HomeMy WebLinkAbout2022-12-07; Planning Commission; ; PCD 2022-0001 (DEV2022-0153) – OAK + ELIXIR – APPEAL OF CITY PLANNER’S USE DETERMINATION
Item No. 4
Application complete date: N/A
P.C. AGENDA OF:Dec. 7, 2022 Project Planner: Esteban Danna
Project Engineer: N/A
SUBJECT: PCD 2022-0001 (DEV2022-0153) – OAK + ELIXIR – APPEAL OF CITY PLANNER’S USE
DETERMINATION – Request to consider an appeal of the City Planner’s determination that an
establishment is operated in a manner consistent with the definition of “restaurant” for an establishment
located at 2917 State Street within Local Facilities Management Zone 1. The City Planner has determined
that pursuant to the California Environmental Quality Act Guidelines 15378 (Project), adoption of the
Planning Commission Resolution, affirming the City Planner’s determination is not a project, as it is general
policy and procedure making related delegated authority interpreting the Zoning Ordinance.
I. RECOMMENDATION
That the Planning Commission ADOPT the Planning Commission Resolution (Exhibit 1), DENYING the
subject appeal of Carrie Hansen, and Annie Rammel (appellants), and Matt Harrison
(appellants’ attorney), upholding the City Planner’s determination that the existing establishment
operated and/or is operating in a manner consistent with the definition of “restaurant.”
II. DESCRIPTION AND BACKGROUND
Carrie Hansen, and Annie Rammel (appellants) are the owners of Oak + Elixir. 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 (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).
Dec. 7, 2022 Item #4 1 of 168
PLANNING COMMISSION
Staff Report
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PCD 2022-0001 (DEV2022-0153) – OAK + ELIXIR – APPEAL OF CITY PLANNER’S DETERMINATION
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In May of 2022, Oak + Elixir allowed the city to conduct a code enforcement inspection of the property to
clarify the status of 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 appellants submitted the subject appeal to the City Planner’s determination.
Permitted Establishments with Eating, Serving, and Related Uses
The following established definitions for each type of permitted land use activity were analyzed by the
City Planner in his analysis and determination:
Restaurant (Appendix A of the VBMP): An establishment at which the primary establishment 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 establishment at all times that the establishment 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 establishment hours.
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Restaurant, Fast Food (Appendix A of the VBMP): An eating, or eating and drinking establishment
designed to attract and accommodate high customer volumes or turnovers and which provides ready-to-
eat food for consumption on or off the premises and meets the following criteria: APPENDIX A A-4 1. 2.
Food is ordered at a customer service counter from a limited menu of ready-to-eat items either prepared
in advance of or quickly after customer orders. Food is paid for prior to consumption.
Restaurant, Limited Take-out Service (Appendix A of the VBMP): An establishment that sells food or
beverages and that has all of the following characteristics:
1. Sales are primarily for off-site consumption.
2. Customers order and pay for food at either a counter or service window.
3. Incidental seating, whether indoors or out, does not exceed ten seats.
4. Alcoholic beverages are not sold, served, or given away on the premises.
5. Typical uses include bakeries, candy, coffee, nut and confectionery stores, ice cream and frozen dessert
stores, and similar establishments.
Delicatessen (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-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.
III. APPEAL
As stated in CMC Section 21.54.140, a decision made by the City Planner may be appealed to the Planning
Commission. All appeals must be made in writing within ten (10) calendar days of the decision made by
the City Planner. Where the VBMP is silent on an issue, the requirements of the Carlsbad Municipal Code
shall apply. Chapter 21.54.140 of the Carlsbad Municipal Code states that the burden of proof is on the
appellants to establish by substantial evidence that the grounds for the requested action exist. Grounds
for appeal shall be limited to the following: that there was an error or abuse of discretion on the part of
the City Planner in that the decision was not supported by the facts presented to the City Planner prior to
the decision being appealed; or that there was not a fair and impartial hearing. 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
deemed appropriate, including remand to the City Planner with directions for further proceedings.
The purpose of this action is to consider the appeal to City Planner determination that the establishment’s
use is consistent with the definition of a “restaurant” use. The Planning Commission Determination (PCD)
is a vehicle to forward to the Planning Commission those matters which are independent of planning
applications and projects.
Grounds for Appeal
Dec. 7, 2022 Item #4 3 of 168
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On August 5, 2022, the city received the appeal to the City Planner’s land use determination. The
appellants’ grounds for the appeal are summarized below, along with staff’s analysis. Exhibit 3 provides
the appellants’ full appeal.
Oak+ Elixir does not Present Any "Use" inconsistency, As Alleged, As a Matter of Law
Appellants’ Position:
The appellants state that Oak+ Elixir is a combination wine bar, event space, and limited-service restaurant
that has operated continually since 2014. Because the wine bistro/deli received building permits and
outdoor patio permits over the years, the city's current objection to the designation after years of
authorized operations is improper.
Staff Analysis:
The original establishment was authorized to operate as a wine bistro/deli. As such, the establishment is
required to comply with the definition of the use for which a permit was issued. In this case, to operate
as a delicatessen as defined in CMC 21.04.106. Instead, the operation at Relm Wine Bistro/Oak + Elixir is
consistent with the definition of “restaurant” as defined in Appendix A of the Village and Barrio Master
Plan (VBMP). The establishment’s unpermitted progression from a delicatessen type of restaurant to a
full-service type of restaurant does not automatically vest its right to continue operating as a restaurant
without complying with applicable code requirements. The operation does not meet the definition of
delicatessen in that (1) the total area exceeds 1,600 square feet, (2) beverages are served in glasses as
opposed to canned or bottled, (3) the operation uses a toasting oven, (4) there are waiters employed on
the premises, (5) there is service of food using non-disposable tableware, and (6) the establishment has
dishwashing facilities. Both delicatessen- and restaurant-type uses are permitted on the property as long
as the chosen use complies with the requirements for said use.
Oak+ Elixir is Substantially Similar to the "Restaurant-Delicatessen" Use
Appellants’ Position:
The appellants state that Oak and Elixir fits the definition of delicatessen because the space is divided into
three components totaling 2,500 square feet: 500 square feet is designated as event space, 450 square
feet is designated as the wine bar, which includes bar seating, and 1,550 square feet maximum is
designated as delicatessen use. The appellants claim that the establishment therefore complies with the
definition of delicatessen because it is less than 1,600 and has a limited menu. The appellants state that
the establishment provides a limited wait staff and has a dishwasher but claims that those components
are not sufficient to overcome the other factors that make the establishment substantially consistent with
the delicatessen definition.
Staff Analysis:
The establishment is not substantially consistent with the definition of delicatessen for the following
reasons:
1. The floor plans or current operation for the subject establishment show that there is no clear
separation between the 500-square-foot event space, 450-square-foot bar and related seating, and
the 1550-square-foot delicatessen allocation. This allows the establishment to utilize the entire indoor
area as a dining room when events are not scheduled, thus, operating in an area exceeding 1,600
square feet.
Dec. 7, 2022 Item #4 4 of 168
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2. The establishment employs waiters on the premises.
3. The establishment provides beverage service which is not sold in their original cans or bottles.
4. The establishment uses ovens for the cooking or preparation of food.
5. The establishment serves food using non-disposable tableware.
6. The establishment uses dishwashing facilities.
As determined by the City Planner, the establishment is substantially similar to and consistent with the
definition of “restaurant.” The current operation is not substantially similar to a delicatessen use and does
not comply with definitions of other types of restaurants such as “fast-food restaurant” or “limited take-
out service.”
Oak's Classification as "Restaurant, Delicatessen" is Further Consistent with the Village & Barrio Master
Plan
Appellants’ Position:
The appellants state that the Village and Barrio Master Plan encourages a mix of uses, which includes
different type of “restaurant” uses. Thus, the use of Oak+ Elixir, are entirely consistent with the Village
Center District of the Master Plan. Oak+ Elixir is consistent with the applicable standards of a "Restaurant,
Delicatessen.” Additionally, the appellants claim that Oak + Elixir is consistent with the applicable
standards of a "Restaurant, Delicatessen" because it combines uses and eliminates rigid distinctions as
determined by the city’s definitions.
Staff Analysis:
The Permitted Uses table (Table 2-1) in Section 2.3 of the VBMP identifies that four types of restaurants
are permitted to operate within the Village Center District. Those types of restaurants include “restaurant,
delicatessen,” “fast-food,” and “limited take-out service.” The establishment is required to comply with
all applicable standards for the land use it most closely matches as set forth by the VBMP and Carlsbad
Municipal Code. In the case of Oak + Elixir, the establishment is operated in a manner that meets the
definition of “restaurant,” as opposed to “restaurant, delicatessen.” Therefore, it is subject to all
applicable provisions required for “restaurants.”
Staff agrees with the appellants’ assertion that the VBMP encourages a "dynamic mix and range of uses
and facilities" to "enhance the Village as a community focal point." Both delicatessens and restaurants are
important components to providing such vibrancy in the Village. However, each land use is still subject to
its specific applicable requirements in the VBMP and Carlsbad Municipal Code. The appellants claim that
the establishment operates three different components: a delicatessen, a bar, and an event space. The
appellants have not demonstrated how the operation complies with the definition of delicatessen or how
it complies with all applicable standards for each of the three components. Furthermore, it is not clear
how any of the alleged components could be implemented separately and operated independently, or
whether they are foreseeable consequences of each other. For that reason, they are to be considered one
in the same for the purpose of evaluating land use and zoning consistency. The appellants have instead
shown that the operation is substantially similar to the definition of a “restaurant” as identified in staff’s
response to item two above.
The Determination and Prior Letter Are Arbitrary and Capricious
Appellants’ Position:
Dec. 7, 2022 Item #4 5 of 168
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The appellants state that city staff relies on two arbitrary provisions, the use of ovens and wait staff, in
the definition of delicatessen to show a use inconsistency. He argues that these two factors are irrelevant
for purposes of the land use code’s purpose to serve the public health, safety and general welfare and
provide the economic and social advantages resulting from an orderly planned use of land resources. The
appellants further state that the interpretation should focus on the purpose of provisions to establish the
minimum standards to protect the health, safety, comfort, convenience and general welfare. Thus, the
appellants argue, the city's actions are arbitrary and capricious.
Staff Analysis:
The existence of use definitions in the VBMP and CMC for different types of land uses were implemented to identify allowed land uses and their related intensities. The appellants allege that the use of ovens and
wait staff misses the point of the definitions. However, definitions are placed in land-use governing
documents to identify factors in a land use that makes it more or less intense, and thus, the definitions
are not arbitrary and capricious.
Additionally, the appellants fail to identify the presence of additional factors in Oak + Elixir’s operation
that make it substantially similar to a “restaurant” use. Aside from the ovens and wait staff, other factors
in the operation of Oak + Elixir disqualify it from being considered as substantially similar to a delicatessen
type of use. These factors include the excess of 1,600 square feet of area, the service of beverages that
are not sold in their original cans or bottles, the service of food using non-disposable tableware, and the
use of dishwashing equipment.
Regardless of whether the land use on the subject property is classified as a delicatessen or restaurant,
the VBMP and the CMC continues to “serve the public health, safety and general welfare and to provide
the economic and social advantages resulting from an orderly planned use of land resources.”
Oak+ Elixir is Not Liable for Any Additional Parking or Fees
Appellants’ Position:
The appellants state that the city's insistence on its narrow use classifications is primarily motivated by its
desire to extract increased parking in-lieu fees and other impact fees. No distinction exists in the Municipal
Code or Village Barrio Master Plan reflecting disparate land use treatment of "Delicatessens" vs. the
general "Restaurant" category, except for the parking space requirement table.
Staff Analysis:
The City Planner’s determination of the subject establishment’s land use is not based on a motivation to
collect fees. Rather, the City Planner’s determination is a result of a reasonable analysis of the following:
1) evidence presented by the appellants, 2) inspection of the premises by code enforcement, and 3) the
applicable definitions of the land uses in question as identified in the VBMP and the CMC. The VBMP
establishes the definitions and parking requirements, and uses methodology similar to many jurisdictions
to establish regulatory requirements, in this case for parking. After careful analysis, the City Planner
determined that the current operation of the establishment is substantially similar to the definition of a
“restaurant.”
The original approval for the construction of the building included the payment of parking in-lieu fees for
21 parking spaces to be shared by all the land uses operating on the property. If the appellants wish to
continue the operation of the establishment as it is currently operating, the property will be required to
comply with the required number of parking spaces for a restaurant. Table 2-4 in Section 2.6 of the VBMP
Dec. 7, 2022 Item #4 6 of 168
PCD 2022-0001 (DEV2022-0153) – OAK + ELIXIR – APPEAL OF CITY PLANNER’S DETERMINATION
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identifies options for compliance with parking requirements. The parking in-lieu fee program is one such
option.
IV. ENVIRONMENTAL REVIEW
Pursuant to the California Environmental Quality Act Guidelines 15378 (Project), adoption of the Planning
Commission Resolution, affirming the City Planner’s determination is not a project, as it is general policy
and procedure making related delegated authority interpreting the Zoning Ordinance.
EXHIBITS:
1. Planning Commission Resolution (Appeal Denial)
2. Location Map
3. Appeal Forms and Attachments
4. Original Approval - RP 01-04
Dec. 7, 2022 Item #4 7 of 168
Exhibit 1
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, DENYING THE APPEAL TO THE CITY PLANNER’S
DETERMINATION OF USE, AND DETERMINING THAT AN EXISTING
ESTABLISHMENT OPERATED AND/OR IS OPERATING IN A MANNER
CONSISTENT WITH THE DEFINITION OF “RESTAURANT” ON PROPERTY
LOCATED 2917 STATE STREET IN LOCAL FACILITIES MANAGEMENT ZONE
1.
CASE NAME: OAK + ELIXIR – APPEAL OF CITY PLANNER’S
DETERMINATION
CASE NO: PCD 2022-0001 (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 related to land use and zoning on file in the Planning Division, PCD 2022-0001
(DEV2022-0153) – Oak + Elixir – Appeal of City Planner’s Determination, 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 appeal required 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 State CEQA Guidelines Section 15321 (Enforcement Actions by
PLANNING COMMISSION RESOLUTION NO. __
Dec. 7, 2022 Item #4 8 of 168
PC RESO (Exhibit 1-Appeal Denial) -2-
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 2022-0001 (DEV2022-0153) – OAK + ELIXIR – APPEAL OF CITY PLANNER’S
DETERMINATION based on the following findings:
Findings
1. Permits or approvals may be required by Carlsbad Municipal Code Title 21 to authorize a
particular land use or activity of any building, structure, or land as specified in this title. All
land uses, activities, buildings, and structures shall be established, conducted, built or
maintained in compliance with the provisions of any permit or approval granted by the city
and the regulations of the applicable zone as established by the Zoning Map.
a. Nothing shall authorize the intensification of the authorized land use and activity
beyond that which is specifically described in any permit or approval granted by the city.
b. The operation and use of a subject property shall be consistent with any permit or
approval granted including but not limited to the project description, details of request or
conditions attached thereto.
Dec. 7, 2022 Item #4 9 of 168
PC RESO (Exhibit 1-Appeal Denial) -3-
2. The original establishment was authorized to operate as a “wine bistro/deli.” As such, the
establishment is expected to comply with the definition of the use for which a permit was
issued. In this case, to operate as a “delicatessen” as defined in Carlsbad Municipal Code
Section 21.04.106. Instead, the operation at Relm Wine Bistro/Oak + Elixir resembles a
classification of use that is more consistent with the definition of “restaurant” as defined in
Appendix A of the Village and Barrio Master Plan. The establishment’s unpermitted
progression from a delicatessen type of restaurant to a full-service type of restaurant does not
automatically vest its right to continue operating as a “restaurant” without complying with
applicable code requirements.
3. The subject land use activity is not substantially consistent with the definition of
“delicatessen” as defined in Carlsbad Municipal Code Section 21.04.106 for the following
reasons:
a. The floor plans for the subject establishment show that there is no clear separation
between the 500-square-foot event space, 450-square-foot bar and related seating,
and the 1550-square-foot delicatessen allocation. This allows the establishment to
utilize the entire indoor area as a dining room when events are not scheduled, thus,
operating in an area exceeding 1,600 square feet.
b. The establishment employs waiters on the premises.
c. The establishment provides beverage service which is not sold in their original cans
or bottles.
d. The establishment uses ovens for the cooking or preparation of food.
e. The establishment serves food using non-disposable tableware.
f. The establishment uses dishwashing facilities.
The Planning Commission considered all of these factors and determined that the factors,
both individually and cumulatively, disqualify the establishment from being substantially
similar to a “delicatessen” use as defined in Carlsbad Municipal Code Section 21.04.106 and
does not comply with definitions of other types of restaurants identified and defined in the
Village and Barrio Master Plan, such as “fast-food restaurant” or “limited take-out service.”
This determination is a result of a reasonable analysis of (1) evidence presented by the
appellant; (2) inspection of the premises by code enforcement; and (3) applicable definitions
of the land uses in question as identified in the Village and Barrio Master Plan and the Carlsbad Municipal Code.
4. The establishment is substantially similar and consistent with the definition of “restaurant” as
defined in Appendix A of the Village and Barrio Master Plan.
5. The establishment is required to comply with all applicable standards and provisions required
for “restaurants.”
Dec. 7, 2022 Item #4 10 of 168
PC RESO (Exhibit 1-Appeal Denial) -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 Community Development Director
Dec. 7, 2022 Item #4 11 of 168
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OAK + ELIXIR - APPEAL OF CITY PLANNER'S DETERMINATION
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Map generated on: 9/13/2022
EXHIBIT 2
Dec. 7, 2022 Item #4 12 of 168
August 11, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
{city ofCarlsbad
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
EXHIBIT 3
Dec. 7, 2022 Item #4 13 of 168
Dec. 7, 2022 Item #4 14 of 168
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
Dec. 7, 2022 Item #4 15 of 168
DATE: 8/22/22
CITY OF CARSLBAD
PLANNING DIVISION REVIEW & COMMENT MEMO
LEAD PLAN CASE NO.: PCD2022-0002
CYCLE REVIEW NO.: 1
PROJECT TITLE: CITY PLANNER DETERMINATION OF OAK+ ELIXIR
APPLICANT NAME: OAI< AND ELIXIR
PLANNING DIVISION STAFF CONTACT:
TO:
□ □ □ □ □ □ □ □
TO:
Land Development Engineering: Tim Carroll D -----Land Development Engineering: Jennifer Horodyski (TDM) D
Building Division: Jason Pasiut D
Fire Department: Fire Marshal D
Landscape Consultant: Bruce Dugmore D
Police Department: Jodee Reyes D
Parks & Rec. (Parks/Trails): Michael Tully D
Parks & Rec. (Trees/Medians): Morgan Rockdale D
Public Works (Traffic): John Kim ----------Pub Ii c Works (Transportation): Nathan Schmidt
Public Works: Michael O'Brien
Public Works (Streets): Michael O'Brien
Uti lities-Design/M&O: Neil Irani
Public Works (Env.): Rosanne Humphrey (HMP)
Housing & Homeless Services: Mandy Mills
City Attorney's Office: Ron Kemp ----------
TO: (Outside Agencies) TO: (Outside Agencies)
D SAN DAG (Any major development) D CAL TRANS (Any development adjacent to 1-5)
State of California Department of Transportation
Planning Division
401 B. Street, Suite 800, San Diego, CA 92101-4231
0 North County Transit District
(Any impacts to bus stops or use of/adjacent to NCTD property)
Email: planning@nctd.org and ROW@nctd.org
4050 Taylor Street, MS 240, San Diego CA 92110
COMMENT DUE DATE: 9/21/22
RECIPIENT:
STEP 1:
STEP 2:
STEP 3:
STEP 4:
STEP 5:
Review and provide adequate/complete plan examination. Upload comments to EnerGov (Under
Documents/ Attachments).
Ensure that all comments and corrections are clear, understandable and can be supported if challenged.
Attach red lined plans or supplemental information or comments if needed.
Clearly differentiate between comments on 1) completeness with the intake information requests; and 2)
for issues or concerns regarding regulation compliance.
Utilize EnerGov to update review status (under Manage My Reviews) and attach all comments.
Complete this form and return to the Planning Division Staff Contact (see above) prior to the due date.
Signature Date
The following is to be completed by the recipient. Please check mark the applicable box:
D All my comments are uploaded to EnerGov.
D Some of my comments are uploaded to EnerGov, but additional information is attached to this form.
D I do not have any comments regarding this cycle review. EnerGov Workflow Review Status is marked as approved.
Dec. 7, 2022 Item #4 16 of 168
( City of
Carlsbad
APPEAL FORM
P-27
Development Services
Planning Division
1635 Faraday Avenue
(442) 339-2610
www.carlsbadca.gov
-Er!F]'IE
Date of Decision you are appealing:. __ A---'ug::c...l_1s_t _1 l_;_,_2_02_2 ____________ A_U_G_2_2_20_2_2 __
Subject of the Appeal:
CIT ( OF LARLSBAD
PLA\\JN~:IS QI\/ cir. I
BE SPECIFIC Examples: if the action is a City Planner's Decision, please say so. If a project has multiple
applications, (such as a Coastal Development Permit, Planned Unit Development, Minor Conditional Use
Permit, etc) please list all of them. If you only want to appeal a part of the whole action, please state that here.
Please see fee schedule for the current fee.
see attached
Reason(s) for the Appeal: PLEASE NOTE: The appeal shall specifically state the reason(s) for the
appeal. Failure to specify a reason may result in denial of the appeal, and you will be limited to the
grounds stated here when presenting your appeal.
BE SPECIFIC How did the decision-maker err? What about the decision is inconsistent with local laws, plans,
or policy? Please see Carlsbad Municipal Code (CMC) Section 21.54.140(b) for additional information
(attached). Please attach additional sheets or exhibits if necessary.
see attached
NAME (Print): Carrie Hansen, Annie Rammel, Matt Harrison (attorney), Oak+ Elixir
MAILING ADDRESS: Prometheus Civic Law, PC, 120 Yantis, Ste 300 / 2917 State St
CITY, STATE, ZIP: Aliso Viejo, CA 92656
TELEPHONE: 949 436 4500 (attorney)
EMAIL ADDRESS: matt@procivlaw.com (attorney)
SIGNATURE:
DATE: August 21, 2022
0 _')7 0 ,:,,-,o 1 r,f 1
Dec. 7, 2022 Item #4 17 of 168
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,August 22,2022
R err. '. '~D
AUG 2 2 2022
CITY Or .:::JS,LSBAD
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
matt@procivlaw.com
Dec. 7, 2022 Item #4 18 of 168
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 the person(s) affected by the
determination, whichever time is least restrictive."3 A timely appeal must be submitted within
10 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 added)
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 #4 19 of 168
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 410,41 4;
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 #4 20 of 168
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 #4 21 of 168
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, d/b/a Oak + Elixir
Dec. 7, 2022 Item #4 22 of 168
EXHIBIT A
Dec. 7, 2022 Item #4 23 of 168
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 #4 24 of 168
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
Dec. 7, 2022 Item #4 25 of 168
DATE: 8/8/22
CITY OF CARSLBAD
PLANNING DIVISION REVIEW & COMMENT MEMO
LEAD PLAN CASE NO.: PCD2022-0001
CYCLE REVIEW NO.: 1
PROJECT TITLE: CITY PLANNER DETERMINATION OF OAK+ ELIXIR
APPLICANT NAME: CARRIE HANSEN, ANNIE RAM MEL, MATT HARRISON, OAK+ ELIXIR
PLANNING DIVISION STAFF CONTACT:
TO:
□ □ □ □ □ □ □ □
TO:
Land Development Engineering: Tim Carroll D -----Land Development Engineering: Jennifer Horodyski (TDM) D
Building Division: Jason Pasiut D
Fire Department: Fire Marshal D
Landscape Consultant: Bruce Dugmore D
Police Department: Jodee Reyes D
Parks & Rec. (Parks/Trails): Michael Tully D
Parks & Rec. (Trees/Medians): Morgan Rockdale D
Public Works (Traffic): John l<im ---------Pub Ii c Works (Transportation): Nathan Schmidt
Public Works: Michael O'Brien
Public Works (Streets): Michael O'Brien
Uti lities-Design/M&O: Neil Irani
Public Works (Env.): Rosanne Humphrey (HMP)
Housing & Homeless Services: · Mandy Mills
City Attorney's Office: Ron l<emp
TO: (Outside Agencies) TO: (Outside Agencies) D SAN DAG (Any major development)
401 B. Street, Suite 800, San Diego, CA 92101-4231
D North County Transit District
(Any impacts to bus stops or use of/adjacent to NCTD property)
Email : planning@nctd.org and ROW@nctd.org
COMMENT DUE DATE: 9/6/22
RECIPIENT:
D CAL TRANS (Any development adjacent to 1-5)
State of California Department of Transportation
Planning Division
4050 Taylor Street, MS 240, San Diego CA 92110
STEP 1: Review and provide adequate/complete plan examination. Upload comments to EnerGov (Under
Documents/ Attachments).
