility provided by the "least restrictive" date.
(Additionally, the Carlsbad Municipal Code does not authorize electronic service as a proper
means of "delivering" such determination.). In disregarding any concerns of actual notice in
order to weaponize an arbitrarily rigid (and ultimately false) interpretation and evade
accountability, the City Planner makes a mockery of the code and transgresses foundational
provisions of due process. Indeed, in the end, the legal terms that are most applicable to
Planner's actions are "arbitrary and capricious".
5) Conclusion
As shown above, there is no basis for the City Planner's allegation of untimeliness in his
August 11, 2022 letter. In its three (3) separate appeals on the same issue over the past year,
Oak + Elixir has met the applicable standards under the spirit and letter of the municipal code,
public safety, welfare and substantial justice. Despite the continued disinterest of the City
Planner (and other staff) in providing fair treatment, we formally request the Planning
Commission, at long last, provide the necessarily relief to enable dynamic small businesses to
survive (let alone thrive) in this challenging environment.
13 See St. Francis, supra at 727 ("e-mail notifying [opposing] counsel" provided timely notice
sufficient for equitable tolling)
Dec. 7, 2022 Item #3 57 of 61
In conclusion, we ask the Planning Commission overrule the City Planner's
determination(s) (including, but not limited, to the August 11, 2022 claim of untimeliness), and
issue a finding that Oak+ Elixir's appeal(s) were timely, can proceed, and furthermore that its
use is substantially similar to the authorize use(s) of the Village and Barrio Zone, and consistent
with the purposes and intent thereof.
Very truly yours,
By:~~
Matthew Sean Harrison, Esq.
Attorney and Authorized Agent
By: Isl Carrie Hansen
Carrie Hansen, Hansen Rammel
Braun, et al, dlbla Oak + Elixir
Dec. 7, 2022 Item #3 58 of 61
EXHIBIT A
Dec. 7, 2022 Item #3 59 of 61
August 11, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
(_ City of
-carlsbad
VIA EMAIL AND HAND-SERVED
SUBJECT: APPEAL OF CITY PLANNER DETERMINATION ON VARIOUS PROPOSED USES AND ACTIVITIES
WITHIN THE VILLAGE AND BARRIO MASTER PLAN: VILLAGE CENTER DISTRICT; TIMELINESS
DETERMINATION
Dear Mr. Harrison (Attorney and Authorized Agent for Carrie Hansen, Hansen Rammel Braun, et al,
d/b/a Oak+ Elixir):
The City of Carlsbad Planning Division is in receipt of your appeal of the City Planner determination on
various proposed uses and activities within the Village and Barrio Master Plan: Village Center District
(use determination). The use determination states on page 4: "This determination may be appealed to
the Planning Commission pursuant to CMC §21.54.140 within ten days of the date of this letter."
Carlsbad Municipal Code section 21.54.140{8) states in pertinent part that, "Whenever the city planner
is authorized, pursuant to this title, Title 19, or Title 20 to make a decision or determination, such
decision or determination is final and effective when the city planner's written determination is mailed
or otherwise delivered to the person(s) affected by the determination, whichever time is least
restrictive. Within ten calendar days of the date that a decision or determination becomes final, a
written appeal may be filed with the city planner by an interested person."
The use determination was mailed and emailed to you on July 20, 2022. Since 10 calendar days after the
mailing date fell on a weekend, your appeal was due the following Monday, or on August 1, 2022. Your
appeal of the use determination was not filed with the Planning Division until August 5, 2022. The
appeal is, therefore, untimely.
This determination on the timeliness of your appeal (timeliness determination) may be appealed to the
Planning Commission pursuant to Carlsbad Municipal Code Section 21.54.140 within ten days of the
date of this letter, which has been hand-delivered and emailed to you on this same date of August 11,
2022. The appeal, along with a $786 appeal fee, must be submitted in writing to:
City Planner
Community Development Department
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008.
Pursuant to Carlsbad Municipal Code Section 21. 54.140(8), the filing of a timely appeal on the
timeliness determination will stay the effect of the timeliness determination until the Planning
Commission has acted on the appeal. Accordingly, the city will retain the appeal form and fee for your
appeal of the use determination until the timeliness determination becomes final. The filing of appeals
Dec. 7, 2022 Item #3 60 of 61
August 11, 2022
of the use determination and the timeliness determination does not stay any requirements,
agreements, deadlines, or enforcement action that may otherwise apply to this project or property,
unless there is a written agreement with the crty stating otherwise.
If you have any questions regarding this matter, please feel to contact me at 442-339-2717 or via email
at Eric.Lardy@Carlsbadca.gov
Sincerely,
ERIC LARDY, AICP
City Planner
cc: Carrie Hansen
Annie Rammel
Jeff Murphy, Community Development Director
Mike Strong, Assistant Community Development Director
Robbie Hickerson, Code Enforcement Manager
Marissa Kawecki, Deputy City Attorney
Cliff Jones, Principal Planner
EXHIBIT 9
Dec. 7, 2022 Item #3 61 of 61
CEQA DETERMINATION OF EXEMPTION
Subject: This California Environmental Quality Act (CEQA) Determination of Exemption is in compliance
with Carlsbad Municipal Code Section 19.04.060. An appeal to this determination must be filed
in writing with the required fee within ten (10) calendar days of the City Planner's decision
consistent with Carlsbad Municipal Code Section 21.54.140.
City Planner Decision Date: November 2, 2022
Project Number and Title: PCD 2022-0002 (DEV2022-0153) -OAI< +ELIXIR-APPEAL OF CITY PLANNER'S
DETERMINATION
Project Location -Specific: _2_91_7_S_t_a_te_S_t_re_e_t ____________________ _
Project Location-City: _Ca'-r_ls_b~a_d ____ _ Project Location -County: _Sa_n_D_i_e~go~. ___ _
Description of Project: Appeal of the City Planner's determination that the land use determination appeal
(PCD 2022-0001) was not made in a timely manner.
Name of Public Agency Approving Project: =C=ityi....=..of'-C=a=-r-=ls=b-=ad-"-----------------
Name of Person or Agency Carrying Out Project: Matt Harrison, Prometheus Civic Law, PC
Name of Applicant: Carrie Hansen and Annie Rammel
Applicant's Address: 2917 State Street, Carlsbad, CA 92008
Applicant's Telephone Number: "'--94-'-"9=-----'-4"'--36=-----'-4"'--50=---0=----------------------
Name of Applicant/Identity of person undertaking the project (if different from the applicant above):
Exempt Status: (Check One)
D Ministerial (Section 21080(b)(1); 15268);
D Declared Emergency (Section 21080(b)(3); 15269(a));
D Emergency Project (Section 21080(b)(4); 15269 (b)(c));
~ Categorical Exemption -State type and section number: Enforcement Actions by Regulatory Agencies
-Section 15321
D Statutory Exemptions -State code number ___________________ _
D Common Sense Exemption (Section 15061(b)(3))
Reasons why project is exempt: Enforcement of a law, general rule, standard, or objective administered
or adopted by the regulatory agency
Lead Agency Contact Person: Esteban Danna Telephone: 442-339-2629
ERIC LARDY, City Planner Date