STEP 2: Ensure that all comments and corrections are clear, understandable and can be supported if challenged.
Attach red lined plans or supplemental information or comments if needed.
STEP 3: Clearly differentiate between comments on 1) completeness with the intake information requests; and 2)
for issues or concerns regarding regulation compliance.
STEP 4: Utilize EnerGov to update review status (under Manage My Reviews) and attach all comments.
STEP 5: Complete this form and return to the Planning Division Staff Contact (see above) prior to the due date.
Signature Date
The following is to be completed by the recipient. Please check mark the applicable box: D All my comments are uploaded to EnerGov. D Some of my comments are uploaded to EnerGov, but additional information is attached to this form. D I do not have any comments regarding this cycle review. EnerGov Workflow Review Status is marked as approved.
Dec. 7, 2022 Item #4 26 of 168
( City of
Carlsbad
APPEAL FORM
P-27
Development Services
Planning Division
1635 Faraday Avenue
(442) 339-2610
www.carlsbadca.gov
AUG O 5 2022 Date of Decision you are appealing : __ J_u_ly_20_,_2_0_2_2_(r_e_c_ei_v_ed_in_rr_1_ai_l _J t_il_y_2_4_) ---------~
CIT/ U. . it' .:::ii:::'/\0
PL/,1~1 11 J( l IVISIU ,1 Subject of the Appeal:
BE SPECIFIC Examples: if the action is a City Planner's Decision , please say so. If a project has multiple
applications, (such as a Coastal Development Permit, Planned Unit Development, Minor Conditional Use
Permit, etc) please list all of them. If you only want to appeal a part of the whole action, please state that here.
Please see fee schedule for the current fee.
see attached
Reason(s) for the Appeal: PLEASE NOTE: The appeal shall specifically state the reason(s) for the
appeal. Failure to specify a reason may result in denial of the appeal, and you will be limited to the
grounds stated here when presenting your appeal.
BE SPECIFIC How did the decision-m aker err? What about the decision is inconsistent with local laws, plans,
or policy? Please see Carlsbad Municipal Code (CMC) Section 21.54.140(b) for additional information
(attached). Please attach additional sheets or exhibits if necessary.
see attached
NAME (Print): Canie Hansen, Am1ie Ramme!, Matt Han-ison (attorney), Oak+ Elixir
MAILING ADDRESS: Prometheus Civic Law, PC, 120 Yantis, Ste 300 / 2917 State St
CITY, STATE, ZIP: Aliso Viejo, CA 92656
TELEPHONE: 949 436 4500 (attorney)
EMAIL ADDRESS: matt@procivlaw.com (attorney)
SIGNATURE:
DATE: August l, 2022
P-27 Page 1 of 1 Rev. 3/22
Dec. 7, 2022 Item #4 27 of 168
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, August 1, 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., 8.09.150, 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. 949.4364500 0. 949.330 7356
Matthew Sean Harrison, Esq.
SBN 305019
matt@procivlaw.com
"restaurant-delicatessen" and "consistent with the purposes and intent" of the Village-Barrio
Zone. Instead, after restating various provisions of the Municipal Code, it concludes with the
obvious truism that the broader definition of "restaurant" necessarily applies. 4 However, it also
fails note that it is in fact, impossible to submit any evidence that Oak + Elixir's current operations are not (also) substantially similar to this broader definition, and Oak+ Elixir never
claimed they would not thus qualify.
Oak+ Elixir is classified a "Restaurant, Delicatessen" under the applicable provisions of the Carlsbad Municipal Code and the Barrio General Plan. Obviously, on its face, the City's
classification of "restaurant" is the broadest definition, encompassing every time of food service establishment, including delis, fast food, full service restaurants, and ancillary services. Additionally, the City code considers "delicatessens", like all other "restaurants" and subtypes,
as a "bona fide eating place," defined as "any establishment at which the primary business is
the preparation, service and retail sale of meals comprising a varied selection of foods [to
be]served and consumed on the premises."5
In light of such facts and information, the City's Planner's determination constitutes error and abuse of discretion and was not supported by the facts presented. Pursuant to the
Municipal Code, we seek a hearing before the Planning Commission on the matter, or in the
alternative, the dismissal and reversal of the findings in their entirety, according to the factors
below.
1)Oak+ Elixir does not Present Any "Use" inconsistency, As Alleged, As a Matter of Law
Oak+ Elixir is a combination wine bar, event space, and limited service restaurant.6 It
has operated such continually since the purchase of the business from the prior owner-operator,
Reim Wine and Bistro, in 2014. In fact, City documentation and historical records show that the
use of the property has been designated as "wine bistro, deli" since prior to Oak+ Elixir's
operation.7
Because consumers generally prefer to drink wine from glasses, not paper cups, Reim Wine and Bistro had a dishwasher. Like Oak+ Elixir, they also had a wait staff, thereby "violating" the same two prongs of the city's definition. In fact, under the Planner's determination (and Mike Strong's allegations) enforcing these absurdly narrow definitions, to the extent any "wine bar, deli" served customers wine in glasses, could never lawfully operate in the City of Carlsbad -a patently absurd result.
4 Determination, p. 3 (concluding that because use is "substantially similar to a restaurant" it is neither "necessary nor appropriate" to "make a determination that another use is allowed")
s C.M.C. 21.04.056
6 oakandelixir.com
7 Mike Strong, Assistant Director of Community Development, "Entertainment License
Application Request Denial," August 19, 2021
Dec. 7, 2022 Item #4 28 of 168
Despite Reim Wine and Bistro obtaining a building permit and other entitlements during its years at the property,8 no record of citations regarding such alleged "use inconsistency" exist. Because of this admitted consistent prior use, which Oak did not change or increase the intensity of, over multiple years and shared ownership, this City's objection to the designation, after years of specifically authorized operations, including most recently the recent outdoor patio permit granted in 2020, is improper and violates the Municipal Code.9
"Use" means the purpose for which land or building is arranged, designed or intended, or for which either is or may be occupied or maintained."10 As defined in the zoning code, the potentially available "use" designations for Oak+ Elixir include "Restaurant", "Delicatessen" "or "Bar/Cocktail Lounge"11. And furthermore, because bars "not incidental to an existing restaurant" are prohibited in the Village Center Zone (and the use designation expressly does not apply to Oak + Elixir)12, ultimately the only proper "use" designation for Oak + Elixir, as it has long been constituted and operated, is a restaurant, or subtype thereof (viz., "delicatessen").
2)Oak+ Elixir is Substantially Similar to the "Restaurant-Delicatessen" Use
As stated in the challenged determination, the City's zoning code defines "delicatessen" as a "type of restaurant, totaling less than one thousand six hundred [1,600] square feet in total floor area, selling ready-to-eat food [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."13
Similarly, Oak and Elixir has less than 1,600 square feet in total floor area designated for its restaurant or deli "use".14 Moreover, it sells only pre-cooked food for consumption on the premises, and accordingly, its kitchen does not have a restaurant-grade stove or oven, but relies on a TurboChef for preparation. This fact has been verified by the City in its inspection.
a CB 14-10 30
9 C.M.C. 21.35.080 ("No determination or decision shall be made pursuant to this chapter unless the decision-making authority finds, in addition to any other findings otherwise required for the project, that the project is consistent with the general plan, this code, as applicable, the Village and Barrio master plan ... as applicable.")
10 C.M.C. 21.04.375
11 C. M.C. 21.04.041
12 C.M.C. 21.04.041 (."Bar or cocktail lounge" means [an] establishment ... not meeting the requirements of a bona fide public eating establishment ... ")
13 C.M.C. 21.04.106
14 The entire premises of Oak and Elixir is 2,500 square feet. 500 square feet is designated as
event space, and the wine bar -the bar itself, its designated seating and required floor space -
comprises an additional 450 square feet of contiguous floor space, at minimum. Thus, the maximum available space for "deli" (or "restaurant") use comprises one thousand five hundred
fifty (1,550) square feet in total floor area. ( Cf. note 11, supra.)
Dec. 7, 2022 Item #4 29 of 168
Accordingly, demonstrating this deli-style concept, its menu is more limited in comparison with typical "full-service" restaurants,1s thereby clearly satisfying the two most relevant standards under the municipal code, as well as any reasonable expectation harbored in the minds of Carlsbad residents and visitors.
While Oak + Elixir does provide a limited wait staff to its customers, such a provision, much like the offending dishwasher, is hardly sufficient to overcome the other factors clearly consistent with the City's definition of "delicatessen." This is also noted by the business classification, NAICS Code 722513, "limited service restaurants", which includes "delicatessens", and the sub-type most applicable to Oak + Elixir, "family restaurants (limited service)". 16 This code designation remains separate and distinct from the "full-service restaurant" category.17 Moreover, the wait staff should be considered as part of the "wine bar" or "event space" portion of the premises, or the employment thereof, as necessary in order to achieve compliance. But since City only requires a single "use" to be designated, and overlap among its necessarily limited enumerated list is inevitable, it is clear that Oak is at least "substantially similar to" as Restaurant-Delicatessen as it is defined as a permitted land use category.
Further emphasizing this point, and the importance of the dynamic innovation embodied by Oak+ Elixir and the Village & Barrio district, innumerable popular "delis" statewide -from favored local businesses to international franchise chains -violate one or more of the City's arbitrary definitional prongs, from choice of their food "heating" technology to having the audacity to innovate with customer service and delivery options. To wit, in a brazen prima facie violation of the Carlsbad Zoning Code, "delis" like Subway and Quiznos do, in fact, use "ovens" -specially-designed, commercial grade ovens combining microwave and convection functions1a -and competitors commonly differentiate themselves by providing oven-baked or other speciality food products.19 (Any consumer with a modern toaster oven would likely question the rational basis of the City's allegations.) Many more restaurants -like Oak and Elixir -combine deli-style
15 Oak+ Elixir, "Menu" (https://www.oakandelixir.com/oande-bites)
16 NAICS, "722513 -Limited-Service Restaurants" https://www.naics.com/naics-codedescription/?code= 722513
17 NAICS, "722511 -Full-Service Restaurants" https://www.naics.com/naics-code-description/? code=722511&v=2017
18 Michael Wolk, "What machine is Subway using to blast cook its subs in 15 seconds? What's
involved in making this not quite a microwave and not quite a toaster? Who else uses this technology?" Quora.com, December 30, 2010. Available at: https://www.quora.com/What
mach i ne-is-S ubway-using-to-blast-cook-its-su bs-i n-15-seconds-Whats-i nvo lved-in-maki ng-this
not-q ujte-a-mjcrowave-and-not-qujte-a-toaster-Who-e!se-uses-th js-tech oo logy See alsoTurbo Chef, https://turbochef .com/about/
19 Dan Myers, "10 Things You Didn't Know About Jimmy John's", The Daily Meal, June 3-, 2014 https://www.thedailymeal.com/1 0-things-you-didn-t-know-about-jimmy-john-s/6314 (first location contained "a refrigerator, a chest freezer, an oven, and a meat slicer")
Dec. 7, 2022 Item #4 30 of 168
offerings with other "full service" restaurant products, including fire pit ovens.20 Some higherend deli/restaurants in the state do employ a full-time wait staff on premises.21 Others do so by performing all of the above services without calling themselves a "deli".22 In all cases, these
rebel "delis" would not satisfy the strict definition as proposed by the City.
3)Oak's Classification as "Restaurant, Delicatessen" is Further Consistent with
the Village & Barrio Master Plan
The Carlsbad Zoning Code explicitly designates the Village and Barrio Master Plan as the relevant authority on permitted uses in that zone.23 In listing the permitted uses, the Master Plan expressly (and uniquely) refers to the combined use of "Restaurant, Delicatessen" -giving it identical land use provisions as "Restaurants" generally, as well as Limited Take-Out Service, Fast Food Restaurants, and Retail uses.24
In general, the Village and Barrio Master plan encourages a "dynamic mix and range of uses and facilities" to "enhance the Village as a community focal point".25 The Master Plan seeks to establish the area as a "good location for a variety of retail activities [including] "restaurants, ranging from take-out to full-service. "26 Such creative flexibility is fundamental to the Village & Barrio Plan, and justified by considerations of sustainability and long-term "economic and demographic trends" that increase the demand for such creative fusion of multiple business types over time.27. Far from any alleged "inconsistency", the combined designation (and use) of Oak+ Elixir, are entirely consistent with the Master Plan. The Village Center District, comprised of "unique mixed-use development," functions as a strong retailing and financial service center serving city residents as well as tourists and regional visitors" and is intended to "reinforce the pedestrian shopping and dining environment, encourage mutually
20 Rocco's Pizza and Deli, Vista (http://www.roccospizzavista.com/), Ciao Deli & Pizzeria, Costa
Mesa (https://www.ciaodelipizza.com/) Mort's Deli (Tarzana, https://www.mortsdelitarzana.com/)
21 Stephanie Breijo, "At Greenblatt's Deli, Closing Last Night, Guests Waited for One Final
Taste," Los Angeles Times, https://www.latimes.com/food/story/2021-08-12/on-greenblatts-deli
closing-last-night-guests-waited-for-one-final-taste, ("Servers whisked by with plates piled high
with sandwiches ... ")
22 See Bottega Louie, "Restaurant, Gourmet Market, Patisserie and Cafe," providing full service wait staff (https://www.bottegalouie.com/pages/about)
23 C. M.C. 21.35.060, ("The development standards of the Village and Barrio master plan, including the permitted uses table, shall identify the permitted, conditionally permitted, and prohibited uses in [that] zone ... ")
24 Village & Barrio Master Plan, Ta ble 2-1 p. 6.
2s Village & Barrio Master Plan, 1.5.1 Land Use and Community Character
26 Village & Barrio Master Plan, 5.2.1 Retail
27 Village & Barrio Master Plan, 5.2.5 Implications for the Village and Barrio. See also 21.35.01 O ("The Village-Barrio zone is intended to establish land use classifications, development standards, procedures and guidelines for that unique area of the city ... ) [emphasis added]
Dec. 7, 2022 Item #4 31 of 168
supportive uses and provide a major activity focus for the Carlsbad Village and the city as a whole."
The Village and Barrio Master Plan demonstrates the arbitrary and capricious nature of the City's rigid determination. As shown, Oak+ Elixir is wholly consistent with the applicable standards of a "Restaurant, Delicatessen" in the Village & Barrio Center. Reflecting this deep affinity for combined and mixed uses, and for eliminating the very rigid distinctions the City now purports to wield as an obstacle to such innovative efforts in practice.
4). The Determination and Prior Letter Are Arbitrary and Capricious
The purpose of the City's land-use code is to "serve the public health, safety and general welfare [and] provide the economic and social advantages resulting from an orderly planned use of land resources."28 In clear contradiction of these principles (as well as all relevant evidence) City staff relies exclusively on two clearly arbitrary provisions in the definition of "Delicatessen" -viz., a lack of "ovens" and wait staff -in support of Oak and Elixir alleged "inconsistency" with the requirements of the Master Plan.29
However, not only are these two arbitrary factors wholly irrelevant for purposes of the zoning code generally, having no basis in public health, safety or welfare, nor any conceivable benefit or "economic and social advantag[e] resulting from an orderly planned use of land resources", nor the Village & Barrio Master Plan in particular, as shown, but the City's skewed interpretation and enforcement is contracted by all common sense and reasonable practice. Whatever intent the City Council originally had in identifying such factors to serve as illustrative guideposts in identifying deli-style restaurants throughout the City generally, there is no rational basis to use wield them as an all-purpose litmus test for land use compliance approval, especially in a manner to threaten fines and assessments contrary to the specific applicable Master Plan, as the City has done here.
These errors are not raised to belittle or disrespect city officials, but to the contrary, demonstrate the fundamental commonality in the issues at hand. In the end, all the "delis" -like Oak and Elixir -are still closer than not to "delis", with every nitpicking inconsistency substantively outweighed by supportive factors. The businesses operate on smaller premises, with a less-than "full"-service kitchen, with food cooked or otherwise prepared offsite and "heated" onsite. The precise technologies and service models used by these businesses matter far less than the common substantive universals.
In interpreting the Zoning Code and any conflicts of law, the focus is purpose of provisions themselves, namely to "establish the minimum standards to protect the health, safety,
comfort, convenience and general welfare."30 Nothing about "health, safety, comfort,
convenience [or] general welfare" justifies the City's actions, and it is arbitrary and capricious.
2e C.M.C. 21.02.010, (Ord. 9060 § 100).
29 Strong Denial ("Based on visual inspection (and the description of the business providedonline), Oak & Elixir has a kitchen [sic.] and is operating the business with servers ... This "use" inconsistency, "deli" versus "full service restaurant," [sic.] prevents the City from approving this Entertainment License application ... ")
30 C.M.C. 21.56.010
Dec. 7, 2022 Item #4 32 of 168
•
>
5)Oak+ Elixir is Not Liable For Any Additional Parking or Fees
As it has been clear from the beginning, the City's insistence on its arbitrarily narrow
"use" classifications is primarily (if not exclusively) motivated by its desire to extract increased lieu parking fees and other "impact fees", from the necessary modification. 31 To the point, no
distinction -relevant, significant, or otherwise -even exists in the Carlsbad Municipal Code or
Village Barrio Master Plan reflecting disparate land use treatment of "Delicatessens" vs. the general "Restaurant" category -except, that is, for the parking space requirement table.32 The
original estimated "out the door" price tag of the alleged "use inconsistency", by virtue of the
mandated in lieu parking fees, originally $44,960 when Mike Strong denied Oak+ Elixir's
entertainment permit,33 has ballooned this sum to almost six figures. As a family business, Oak
+Elixir cannot afford the demanded fees, and have expressed the point directly to City officials,
to no avail.
While the Planner was not asked to address the parking issues, he did so anyway, in an
apparent attempt to retroactively justify the decision that had already been made by Mike
Strong. Unfortunately, by improperly disclaiming his authority, he misstated the law.
However, in its haste to run up the bill on Oak+ Elixir, the City never adequately explained the need for the "use" modification to begin with, as shown, let alone any increased
parking requirements, since all relevant factors (legal and factual) clearly support the "Deli
Restaurant" designation within the Village Barrio Zone (including, but not limited to square
footage, meal preparation, common use of language and general public advertising).
6)Conclusion
As shown above, there is no basis for the City's allegation for any "use inconsistency".
Oak+ Elixir has met the applicable standards under the spirit of this title, public safety, welfare
and substantial justice. Regardless of the City's apparent disinterest in providing these options,
nor making its award-winning taxpaying businesses even aware of their availability, we duly and
formally request the Planning Commission provide the necessarily relief to enable dynamic
small businesses to survive (let alone thrive) in this challenging environment.
Accordingly, we ask the planning Commission to vacate the City Planner's determination, and issue a finding that Oak + Elixir's use is substantially similar to the authorize use(s) of the Village and Barrio Zone, and consistent. with the purposes and intent thereof.
31 Strong Denial, calculating in lieu fees parking for four (4) parking spaces, at the rate of $11,240 per space; Village & Barrio Master Plan, Master Plan p. 2-23, 2.6.6. Area-Wide Parking, Table 2-3 (Parking Requirements)
32 Table 2-3, supra, requiring one space per 170 sq ft for Restaurants, but one per 300 sq. ft for delis
33.Use as a "delicatessen", as currently constituted, requires only eight (8) spaces, but astandard "restaurant" would require fifteen (15). Table 2-3.
Dec. 7, 2022 Item #4 33 of 168
Dec. 7, 2022 Item #4 34 of 168
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 #4 35 of 168
EXHIBIT A
AUG Q 5 ·2022.
r
Dec. 7, 2022 Item #4 36 of 168
July 20, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
C
AUG O 5 2022
{city of
Carlsbad
VIA EMAIL AND MAIL
SUBJECT: DETERMINATION OF THE CITY PLANNER ON VARIOUS PROPOSED USES AND 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 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.
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 t he 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 #4 37 of 168
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 #4 38 of 168
Mr. Harrison
July 20, 2022
Page 3
Tab le 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 SO 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 Pfan: as part of a Minor Site Deve lopment 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).
Carfsbad Municipaf 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 #4 39 of 168
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 the 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 Planner
Dec. 7, 2022 Item #4 40 of 168
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) wholeheartedly 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 I 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 (orior 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. Lakritz's involvement is crucially necessary for the. For instance, Mike's August 19, 2021
letter rejecting the Ente1tainment 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 #4 41 of 168
"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 importance 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. (21.54.125) 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 propetty", presumably this would
be in all patties' interest to resolve as soon as possible. As an indication of this effmt, we will
submit the Building Permit as soon as it is ready.
l look forward to our discussion shortly. Thank you and sony for the delay!
Kind regards,
Matt
On Mon, Jun 6, 2022 at 1 :25 PM Marissa Kawecki <Marissa.Kawecki@carlsbadca.gov>
wrote:
Good Afternoon Matt,
I am following up on my email below 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 #4 42 of 168
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.carisbadca.gov
442-339-5351 I 760-434-8367 fax I Marissa.kawecki@carlsbadca.gov
Facebook I Twitter I You Tube I Pinterest !Enews
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
<Jamie.Zel!er@carlsbadca.gov>; Mike Strong <Mike.Strong@carlsbadca.gov>
Subject: Draft code compliance for review by Lessee and Property Owner
Matt/Annie,
Dec. 7, 2022 Item #4 43 of 168
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 prope1ty 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
442-339-5351 I 760-434-8367 fax I Marissa.kawecki@carlsbadca.gov
Facebook I Twitter I You Tube I Pinterest IEnews
Dec. 7, 2022 Item #4 44 of 168
M. Sean Harrison, Esq.
Prometheus Civic Law
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Dec. 7, 2022 Item #4 45 of 168
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 certain aspects
of a "restaurant" use (like a dishwasher and quasi-servers) along with aspects of a "deli
restaurant" (everything else, including the NAlCS classification). Our position is that Oak
operates in a maimer 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 "within the vision and intent" of the district. We would
appreciate this determination in writing.
The meeting tomo1Tow 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 sho1tly). 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 lieu parking fees are entirely based on
the difference in use classification, the cost savings for this favorable result are substantial.
For everyone's lmowledge, 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 the 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 J 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, 1 Iook 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.Kaweckj@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 #4 46 of 168
Thank you all for coordinating.
Marissa Kawecki
From: Mike Strong
Sent: Thursday, June 23, 2022 11 :25 AM
To: 'Matt Hall'ison' <matt@procivlaw.com>; Annie Rammel
<annie@oakandelixir.com>; Oak and Elixir <ca1Tie.oakandelixir@gmail.com>
Subject: Meeting -City Planner Use Determination
Annie, Carrie, and Matt:
The City Planner 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 l 0
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 l, 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 #4 47 of 168
your preferred wording of th e 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 pennit is required for both a deli
and restaurant use of any structure, irrespective of1he City Planner's use
determination.
Please let me know if you have any questions.
Thank you.
jmage00 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 infonnalion 1hat is privileged or. otherwise legally protected
from disclosure. If you are not the intended recipient or if this m ssagc has been addressed to you in error, please delete ii 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 #4 48 of 168
EXHIBITB
AUG O G 2022
Dec. 7, 2022 Item #4 49 of 168
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 rest aurant, 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 #4 50 of 168
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.
IW()s
Mike Strong
Assistant Director of Community Development
City of Carlsbad
mstrong@carlsbadca.gov
Dec. 7, 2022 Item #4 51 of 168
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
Dec. 7, 2022 Item #4 52 of 168
DATE: 8/22/22
CITY OF CARSLBAD
PLANNING DIVISION REVIEW & COMMENT MEMO
LEAD PLAN CASE NO.: PCD2022-0002
CYCLE REVIEW NO.: 1
PROJECT TITLE: CITY PLANNER DETERMINATION OF OAK+ ELIXIR
APPLICANT NAME: OAK AND ELIXIR ----------------------------------
PLANNING DIVISION STAFF CONTACT:
TO:
□ □ □ □ □ □. □ □
TO:
□
□
TO:
Land Development Engineering: Tim Carroll D -----Land Development Engineering: Jennifer Horodyski (TDM) D
Building Division: Jason Pasiut D
Fire Department: Fire Marshal D
Landscape Consultant: Bruce Dugmore D
Police Department: Jodee Reyes D
Parks & Rec. (Parks/Trails): Michael Tully D
Parks & Rec, (Trees/Medians): Morgan Rockdale D
(Outside Agencies)
SAN DAG (Any major development)
401 B. Street, Suite 800, San Diego, CA 92101-4231
North County Transit District
(Any impacts to bus stops or use of/adjacent to NCTD property)
Email: planning@nctd.org and ROW@nctd.org
COMMENT DUE DATE: 9/21/22 ------------
TO:
□
RECIPIENT:
Public Works {Traffic): John Kim ---------Pub Ii c Works (Transportation): Nathan Schmidt
Public Works: Michael O'Brien
Public Works {Streets): Michael O'Brien
Utilities-Design/M&O: Neil Irani
Public Works (Env.): Rosanne Humphrey {HMP)
Housing & Homeless Services: Mandy Mills
City Attorney's Office: Ron Kemp ---------
(Outside Agencies)
CAL TRANS (Any development adjacent to 1-5)
State of California Departmen~ of Transportation
Planning Division
4050 Taylor Street, MS 240, San Diego CA 92110
STEP 1: Review and provide adequate/complete plan examination. Upload comments to EnerGov (Under
Documents/ Attachments).
STEP 2: Ensure that all comments and corrections are clear, understandable and can be supported if challenged.
Attach red lined plans or supplemental information or comments if needed.
STEP 3: Clearly differentiate between comments on 1) completeness with the intake information requests; and 2)
for issues or concerns regarding regulation compliance.
STEP 4: Utilize EnerGov to update review status (under Manage My Reviews) and attach all comments.
STEP 5: Complete this form and return to the Planning Division Staff Contact (see above) prior to the due date.
Signature Date
The following is to be completed by the recipient. Please check mark the applicable box: D All my comments are uploaded to EnerGov. D Some of my comments are uploaded to EnerGov, but additional information is attached to t his form. D I do not have any comments regarding this cycle review. EnerGov Workflow Review Status is marked as approved.
Dec. 7, 2022 Item #4 53 of 168
( Cicyof
Carlsbad
APPEAL FORM
P-27
Development Services
Planning Division
1635 Faraday Avenue
(442) 339-2610
www.carlsbadca.gov
DBJ~Ot--C-0 \ S 3, J P0D 2-0 2---?,-0 C()L.-,
Date of Decision you are appealing: __ A_u~gu_st_l_l_, 2_0_2_2 ___________ A_U_G_2_2_2_0_22 __
Subject of the Appeal:
BE SPECIFIC Examples: if the action is a City Planner's Decision, please say so. If a project has multiple
applications, (such as a Coastal Development Permit, Planned Unit Development, Minor Conditional Use
Permit, etc) please list all of them. If you only want to appeal a part of the whole action, please state that here.
Please see fee schedule for the current fee.
see attached
Reason(s) for the Appeal: PLEASE NOTE: The apgeal shall specifically state the reason(s) for the
appeal. Failure to specify a reason may result in denial of the appeal, and you will be limited to the
grounds stated here when presenting your appeal.
BE SPECIFIC How did the decision-maker err? What about the decision is inconsistent with local laws, plans,
or policy? Please see Carlsbad Municipal Code (CMC) Section 21.54.140(b) for additional information
(attached). Please attach additional sheets or exhibits if necessary.
see attached
NAME (Print): Carrie Hansen, Annie Rammel, Matt Harrison (attorney), Oak+ Elixir
MAILING ADDRESS: Prometheus Civic Law, PC, 120 Yantis, Ste 300 / 2917 State St
CITY, STATE, ZIP: Aliso Viejo, CA 92656
TELEPHONE: 949 436 4500 (attorney)
EMAIL ADDRESS: matt@prociv1aw.com (attorney)
SIGNATURE:
DATE: August 21, 2022
0 _?7
Dec. 7, 2022 Item #4 54 of 168
PROt-v1ETHEUS
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
2917 State Street
Carlsbad, CA 92008
Monday, August 22, 2022
AUG 2 j 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 ExhibitA
Prometheus Civic Law, P.C.
120 Vantis, Suite 300 I A!is9 Viejo, CA 92656
C. 949.436.4500 .
MaHhew Sean Harrison, Esq.
SBN 30501 9
matt@prociv!aw.com
Dec. 7, 2022 Item #4 55 of 168
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 the 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 for 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 malling.
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 violation posed by the business
3 C.M.C. 21.54.150(a) (emphasis added)
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 #4 56 of 168
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 (197 4) 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'l 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 #4 57 of 168
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 Ent orcement 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 #4 58 of 168
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:~~-2--
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 #4 59 of 168
EXHIBIT A
Dec. 7, 2022 Item #4 60 of 168
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 at,
d/b/a Oak+ Elixir):
The City of Carlsbad Planning Division is in receipt of your appeal of the City Planner determination on
various propos!:!d 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 rn calendar days after the
mailing date fell on a weekend, your appeal was due the following Monday, or on August 1, 2022. Your
appe11I of the use determination W11s 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 #4 61 of 168
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
Dec. 7, 2022 Item #4 62 of 168
CITY OF CARSLBAD
PLANNING DIVISION REVIEW & COMMENT MEMO
DATE: 8/8/22 LEAD PLAN CASE NO.: PCD2022-0001
CYCLE REVIEW NO.: 1
PROJECT TITLE: CITY PLANNER DETERMINATION OF OAK+ ELIXIR
APPLICANT NAME: CARRIE HANSEN, ANNIE RAMM EL, MATT HARRISON, OAK+ ELIXIR
PLANNING DIVISION STAFF CONTACT:
TO: TO: D Land Development Engineering: Tim Carroll D Public Works (Traffic): John Kim -------------------□ Land Development Engineering: Jennifer Horodyski (TOM) D Public Works (Transportation):. Nathan Schmidt
D Building Division: Jason Pasiut D Public Works: Michael O'Brien ------------□ Fire Department: Fire Marshal D Public Works (Streets): Michael O'Brien D Landscape Consultant: Bruce Dugmore D Utilities-Design/M&O: Neil Irani ---------□ Police Department: Jodee Reyes D Public Works (Env.): Rosanne Humphrey (HMP) D Parks & Rec. (Parks/Trails): Michael Tully D Housing & Homeless Services: · Mandy Mills D Parks & Rec. (Trees/Medians): Morgan Rockdale D City Attorney's Office: Ron Kemp
TO: {Outside Agencies)
D SAN DAG (Any major development)
401 B. Street, Suite 800, San Diego, CA 92101-4231
D North County Transit District
(Any impacts to bus stops or use of/adjacent to NCTD property)
Email : planning@nctd.org and ROW@nctd.org
COMMENT DUE DATE: 9/6/22
RECIPIENT:
---------
TO: {Outside Agencies) D CAL TRANS (Any development adjacent to 1-5)
State of California Department of Transportation
Planning Division
4050 Taylor Street, MS 240, San Diego CA 92110
STEP 1: Review and provide adequate/complete plan examination. Upload comments to EnerGov (_U_n_d_e_r _____ _
Documents/ Attachments).
STEP 2: Ensure that all comments and corrections are clear, understandable and can be supported if challenged.
Attach red lined plans or supplemental information or comments if needed.
STEP 3: Clearly differentiate between comments on 1) completeness with the intake information requests; and 2)
for issues or concerns regarding regulation compliance.
STEP 4: Utilize EnerGov to update review status (under Manage My Reviews) and attach all comments.
STEP 5: Complete this form and return to the Planning Division Staff Contact (see above) prior to the due date.
Signature Date
The following is to be completed by the recipient. Please check mark the applicable box:
D All my comments are uploaded to EnerGov.
D Some of my comments are uploaded to EnerGov, but additional information is attached to this form. D I do not have any comments regarding this cycle review. EnerGov Workflow Review Status is marked as approved.
Dec. 7, 2022 Item #4 63 of 168
f Cityof
Carlsbad
APPEAL FORM
P-27
Development Services
Planning Division
1635 Faraday Avenue
{442) 339-2610
www.carlsbadca.gov
AUG O 6' 2022
Date of Decision you are appealing: __ J_u~ly_2_0_,_2_0_2_2_(r_e_ce_i_v_ed_in_n_1_ai_l_Ju_l __ y_2_4 __ ) __ ...,,....,..~-.,--.,......,..._,,...,..~,.,,.--, cr'r\/ cJ·:--:_::.!L\F~~-,:~i;:/\C\
Subject of the Appeal:
BE SPECIFIC Examples: if the action is a City Planner's Decision, please say so. If a project has multiple
applications, (such as a Coastal Development Permit, Planned Unit Development, Minor Conditional Use
Permit, etc) please list all of them. If you only want to appeal a part of the whole action, please state that here.
Please see fee schedule for the current fee.
see attached
Reason(s) for the Appeal: PLEASE NOTE: The appeal shall specifically state the reason{s) for the
appeal. Failure to specify a reason may result in denial of the appeal, and you will be limited to the
grounds stated here when presenting your appeal.
---··BE-SPEGIFIG--How-did-the-deeision-maker err-?--What-about-thedecision is-inconsistenLwith local.laws, plans, __ _
or policy? Please see Carlsbad Municipal Code (CMC) Section 21.54.140(b) for additional information
(attached). Please attach additional sheets or exhibits if necessary.
see attached
"
NAME (Print): Carrie Hansen, Annie Rammel, Matt Hanison (attorney), Oak+ Elixir
MAILING ADDRESS: Prometheus Civic Law, PC, 120 Yantis, Ste 300 / 2917 State St
CITY, STATE, ZIP: Aliso Viejo, CA 92656
TELEPHONE: 949 436 4500 (attorney)
EMAIL ADDRESS: matt@procivlaw.com (attorney)
SIGNATURE:
DATE: August I, 2022
P-27 Page 1 of 1 .Rev. 3/22
Dec. 7, 2022 Item #4 64 of 168
H
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, August 1, 2022
AUG O 5 2022
Re: Appeal of City Action. City 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 arid 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., 8.09.150, 21 .54.140
3 Mike Strong, Assistant Director of Community Development, "Entertainment License
Application Request Denial," August 19, 2021 (herein, "Strong Denial") Exhibit B
Pro i1eth~us CMo Law, P.>C.
·120 Vantis, Suite 300 ! Aliso Viejo, CA 92656
C. 949.436.4500 O. 949.330.7356
illbW»i?W Se.ain Ht:.nfaon, Esq.
SBN 305019
n1at1@procivlaw.com
Dec. 7, 2022 Item #4 65 of 168
Despite Reim Wine and Bistro obtaining a building permit and other entitlements during
its years at the property,8 no record of citations regarding such alleged "use inconsistency" exist.
Because of this admitted consistent prior use, which Oak did not change or increase the
intensity of, over multiple years and shared ownership, this City's objection to the designation,
after years of specifically authorized operations, including most recently the recent outdoor patio
permit granted in 2020, is improper and violates the Municipal Code.9
"Use" means the purpose for which land or building is arranged, designed or intended, or
for which either is or may be occupied or maintained."10 As defined in the zoning code, the
potentially available "use" designations for Oak+ Elixir include "Restaurant", "Delicatessen" "or
"Bar/Cocktail Lounge"11 . And furthermore, because bars "not incidental to an existing restaurant"
are prohibited in-the Village Center Zone (and the use designation expressly does not apply to
Oak+ Elixir)12, ultimately the only proper "use" designation for Oak+ Elixir, as it has long been
constituted and operated, is a restaurant, or subtype thereof (viz., "delicatessen").
2) Oak+ Elixir is Substantially Similar to the "Restaurant-Delicatessen" Use
As stated in the challenged determination, the City's zoning code defines "delicatessen"
as a "type of restaurant, totaling less than one thousand six hundred [1,600] square feet in total
floor area, selling ready-to-eat food [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 offood nor tableware or dishwashing facilities (other than a standard sink) are
permitted. No waiters or waitresses are employed on the premises."13
Similarly, Oak and Elixir has less than 1,600 square feet in total floor area designated for
its restaurant or deli "use".14 Moreover, it sells only pre-cooked food for consumption on the
premises, and accordingly, its kitchen does not have a restaurant~grade stove or oven, but relies
on a TurboChef for preparation. This fact has been verified by the City in its inspection.
a CB 14-1030
9 C.M.C. 21..35.080 ("No determination or decision shall be made pursuant to this chapter
unless the decision-making authority finds, in addition to any other findings otherwise required
, for the project, that the project is consistent with the general plan, this code, as applicable, the
Village and Barrio master plan ... as applicable.")
10 C.M.C. 21.04.375
11 C.M.C. 21.04.041
12 C.M.C. 21.04.041 (."Bar or cocktail lounge" means [an] establishment ... not meeting the
requirements of a bona fide public eating establishment. .. ") ·
13 C.M.C. 21.04.106
14 The entire premises of Oak and Elixir is 2,500 square feet. 500 square feet is designated as
event space, and the wine bar -the bar itself, its designated seating and required floor space -
comprises an additional 450 square feet of contiguous floor space, at minimum. Thus, the
maximum available space for "deli" (or "restaurant") use comprises one thousand five hundred
fifty (1 ,550} square feet in total floor area. (Cf. note 11 , supra.}
Dec. 7, 2022 Item #4 66 of 168
offerings with other "full service" restaurant products, including fire pit ovens.20 Some higher-
end deli/restaurants in the state do employ a full-time wait staff on premises.21 Others do so by
performing all of the above services without calling themselves a "deli".22 In all cases, these
rebel "delis" would not satisfy the strict definition as proposed by the City.
3) Oak's Classification as "Restaurant, Delicatessen" is Further Consistent with
the Village & Barrio Master Plan ·
The Carlsbad Zoning Code explicitly designates the Village and Barrio Master Plan as
the relevant authority on permitted uses in that zone;23 In listing the permitted uses, the Master
Plan expressly (and uniquely) refers to the combined use of "Restaurant, Delicatessen" -giving
it identical land use provisions as "Restaurants" generally, as well as Limited Take-Out Service,
Fast Food Restaurants, and Retail uses.24
In general, the Village and Barrio Master plan encourages a "dynamic mix and range of
uses and facilities" to "enhance the Village as a community focal point".25 The Master Plan
seeks to establish the area as a "good location for a variety of retail activities [including]
"restaurants, ranging from take-out to full-service. "26 Such creative flexibility is fundamental to
the Village & Barrio Plan, and justified by considerations of sustainability and long-term
"economic and demographic trends" that increase the demand for such creative fusion of
multiple business types over time.27. Far from any alleged "inconsistency", the combined
designation (and use) of Oak+ Elixir, are entirely consistent with the Master Plan. The Village
Center District, comprised of "unique mixed-use development," functions as a strong retailing
and·financial service center serving city residents as well as tourists and regional visitors" and is
intended to "reinforce the pedestrian shopping and dining environment, encourage mutually
20 Rocco's Pizza and Deli, Vista (http://www.roccospizzavista.com/), Ciao Deli & Pizzeria, Costa
Mesa (https://www.ciaodelipizza.com/) Mort's Deli (Tarzana, https://www.mortsdelitarzana.comD
21 Stephanie Breijo, ''At Greenblatt's Deli, Closing Last Night, Guests Waited for One Final
Taste," Los Angeles Times, https://www.latimes.com/food/story/2021-08-12/on-greenblatts-deli-
closing-last-night-guests-waited-for-one-final-taste, ("Servers whisked by with plates piled high
with sandwiches ... ") ·
22 See Bottega Louie, "Restaurant, Gourmet Market, Patisserie and Cafe," providing full service
wait staff (https://www.bottegalouie.com/pages/about)
23 C.M.C. 21.35.060, ("The development standards of the Village and Barrio master plan,
including the permitted uses table, shall identify the permitted, conditionally permitted, and
prohibited uses in [that] zone ... ")
24 Village & Barrio Master Plan, Table 2-1 p. 6.
2s Village & Barrio Master Plan, 1.5.1 Land Use and Community Character
26 Village & Barrio Master Plan, 5.2.1 Retail
27 Village & Barrio Master Plan, 5.2.5 Implications for the Village and Barrio. See also 21.35.010
("The Village-Barrio zone is intended to establish land use classifications, development
standards, procedures and guidelines for that unique area of the city ... ) [emphasis added]
Dec. 7, 2022 Item #4 67 of 168
5) Oak+ Elixir is Not Liable For Any Additional Parking or Fees
As it has been clear from the beginning, the City's insistence on its arbitrarily narrow
"use" classifications is primarily (if not exclusively) motivated by its desire to extract increased
lieu parking fees and other "impact fees", from the necessary modification.31 To the point, no
distinction -relevant, significant, or otherwise -even exists in the Carlsbad Municipal Code or
Village Barrio Master Plan reflecting disparate land use treatment of "Delicatessens" vs. the
general "Restaurant" category -except, that is, for the parking space requirement table.32 The
original estimated "out the door" price tag of the alleged "use inconsistency", by virtue of the
mandated in lieu parking fees, originally $44,960 when Mike Strong denied Oak+ Elixir's
entertainment permit,33 has ballooned this sum to almost six figures. As a family business, Oak
+ Elixir cannot afford the demanded fees, and have expressed the point directly to City officials,
to no avail.
While the Planner was not asked to address the parking issues, he did so anyway, in an
apparent attempt to retroactively justify the decision that had already been made by Mike
Strong. Unfortunately, by improperly disclaiming his authority, he misstated the law.
However, in its haste to run up the bill on Oak + Elixir, the City never adequately
explained the need for the "use" modification to begin with, as shown, let alone any increased
parking requirements, since all relevant factors (legal and factual) clearly support the "Deli-
Restaurant" designation within the Village Barrio Zone (including, but not limited to square
footage, meal preparation, common use of language and general public advertising).
6) Conclusion
As shown above, there is no basis for the City's allegation for any "use inconsistency".
Oak + Elixir has met the applicable standards under the spirit of this title, public safety, welfare
and substantial justice. Regardless of the City's apparent disinterest in providing these options,
nor making its award-winning taxpaying businesses even aware of their availability, we duly and
formally request the Planning Commission provide the necessarily relief to enable dynamic
small businesses to survive (let alone thrive) in this challenging environment.
Accordingly, we ask the planning Commission to vacate the City Planner's
determination, and issue a finding that Oak+ Elixir's use is substantially similar to the authorize
use(s) of the Village and Barrio Zone, and consistent_ with the purposes and intent thereof.
31 Strong Denial, calculating in lieu fees parking for four (4) parking spaces, at the rate of
$11,240 per space; Village & Barrio Master Plan, Master Plan p. 2-23, 2.6.6. Area-Wide Parking, ·
Table 2-3 (Parking Requirements)
32 Table 2-3, supra, requiring one space per 170 sq ft for Restaurants, but one per 300 sq. ft for
delis ·
33. Use as a "delicatessen", as currently constituted, requires only eight (8) spaces, but a
standard "restaurant" would require fifteen (15). Table 2-3.
Dec. 7, 2022 Item #4 68 of 168
EXHIBIT A
AIJG ~ 5 2022
Dec. 7, 2022 Item #4 69 of 168
July 20, 2022
Mr. Matt Harrison
Prometheus Civic Law
120 Vantis, Suite 300
Aliso Viejo, CA 92656
AUG O 5 2022
' City of
Carsbad
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 da_ted June 9, 2022 and June 29, 2022
(Attachments A and B) aswell 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
Dec. 7, 2022 Item #4 70 of 168
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 establishmentsmust 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 (Kimley-Horn's Park+ model)." (Page 4-74)
Dec. 7, 2022 Item #4 71 of 168
Mr. Harrison
July 20, 2022
Page 3
Table 1 shows the result of those reduced parking standards and parking study, as compared to what fs 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 ttie uses allowed in the Village Center District under the Plan section 2.3. The requested
use is substantially similar to a 11restaurant", 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 #4 72 of 168
Mr. Harrison
July 20, 2022
Page4
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 the 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 l(awecki, Deputy City Attorney
Cliff Jones, Principal Planner
Dec. 7, 2022 Item #4 73 of 168
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
Thursday, 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 infonnation 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 riot at this time authorized to make such agreements or guarantees on his
behalf. However, I (and my clients) wholehea1tedly 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 Building Permit in 2007-08 at construction (CB 06-1008; Recitals, Paragraph C).
While we appreciate the City's offer to correct the ce1tificate 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 Relm (prior to Oak's use) which first constituted the
sole impermissible change in occupancy type. (C.M.C. 21.60.010) In purchasing the existing
business, Oak's operation did not constitute a "change of type or class of use" vis-a-vis Relm,
and thus was not required to apply foi· a new use designation.
Mr. Lalcritz's involvement is crucially nec.essary for the. For instance, Mike's August 19, 2021
letter rejecting the Entertainment 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 importantly 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 Pla11 expressly provides that a use "not identified
within Table 2-1 is not permitted unless the city planner determines that such use falis with111
the vision and intent of the district in which it is proposed and is substantially similar to filJ
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 district. (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 NAICS definition with the far more narrow 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 NAICS classification
yet not meet the City's separate palpably arbitrary definition (such as, inter alia, the
Dec. 7, 2022 Item #4 74 of 168
"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 suppmt for Oak's
argument above.
Perhaps most impo1tantly, 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 detenninations, 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 Plam1ing 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 entertainment on premises has long ceased, as you
lmow.) 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-110)
Because the agreement is contingent upon the parties' consent as to both the violations and the
remedies, it is of the utmost importance 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-tenn 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 cunently, we will be
submitting a Building Permit (for, at minimum, ensuring compliance with building, electrical
and plumbing code), and depending on the result of the above, perhaps additional applications
for amendment. (21.54.125) Because you originally noted that the draft indemnification
language in paragraph 15, page 8 was modified due to the "lack of multiple pennits for
strnctures, mechanical, electrical, and plumbing work on the prope1ty 11, presumably this would
be in all pai1ies' interest to resolve as sqon as possible. As an indication of this eff011, we will
submit the Building Pe1mit as soon as it is ready.
I look forward to our discussion shortly. Thank you and sorry for the delay!
Kind regards,
Matt
On Mon, Jun 6., 2022 at 1 :25 PM Marissa Kawecki <Marissa.Kawecki@carlsbadca.gov>
wrote:
· Good Afternoon Matt,
I am following up on my email below regarding prope1ty owner review and approval of the
code compliance agreement, as weil 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 #4 75 of 168
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 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
<Jamie.Zeller@carlsbadca.gov>; Mike Strong <Mike.Strong@carlsbadca.gov>
Subject: Draft code compliance for review by Lessee and Prope1ty Owner
. Matt/Annie,
Dec. 7, 2022 Item #4 76 of 168
' As proniised, 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 confinn that you can explain the agreement to the property
owner and obtaining a signature after our meeting next Wed., 6/8/22. The property is also
\velcome 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
' www.carlsbadca.gov
442-339-53511760-434-8367 fax I Marissa.kawecki@carlsbadca.gov
Facebook I Twitter I You Tube I Pinterest !Enews
Dec. 7, 2022 Item #4 77 of 168
M. Sean Harrison, Esq.
Prometheus Civic Law
This message (including any attachment to this message) is confidential and may contain infonnation that is privileged or otherwise legally protected
from disclosure. Jfyou are not the intended necipient or if this message has been addressed to you in error, please delete it \\ithout saving it and
separately notify the sender. Thank you.
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Dec. 7, 2022 Item #4 78 of 168
From:
To:
Cc:
Subject:
Date:
Matt Harrison
Marissa Kawecki
Eric Lardy: Mike Strong: Robbie Hickerson; carrie.oakandelixirtrugmail.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 certain 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 2-1). 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 "within the vision and intent" of the district. We would
appreciate this detennination in writiug.
The meeting tomorrow does not need to address any other issues in the proposed agreement,
as we do not concede that the Ce1tificate of Occupancy needs to be changed ( or, more
accurately, needed to be changed when Rehn began the different use), nor the need for the
Building Permit (which will be submitted shortly). Assuming the latter is completed, and we
get a favorable determination, we will not have any ongoing "violations11 other than the
outdated occupancy classification. Also, because the in lieu parking fees are entirely based on
the difference in use classification, the cost savings for this favorable result are substantial.
For everyone's knowledge, CaITie spoke to Mr. Lalcritz 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 the small business facing your strict liability regime simply cam1ot 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 I am aware of
the code provisions; I am simply infonning you that it is the direct and inevitable ·
consequence.
However, I am eternally optimistic that our meeting tomon-ow will be a further step towards
fairness and reasonable dialogue toward resolution. Or, if not, I 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 tomon-ow,
Kind regards,
Matt
On Tue, Jun 28, 2022 at 11 :02 AM Marissa Kawecld <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 0am 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 #4 79 of 168
· Thank you all for coordinating.
Marissa Kawecki
From: Mike Strong
Sent: Thursday, June 23, 2022 11 :25 AM
To: 'Matt Ha1rison' <matt@procivlaw.com>; Annie Rammel
<annie@oakandelixir.com>; Oak and Elixir <canie.oakandelixir@gmail.com>
Subject: Meeting -City Planner Use Determination
Annie, Carrie, and Matt:
The City Planner has agreed to meet with you on one of the following dates to
receive information 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 detennination 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 Plall11er, please provide a redlined
version of the "Recitals" section of the code compliance agreement to reflect
Dec. 7, 2022 Item #4 80 of 168
your prefetTed 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 Pl aimer's use
detennination.
Please let me know if you have any questions.
Thank you.
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 attachmcnl lo this message) is confidential and may contain information !hat is privileged or otherwise legally protected
from disclosure. If you arc not the intended recipient or if this message has been addressed to you in error, please delete it without saving it and
separately notifj• the sender. Thank you.
CAUTION: Do not open attachments or click on links unless you recognize the sender and
know the content is safe.
Dec. 7, 2022 Item #4 81 of 168
EXHIBITB
t\UG O 5 2022
Dec. 7, 2022 Item #4 82 of 168
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
applic:able municipal code provisio·ns and the Village and Barrio Master Plan, as well as to ensure that the
structure is suitaole 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 b1,.1siness 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. Bas~d 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,
prqvided 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 fa)(
Dec. 7, 2022 Item #4 83 of 168
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 i,yill n~ed to ~valuate 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 spatt:! may be converted from one use
to another without additional parking, provided both uses have the same parking requirements set forth
witliin 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
(Pc:1.rking 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 11delicatessen" 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 50 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
EXHIBIT 4
Dec. 7, 2022 Item #4 84 of 168
0 w
e5 a: a. a. <C
z
0
~ z 0 en (I)
::::E
::::E 0 u
HOUSING AND REDEVELOPMENT COMMISSION -AGENDA BILL@,
AB# 352
MTG. 11-12-02
DEPT. HIRED
TITLE:
2917 STATE ST. COMMERCIAL BUILDING
RP 01-04
RECOMMENDED ACTION:
L". ·-)\ DEPT. HD{ ' •--.J
CITY ATTY.ce,
CITY MG~ w
360
That the Housing and Redevelopment Commission ADOPT Resolution No / APPROVING a
Major Redevelopment Permit (RP 01-04) for a 6,172 square foot commercial (office/retail) building on
property located at 2917 State Street as recommended by the Design Review Board.
ITEM EXPLANATION:
On September 23, 2002, the Design Review Board (ORB) conducted a public hearing to consider a
major redevelopment permit for a two-story commercial (office/retail) building in Land Use District 1
of the Carlsbad Village Redevelopment Area. The 3,750 square foot site is located on the west side
of State Street between Grand Avenue and Carlsbad Village Drive.
The site is bordered by a two-story commercial building to the north, a single-story restaurant to the
south, State Street to the east, and North County Transit District public parking to the west (across
alley). The remainder of State Street between Grand Avenue and Carlsbad Village Drive includes a
mixture of one and two-story structures consisting of various commercial uses. A majority of the
second story businesses on State Street are office uses.
Existing structures on-site include a 927 square foot retail structure fronting on State Street, a 1,212
square foot residential structure fronting on the alley, and a 440 square foot storage building located
between the two. The proposed development consists of the demolition of all three existing buildings
and the construction of a two-story commercial building with 3,296 square feet of retail space on the
first floor and 2,876 square feet of office space on the second floor. Access to the second floor of
the building is by stairway and elevator at the front entrance and a stairway at the rear entrance
adjacent to the alley. Also located along the rear of the building is a 6-foot wide landscape area and
enclosed dumpster.
At the public hearing, the Design Review Board members voted unanimously (4-0, Lawson abstain)
to recommend approval of the project as proposed with findings to grant participation in the Parking
In-Lieu Fee Program for 100% of the required parking (21 parking spaces).
Comments provided by the Board members on the proposed project are provided in the attached
draft minutes of the June 23rd meeting. The approving resolution along with the Design Review Board
staff report are also attached for the Commission's review.
ENVIRONMENTAL REVIEW:
The Planning Department has conducted an environmental review of the project pursuant to the
Guidelines for Implementation of the California Environmental Quality Act (CEQA) and the
Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the project
has been found to be exempt from environmental review pursuant to Section 15332 of the State
CEQA Guidelines as an in-fill development project on a site of less than five acres in an urbanized
area that has no habitat value and is served by adequate facilities. No comments were received on
the environmental determination. The necessary finding for this environmental determination is
included in the attached Housing and Redevelopment Commission resolution.
Dec. 7, 2022 Item #4 85 of 168
PAGE 2 OF AGENDA BILL NO. ~35-2.__
FISCAL IMPACT:
The proposed project will have a positive fiscal impact in terms of increased property tax. The
current assessed value of the project site is $260,241. With the new construction, it is estimated that
the assessed value will increase to approximately $1,032,000. The increase in value will result in
additional tax increment revenue for the Carlsbad Redevelopment Agency of approximately $7,718
per year. The retail component of the project will also generate additional sales tax revenues to the
City. Finally, it is anticipated that the project will serve as a catalyst for other improvements in the
area, either new development or rehabilitation of existing buildings, through the elimination of an
outdated and underutilized property within the area.
EXHIBITS:
1. Housing & Redevelopment Commission Resolution approving RP01-04 No. 360.
2. Design Review Board Resolution No. 289 dated September 23, 2002
3. Design Review Board Staff Report dated September 23, 2002, w/attachments
4. Draft Design Review Board Minutes, dated September 23, 2002
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Exhibit 1
HRC Resolution Approving
RP01-04
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HOUSING AND REDEVELOPMENT COMMISSION RESOLUTION NO. 360.
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT
COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA,
APPROVING MAJOR REDEVELOPMENT PERMIT NO. RP0l-04,
INCLUDING A REQUEST FOR PARTICIPATION IN THE
PARKING IN-LIEU FEE PROGRAM, FOR A TWO-STORY,
COMMERCIAL (OFFICE/RETAIL) BUILDING ON PROPERTY
LOCATED AT 2917 STATE STREET IN LAND USE DISTRICT 1
OF THE CARLSBAD VILLAGE REDEVELOPMENT AREA AND
IN LOCAL FACILITIES MANAGEMENT ZONE 1.
APPLICANT: 2917 STATE STREET COMMERCIAL BUILDING
CASE NO: RP 01-04
WHEREAS, on September 23, 2002, the City of Carlsbad Design Review Board held a
duly noticed public hearing to consider a Major Redevelopment Permit (RP 01-04) for a 6,172
square foot commercial (office/retail) building on property located at 2917 State Street,. and
adopted Design Review Board Resolution No. 289 recommending to the Housing and
Redevelopment Commission that Major Redevelopment Permit (RP 01-04) be approved; and
WHEREAS, the Housing and Redevelopment Commission of the City of Carlsbad, on
the date of this resolution held a duly noticed public hearing to consider the recommendation
and heard all persons interested in or opposed to Major Redevelopment Permit (RP 01-04);
and
WHEREAS, the recommended approval includes findings granting authorization to
provide 100% of the project's required parking off-site through participation in the Parking In-
Lieu Fee Program; and
WHEREAS, as a result of an environmental review of the subject project conducted
pursuant to the Guidelines for Implementation of the California Environmental Quality Act
and the Environmental Protection Ordinance of the City of Carlsbad, the project was found to
be categorically exempt from the requirement for preparation of environmental documents
pursuant to Section 15332 of the State CEQA Guidelines as an in-fill development project on a
HRC RESO NO. 360
PAGE 1
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site of Jess than five acres in an urbanized area that has no habitat value and is served by
adequate facilities.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Housing and
Redevelopment Commission of the City of Carlsbad, California as follows:
1. That the foregoing recitations are true and correct.
2. That Major Redevelopment Permit (RP 01-04) 1s APPROVED and that the
findings and conditions of the Design Review Board contained in Resolution No. 289, on file
in the City Clerk's Office and incorporated herein by reference, are the findings and conditions
of the Housing and Redevelopment Commission.
3. That the Housing and Redevelopment Commission of the City of Carlsbad has
reviewed, analyzed and considered the environmental determination for this project and any
comments thereon. The Housing and Redevelopment Commission finds that:
(a) The project is consistent with the applicable general plan designation and all
applicable general plan policies as well as with applicable zoning designation and
regulations;
(b) The proposed development occurs within city limits on a project site of no more
than five acres and substantially surrounded by urban uses;
(c) The project site has no value as habitat for endangered, rare or threatened
species;
(d) Approval of the project would not result in any significant effects relating to
traffic, noise, air quality, or water quality; and
(e) The site can be adequately served by all required utilities and public services.
The Housing and Redevelopment Commission finds that the environmental determination
reflects the independent judgment of the Housing and Redevelopment Commission of the City
HRC RESO NO. 360
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of Carlsbad.
4. That this action is final the date this resolution is adopted by the Housing and
Redevelopment Commission. The provision of Chapter 1. I 6 of the Carlsbad Municipal Code,
"Time Limits for Judicial Review" shall apply:
NOTICE TO APPLICANT:
"The time within which judicial review of this decision must be sought, or other exactions
hereafter collectively referred to, is governed by Code of Civil Procedure, Section 1094.6,
which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter
1.16. Any petition or other paper seeking judicial review must be filed in the appropriate court
not later than the ninetieth day following the date on which this decision becomes final;
however, if within ten days after the decision becomes final a request for the record of the
proceedings accompanied by the required deposit in an amount sufficient to cover the
estimated cost of preparation of such record, the time within which such petition may be filed
in court is extended to not later than the thirtieth day following the date on which the record is
either personally delivered or mailed to the party, or his/her attorney of record, if he/she has
one. A written request for the preparation of the record of the proceedings shall be filed with
the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, California, 92008."
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Housing and
Redevelopment Commission of the City of Carlsbad, California, held on the 12thday of November
2002 by the following vote to wit:
AYES: Commissioners Lewis, Kulchin, Finnila, Nygaard, Hall
NOES: None
ABSEJ\i'T: None
ABSTAIN: None
ATTEST: 26 __ _
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HRC RESO NO. 360
PAGE3 lo
Dec. 7, 2022 Item #4 90 of 168
Exhibit 2
DAB Resolution No. 289
dated Sept. 23, 2002
1
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DESIGN REVIEW BOARD RESOLUTION NO. 289
A RESOLUTION OF THE DESIGN REVIEW BOARD OF THE CITY OF
CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF MAJOR
REDEVELOPMENT PERMIT NUMBER RP 01-04, INCLUDING A REQUEST
FOR PARTICIPATION IN THE PARKING IN-LIEU FEE PROGRAM, FOR
THE CONSTRUCTION OF A TWO-STORY COMMERCIAL
(OFFICE/RETAIL) BUILDING ON PROPERTY LOCATED AT 2917 STATE
STREET IN LAND USE DISTRICT l OF THE CARLSBAD VILLAGE
REDEVELOPMENT AREA AND IN LOCAL FACILITIES MANAGEMENT
ZONE l.
CASENAME:
APN:
CASE NO:
2917 STATE STREET COMMERCIAL BUILDING
203-293-10
RP0l-04
WHEREAS, Leor Lakritz, "Applicant", has filed a verified application with the
Redevelopment Agency of the City of Carlsbad regarding property owned by Carlsbad Village
Drive Partnership, "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 application constitutes a request for a Major Redevelopment Permit, as
shown on Exhibits "A-D" dated September 23, 2002, on file in the Housing and Redevelopment
Department, "2917 State Street Commercial Building RP 01-04", as provided by Chapter
21.35.080 of the Carlsbad Municipal Code; and
WHEREAS, the Design Review Board did on the 23rd day of September 2002, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of persons desiring to be heard, said Board considered all factors relating to
"2917 State Street Commercial Building RP 01-04".
Dec. 7, 2022 Item #4 92 of 168
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NOW, THEREFORE, BE IT HEREBY RESOLVED, by the Design Review Board as
follows:
A. That the foregoing recitations are true and correct.
B. That based on the evidence presented at the public hearing, the Design Review
Board RECOMMENDS APPROVAL of 2917 State Street Commercial
Building RP 01-04, based on the following findings and subject to the following
conditions:
GENERAL AND REDEVELOPMENT PLAN CONSISTENCY FINDINGS:
L The Planning Director has determined that the project belongs to a class of projects that the
State Secretary for Resources has found do not have a significant impact on the environment,
and it is therefore categorically exempt from the requirement for preparation of
environmental documents pursuant to Section 15332 of the State CEQA Guidelines as an
in-fill development project on a site of less than five acres in an urbanized area that has
no habitat value and is served by adequate facilities. In making this determination, the
Planning Director has found that the exceptions listed in Section 15300.2 of the state CEQA
Guidelines do not apply to this project.
2. The Design Review Board finds that the project, as conditioned herein and with the
findings contained herein to grant participation in the Parking In-Lieu Fee Program, is
in conformance with the Elements of the City's General Plan, the Carlsbad Village Area
Redevelopment Plan, and the Carlsbad Village Redevelopment Master Plan and Design
Manual based on the facts set forth in the staff report dated September 23, 2002 including,
but not limited to the following:
a. The project is consistent with the Carlsbad General Plan because it provides for
a commercial (retail/office) use in an appropriate location within the Village.
The project provides greater shopping and employment opportunities, enhances
the pedestrian orientation of the area, and retains the Village character and
pedestrian scale through adherence to the development standards and design
guidelines set forth for the area.
b. The project is consistent with Village Redevelopment Master Plan and Design
Manual in that the project assists in satisfying the goals and objectives set forth
for Land Use District 1 through the following actions: 1) the project reinforces
the pedestrian shopping environment by providing additional ground floor retail
space; 2) the project provides mutually supportive uses and the office space on
the second floor creates more employment opportunities In the Village and adds
to the customer base for retail, restaurants, and commercial services in the area;
and 3) the project serves to enhance State Street as a major focus of pedestrian
activity in the Village.
c. The project as designed is consistent with the development standards for Land
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3.
Use District 1, the Village Design Guidelines, and other applicable regulations
set forth in the Village Master Plan and Design Manual.
d. The existing streets can accommodate the estimated ADTs and all required
public right-of-way has been or will be dedicated and has been or will be
improved to serve the development. The pedestrian spaces and circulation have
been designed in relationship to the land use and available parking. Pedestrian
circulation is provided through pedestrian-oriented building design,
landscaping, and hardscape. Public facilities have been or will be constructed to
serve the proposed project. The project has been conditioned to develop and
implement a program of "best management practices" for the elimination and
reduction of pollutants which enter into and/or are transported within storm
drainage facilities.
e. The proposed project will not have an adverse impact on any open space within
the surrounding area. The project is consistent with the Open Space
requirements for new development within the Village Redevelopment Area and
the City's Landscape Manual.
The Design Review Board finds that the Developer/Property owner qualifies to
participate in the Parking In-Lieu Fee Program and participation in the program will
satisfy the parking requirements for the project. Justification for participation in the
Parking In-Lieu Fee Program is contained in the following findings:
a. The proposed project is consistent with the goals and objectives of the Village
Master Plan and Design Manual in that 1) the proposed project is highly
compatible with the surrounding area and contributes to establishing the Village
as a quality shopping, working, and living environment by providing additional
retail and office space to meet the needs of residents and visitors alike; 2) the
proposed project has a strong street presence and promotes greater pedestrian
activity by providing more ground floor retail space in an area of high retail
activity and the absence of on-site parking improves pedestrian and vehicular
circulation in the area by eliminating the need for additional curb cuts; 3) the
proposed project will assist in the continued effort to improve the Village
Redevelopment Area, specifically in the Village Center (District 1), by providing
for an appropriate intensity of development that is compatible with surrounding
area; and 4) the project design optimizes use of the property while retaining the
village atmosphere and pedestrian scale.
b. The proposed use is consistent with the land use district in which the property is
located in that ground floor retail is a permitted use in Land Use District 1 and
strongly encouraged in the Village Master Plan as a means of promoting retail
continuity. Business and professional office uses are classified as a provisional
use in District 1 and all required findings to permit this use on the second floor
can be made.
DRB RESO NO. 289 -3-\C)
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c. Adequate parking is available within the Village to accommodate the project's
parking demands in that the last utilization counts of the Village public parking
lots, conducted in February of 2002, indicate a 76% average utilization rate,
which is less than the 85% threshold for maximum utilization set by the Housing
and Redevelopment Commission.
d. The In-Lieu Fee Program has not been suspended or terminated by the Housing
and Redevelopment Commission.
GROWTH MANAGEMENT FINDINGS:
4. The project is consistent with the City-wide Facilities and Improvements Plan, the Local
Facilities Management Plan for Zone 1, and all City public facility policies and
ordinances. The project includes elements or has been conditioned to construct or
provide funding to ensure that all facilities and improvements regarding: sewer collection
and treatment; water; drainage; circulation; fire; schools; parks and other recreational
facilities; libraries; government administrative facilities; and open space, related to the
project will be installed to serve new development prior to or concurrent with need.
Specifically,
a. The project has been conditioned to ensure that building permits will not be
issued for the project unless the District Engineer determines that sewer service
is available, and building cannot occur within the project unless sewer service
remains available and the District Engineer is satisfied that the requirements of
the Public Facilities Element of the General Plan have been met insofar as they
apply to sewer service for this project.
b. All necessary public improvements have been provided or are required as
conditions of approvaL
c. The Public Facility fee is required to be paid by Council Policy No. 17 and will
be collected prior to the issuance of building permit.
NOLLAN/DOLAN F1NDING:
5. The Design Review Board has reviewed each of the exactions imposed on the Developer
contained in this resolution, and hereby finds, in this case, that the exactions are imposed
to mitigate impacts caused by or reasonably related to the project, and the extent and the
degree of the exaction is in rough proportionality to the impact caused by the project.
GENERAL CONDITIONS:
Note: Unless otherwise specified herein, all conditions shall be satisfied prior to the issuance of
building permits.
If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
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2.
3.
4.
5.
6.
7.
8.
implemented and maintained according to their terms, the City/Agency shall have the
right to revoke or modify all approvals herein granted; deny or further condition issuance
of all future building permits; deny, revoke or further condition all certificates of
occupancy issued under the authority of approvals herein granted; institute and prosecute
litigation to compel their compliance with said conditions or seek damages for their
violation. No vested rights are gained by Developer or a successor in interest by the
City's/Agency's approval of this Major Redevelopment Permit.
Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Major Redevelopment Permit documents, as necessary to
make them internally consistent and in conformity with the final action on the project.
Development shall occur substantially as shown on the approved Exhibits. Any proposed
development different from this approval, shall require an amendment to this approval.
The Developer shall comply with all applicable provisions of federal, state, and local laws
and regulations in effect at the time of building permit issuance.
1f any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are
challenged, this approval shall be suspended as provided in Government Code Section
66020. If any such condition is determined to be invalid this approval shall be invalid
unless the Housing and Redevelopment Commission determines that the project
without the condition complies with all requirements of law.
The Developer/Operator shall and does hereby agree to indemnify, protect, defend and
hold harmless the Redevelopment Agency of the City of Carlsbad, its governing body
members, officers, employees, agents, and representatives, from and against any and all
liabilities, losses, damages, demands, claims and costs, including court costs and
attorney's fees incurred by the Agency arising, directly or indirectly, from (a) Agency's
approval and issuance of this Major Redevelopment _Pennit, (b) Agency's approval or
issuance of any permit or action, whether discretionary or non-discretionary, in
connection with the use contemplated herein, and (c) Developer/Operator's installation
and operation of the facility permitted hereby, including without limitation, any and all
liabilities arising from the emission by the facility of electromagnetic fields or other
energy waves or emissions.
The Developer shall submit to the Housing and Redevelopment Department a
reproducible 24" x 36", mylar copy of the Major Redevelopment Pennit reflecting the
conditions approved by the final decision making body.
The Developer shall include, as part of the plans submitted for any permit plan check, a
reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
format.
Prior to the issuance of a building permit, the Developer shall provide proof to the
Director from the Carlsbad School District that this project has satisfied its obligation to
provide school facilities.
DRB RESO NO. 289 -5-
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9.
10.
This project shall comply with all conditions and mitigation measures which are required
as part of the Zone 1 Local Facilities Management Plan and any amendments made to that
Plan prior to the issuance of building permits.
Building permits will not be issued for this project unless the local agency providing
water and sewer services to the project provides written certification to the City that
adequate water service and sewer facilities, respectively, are available to the project at the
time of the application for the building permit, and that water and sewer capacity and
facilities will continue to be available until the time of occupancy.
Landscape Conditions:
12.
The Developer shall submit and obtain Planning Director approval of a Final Landscape
and Irrigation Plan showing conformance with the approved Preliminary Landscape Plan
and the City's Landscape Manual. The Developer shall construct and install all
landscaping as shown on the approved Final Plans, and maintain all landscaping in a
healthy and thriving condition, free from weeds, trash, and debris.
The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the
landscape plan check process on file in the Planning Department and accompanied by the
project's building, improvement, and grading plans.
Noticing Conditions:
13. Prior to the issuance of the building permit, Developer shall submit to the City a Notice
of Restriction to be filed in the office of the County Recorder, subject to the satisfaction
of the Housing and Redevelopment Director, notifying all interested parties and
successors in interest that the City of Carlsbad has issued a Major Redevelopment
Permit by Resolution No. 289 on the real property owned by the Developer. Said Notice
of Restriction shall note the property description, location of the file containing complete
project details and all conditions of approval as well as any conditions or restrictions
specified for inclusion in the Notice of Restriction. The Housing and Redevelopment
Director has the authority to execute and record an amendment to the notice which
modifies or terminates said notice upon a showing of good cause by the Developer or
successor in interest.
On-site Conditions:
14.
15.
Outdoor storage of material shall not occur onsite unless required by the Fire Chief.
When so required, the Developer shall submit and obtain approval of the Fire Chief and
Housing and Redevelopment Director of an Outdoor Storage Plan, and thereafter
comply with the approved plan.
The Developer shall submit and obtain Housing & Redevelopment Director approval of
an exterior lighting plan including parking areas. All lighting shall be designed to reflect
downward and avoid any impacts on adjacent homes or property.
DRB RESO NO. 289 -6-13
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16. All roof appurtenances, including air conditioners, shall be architecturally integrated and
concealed from view and the sound buffered from adjacent properties and streets, in
substance as provided in Building Department Policy No. 80-6, to the satisfaction of the
Directors of Community Development and Housing and Redevelopment.
17. All signs proposed for this development shall be consistent with the sign plan
approved as part of this project as shown on Exhibits "A-C". Any changes to the
sign plan shall require review and approval of the Housing and Redevelopment
Director prior to installation of such signs.
18. Prior to issuance of the building permit, the Developer shall enter into a Parking In-
Lieu Fee Participation Agreement and pay the established Parking In-Lieu Fee for
twenty-one (21) parking spaces. The fee shall be the sum total of the fee per parking
space in effect at the time of the building permit issuance times the number of
parking spaces needed to satisfy the project's parking requirement (21 spaces total).
ENGINEERING CONDITIONS
Note: Unless specifically stated in the condition, all of the following conditions, upon the
approval of this proposed redevelopment permit, must be met prior to approval of a building or
grading permit whichever occurs first.
General:
2.
3.
4.
Prior to hauling dirt or construction materials to or from any proposed construction site
within this project, Developer shall apply for and obtain approval from, the City Engineer
for the proposed haul route.
Prior to issuance of any building permit, Developer shall comply with the requirements of
the City's anti-graffiti program for wall treatments if and when such a program is
formally established by the City.
Prior to occupancy, Developer shall install rain gutters to convey roof drainage to an
approved drainage course or street to the satisfaction of the City Engineer.
The property owner and developer shall comply with recommended best management
practices and any other provisions of the "Storm Water Pollution Prevention Plan for
New Commercial Building 2917 State Street, Carlsbad", dated April 24, 2002 and revised
July 23, 2002, on file with the City.
Fees/Agreements:
5. Developer shall cause property owner to execute and submit to the City Engineer for
recordation the City's standard form Drainage Hold Harmless Agreement regarding
drainage across the adjacent property.
DRB RESO NO. 289 -7-
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STANDARD CODE REMINDERS:
The project is subject to all applicable provisions of local ordinances, including but not limited to
the following code requirements.
Fees:
I.
2.
Developer shall pay the citywide Public Facilities Fee imposed by City Council Policy
#17, the License Tax on new construction imposed by Carlsbad Municipal Code Section
5.09.030, and CFD #1 special tax (if applicable), subject to any credits authorized by
Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable
Local Facilities Management Plan fee for Zone 1, pursuant to Chapter 21.90. All such
taxes/fees shall be paid at issuance of building permit. If the taxes/fees and not paid, this
approval will not be consistent with the General Plan and shall become void.
The Developer shall pay a landscape plan check and inspection fee as required by Section
20.08.050 of the Carlsbad Municipal Code.
General:
3.
4.
5.
This approval shall become null and void if building permits are not issued for this
project within 24 months from the date of final project approval.
Approval of this request shall not excuse compliance with all applicable sections of the
Zoning Ordinance and all other applicable City ordinances in effect at time of building
permit issuance, except as otherwise specifically provided herein.
The project shall comply with the latest non-residential disabled access requirements
pursuant to Title 24 of the State Building Code.
DRB RESO NO. 289 -8-IS
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NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
You have 90 days from the date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Design Review
Board of the City of Carlsbad, California, held on the 23rd day of September, 2002 by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
IE FOUNTAIN
_,,.---~\--
,' / ., ' ,,,;; /;.;_.,
·"-SARAH MARQ
DESIGN REVIEW
HOUSING AND REDEVELOPMENT DIRECTOR
DRB RESO NO. 289 -9-\\o
Dec. 7, 2022 Item #4 100 of 168
Exhibit 3
ORB Staff Report
dated Sept. 23, 2002
Dec. 7, 2022 Item #4 101 of 168
Ciiy of CARlsbAd HouslNG ANd RE<IEVElopMENT DEpARTMENT
A REPORT TO THE DESIGN REVIEW BOARD
AppliCAJION CoMplETE DATE:
TI/05/01
ENVIRONMENTAi REVIEW:
CATEGORICAi ExEMpTION
DATE: September 23, 2002
5TAff: LORI ROSENSTEIN
MlkEGRIM
DAvld Rick
ITEM N0.1
SUBJECT: RP 01-04 • "2917 STATE STREET COMMERCIAL BUILDING": Request for a
Major Redevelopment Permit for the construction of a 2-story, 6,172 square foot
commercial (office/retail) building on property located at 2917 State Street in
Land Use District 1 of the Carlsbad Village Redevelopment Area.
I. RECOMMENDATION
That the Design Review Board ADOPT Design Review Board Resolutions No. 289
recommending APPROVAL of RP 01-04 to the Housing and Redevelopment Commission
based on the findings and subject to the conditions contained therein.
II. PROJECT DESCRIPTION AND BACKGROUND
The property owner, Carlsbad Village Drive Partnership, has requested a Major Redevelopment
Permit for the construction of a 2-story, 6,172 square foot commercial (retail/office) building on
property located at 2917 State Street in Land Use District 1 of the Carlsbad Village
Redevelopment Area. The property is located on the west side of State Street between
Carlsbad Village Drive and Grand Avenue. The site is bordered by a two-story commercial
building to the north that includes a restaurant (Caldo Pomodoro), bar (The Alley), hair salon
(De Stefano), ice cream shop (Cafe Dolce) with office uses on the second floor. Other
surrounding uses include a single-story restaurant (Vigilucci's) to the south, State Street to the
east, and North County Transit District public parking to the west (across alley). The remainder
of State Street between Grand Avenue and Carlsbad Village Drive includes a mixture of one
and two-story commercial structures consisting of retail businesses, hair salons, restaurants
with outdoor cafes, a pub, coffee shop, and shoe repair. A majority of the second story
businesses on State Street are office uses.
The subject property measures 3,750 square feet. Existing structures on-site include a 927
square foot retail structure fronting on State Street, a 1,212 square foot residential structure
fronting on the alley, and a 440 square foot storage building located between the two. The
proposed development consists of the demolition of all three existing buildings and the
construction of a two-story commercial building with 3,296 square feet of retail space on the
first floor and 2,876 square feet of office space on the second floor. Access to the second floor
of the building is by stairway and elevator at the front entrance and a stairway at the rear
entrance adjacent to the alley. Also located along the rear of the building is a 6-foot wide
landscape area and enclosed dumpster.
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Ill. GENERAL PLAN CONSISTENCY
The General Plan includes the following goals for the Village: 1) a City which preserves,
enhances and maintains the Village as a place for living, working, shopping, recreation, civic
and cultural functions while retaining the village atmosphere and pedestrian scale; 2) a City
which creates a distinct identity for the Village by encouraging activities that traditionally locate
in a pedestrian-oriented downtown area, including offices, restaurants, and specialty shops; 3)
a City which encourages new economic development in the Village and near transportation
corridors to retain and increase resident-serving uses; and 4) a City that encourages a variety
of complementary uses to generate pedestrian activity and create a lively, interesting social
environment and a profitable business setting. The General Plan objective is to implement the
Redevelopment Plan through the comprehensive Village Master Plan and Design Manual.
The proposed project is consistent with the goals and objectives for the Village, as outlined
within the General Plan, because it provides for a commercial (retail/office) project in an
appropriate location within the Village. The project provides greater shopping and employment
opportunities, enhances the pedestrian orientation of the area, and retains the Village character
and pedestrian scale through adherence to the development standards and design guidelines
set forth for the area.
IV. CONSISTENCY WITH VILLAGE REDEVELOPMENT AREA VISION, GOALS AND
OBJECTIVES
The proposed project will be able to address a variety of objectives as outlined within the Village
Master Plan and Design Manual as follows:
Goal 1: Establish Carlsbad Village as a Quality Shopping. Working and Living Environment.
The portion of State Street between Grand Avenue and Carlsbad Village Drive is characterized
by one and two-story structures with retail shops, commercial services, and restaurants on the
ground floor. The second floors include mainly office uses with some residential. The
proposed project is highly compatible with the surrounding area and contributes to establishing
the Village as a quality shopping, working, and living environment by providing additional retail
and office space to meet the needs of residents and visitors alike.
Goal 2: Improve the Pedestrian and Vehicular Circulation in the Village Area. The proposed
project has a strong street presence and promotes greater pedestrian activity by providing more
ground floor retail space in an area of high retail activity. The absence of on-site parking
improves pedestrian and vehicular circulation in the area by eliminating the need for additional
curb cuts.
Goal 3: Stimulate Property Improvements and New Development in the Village. The Master
Plan and Design Manual was developed in an effort to stimulate new development and/or
improvements to existing buildings in the Village. The intent is that new development or
rehabilitation of existing facilities will then stimulate other property improvements and additional
new development. One of the objectives of this goal is to increase the intensity of development
within the Village. The proposed project will assist in the continued effort to improve the Village
Redevelopment Area, specifically in the Village Center (District 1) by providing for an
appropriate intensity of development that is compatible with surrounding area.
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Goal 4: Improve the Physical Appearance of the Village Area. The project design optimizes
use of the property while retaining the village atmosphere and pedestrian scale.
V. CONSISTENCY WITH VILLAGE LAND USE PLAN
As set forth in the Village Master Plan and Design Manual, retail uses are classified as
permitted uses within Land Use District 1 of the Village Redevelopment Area. Permitted uses
are defined as those uses which are permitted by right because they are considered to be
consistent with the vision and goals established for the district. Although these land uses may
be permitted by right, satisfactory completion of the Design Review Process and compliance
with all other requirements of the Redevelopment Permit Process is still required.
Office uses are classified as provisional uses and are permitted subject to discretionary
approval. They are approved based upon the findings that the use is consistent with the Village
vision and goals under specific.conditions imposed by the permit. Uses in this category require
special scrutiny concerning location, size, and anticipated impact on adjacent uses.
Ground floor retail is a permitted use within Land Use District 1 and strongly encouraged in the
Village Master Plan as a means of promoting retail continuity. Business and professional office
uses are classified as a provisional use in District 1 and subject to the following findings:
1. The office development will be compatible in scale and character to the surrounding
Village development. _
2. The development is not likely to negatively impact existing or planned retail continuity in
significant concentrations of commercial shops.
3. Sufficient on~sTte parking will be available to serve employee parking needs.
4. The office development will not result in an undue reduction of livability for adjacent
residents.
The proposed office use on the second floor is a positive addition to this portion of State Street
as it will not negatively impact retail continuity in the area and the two story building is
compatible in scale and character to several of the existing buildings in the immediate vicinity.
Additionally, the use will not impact residential livability, as the site is located in the center of a
commercial district. Finally, public parking is available immediately west of the subject property
and participation in the Parking In-Lieu Fee program may only be permitted if all the conditions
for participation are satisfied. (The project's satisfaction of these conditions will be discussed
later in this report.)
District 1 (Village Center) has traditionally functioned as the Central Business District of
Carlsbad. Although shopping centers and other development outside of the Village have drawn
some uses away from the area, the Village Center continues to function as a strong retail core
serving city residents as well as tourists and regional visitors. The intent of land use standards
for this district is to reinforce the pedestrian shopping environment, encourage mutually
supportive uses, and provide a major activity focus for Carlsbad Village and the City as a whole.
Staff believes that the proposed commercial project assists in satisfying the goals and
objectives set forth for Land Use District 1 through the following actions: 1) the project
reinforces the pedestrian shopping environment by providing additional ground floor retail
space; 2) the project provides mutually supportive uses and the office space on the second
floor creates more employment opportunities in the Village and adds to the customer base for
retail, restaurants, and commercial services in the area; and 3) the project serves to enhance
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State Street as a major focus of pedestrian activity in the Village.
VI. CONSISTENCY WITH VILLAGE DEVELOPMENT STANDARDS
The specific development standards for new development within Land Use District 1 are as
follows:
Building Setbacks: The Village Master Plan and Design Manual establishes the front,
rear and side yard setbacks for the property. In Land Use District 1, the front setback is 0-10
feet, however, there is no minimum or maximum setback requirement for the side and rear
yards. The proposed building is setback 4 feet from the front property line, which abuts an
11.5-foot wide sidewalk along State Street. The rear of the building is setback 6 feet from the
rear property line on the first floor and 5 feet on the second floor. A 20-foot wide alley lies
immediately west of the rear property line. There is no setback from the side property lines,
which is consistent with the remainder of the buildings on State Street between Grand Avenue
and Carlsbad Village Drive.
As set forth in the Village Redevelopment Master Plan and Design Manual, the top of the range
is considered to be the desired setback standard. However, a reduction in the standard to the
minimum, or anywhere within the range, may be allowed if the project warrants such a
reduction and the following findings are made by the Housing & Redevelopment Commission:
1. The reduced standard will not have an adverse impact on surrounding properties.
2. The reduced standard will assist in developing a project that meets the goals of the
Village Redevelopment Area and is consistent with the objectives for the land use
district in which the project is to be located.
3. The reduced standard will assist in creating a project design which is interesting and
visually appealing and reinforces the Village character of the area.
These findings only apply to the proposed setback on the front of the building since there is no
maximum or minimum setback on the sides and rear. The proposed 4-foot setback on the front
of the property falls within the established 0-1 0 foot setback standard. The proposed setback
will not have an adverse impact on surrounding properties as a majority of the buildings on
State Street are either built to the front property line or are setback only a few feet. The
reduced standard will assist in developing a project that meets the goals of the Village
Redevelopment Area and is consistent with the objectives for Land Use District 1 in that the
proposed land use includes highly desirable ground floor retail space and complimentary
second story office space in the center of the Village's retail core. Finally, the reduced standard
will assist in creating a project design that is interesting and visually appealing and reinforces
the Village character of the area in that the proposed 4-foot setback provides adequate space
for landscape planters and decorative paving at the ground floor and a landscaped balcony on
the second floor creating an interesting and visually appealing front entrance and upper level
fa9ade while providing the retail space with needed pedestrian and vehicular visibility.
Based on these findings, it is staff's position that the proposed project satisfies the setback
requirements set forth for Land Use District 1.
Building Coverage: The range of building footprint coverage permitted for commercial
projects in Land Use District 1 is 80% to 100%. For the proposed project, the building coverage
is 88% which is within the established range. The bottom of the range is considered the
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desired standard. However, an increase in the standard to the maximum, or anywhere within
the range, may be allowed if the project warrants such an increase and the following findings
are made by the Housing & Redevelopment Commission:
1. The increased standard will not have an adverse impact on surrounding properties.
2. The increased standard will assist in developing a project which meets the goals of the
Village Redevelopment Area and is consistent with the objectives for the land use
district in which the project is located.
3. The reduced standard will assist in creating a project design which is interesting and
visually appealing and reinforces the village character of the area.
The proposed building coverage is consistent with the building coverage for a majority of
buildings on State Street and will not negatively impact surrounding properties. The proposed
building coverage standard provides for the intensification of development desired for the area
and a building with a strong street presence, which assists in creating a project design that is
visually appealing and is consistent with the objectives for Land Use District 1. Therefore, staff
finds that the building coverage is consistent with the desired standard.
Building Height: The height limit for Land Use District 1 is 35 feet with a minimum 5:12
roof pitch. The project proposes two separate hip roof elements on the front and rear of the
building. A hip roof design means the roof slopes up from all four sides with the peak of the
roof located in the center of the building. The highest point of the hip roof is 32 feet on the front
of the building and 33 feet on the rear of the building. Both hip roof elements are designed with
the required 5:12 pitch. The proposed project meets the height requirements for Land Use
District 1.
Open Space: A minimum of 20% of the property must be maintained as open space.
The open space must be devoted to landscaped pedestrian amenities in accordance with the
City of Carlsbad's Landscape Manual. Open space may be dedicated to landscaped planters,
open space pockets and/or connections, roof gardens, balconies, patios and/or outdoor eating
areas. No parking spaces or aisles are permitted in the open space. Qualified open space for
the proposed project includes: landscape planters and decorative paving on the ground floor at
the front and rear of the building, a landscaped balcony on the front of the building at the
second floor, a landscape planter on the rear of the building on the second floor, and an open
deck in the center of the building on the second floor. The project provides for a total of 976
square feet of open space, which represents 26% of the site and is consistent with the open
space requirement.
Parking: The parking requirement for office and retail space is 1 parking space per 300
square feet of gross floor space. The requirement for a 6,172 square foot office building is 21
spaces. The applicant is proposing to provide all 21 spaces off-site through participation in the
Parking In-Lieu Fee Program. The fees collected from the program will be deposited into an
earmarked, interest bearing fund to be used for construction of new, or maintenance of existing,
public parking facilities within the Village Redevelopment Area. For the purposes of
determining participation in the program, the Village has been divided into two parking zones -
Zone 1 and Zone 2. A property/business owner is eligible to participate in the in-lieu fee
program according to the parking zone in which a given property is located and its proximity to
an existing or future public parking lot.
The subject property is located within Zone 1. In accordance with the standards set forth in the
Village Master Plan, developers/property owners within this zone may be allowed to make an
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In-Lieu Fee payment for up to one hundred percent (100%) of the on-site parking requirement
for the proposed new development if the property is located within 600 feet of an existing public
parking facility. The subject property is located within 600 feet of all ten (10) existing public
parking lots located within the Village with a total of 71 0 parking spaces. (See attached Exhibit
D.) Therefore, the proposed project qualifies to make an in-lieu fee payment for up to one
hundred percent (100%) of the on-site parking requirement. As a condition of project approval,
the applicant shall be required to enter into an agreement to pay the Parking In-Lieu Fee prior
to the issuance of building permits for the project. The current fee is $11,240 per required
parking space to be provided off-site.
In order to participate in the Parking In-Lieu Fee Program the following findings must be made:
1. The proposed project is consistent with the goals and objectives of the Village Master
Plan and Design Manual.
2. The proposed use is consistent with the land use district in which the property is located.
3. Adequate parking is available within the Village to accommodate the project's parking
demands.
4. The In-Lieu Fee Program has not been suspended or terminated by the Housing and
Redevelopment Commission.
Justification for the above referenced findings is as follows:
1. The project is consistent with the Carlsbad General Plan because it provides for a
commercial (retail/office) use in an appropriate location within the Village. The project
provides greater shopping and employment opportunities, enhances the pedestrian
orientation of the area, and retains the Village character and pedestrian scale through
adherence to the development standards and design guidelines set forth for the area.
2. The project is consistent with Village Redevelopment Master Plan and Design Manual in
that the project assists in satisfying the goals and objectives set forth for Land Use
District 1 through the following actions: a) the project reinforces the pedestrian shopping
environment by providing additional ground floor retail space; b) the project provides
mutually supportive uses and the office space on the second floor creates more
employment opportunities in the Village and adds to the customer base for retail,
restaurants, and commercial services in the area; and c) the project serves to enhance
State Street as a major focus of pedestrian activity in the Village.
3. Adequate parking is available within the Village to accommodate the project's parking
demands. The last utilization counts of the Village public parking lots, conducted in
February of 2002, indicate a 76% average utilization rate, which is less than the 85%
threshold for maximum utilization set by the Housing and Redevelopment Commission.
4. The In-Lieu Fee Program has not been suspended or terminated by the Housing and
Redevelopment Commission.
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Residential Density and lnclusionary Housing Requirements: There is no residential
component proposed within this project. Therefore, residential density and inclusionary housing
requirements are not applicable to this project.
VII. CONSISTENCY WITH DESIGN GUIDELINES
All new projects within the Village Redevelopment Area must make a good faith effort to design
a project that is consistent with a village scale and character. In accordance with the design
review process set forth in the Carlsbad Village Redevelopment Master Plan and Design
Manual, the Design Review Board and the Housing and Redevelopment Commission, as
appropriate, must be satisfied that the applicant has made an honest effort to conform to ten
( 10) basic design principles. These design principles are:
1. Development shall have an overall informal character.
2. Architectural design shall emphasize variety and diversity.
3. Development shall be small in scale.
4. Intensity of development shall be encouraged.
5. All development shall have a strong relationship to the street.
6. A strong emphasis shall be placed on the design of the ground floor facades.
7. Buildings shall be enriched with architectural features and details.
8. Landscaping shall be an important component of the architectural design.
9. Parking shall be visibly subordinated.
10. Signage shall be appropriate to a village character.
The proposed project is consistent with the design principles outlined above. The applicant has
incorporated several desirable design elements to achieve the desired Village character. The
project has provided for an overall informal character in design. The architectural design
provides for variety and diversity through the incorporation of several architectural features and
details including; two separate hip roof elements, multi-paned windows on the upper level front
elevation, expansive windows for retail display, recessed wood framed glass doors, decorative
trim around the windows, an ornate balcony, and columns. The development is small in scale
in that it maintains the two-story character of the street while still maximizing development of
the site by relying on off-site parking. The project has a strong relationship to the street in that
it is situated close enough to the street to provide for desirable pedestrian visibility at the ground
floor yet maintains an adequate setback to provide for recessed entryways and landscape
planters. Landscaping plays an important role in the architectural design of the building as
landscape planters are proposed at the ground floor entrance, second story balcony on the
front elevation, and second story of the rear elevation. The parking is visually subordinate In
that it is located off-site behind the proposed building. Finally, signage is appropriate to the
desired Village character in terms of size, scale, and fype of sign as discussed in greater detail
in the next section. A summary of the design features related to the project is provided as an
exhibit to this report (Exhibit B).
VIII. CONSISTENCY WITH SIGN STANDARDS
The total building frontage of the proposed building is 37.5 linear feet, which equates to 37.5
square feet of total sign area allowed. As indicated on the building elevations, the applicant is
proposing four wall signs; one a square foot sign on the rear of the building, one 15 square foot
sign on the front of the building above the retail space, one 8 square foot sign at the upper level
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of the front of the building, and one 4.5 square foot directory sign at the stairway entrance on
the front of the building. The total sign area of all four signs equates to 35.5 square feet and is
less than the maximum allowed sign area for the project. The proposed signs are consistent
with the sign regulations set forth for the Village Redevelopment Area in terms of size, type and
location of the sign.
IX. DEVELOPMENT APPROVAL PROCESS
The proposed project requires a major redevelopment permit because it involves new
construction of a building that has a building permit valuation which is greater than $150,000.
The project requires a recommendation from the Design Review Board and final approval by
the Housing and Redevelopment Commission.
The Design Review Board is asked to hold a public hearing on the permit requested, consider
the public testimony and staff's recommendation on the project, discuss the project and then
take action to recommend approval or denial of the project with the request for participation in
the Parking In-Lieu Fee Program.
The proposed project is not located within the Coastal Zone; therefore a Coastal Development
Permit is not required.
X. TRAFFIC, CIRCULATION, SEWER, WATER, RECLAIMED WATER AND OTHER
SPECIAL CONSIDERATIONS
The project, as conditioned, shall comply with the City's requirements for the following:
Traffic & Circulation:
Projected Average Daily Traffic (ADT): 20 ADT/1000 sq ft x 2,876 office= 57 ADT
40 ADT/1000 sq ft x 3,296 retail = 132 ADT
TOTAL= 189 ADT
A Traffic study was not required because the amount of anticipated traffic is not significant
enough to warrant the need for a traffic study. The land use and surrounding streets were
designed to accommodate a project of this size.
Comment: All frontage and project related roadways are in place and no further upgrades to
the street and alley are needed.
Sewer:
Sewer District: Carlsbad Municipal Water District
Sewer EDU's Required: 6,172 sq fV1800 = 3.43 EDU's
Comment: Sewer facilities are already in place and the need for upgrades is not anticipated.
Water:
Water District: Carlsbad Municipal Water District
GPO Required: 220 gpd/edu x 3.43 edu's = 752 GPO
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Comment: No major water issues are associated with this proposed project.
Grading:
Quantities: No grading is proposed.
Permit required: No
Off-site approval required: No
Hillside grading requirements met: N/A
Preliminary geo-technical investigation performed by: GeoSoils Inc.
Comment: There are no major grading issues associated with this project. Only minor
excavation for utilities and foundation will occur.
Drainage and Erosion Control:
Drainage basin: A
Preliminary hydrology study performed by: N/A
Erosion Potential: Low
Comment: There are no major drainage issues associated with this project. A Storm Water
Pollution Prevention Plan was submitted addressing measures to reduce off-site
sedimentation. Erosion control measures to be incorporated include gravel
bags, plastic sheeting for stockpiles, excavating during forecasted dry weather.
Land Title:
Conflicts with existing easement: None
Easements dedication required: None
Site boundary coincides with land title: Yes
Comment: No major land title issues are associated with this project.
Improvements:
Off-site improvements: None
Standard variance required: None
Comment: No major improvement issues are associated with this proposed project.
XI. ENVIRONMENTAL REVIEW
The Planning Department has conducted an environmental review of the project pursuant to the
Guidelines for Implementation of the California Environmental Quality Act (CEQA) and the
Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the
project has been found to be exempt from environmental review pursuant to Section 15332 of
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the State CEQA Guidelines as an in-fill development project on a site of less than five acres in
an urbanized area that has no habitat value and is served by adequate facilities. The
necessary finding for this environmental determination is included in the attached Design
Review Board resolution.
XII. ECONOMIC IMPACT
The proposed project is anticipated to have a positive financial impact on the City and the
Redevelopment Agency. First, the redevelopment of what was previously an under-utilized lot
will result in increased property taxes. This increase in property tax will further result in
increased tax increment to the Redevelopment Agency. Second, the project may serve as a
catalyst for other improvements in the area, either new development or rehabilitation of existing
buildings, through the elimination of a blighting influence within the area.
XIII. CONCLUSION
Staff is recommending approval of the project with findings recommending participation in the
Parking In-Lieu Fee Program. Development of the site will have a positive fiscal impact on both
the City and the Redevelopment Agency and will assist in fulfilling the goals and objectives of
the Village Redevelopment Master Plan.
EXHIBITS:
A. Design Review Board Resolution No. 289 recommending approval RP 01-04.
B. Staff Analysis of Project Consistency with Village Master Plan Design Guidelines
C. Location Map
D. Map of Public Parking Lots
E. Exhibits "A -D", dated September 23, 2002, including reduced exhibits.
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Exhibit A
"Draft"
ORB Resolution No. 289
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DESIGN REVIEW BOARD RESOLUTION NO. 289
A RESOLUTION OF THE DESIGN REVIEW BOARD OF THE CITY OF
CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF MAJOR
REDEVELOPMENT PERMIT NUMBER RP 01-04, INCLUDING A REQUEST
FOR PARTICIPATION IN THE PARKING IN-LIEU FEE PROGRAM, FOR
THE CONSTRUCTION OF A TWO-STORY COMMERCIAL
(OFFICE/RETAIL) BUILDING ON PROPERTY LOCATED AT 2917 STATE
STREET IN LAND USE DISTRICT l OF THE CARLSBAD VILLAGE
REDEVELOPMENT AREA AND IN LOCAL FACILITIES MANAGEMENT
ZONE l.
CASENAME:
APN:
CASE NO:
2917 STATE STREET COMMERCIAL BUILDING
203-293-10
RPOl-04
WHEREAS, Leor Lakritz, "Applicant", has filed a verified application with the
Redevelopment Agency of the City of Carlsbad regarding property owned by Carlsbad Village
Drive Partnership, "Owner", described as Lot 14 and a portion or Lot 13 in Block I or
Carlsbad, in the City of Carlsbad, County or San Diego, State of California according to
map thereof No. 535, flied in the office of the County Recorder of San Diego County, May
2, 1888 ("the Property"); and
WHEREAS, said application constitutes a request for a Major Redevelopment Permit, as
shown on Exhibits "A·D" dated September 23, 2002, on file in the Housing and Redevelopment
Department, "2917 State Street Commercial Building RP 01-04", as provided by Chapter
21.35.080 of the Carlsbad Municipal Code; and
WHEREAS, the Design Review Board did on the 23rd day of September 2002, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments, if any, of persons desiring to be heard, said Board considered all factors relating to
"2917 State Street Commercial Building RP 01-04".
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NOW, THEREFORE, BE IT HEREBY RESOLVED, by the Design Review Board as
follows:
A. That the foregoing recitations are true and correct.
B. That based on the evidence presented at the public hearing, the Design Review
Board RECOMMENDS APPROVAL of 2917 State Street Commercial
Building RP 01-04, based on the following findings and subject to the following
conditions:
GENERAL AND REDEVELOPMENT PLAN CONSISTENCY FINDINGS:
I. The Planning Director has determined that the project belongs to a class of projects that the
State Secretary for Resources has found do not have a significant impact on the environment,
and it is therefore categorically exempt from the requirement for preparation of
environmental documents pursuant to Section 15332 of the State CEQA Guidelines as an
in-fill development project on a site of less than five acres in an urbanized area that has
no habitat value and is served by adequate facilities. In making this determination, the
Planning Director has found that the exceptions listed in Section 15300.2 of the state CEQA
Guidelines do not apply to this project.
2. The Design Review Board finds that the project, as conditioned herein and with the
findings contained herein to grant participation in the Parking In-Lieu Fee Program, is
in conformance with the Elements of the City's General Plan, the Carlsbad Village Area
Redevelopment Plan,_ and the Carlsbad Village Redevelopment Master Plan and Design
Manual based on the facts set forth in the staff report dated September 23, 2002 including,
but not limited to the following:
a. The project is consistent with the Carlsbad General Plan because it provides for
a commercial (retail/office) use in an appropriate location within the Village.
The project provides greater shopping and employment opportunities, enhances
the pedestrian orientation of the area, and retains the Village character and
pedestrian scale through adherence to the development standards and design
guidelines set forth for the area.
b. The project is consistent with Village Redevelopment Master Plan and Design
Manual in that the project assists in satisfying the goals and objectives set forth
for Land Use District 1 through the following actions: 1) the project reinforces
the pedestrian shopping environment by providing additional ground floor retail
space; 2) the project provides mutually supportive uses and the office space on
the second floor creates more employment opportunities in the Village and adds
to the customer base for retail, restaurants, and commercial services in the area;
and 3) the project serves to enhance State Street as a major focus of pedestrian
activity in the Village.
c. The project as designed is consistent with the development standards for Land
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3.
Use District 1, the Village Design Guidelines, and other applicable regulations
set forth in the Village Master Plan and Design Manual.
d. The existing streets can accommodate the estimated ADTs and all required
public right-of-way has been or will be dedicated and has been or will be
improved to serve the development. The pedestrian spaces and circulation have
been designed in relationship to the land use and available parking. Pedestrian
circulation is provided through pedestrian-oriented building design,
landscaping, and hardscape. Public facilities have been or will be constructed to
serve the proposed project. The project has been conditioned to develop and
implement a program of "best management practices" for the elimination and
reduction of pollutants which enter into and/or are transported within storm
drainage facilities.
e. The proposed project will not have an adverse impact on any open space within
the surrounding area. The project is consistent with the Open Space
requirements for new development within the Village Redevelopment Area and
the City's Landscape Manual.
The Design Review Board finds that the Developer/Property owner qualifies to
participate in the Parking In-Lieu Fee Program and participation in the program will
satisfy the parking requirements for the project. Justification for participation in the
Parking In-Lieu Fee Program is contained in the following findings:
a. The proposed project is consistent with the goals and objectives of the Village
Master Plan and Design Manual in that 1) the proposed project is highly
compatible with the surrounding area and contributes to establishing the Village
as a quality shopping, working, and living environment by providing additional
retail and office space to meet the needs of residents and visitors alike; 2) the
proposed project has a strong street presence and promotes greater pedestrian
activity by providing more ground floor retail space in an area of high retail
activity and the absence of on-site parking improves pedestrian and vehicular
circulation in the area by eliminating the need for additional curb cuts; 3) the
proposed project will assist in the continued effort to improve the Village
Redevelopment Area, specifically in the Village Center (District 1), by providing
for an appropriate intensity of development that is compatible with surrounding
area; and 4) the project design optimizes use of the property while retaining the
village atmosphere and pedestrian scale.
b. The proposed use is consistent with the land use district in which the property is
located in that ground floor retail is a permitted use in Land Use District 1 and
strongly encouraged in the Village Master Plan as a means of promoting retail
continuity. Business and professional office uses are classified as a provisional
use in District 1 and all required findings to permit this use on the second floor
can be made.
DRB RESO NO. 289 -3-3\
Dec. 7, 2022 Item #4 115 of 168
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c. Adequate parking is available within the Village to accommodate the project's
parking demands in that the last utilization counts of the Village public parking
lots, conducted in February of 2002, indicate a 76% average utilization rate,
which is less than the 85% threshold for maximum utilization set by the Housing
and Redevelopment Commission.
d. The In-Lieu Fee Program has not been suspended or terminated by the Housing
and Redevelopment Commission.
GROWTH MANAGEMENT FINDINGS:
4. The project is consistent with the City-wide Facilities and Improvements Plan, the Local
Facilities Management Plan for Zone 1, and all City public facility policies and
ordinances. The project includes elements or has been conditioned to construct or
provide funding to ensure that all facilities and improvements regarding: sewer collection
and treatment; water; drainage; circulation; fire; schools; parks and other recreational
facilities; libraries; government administrative facilities; and open space, related to the
project will be installed to serve new development prior to or concurrent with need.
Specifically,
a. The project has been conditioned to ensure that building permits will not he
issued for the project unless the District Engineer determines that sewer service
is available, and building cannot occur within the project unless sewer service
remains available and the District Engineer is satisfied that the requirements of
the Public Facilities Element of the General Plan have been met insofar as they
apply to sewer service for this project.
b. All necessary public improvements have been provided or are required as
conditions of approval.
c. The Public Facility fee is required to be paid by Council Policy No. 17 and will
be collected prior to the issuance of building permit.
NOLLAN/DOLAN FINDING:
5. The Design Review Board has reviewed each of the exactions imposed on the Developer
contained in this resolution, and hereby finds, in this case, that the exactions are imposed
to mitigate impacts caused by or reasonably related to the project, and the extent and the
degree of the exaction is in rough proportionality to the impact caused by the project.
GENERAL CONDITIONS:
Note: Unless otherwise specified herein, all conditions shall be satisfied prior to the issuance of
building permits.
1. If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
DRB RESO NO. 289 -4-
Dec. 7, 2022 Item #4 116 of 168
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2.
implemented and maintained according to their terms, the City/ Agency shall have the
right to revoke or modify all approvals herein granted; deny or further condition issuance
of all future building pennits; deny, revoke or further condition all certificates of
occupancy issued under the authority of approvals herein granted; institute and prosecute
litigation to compel their compliance with said conditions or seek damages for their
violation. No vested rights are gained by Developer or a successor in interest by the
City's/Agency's approval of this Major Redevelopment Permit.
Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Major Redevelopment Permit documents, as necessary to
make them internally consistent and in confonnity with the final action on the project.
Development shall occur substantially as shown on the approved Exhibits. Any proposed
development different from this approval, shall require an amendment to this approval.
3. The Developer shall comply with all applicable provisions of federal, state, and local laws
and regulations in effect at the time of building pennit issuance.
4. If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are
challenged, this approval shall be suspended as provided in Government Code Section
66020. If any such condition is determined to be invalid this approval shall be invalid
unless the Housing and Redevelopment Commission detennines that the project
without the condition complies with all requirements of law.
5. --The-Developer/Operator-shall··and-does hereby-agree to indemnify, protect, defend and
hold harmless the Redevelopment Agency of the City of Carlsbad, its governing body
members, officers, employees, agents, and representatives, from and against any and all
liabilities, losses, damages, demands, claims and costs, including court costs and
attorney's fees incurred by the Agency arising, directly or indirectly, from (a) Agency's
approval and issuance of this Major Redevelopment Permit, (b) Agency's approval or
issuance of any pennit or action, whether discretionary or non-discretionary, in
connection with the use contemplated herein, and (c) Developer/Operator's installation
and operation of the facility pennitted hereby, including without limitation, any and all
liabilities arising from the emission by the facility of electromagnetic fields or other
energy waves or emissions.
6. The Developer shall submit to the Housing and Redevelopment Department a
reproducible 24" x 36", mylar copy of the Major Redevelopment Permit reflecting the
conditions approved by the final decision making body.
7.
8.
The Developer shall include, as part of the plans submitted for any pennit plan check, a
reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
format.
Prior to the issuance of a building pennit, the Developer shall provide proof to the
Director from the Carlsbad School District that this project has satisfied its obligation to
provide school facilities.
DRB RESO NO. 289 -5-
Dec. 7, 2022 Item #4 117 of 168
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9. This project shall comply with all conditions and mitigation measures which are required
as part of the Zone 1 Local Facilities Management Plan and any amendments made to that
Plan prior to the issuance of building pennits.
Building pennits will not be issued for this project unless the local agency providing
water and sewer services to the project provides written certification to the City that
adequate water service and sewer facilities, respectively, are available to the project at the
time of the application for the building pennit, and that water and sewer capacity and
facilities will continue to be available until the time of occupancy.
Landscape Conditions:
11.
12.
The Developer shall submit and obtain Planning Director approval of a Final Landscape
and Irrigation Plan showing conformance with the approved Preliminary Landscape Plan
and the City's Landscape Manual. The Developer shall construct and install all
landscaping as shown on the approved Final Plans, and maintain all landscaping in a
healthy and thriving condition, free from weeds, trash, and debris.
The first submittal of Final Landscape and Irrigation Plans shall be pursuant to the
landscape plan check process on file in the Planning Department and accompanied by the
project's building, improvement, and grading plans.
Noticing Conditions:
13. Prior to the issuance of the building permit;Developershall-submit to the City a Notice
of Restriction to be filed in the office of the County Recorder, subject to the satisfaction
of the Housing and Redevelopment Director, notifying all interested parties and
successors in interest that the City of Carlsbad has issued a Major Redevelopment
Permit by Resolution No. 289 on the real property owned by the Developer. Said Notice
of Restriction shall note the property description, location of the file containing complete
project details and all conditions of approval as well as any conditions or restrictions
specified for inclusion in the Notice of Restriction. The Housing and Redevelopment
Director has the authority to execute and record an amendment to the notice which
modifies or tenninates said notice upon a showing of good cause by the Developer or
successor in interest.
On-site Conditions:
14.
15.
Outdoor storage of material shall not occur onsite unless required by the Fire Chief.
When so required, the Developer shall submit and obtain approval of the Fire Chief and
Housing and Redevelopment Director of an Outdoor Storage Plan, and thereafter
comply with the approved plan.
The Developer shall submit and obtain Housing & Redevelopment Director approval of
an exterior lighting plan including parking areas. All lighting shall be designed to reflect
downward and avoid any impacts on adjacent homes or property.
DRB RESO NO. 289 -6-
Dec. 7, 2022 Item #4 118 of 168
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16. All roof appurtenances, including air conditioners, shall be architecturally integrated and
concealed from view and the sound buffered from adjacent properties and streets, in
substance as provided in Building Department Policy No. 80-6, to the satisfaction of the
Directors of Community Development and Housing and Redevelopment.
17. All signs proposed for this development shall be consistent with the sign plan
approved as part of this project as shown on Exhibits "A-C". Any changes to the
sign plan shall require review and approval of the Housing and Redevelopment
Director prior to installation of such signs.
18. Prior to issuance of the building permit, the Developer shall enter into a Parking In-
Lieu Fee Participation Agreement and pay the established Parking In-Lieu Fee for
twenty-one (21) parking spaces. The fee shall be the sum total of the fee per parking
space in effect at the time of the building permit issuance times the number of
parking spaces needed to satisfy the project's parking requirement (21 spaces total).
ENGINEERING CONDITIONS
Note: Unless specifically stated in the condition, all of the following conditions, upon the
approval of this proposed redevelopment permit, must be met prior to approval of a building or
grading permit whichever occurs first.
General:
l.
2.
3.
4.
Prior to hauling dirt or construction materials to or from ilny proposed construction site
within this project, Developer shall apply for and obtain approval from, the City Engineer
for the proposed haul route.
Prior to issuance of any building permit, Developer shall comply with the requirements of
the City's anti-graffiti program for wall treatments if and when such a program is
formally established by the City.
Prior to occupancy, Developer shall install rain gutters to convey roof drainage to an
approved drainage course or street to the satisfaction of the City Engineer.
The property owner and developer shall comply with recommended best management
practices and any other provisions of the "Storm Water Pollution Prevention Plan for
New Commercial Building 2917 State Street, Carlsbad", dated April 24, 2002 and revised
July 23, 2002, on file with the City.
Fees/Agreements:
5. Developer shall cause property owner to execute and submit to the City Engineer for
recordation the City's standard form Drainage Hold Harmless Agreement regarding
drainage across the adjacent property.
DRB RESO NO. 289 -7-
Dec. 7, 2022 Item #4 119 of 168
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STANDARD CODE REMINDERS:
The project is subject to all applicable provisions of local ordinances, including but not limited to
the following code requirements.
Fees:
I.
2.
Developer shall pay the citywide Public Facilities Fee imposed by City Council Policy
#17, the License Tax on new construction imposed by Carlsbad Municipal Code Section
5.09.030, and CFD #1 special tax (if applicable), subject to any credits authorized by
Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable
Local Facilities Management Plan fee for Zone 1, pursuant to Chapter 21.90. All such
taxes/fees shall be paid at issuance of building permit. If the taxes/fees and not paid, this
approval will not be consistent with the General Plan and shall become void.
The Developer shall pay a landscape plan check and inspection fee as required by Section
20.08.050 of the Carlsbad Municipal Code.
General:
3.
4.
5.
This approval shall become null and void if building permits are not issued for this
project within 24 months from the date of final project approval.
Approval of this request shall not excuse compliance with all applicable sections of the
Zoning Ordinance and all other applicable City ordinances in effect at time of building
permit issuance, except as otherwise specifically provided herein.
The project shall comply with the latest non-residential disabled access requirements
pursuant to Title 24 of the State Building Code.
DRB RESO NO. 289 -8-
Dec. 7, 2022 Item #4 120 of 168
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NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
You have 90 days from the date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Design Review
Board of the City of Carlsbad, California, held on the 23rd day of September, 2002 by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
DEBBIE FOUNTAIN
SARAH MARQUEZ, VICE CHAIRPERSON
DESIGN REVIEW BOARD
HOUSING AND REDEVELOPMENT DIRECTOR
DRB RESO NO. 289 .9.
Dec. 7, 2022 Item #4 121 of 168
Exhibit B
Design Guidelines
Checklist
Dec. 7, 2022 Item #4 122 of 168
VILLAGE MASTER PLAN DESIGN GUIDELINES
CHECKLIST
Provide variety of setbacks along any single commercial
block front.
Provide benches and low walls along public pedestrian
frontages.
Maintain retail continuity along pedestrian-oriented
frontages.
Avoid drive-through service uses.
Minimize privacy loss for adjacent residential uses.
Encourage off-street courtyards accessible from major
pedestrian walkways.
Emphasize an abundance of landscaping planted to
create an informal character.
Treat structures as individual buildings set within a
landscaped green space, except for buildings fronting on:
Carlsbad Village Drive, State Street, Grand Avenue,
Carlsbad Boulevard and Roosevelt Street
Provide landscaping within surface parking lots
Provide access to parking areas from alleys wherever
possible.
Locate parking at the rear of lots.
Project: 2917 State St. Commercial Building
The following features provide a variety of
setbacks on the front and rear of the project: The
project maintains a 4' setback from State Street,
which provides room for a landscape planter and
recessed entry on the ground level and
landscaped balcony on the upper level. On the
ground floor facing the alley a 6' setback is
maintained, which includes a 6' wide landscape
area. There is a 5' setback from the alley on the
upper level with a landscape planter extending 2.5'
into the setback area.
A low wall for the landscape planter is provided
along State Street. Street benches are located
within the public right-of-way along the entire
street.
The proposed project provides ground floor retail
space maintaining the retail continuity of State
Street.
The project does not include a drive-thru.
There are no residential uses located to either side
of the proposed project.
The nature of the use does not warrant off-street
courtyards for pedestrian use.
Landscaped areas along the front and rear of the
building will provide for an informal setting.
The project fronts on State Street, therefore, this
standard does not apply. Landscaping is provided
along the front and rear of the building at the first
and second levels to enhance the appearance of
the building as viewed from the public street and
alley.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
Dec. 7, 2022 Item #4 123 of 168
Devote all parking lot areas not specifically required for
parking spaces or circulation to landscaping.
Avoid parking in front setback areas.
Avoid curb cuts along major pedestrian areas.
Avoid parking in block corner locations.
Provide setbacks and landscaping between any parking
lot and adjacent sidewalks, alleys or other paved
pedestrian areas.
Avoid buildings which devote significant portions of their
ground floor space to parking uses.
Place parking for commercial or larger residential
projects below grade wherever feasible.
Enhance parking lot surfaces.
Provide for variety and diversity. Each building should
express its uniqueness of structure, location or tenant
and should be designed especially for their sites and not
mere copies of generic building types.
Step taller buildings back at upper levels.
Break large buildings into smaller units.
Maintain a relatively consistent building height along
block faces.
Utilize simple building forms. Trendy and "look at me"
design solutions are strongly discouraged.
Emphasize the use of gable roofs with slopes of 7 in 12
or greater.
Encourage the use of dormers in gable roofs.
2
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
No on-site parking is proposed as part of this
project.
The proposed building has been designed
specifically for this location in accordance with the
Village Design Manual and is not a generic copy of
other buildings.
The second story is stepped back 4 feet from
State Street and 5 feet from the alley.
Two hip roof features, separated by an open
balcony on the second floor, help to break up the
larger building into smaller units.
The height of the building is consistent with other
two story buildings on the street, including the
building immediately north of the subject property.
The building has been designed with simple lines
and forms but allows for representation of the
Village character desired for the area. The building
is not trendy or "look at me" in design.
Hip roof features with the minimum 5:12 pitch
have been provided on the proposed project.
The project design does not lend itself to the use
of dormers.
Dec. 7, 2022 Item #4 124 of 168
Emphasize wood and composition shingle roofs, with the
exception that in the Land Use District 6 metal roofs are
acceptable. "
Avoid Flat Roofs
Screen mechanical equipment from public view.
Avoid mansard roof forms.
fi:'J).f/'Q,:~, ~-
Buildirigjia
Emphasize an informal architectural character. Building
facades should be visually friendly.
Design visual interest into all sides of buildings.
Utilize small individual windows except on commercial
storefronts.
Provide facade projections and recesses.
Give special attention to upper levels of commercial
structures.
Provide special treatment to entries for upper level uses.
Utilize applied surface ornamentation and other detail
elements for visual interest and scale.
Respect the materials and character of adjacent
development.
3
Synthetic roof tiles are proposed, which are
consistent with the architectural design intended
for the area.
There are no flat roofs proposed as part of this
project.
This will be a requirement of the project.
The project does not utilize mansard roof forms.
By providing for attractive facades and
landscaping, the project is very visually appealing.
Visual interest is added to the building through
architectural features.
The design of the building incorporates design
elements into the front and rear building facades,
thereby creating visual interest in the building. The
project makes good use of multi-panted windows
on the upper level, recessed word framed glass
entry doors, decorative trim around the windows,
an ornate balcony, and columns.
Small multi-paned windows are proposed for the
upper level of the street fa9ade.
The building design provides for recesses and
projections that will create shadows and contrast
along all sides.
The upper level includes a landscaped balcony
with decorative railing along the ~treet elevation
and a window box planter along the upper level of
the elevation facing the alley.
Wood framed glass door are provided along the
front building elevation leading to an elevator and
staircase to the second floor. A smaller door
along the rear building elevation leads to a second
staircase. Both entries seem to be appropriate for
their specific locations.
Detail elements have been incorporated into the
front and rear sides of the building which include;
decorative trim around the windows, columns,
ceramic tile along the planters, and a decorative
railing.
The materials and colors proposed for the building
will not conflict with adjacent developments.
Dec. 7, 2022 Item #4 125 of 168
Emphasize the use of the following wall materials: wood
siding; wood shingles; wood board and batten siding; and
stucco.
Avoid the use of the simulated materials; indoor/outdoor
carpeting; distressed wood of any type
Avoid tinted or reflective window glass.
Utilize wood, dark anodized aluminum or vinyl coated
metal door and window frames.
Avoid metal awnings and canopies.
Utilize light and neutral base colors.
Limit the materials and color palette on any single
building (3 or less surface colors)
Provide significant storefront glazing.
Avoid large blank walls.
Encourage large window openings for restaurants.
Encourage the use of fabric awnings over storefront
windows and entries.
Emphasize display windows with special lighting.
Encourage the use of dutch doors.
Utilize small paned windows.
4
The exterior walls utilize a stucco finish.
At this time, none of the noted materials have
been indicated for use.
The windows are clear glass.
Wood or vinyl coated doors and window frames
will be utilized.
No metal awnings and canopies are proposed.
The project utilizes a light and neutral color
scheme.
The project incorporates 1 primary base color, two
primary accent colors (slightly darker shades of
the base color), and two trim colors (used
sparingly around windows and doors). Given the
small size of the structure, the mix of colors used
on the front and rear facades give depth to the
building and provide greater visual interest without
appearing overwhelming.
Significant storefront glazing is provided along the
ground floor.
The only blank walls are along the sides of the
building and will abut an existing two-story
structure to the north and a single story structure
to the south, both of which are built to the property
lines. It is anticipated that the single story
structure to the south will eventually be replaced
by a two-story structure built to the property lines.
Project does not include a restaurant use.
No fabric awnings are proposed over the
storefront windows and entries. Overhangs from
the level above or extended eaves are provided in
place of awnings.
Display windows are provided along the ground
floor retail space. Display lighting has not yet
been determined.
Dutch doors are not proposed.
Small divided paned windows are proposed along
the upper level of the street elevation.
L\l.
Dec. 7, 2022 Item #4 126 of 168
Develop a total design concept.
Provide frequent entries.
Limit the extent of entry openings to about 30% of
storefront width or 8 feet, whichever is larger, to preserve
display windows.
Avoid exterior pull down shutters and sliding or fixed
security grilles over windows along street frontages.
Emphasize storefront entries.
Integrate fences and walls into the building design.
Encourage front entry gardens
Locate residential units near front property lines and
orient entries to the street.
Provide front entry porches.
Provide windows looking out to the street.
Utilize simple color schemes.
Provide decorative details to enrich facades.
Emphasize "cottage" form, scale and character
Emphasize an abundance of landscaping.
Limit access drives to garages or surface parking areas.
Encourage detached garages which are subordinate in
visual importance to the house itself.
Provide quality designed fences and walls.
Visually separate multi-family developments into smaller
components.
5
All facade design elements are unified. The appli-
cant was able to develop a total design concept
which is functional and visually interesting.
Two entries are proposed along State Street
providing access to ground floor retail and second
floor office. A single rear door is provided along
the alley providing access to the first and second
stories.
There are two entry openings on the front of the
building. Together they equate to less than 30%
of the total storefront, which allows adequate
display window space.
The project does not include pull down shutters,
sliding or fixed security grilles over windows along
the street frontage.
Both the front entrance to the ground floor retail
space and second story office space is
emphasized along State Street.
Fences and walls are not proposed as part of this
project.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Dec. 7, 2022 Item #4 127 of 168
Exhibit C
Location Map
Dec. 7, 2022 Item #4 128 of 168
STATE STREET
MIXED USE PROJECT
RP 01-04
Dec. 7, 2022 Item #4 129 of 168
Exhibit D
Map of Public Parking Lots
De
c
.
7
,
2
0
2
2
It
e
m
#
4
1
3
0
o
f
1
6
8
:::;
Public Parking Resources
A 51 Spaces
B 56 Spaces
C 50 Spaces
D 77 Spaces
E 39 Spaces
F 33 Spaces
G 29 Spaces
H 30 Spaces
I 15 Spaces
J 330 Spaces
(NCTD Property)
' ' !<,_ \
~
1
<> I
--l =rA1::l!=i r~=·;
,,.~ilil
-~r~~r
Existing Public Parking Resources
Figr,re 17
. ~~ i~ t=5/j,II IA'
PARKING PROGRAM
City of Carlsbad Village Redevelopment Master Pla11 and Desig11 Ma1mal Sectio11 II. Page 176
Dec. 7, 2022 Item #4 131 of 168
Exhibit E
Exhibits "A-D"
Dated Sept. 23, 2002
Dec. 7, 2022 Item #4 132 of 168
PROPERTY
LINE F .. J_ . .'37!" .. -.. -.. - .
EXISTING 5'-----41
PACIFIC BELL I
EASEMENT • 1------..--------t I 31.5 I
I I I
I I_ EXISTING DUPLEX • I I
~ TO 6E REMOVED i\lf
~ 1212 SF @I
I I
I I I
I I • 22.5" ,,J ------------1-1:n I
I l<.i I : l-_ 11.25' _ -+
-+1,66.:.._
_ 7.8.:.._J I
I I
l:n al
ls;i gjl
I I
I I
I I --+ I :J EXISTING STORAGE
~ TO 6E REMOVED I
1 440 SF I 13.0" : .. , 1-----7
re' 1:n ' si=I il<'i t ~, ,~ r
I ~---l _____ j ' 't----1 19.0' I 1 5.0' • • <{)f
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Dec. 7, 2022 Item #4 138 of 168
Exhibit 4
Draft DRB Minutes
dated Sept. 23, 2002
Dec. 7, 2022 Item #4 139 of 168
Minutes of:
Time of Meeting:
Date of meeting:
Place of Meeting:
CALL TO ORDER
DESIGN REVIEW BOARD
6:00 P.M.
SEPTEMBER 23, 2002
CITY COUNCIL CHAMBERS
Vice Chairperson Marquez called the Regular Meeting to order at 6:00 p.m.
PLEDGE OF ALLEGIANCE
DRAFT
Vice Chairperson Marquez asked Board Member Baker to lead in the pledge of allegiance.
ROLL CALL
Vice Chairperson Marquez proceeded with the roll call of Board Members.
Present: Commissioners: Tony Lawson
Julie Baker
Larry Paulsen
Courtney Heineman
Vice Chairperson: Sarah Marquez
Staff Present: Housing and Redevelopment Director: Debbie Fountain
Management Analyst: Lori Rosenstein
Assistant City Attorney: Jane Mobaldi
Project Engineer: David Rick
APPROVAL OF MINUTES
ACTION: Motion by Board Member Paulsen, and duly seconded by Board Member Heineman
to accept the Minutes of June 24, 2002, as written.
VOTE:
AYES:
NOES:
ABSTAIN:
3-0-0
Heineman, Paulsen and Baker
None
Marquez and Lawson
Vice Chairperson Marquez reviewed the procedures that would be followed for this public hearing.
COMMENTS FROM THE AUDIENCE ON ITEMS NOT LISTED ON THE AGENDA
There were no comments from the audience.
NEW BUSINESS
Vice Chairperson Marquez proceeded with Agenda Item No. 1, RP 01-04 "2917 State Street Commercial
Building" -Request for a Major Redevelopment Permit for the construction of a 2-story, 6,172 square foot
commercial (office/retail) building on property located at 2917 State Street in land use district 1 of the
Carlsbad Village Redevelopment Area.
Board Member Lawson stated that because of a possible conflict of interest with the item, he must abstain
from the meeting.
Vice Chairperson Marquez asked the applicant if he wanted to proceed with the meeting with four
members remaining.
The applicant, Mr. Lakritz, said he would like to proceed with four Board Members.
Ms. Rosenstein reported the following to the remaining Board Members:
Dec. 7, 2022 Item #4 140 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 2 of 10 DRAFT
The project is located at 2917 State Street; the west side of State Street between Grand and Carlsbad
Village Drive. The property is 37½ feet wide and a 100 feet deep for a total of 3,750 square feet. The
slide depicted the front of the existing property on State Street. II currently houses a collectibles trading
card shop and a hair salon in a retail space that is approximately 927 square feet. There are also existing
street trees and angled parking located on State Street. She pointed out that at the rear of the property is
an existing residential structure that fronts on the alley. The building is 1,212 square feet. Between the
retail space on the front and the residential unit on the back is a 400 square foot storage building; none of
the buildings are connected.
Ms. Rosenstein continued the proposed development consists of the demolition of all three structures on
this site. Immediately north of the subject property at the corner of Grand Avenue and State Street is a
building which houses Galdo Pomodoro Restaurant with outdoor dining, the Alley Bar is located in the
back along the alley, DeStefano's Hair Salon is also located on the first floor, Cafe Dolce Ice Cream Shop,
and on the second floor there is an array of various office uses. To the south of the subject property is
Vigilucci's Restaurant, which is a single story restaurant with outdoor dining as well. Immediately west of
the subject property exists public parking owned by North County Transit District.
The remainder of State Street, between Grand and Carlsbad Village Drive, includes a mixture of both one
and two story structures with a majority of the second stories being devoted to office uses. On the first
floor along State Street there are numerous retail businesses including; hair salons, restaurants with
outdoor cafes, a pub, a coffee shop and shoe repair. The proposed project consists of the construction of
a two-story commercial building with retail on the first floor and office space above. The first floor consists
of 3,296 square feet of retail space. Some of the first floor is also devoted to access to the second story.
State Street is on the front with the building stepped back, access to the second story is by way of an
elevator and staircase on the front and a staircase on the back. Also in the back is an enclosed trash
dumpster that is fully integrated into the proposed building.
The second floor consists of 2,876 square feet of office space. The office space is broken up into two
individual office suites; one fronting on State Street and one in the back on the alley. Separating the two
office suites is an open outdoor patio area, open to the sky in the middle, and a common restroom facility
with the stairs leading to the lower level. Staff sees the proposed office use on the second floor as a
positive addition to this portion of State Street as it does not negatively impact retail continuity in the area
and the two story building is compatible both in scale and character to several of the existing buildings in
the immediate vicinity. The proposed project meets the development standards for land use district one in
terms of building setback, open space, lot coverage and building height. The height limit for land use
district one is 35 feet with a minimum 5 and 12 roof pitch. The proposed project includes two separate hip
roof elements; one in the front and one in the rear of the building. The highest point of the hip roof on the
front is 32 feet and the peak of the hip roof on the rear of the building is 33 feet. Both hip roof elements
include a 5 and 12 roof pitch as required for this area.
Ms. Rosenstein continued that the proposed project is also consistent with the design guidelines outlined
in the Village Design Manual. The project incorporates several design elements to achieve the desired
village character including the two separate hip roof elements described, multi-paned windows on the
upper level front elevation, expansive windows for retail display on the ground floor, recessed wood frame
glass doors at the entry, decorative trim around the windows and an ornate balcony on the second story
with columns incorporated. The development is small in scale in that it maintains a two-story character,
which is common to this street while still maximizing development of the site by relying on off-site parking.
The project has a strong relationship to the street in that it is situated close enough to the street to provide
for desirable pedestrian visibility at the ground floor, yet it maintains an adequate setback to provide for
recessed entryways and landscaped planters. Landscaping plays an important roll in the architectural
design of the building as landscape planters are proposed at the ground floor front entrance, the second
story balcony on the front elevation, and the second story of the rear elevation.
Sl
Dec. 7, 2022 Item #4 141 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 3 of IO DRAFT
The parking is visually subordinate in that it is not located on the site at all. It is located offsite. The
closest public parking lot is immediately west of the subject property across the alley.
Finally, signage is appropriate to the desired village character in terms of scale, size and type of signage
proposed.
Ms. Rosenstein continued with the slides showing two slides of the side elevations. Essentially this project
goes property line to property line on both the north and the south sides of the property, which is common
on this portion of State Street. The north elevation also includes a cross section showing the open
outdoor patio area between the two office spaces on the second floor. In order to meet the parking
requirement for the project, the applicant is proposing participation in the Parking In-Lieu Fee Program.
The parking requirement for both office and retail is one parking space for every 300 square feet of gross
floor area. For a building that totals 6,172 square feet, 21 parking spaces are required. The applicant is
proposing to provide all 21 spaces offsite through participation in the program, which requires a payment
of $11,240 per parking space. The fees collected from the program are then deposited into an earmarked
interest bearing fund to be used for the construction of new or the maintenance of existing public parking
facilities within the Village Redevelopment Area. As a condition of project approval, the applicant would
be required to enter into an agreement to pay the Parking In-Lieu Fee prior to the issuance of building
permits for the subject project. In order to participate in the Parking In-Lieu Fee Program, four findings
must be made:
• First, the proposed project must be consistent with the goals and objectives of the Village Master
Plan and Design Manual. In staff's review, the project was found to be consistent with the Design
Manual and Master Plan because it provides for a commercial use in an appropriate location in
the village. The project also provides greater shopping and employment opportunities and
enhances pedestrian orientation of the area and retains the village character and pedestrian scale
through adherence to the development standards and design guidelines set forth for the village.
• The second finding is the proposed use must be consistent with the land use district in which the
property is located. The property is located in land use district one and meets the objectives of
district one in the following ways: the project reinforces the pedestrian shopping environment by
providing additional ground floor retail space in the area; the project provides a mutually supported
office use on the second floor which creates more employment opportunities in the village and
adds to the customer base for retail, restaurants and commercial services in the area; and the
project enhances State Street as a major focus of pedestrian activity in the village.
• The third finding is that adequate parking is available within the village to accommodate the
project's parking demands. In order to participate in our parking program for the village, the
utilization rates for the village parking lots must be below 85%. The last utilization counts for the
village public parking lots, which was conducted in February of 2002, indicated a 76% average
utilization rate, which is less then the 85% threshold required for participation in this program.
• The last finding is that the Housing and Redevelopment Commission has not terminated or
suspended the program. As of yet, the program is still in effect and hopefully we will have the
opportunity to provide some more public parking opportunities in the village.
The Planning Department has conducted the environmental review for the project and the project was
found to be exempt from State CEQA guidelines as an infill development on a site of less then five acres
in an urbanized area that has no habitat value and is served by adequate local facilities. The necessary
finding for this environmental determination is in the Design Review Board resolution included in the
Board's packet.
The proposed project is anticipated to have a positive financial impact on the City and the Redevelopment
Agency. As with most of our redevelopment projects, the redevelopment of an under-utilized lot will result
in increased property taxes. This increase in property tax will further result in increased tax increment to
the Redevelopment Agency. Secondly, it is anticipated that this project will serve as a catalyst for other
Dec. 7, 2022 Item #4 142 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 4 of 10 DRAFT
improvements in the area; either new development or rehabilitation of existing buildings through the
substantial upgrade of an existing property.
Staff is recommending approval of the project with findings for participation in the Parking In-Lieu
Program. Staff believes development of this site will have a positive fiscal impact on both the City and the
Redevelopment Agency and will assist in fulfilling the goals and objectives of the Village Redevelopment
Master Plan.
Before concluding, Ms. Rosenstein pointed out a packet that was distributed to the Board Members before
the meeting. The packed includes correspondence from Mr. Tom Betz, the property owner to the north.
He owns the building that Caldo Pomodoro is located in. Currently the drainage from the roof of Mr. Betz'
building drains onto the subject property, which raised a concern when development of the site was
proposed. If the property is developed as is currently planned, what will happen to that drainage? Both
property owners got together and worked out a resolution to that problem and David Rick from the
Engineering Department is present tonight to respond to that. Mr. Betz was unable to attend this meeting
and wanted to make the issue was known to the Design Review Board and make sure that it was read into
the record. Essentially, ii looks like the drainage from the building to the north will be diverted through a
drainage line between the buildings and then carried out to the alley and David Rick can go into that
further. Also, hanging on the wall are plans of the proposed project. Ms. Rosenstein distributed the color
and materials board for the project and concluded the staff presentation.
Vice Chairperson Marquez asked if any Board Members have questions of the staff at this point.
Board Member Paulsen inquired about the roof drainage. Are the roofs going to drain into a common
line? He noticed on the elevations that one roof slopes down and dumps onto the subject property.
Mr. Rick from the Engineering Department answered that the proposed drainage line is four inches wide
and will run between the buildings at the property line.
Board Member Paulsen inquired that in the event of demolition, is the other building still going to be
served by the roof drainage or storm drainage?
Mr. Rick answered if one is demolished, they should both be served.
Board Member Heineman asked Mr. Rick if a four-inch line is sufficient?
Mr. Rick answered that it should be sufficient. The area that it is actually collecting is a small area.
Board Member Heineman thanked Mr. Rick.
Vice Chairperson Marquez opened the public hearing. She invited the applicant to step forward and make
his presentation.
Mr. Lear Lakritz, the applicant, said he did not prepare a presentation. Mr. Lakritz's address is: 1272
Peacock Hill, Tustin, California. He did not feel a need to prepare a presentation as Ms. Rosenstein did a
good job. The project would be a nice addition in value for the redevelopment of the Carlsbad Village. He
spent a lot of time to come up with a beautiful building. It will add some more rental space and office
space, which is in short supply in the Village. He asked the Board Members if they had any questions.
Board Member Baker asked Mr. Lakritz if he had any idea to whom the retail space will be rented.
Mr. Lakritz said he did not have any idea. He did add that he owns quite a bit of space in the Village and
he does not have any vacancy. He has a waiting list in case there is a vacancy.
Dec. 7, 2022 Item #4 143 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 5 of IO
DRAFT
Board Member Paulsen asked about the 85% maximum parking utilization. He asked if it applies to
certain areas or all parking areas within the minimum distance of the proposed project.
Ms. Rosenstein answered that a couple of years ago staff developed a comprehensive parking program
for the Village Redevelopment Area and part of that parking program was determining the amount of the
Parking In-Lieu Fee and how the City was going to charge for it. The utilization rate comes from an
assessment of all public parking lots. One of the exhibits in the Board Members packets depicts the
various public parking lots in the Village, which have a total of 710 parking spaces. Staff looks at the
overall utilization rates during different periods of time of all of our existing public parking lots.
Board Member Paulsen said he talked to one of the merchants in the Village and the merchant thought
there isn't enough parking close to his store. Is this a valid complaint?
Ms. Rosenstein responded that staff looks at the total public parking. For instance, there are a couple of
parking lots located on Roosevelt Street, just one block away from the subject property, there are a couple
public parking lots located just south of Carlsbad Village Drive behind Fish House Vera Cruz on both sides
of the railroad tracks. All of which are looked at in assessing the total utilization rate. Staff also hears
complaints regarding the lack of available parking right in front of a business. We look at the public
parking lots in their entirety and try to encourage people to park and walk to do numerous errands in the
downtown area.
Vice Chairperson Marquez said she understands that the applicant does not have this building preleased.
She asked if he was going to start construction without having the building preleased?
Mr. Lakritz answered in the affirmative.
Vice Chairperson Marquez continued that different uses for the commercial retail space, i.e. if it was to be
a full-service restaurant, would probably require additional parking.
Mr. Lakritz answered that whenever a tenant is applying for rental space, he sends them to the
Redevelopment Agency to ask questions and get information from Ms. Rosenstein or another staff
members to make sure that they understand what they have to do in order to qualify for this space.
Vice Chairperson Marquez continued that the Board does not want a parking situation in the Village.
Board Member Baker asked the applicant when he anticipates starting the demolition and when will this
project begin?
Mr. Lakritz answered as soon as he gets the permit. He has been trying for the last two and a half years
now to arrive at this stage. He said possibly another two years.
Vice Chairperson Marquez asked if staff wishes to respond to any of the Board's concerns or any
questions?
Ms. Rosenstein responded to the question of the restaurant use. At the present time, what is being
proposed is strictly retail, which is one parking space for every 300 square feet and office space on the
second floor also proposed at one parking space for every 300 square feet of gross floor area, and that is
what we are going to be taking forward with the positive recommendation from the Design Review Board
to the Housing and Redevelopment Commission. There could be no changes to that unless they amend
their redevelopment permit. If a restaurant use were proposed, we would have to look at an amendment
to their Major Redevelopment Permit and return to the Design Review Board for a recommendation on
parking participation before returning to the Housing and Redevelopment Commission.
Dec. 7, 2022 Item #4 144 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 6 ofl0 DRAFT
Board Member Heineman asked Ms. Rosenstein based on the provisions she talked about, how many
parking spaces would be required.
Ms. Rosenstein asked for a restaurant use?
Board Member Heineman said no, for the use that was outlined which would be retail on the first floor and
offices on the second.
Ms. Rosenstein answered there would be 21 parking spaces total.
Board Member Heineman asked if staff felt it could be handled in the present downtown parking situation?
Ms. Rosenstein answered in the affirmative.
Vice Chairperson Marquez asked fellow Board Members if they wished to discuss this among themselves
or if the Board was ready to make a recommendation.
Board Member Heineman suggested that they start with Board Member Baker and then go down the line.
Board Member Baker said she is in favor of this project. She hopes that some interesting kind of retail will
go into this space beyond what currently seems to be arriving downtown to encourage more people to
shop in the area. Either an upscale clothing store or art gallery or just something beyond an antique store
or a used bookshop. She continued that this looks like a nice project and would attract some interesting
retail opportunities. She is in favor of the project.
Board Member Paulsen said he spent a part of an afternoon investigating the neighborhood downtown
and this looks like ii would be a definite improvement and he feels favorable towards it.
Board Member Heineman added that he thinks it is a remarkably attractive building. He feels the
attractiveness is particularly important in that location. He sees no drawbacks and is very much in favor of
it.
Vice Chairperson Marquez said she feels it is a very attractive building and certainly an· upgrade,
considering what is there presently, and will be warmly received by the community. When looking at
redevelopment, these infill projects can be charming and bring character to our village as opposed to a
homogenous block development. I think that this is a nice, unique way to preserve our village character.
ACTION: Motion by Vice Chairperson Marquez, and duly seconded by Board Member
Baker, to adopt Design Review Board Resolution 289, recommending approval of RP 01-04 to the
Housing and Redevelopment Commission based on the findings and subject to the conditions
contained therein.
VOTE:
AYES:
NOES:
ABSTAIN:
ABSENT:
4-0-0
Baker, Paulsen, Heineman and Marquez
None
Lawson
None
Board Member Lawson returned to join the Design Review Board.
STAFF PRESENTATION:
Ms. Debbie Fountain, Director of Housing and Redevelopment, gave a presentation regarding the status
of redevelopment efforts from 1981 to present.
Dec. 7, 2022 Item #4 145 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE7of!0 DRAFT
Board Member Lawson thanked Ms. Fountain for her presentation. He commented on one item that was
not mentioned was the old theatre. He inquired as to whether or not anything was happening with that.
Ms. Fountain said over the years that staff has tried to encourage the theatre to do more regular
programming at that location where people could depend on every weekend. The current owner has
made the decision that it would be used as a rental property. Staff is still trying to encourage some more
regular programming. We are starting to see more activities there that are open to the general public.
One of the events we are holding in November is to have a movie week the week of Thanksgiving where
we'll show movies every day, both matinee type movies and evening movies, and they will be with the
holiday theme. We are hoping this will show the current property owners that there is a demand for
regular shows and they will want to do a little bit more with the theatre. The property owners have done
quite a bit of rehabilitation on the inside of the facility. They've added a movie screen and they have a little
stage, but it is still more used as a rental property.
Board Member Lawson commented he has been meaning to go inside of the theatre. He said he is a very
visual type of a person and staff speaks of a vision. He tries to draw an actual picture in his mind. Does
the City do that to determine what might be successful when looking at other cities for their successes or
failures. Some that come to mind are Santa Barbara, Capistrano, Laguna Beach, and on the flip side is
Oceanside which has struggled for years and has invested a lot of money into the area including the
theatre area, and I think it is questionable as to the success of that. Do you feel the City of Carlsbad in the
Village has a unique opportunity to be able to exploit these other ideas? Maybe we don't want to be like
Laguna Beach or Santa Barbara, but those places have a remarkable viability. How do you draw a
comparison between Carlsbad and other cities, and are there some things that are unique that we can do
to mirror what might have been done in other cities?
Ms. Fountain answered that one of the things the staff did when working with the Advisory Committee was
ask that question. The response we received was that Carlsbad doesn't want to be like anyone else,
another specific City. We just want to be ourselves. We asked if Carlsbad would like to be like Carmel or
Santa Barbara or Monterey but we were told Carlsbad should be unique. We just want to be the Village.
One thing we tried to do through the Design Guidelines is to inquire as to the features wanted such as: do
you like the pedestrian orientation, do you want to make it a nice place to walk around, and do you want
interesting buildings? The guidelines depict the desired Village character at the time the Master_ Plan was
developed.
Board Member Lawson said the fac;:ades don't have to look like Santa Barbara or Carmel, but there is a
formula associated with those cities, such as the types of businesses and the orientation to either the ease
of parking or the ratios of different types of uses. He doesn't mean demolishing everything and starting
over for it to actually look like something else. He said he is in the Village about every day of the week
because he works there. -There is a lot of uniqueness to it, but there is also a lot of sameness that
contributes to the under-utilization. Does the land use factor get influenced into the encouragement from
the development agency?
Ms. Fountain answered because we have the nine land use districts downtown, there is an effort to
provide a wide variety of mix of land uses. Everyday we struggle with trying to encourage the property
owners to not open another antique store or another coffee shop when we may already have, from some
people's opinion, too many. We actually do work with the property owners quite a bit in trying to
encourage them. Ultimately, who they decide to lease their property to, we can't do much about as long
as it is consistent with the land use plan. Fortunately, we are starting to get some property owners that
have an interest in putting more exciting, interesting uses and we are starting to see that happen like with
Madison's on State Street and Ohana's the Hawaiian store. Staff has also been trying to help people to
understand the need for national chain type of businesses in the Village. Our goal is to try and provide a
good mix of businesses. We have started to team up with the Chamber of Commerce. The Chamber has
actually formed a subcommittee to try and work with property owners in the downtown area to encourage
Dec. 7, 2022 Item #4 146 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 8 of IO DRAFT
economic development and a better mix of businesses in the Village. We are trying to partner with the
Chamber of Commerce, which is positive. Though it may seem slow, good things are happening.
Board Member Baker commented she feels strongly that we need to strive for businesses that don't just
serve tourists. There aren't many businesses in the Village that people who live in Carlsbad actually go
there for other then to eat. I would like to see us continue to strive for retail opportunities that people in
this community would go downtown for. She realizes there isn't much staff can do about this. That is
what makes Santa Barbara unique. Not what it looks like, it is the variety of shopping and lots of activities
that makes you want to shop. She questioned about the assessed value. Is redevelopment different then
residential where the property tax doesn't change unless the property has sold, or has the property sold
enough in this area or been upgraded enough that it would have triggered a reassessment by the county?
Ms. Fountain answered we are going to see an increase in tax increment if there is a resale because there
are not otherwise increases unless there is some substantial rehabilitation that would trigger a
reassessment. For a while, we saw property owners holding their property, not selling, and we weren't
seeing increases in the tax increment, except through rehabilitation projects or new construction only. We
are starting to see more sales of property now and more interest coming in to actually develop properties.
These are developers we haven't seen before, coming from the outside. Commercial property and
residential property are going to be the same in the way taxes are assessed. We are starting to see a little
more turnover in property, which helps with increases in property taxes.
Board Member Paulson inquired as to what is happening north of Chestnut.
Ms. Fountain asked if he was talking about Roosevelt, almost near Walnut.
Board Member Baker asked if he meant Madison.
Board Member Paulson agreed that it is Madison.
Board Member Baker said it is Pine School. The maintenance yard was moved.
Ms. Fountain agreed that it is the Pine School site the City purchased and it will be a park in the future.
Board Member Heineman said there will be a community center on that site also.
Ms. Fountain agreed that yes it will probably be a park and community center. The City is going through
the Master Planning process right now. That property is not in the redevelopment area.
Board Member Heineman said that three or four years ago at the League of California Cities Annual
Planning session, there were two very interesting sessions regarding the upgrading of downtown areas,
similar to ours. One of the things that they mentioned was that they were stealing retailers from the local
mall. Are we faced with that same problem? For instance, if we get a Gap, there probably won't be a Gap
at the mall. The many stores that go into malls would help our downtown area a great deal. Do we ignore
them if they are in the mall?
Ms. Fountain answered that we don't ignore them, but most businesses like that will have certain
demographics and they don't have stores too close to each other. We have started to see more stores,
not necessarily in our redevelopment area, but in redevelopment in general moving out of shopping malls
into downtown areas. We haven't seen that happen yet, because I don't think our demographics are
showing that there are enough customers in the area for their type of product, but there may be in the
future. As we add residential we start to create a customer base that we are hoping will attract more of
those types of businesses into the downtown area.
Board Member Heineman stated that Starbucks is about the only one.
Dec. 7, 2022 Item #4 147 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE 9 ofl0 DRAFT
Ms. Fountain agreed, and said we had to encourage Starbucks to come to our downtown. Those are
things that are challenges. As the city continues to develop with other shopping areas that will continue to
be a challenge as businesses pick where they want to go and what customers they are serving.
Board Member Lawson responded that he had heard that some of the major retailers are developing a
different division of their own self that is tailored for a smaller shop into some of these places in
redevelopment areas. He asked if staff is aware of some of those.
Ms. Fountain agreed and said they are changing. They are not requiring as big of an establishment and
they are going into village type areas, such as La Jolla. We haven't seen that in the Village yet for several
reasons, but we hope it might happen in the future.
Board Member Lawson asked if there is any marriage counselors available of some sort that would direct
our owners to some of those sources?
Ms. Fountain said we do try to encourage that, but one of the areas in which we're going to step up our
efforts is related to the economic development component to seek those types of businesses a little more
aggressively. We will work with the property owners that have space available.
Board Member Lawson asked if that was a campaign that is put on by the City similar to when the City of
San Diego tries to get the Super Bowl, that you put on a dog and pony show?
Ms. Fountain agreed and said we actually need to give the business owners the demographics for the
area because a lot of them don't know about new projects that are coming into town. They may not
realize that there is a market that maybe they are not paying attention to. We are going to try and step up
our efforts to inform and encourage desired businesses. We have done it to a certain degree already
where we sent out letters to some of those types of desirable businesses and encourage them to come in,
but it will take a lot more proactive effort to actually get them in.
Vice Chairperson Marquez inquired about the Parking-In-Lieu Fee, the program's boundaries. Since our
parking lots are currently under-utilized, do you see any chance those boundaries could be extended? At
one time there was a project, the Escrow Building that was built downtown, that just barely made it in and
was able to participate in the program. There are so many infill properties in the downtown area that
aren't able to be improved because they are so narrow and small. Do you foresee any of that? Do you
foresee any new public art projects? We lost the controversial sculpture park. Do you see anything in the
way of public art coming to our downtown? Also, the concerts at Heritage Park seem to be very
successful. She asked if there was going to be any further implementation of major public improvement
projects such as a pier or any kind of lagoon enhancement for the lagoon to the north, the Buena Vista
Lagoon that is an entryway into our downtown. Ray Patchett mentioned something about the railroad
bridge being retrofitted. Any further streetscape programs in the Village that are going to happen? Maybe
even repaving in the Village due to the sewer line improvement that has just gone on and it has trashed
our streets.
Ms. Fountain said one thing she'd like to share before answering those questions is we have a situation
right now where the current redevelopment plan for the Village Area expires in 2006. We have until 2004
to incur any new debt so we only have a couple of years before we can no longer incur debt. We have a
team right now looking at whether or not we can extend the Redevelopment Plan or not. There are certain
findings that you have to make to be able to extend. The honest answer is there are no big projects in the
works right now because of the question regarding financing for them. We wouldn't be able to issue
bonds, which is some of what we had done to get the streetscape project. It doesn't mean that there
aren't other little projects in the works, for example the sewer lines that they are putting in right now; they
do plan to go back and repave the streets. Some of those types of things are in the works and will
continue to be in the works.
Dec. 7, 2022 Item #4 148 of 168
DESIGN REVIEW BOARD MINUTES
SEPTEMBER 23, 2002
PAGE I0ofl0 DRAFT
Ms. Fountain continued, in terms of art projects, there isn't anything on the horizon right now and probably
from a political standpoint, there isn't going to be any big type of project. There may be some small
projects that might be implemented. We do have a new Arts Manager, and I don't know what all of his
goals are for different areas. I think the concerts in the parks will probably continue. There might be other
activities that will be encouraged in the Village area, on a small scale. In terms of streetscape, most has
already been done. There may be other efforts made like on Grand Avenue. We are looking at ways to
increase on-street parking so we might look at diagonal parking on Grand, which might result in some
other streetscape, but those will be incremental rather then one comprehensive streetscape project. We
are at a point of winding down on redevelopment projects, not on private projects. If the plan is extended,
that might bring on some new projects. We are definitely trying to look at additional public parking in the
downtown area so that is more likely what you will see in terms of public projects. We are trying to work
with North County Transit District on a parking structure on their property and maybe in another location
as well. From a financing standpoint, that will probably be one of our biggest projects that will be in the
works in the next couple of years.
Vice Chairperson Marquez thanked Ms. Fountain.
NEW BUSINESS
Vice Chairperson Marquez asked the Board Members if they'd like to nominate a new Chairperson to the
Board.
Board Member Lawson nominated Sarah Marquez to operate as the Chair during the upcoming session.
Board Member Heineman said it is only a one-year term and he seconded Sarah Marquez to Chair.
The nomination for Chairperson was closed. Sarah Marquez was approved as the new Chair.
Vice Chairperson Marquez opened the nomination for Vice Chair for the Board.
Board Member Baker nominated Courtney Heineman.
Vice Chairperson Marquez seconded Courtney Heineman's nomination. All Board Members are in favor
and Courtney Heineman was approved as the new Vice-Chair.
ADJOURNMENT
By proper motion, the Regular Meeting of September 23, 2002 was adjourned at 7:44 p.m.
Respectfully submitted,
Debbie Fountain
Housing and Redevelopment Director
PATRICIA CRESCENTI
Minutes Clerk
MINUTES ARE ALSO TAPED AND KEPT ON FILE UNTIL THE WRITTEN MINUTES ARE APPROVED.
Dec. 7, 2022 Item #4 149 of 168
NOVEMBER 7, 2002
TO: CITY MANAGER
FROM: Management Analyst, Redevelopment
ff/3 3S;;)_
:rt/
All Recehc Apn t1eau\! \ 'l....
Fordlt, Jnfbrmatl()D Dtdle:
CITY COUNCIL
Aast.a.t,_~
Date I\• \1-, City Mana~
2917 State St. Commercial Building -Letter Received
The Housing and Redevelopment Department received the attached letter from
Mr. Harry Guzelimian in response to the public hearing notice for the above
referenced project. The project is scheduled to be heard by the Housing and
Redevelopment Commission on November 12, 2002. This information is being
forwarded to you for review and distribution to the Commission.
If you have any questions, please contact me at x2813. I will also be available
for C ii briefings as scheduled for Tuesday, November 12th•
b~~..__.........._
LORI H. ROSENSTEIN
Management Analyst
Dec. 7, 2022 Item #4 150 of 168
Harry L. Guzelimian
Managing Partner of
Elm Avenue Commercial
A Tenancy-In-Common Partnership
P. O. Box 206
Solana Beach, CA 92075-0206
October 22, 2002
HOUSING AND REDEVELOPMENT COMMISSION
CITY OF CARLSBAD
2965 Roosevelt Street, Suite B
Carlsbad, California 92008
Re: Major Redevelopment Permit
CASE FILE NO. "RP 01-04°
2917 State Street Commercial Building
'"TO WHOM IT MAY CONCERN"
Dear Sir or Madam:
RECEIVED
I (T 2 4 2002
iilrY Of GARI.IIIAIJ
'iOUSING l llEDMLOPMENT nePA!ITMEMT
The City of Carlsbad has acquired several parcels, throughout Carls-
bad Village area, to provide Public Parking for the benefit of the
existing Commercial Properties which had been developed years ago
when Onsite Parking had not been given much consideration and St-
reet Parking had been felt to be adequate, when population was ra-
ther sparse!
I strongly believe,and I am sure many other existing Property and
Business Owners feel the same way (except that most people are me-
ek and do not come out to speak their mind openly; they only com-
plain within themselves, unfortunately), that the existing Public
Parking Sites are to serve the existing Commercial Facilities and
Businesses. As New Developments are added without the provision
of adequate onsite Parking, it defeats the main purpose for which
the existing Public Parking Sites were provided and will overload
them rendering them inadequate, specially with the evergrowing
population because of Carlsbad's Reputation as a very desirable
Coastal North San Diego County Community "VILLAGE BY-THE-SEA"!
In fact, allowing new development without onsite parking is just
as shortsighted as the forebearers who thought only street par-
king was adequate; they did not foresee the impending population
growth that took place!
so, speaking on behalf of the Property owner Group I represent,
plus all of the other meek and silent Property and Business Ow-
ners, I strongly oppose the City's Permitting New Developments
without Adequate Onsite Parking Availability! BIG MISTAKE!!!
I do not know how pactically applicable is the "Pzirking In-Lieu
Fee Program"? By the City lulling itself and believing that the
"Parking In-Lieu Fee" solves the problem is, at best, very naive,
because overloading a specific Business Area's Public ParkingLot ·
will render it inadequate affecting that Area's Businesses adver-
sely and the provision of a new parking lot, with the In-Lieu
Fees collected, in an area unrelated to the affected Business Ar-
ea will not help the adversely affected Businesses! ENOUGH SAIDI
If the Housing and Redevelopment Commission is wiser than their
Forebearers, it will give this point strong cosideration and act
accordingly in a Farsighted Manner! GOOD LUCK!!!
Respectfully submitted,
~ B -• , iia.Geffii1anlf Commercial Property Owner and Represen-
tative of Elm Avenue Commercial, a Te-
nancy-In-Common Partnership, Commercial
Property Owner.
Dec. 7, 2022 Item #4 151 of 168
PROOF OF PUBLICATION
(2010 & 2011 C.C.P.)
STATE OF CALIFORNIA
County of San Diego
I am a citizen of the United States and a resident of
the County aforesaid: I am over the age of eighteen
years and not a party to or interested in the above-
entitled matter. I am the principal clerk of the
printer of
North County Times
Formerly known as the Blade-Citizen and The
Times-Advocate and which newspapers have been
adjudicated newspapers of general circulation by
the Superior Court of the County of San Diego,
State of California, for the County of San Diego,
that the notice of which the annexed is a printed
copy (set in type not smaller than nonpareil), has
been published in each regular and entire issue of
said newspaper and not in any supplement thereof
on the following dates. to-wit:
I certify ( or declare) under penalty of perjury that
the foregoing is true and correct.
Dated at ~9-,...---_~!i-'-a_.'-f'C='-5.,_ __ , California
c_,\/cJ/L-this ____ _:,J ___________ day
l'C< 122001
Signature
NORTH COUNTY TIMES
Legal Advertising
This space is for the County Clerk's Filing Stamp
Proof of Publication of
STATE STREET MIXED USE PROJECT
RP01w04
CASE fl!Jl !SQ,;
RP 01--04
Wla~
2917State tr.et Commer,. cial Building H . 11til
Re~t Comission
PUBLISH,
Frida Octob':l1s, 2002
7
I
Dec. 7, 2022 Item #4 152 of 168
CITY OF CARLSBAD
NOTICE OF PUBLIC HEARING
2917 STATE STREET COMMERCIAL BUILDING
NOTICE IS HEREBY GIVEN that the Housing and Redevelopment Commission of the City of
Carlsbad will hold a public hearing in the City Council Chambers, 1200 Carlsbad Village Drive,
Carlsbad, California at 6:00 p.m. on Tuesday, November 12, 2002 to consider approval of a
Major Redevelopment Permit (RP0l-04) for the construction of a 2-story, 6,172 square foot
commercial building consisting of 3,296 square feet of retail space on the first floor and 2,876
square feet of office space on the second floor on property located at 2917 State Street. The
proposed project also includes the demolition of three existing buildings (927 square feet of
retail, 440 square feet of storage, and a 1,212 square foot residential unit). No on-site parking is
being proposed; the applicant is requesting participation in the Parking In-Lieu Fee Program to
satisfy the parking requirement for the project.
The proposed project is located on the west side of State Street between Carlsbad Village Drive
and Grand Avenue in Land Use District No. 1 of the Carlsbad Village Redevelopment Area
(Assessor Parcel Number 203-293-10).
Those persons wishing to speak on this proposal are cordially invited to attend the public
hearing. If you have any questions or would like a copy of the staff report, please contact Lori
Rosenstein in the Housing and Redevelopment Department at (760) 434-2813. You may also
provide your comments in writing to the Housing and Redevelopment Department at 2965
Roosevelt Street, Suite B, Carlsbad, CA 92008.
As a result of the environmental review under the California Environmental Quality act (CEQA)
and the Environmental Protection Ordinance of the City of Carlsbad, the Planning Department
has determined that the project is categorically exempt from the requirement for preparation of
environmental documents pursuant to Section 15332 of the State CEQA Guidelines as an in-fill
development project on a site of less than five acres in an urbanized area that has no habitat value
and is served by adequate facilities. The Housing and Redevelopment Commission will be
considering approval of the environmental determination during the public hearing.
If you challenge the Major Redevelopment Permit in court, you may be limited to raising only
those issues you or someone else raised at the public hearing described in this notice or in written
correspondence delivered to the City of Carlsbad, Attn: City Clerk, 1200 Carlsbad Village
Drive, Carlsbad, California 92008 at, or prior to, the public hearing.
CASE FILE NO.: RP 01-04
CASE NAME: 2917 ST A TE STREET COMMERCIAL BUILDING
HOUSING AND REDEVELOPMENT COMMISSION
PUBLISH: FRIDAY, OCTOBER 18, 2002
Dec. 7, 2022 Item #4 153 of 168
SITE
STATE STREET
MIXED USE PROJECT
RP 01-04
Dec. 7, 2022 Item #4 154 of 168
Anastasi Development Co LL C
1200 Aviation Blvd
Redondo Beach, CA 90278
Anastasi Development Corp
1200 Aviation Blvd 203
Redondo Beach, CA 90278
Luvik & Veronica Grigoras
2802 Carlsbad Blvd
Carlsbad, CA 92008
Catheryn T Christiansen
2601 Airport Dr 300
Torrance, CA 90505
Catheryn T Christiansen
2601 Airport Dr 300
Torrance, CA 90505
Ralph F Burnette
390 Grand Ave
Carlsbad, CA 92008
Mezrahi
110 E 9Th St C871
Los Angeles, CA 90079
Llc I Catalyst
3252 Holiday Ct 225
La Jolla, CA 92037
Tlf Investments Partnership
3130 Wilshire Blvd
Santa Monica, CA 90403
Ted T Tanaka
11307 Hindry Ave
Los Angeles, CA 90045
Anastasi Development Corp
1200 Aviation Blvd 100
Redondo Beach, CA 90278
Anastasi Development Corp
1200 Aviation Blvd 100
Redondo Beach, CA 90278
Ralph F & Lana Burnette
390 Grand Ave
Carlsbad, CA 92008
Ralphf T & Lana Burnette
2601 Airport Dr 300
Torrance, CA 90505
Gericos Ptnshp
850 Tamarack Ave
Carlsbad, CA 92008
Ralphf T & Lana Burnette
2601 Airport Dr 300
Torrance, CA 90505
Mezrahi
110 E 9Th St C871
Los Angeles, CA 90079
Llc I Catalyst
3252 Holiday Ct 225
La Jolla, CA 92037
Tlf Investments Partnership
3130 Wilshire Blvd
Santa Monica, CA 90403
David R Thompson
580 Beech Ave C
Carlsbad, CA 92008
Dec. 7, 2022 Item #4 155 of 168
Daniel C Wiehle
214 8 S Pearl Dr
Camp Verde, AZ 86322
Dewhurst Family
3425 Seacrest Dr
Carlsbad, CA 92008
Dunham
4028 Park Dr
Carlsbad, CA 92008
Marital T Howard-Jones
2785 Roosevelt St
Carlsbad, CA 92008
Tr Ward
32 Marigold
Irvine, CA 92614
Roosevelt Tamarack Investment
6 Venture 215
Irvine, CA 92618
Ester Ahronee
4440 Cather Ave
San Diego, CA 92122
Village Corner LL C
2998 State St
Carlsbad, CA 92008
Abel C Garcia
2960 State St
Carlsbad, CA 92008
Douglas M Avis
234 3Rd St
Encinitas, CA 92024
Daniel C Wiehle
2148 S Pearl Dr
Camp Verde, AZ 86322
Dewhurst Family
3425 Seacrest Dr
Carlsbad, CA 92008
Dewhurst
3425 Seacrest Dr
Carlsbad, CA 92008
Frances L Smith
PO Box 864
Carlsbad, CA 92018
Ostrie
PO Box 8
Rancho Santa Fe, CA 92067
Bieri-Avis Vi Ltd
5055 Avenida Encinas 210
Carlsbad, CA 92008
Macdonald Properties LP & Ma
2016 Sheridan Rd
Encinitas, CA 92024
Carlsbad Inn Ltd
1438 Lemon St
Oceanside, CA 92054
Leo & Dianna Pacheco
2100 Chestnut Ave
Carlsbad, CA 92008
Mission Square Shopping Cente
1691 Caminita Aliviado
La Jolla, CA 92037
Dec. 7, 2022 Item #4 156 of 168
Harold V & Catherine Clarke
824 Caminito Del Reposo
Carlsbad, CA 92009
2921 Roosevelt Ltd *M*
365 Sunset Dr
Encinitas, CA 92024
Boyer Nancy L
602 S Pacific St
Oceanside, CA 92054
Boyer Nancy L
602 S Pacific St
Oceanside, CA 92054
Boyer Nancy L
602 S Pacific St
Oceanside, CA 92054
Leor & Ophira Lakritz
PO Box 1029
Tustin, CA 92781
Leor & Ophira Lakritz
PO Box 1029
Tustin, CA 92781
Leor & Ophira Lakritz
PO Box 1029
Tustin, CA 92781
Baumgartner
PO Box 1333
Newport Beach, CA 92659
Bill F & Laural Ryburn
2019 Estero St
Oceanside, CA 92054
Marvin S & Idella Humphreys
140 Acacia Ave
Carlsbad, CA 92008
Clark R & Shelley Knapp
215 W Palm St
San Diego, CA 92103
Boyer Nancy L
602 S Pacific St
Oceanside, CA 92054
Gunter
PO Box 749
San Pedro, CA 90733
Tr Betz
3240 Donna Dr
Carlsbad, CA 92008
Leor & Ophira Lakritz
PO Box 1029
Tustin, CA 92781
Leor & Ophira Lakritz
PO Box 1029
Tustin, CA 92781
Satterly
1349 Melrose Way
Vista, CA 92083
Butler Properties
1229 Linda Vista Dr
San Marcos, CA 92069
George R & Jackye Willis
2050 Laurie Cir
Carlsbad, CA 92008
Dec. 7, 2022 Item #4 157 of 168
Harry L & Alice Guzellimian
PO Box 206
Solana Beach, CA 92075
Rosalie T Kopp
PO Box 764
Oceanside, CA 92049
Jerry Peters
PO Box 1091
Cardiff By T, CA 92007
*** 63 Printed***
Dec. 7, 2022 Item #4 158 of 168
Michael K & Howard Murphy
400 N La Costa Dr
Carlsbad, CA 92009
City Of Carlsbad Redevelopmen
Public Agency
Carlsbad, CA 92008
Great Western Bank
PO Box 7788
Newport Beach, CA 92658
Great Western Bank
PO Box 7788
Newport Beach, CA 92658
Walker-Gilbert Tr
4350 Highland Dr
Carlsbad, CA 92008
Tr Sims
2820 Wilson St
Carlsbad, CA 92008
Sara C Teran
305 Date Ave
Carlsbad, CA 92008
*** 14 Printed***
Vermilyea Gsd
11620 Kismet Rd
San Diego, CA 92128
John M & Nina Gordon
PO Box 130065
Carlsbad, CA 92013
Great Western Bank
PO Box 7788
Newport Beach, CA 92658
City Of Carlsbad Redevelopmen
Public Agency
Carlsbad, CA 92018
Bank Of America Nt&Sa
750 B St 1500
San Diego, CA 92101
Carlsbad Village Partners
872 Chelsea Ln
Encinitas, CA 92024
Carlsbad Village Partners
872 Chelsea Ln
Encinitas, CA 92024
Dec. 7, 2022 Item #4 159 of 168
Peacock
2763 State St
Carlsbad, CA 92008
Ralph F & Lan Burnette
390 Grand Ave
Carlsbad, CA 92008
Marital T Howard-Jones
2785 Roosevelt St
Carlsbad, CA 92008
Carlsbad Equity Properties
2965 Roosevelt St
Carlsbad, CA 92008
Pal ens car
2739 State St
Carlsbad, CA 92008
Robert L Nielsen
355 Carlsbad Villagedr
Carlsbad, CA 92008
Village Corner LL C
2998 State St
Carlsbad, CA 92008
*** 7 Printed***
Dec. 7, 2022 Item #4 160 of 168
O:I,o'oo-<\
Sep'le1nbe1 24, 2002
TO: CITY CLERK'S OFFICE
FROM:
RE:
HOUSING AND REDEVELOPMENT DEPARTMENT
PUBLIC HEARING REQUEST
Attached are the materials necessary for you to notice 2917 STATE ST. COMMERCIAL
BUILDING (RP 01-04) for a public hearing before the Housing and Redevelopment
Commission. The attached public hearing notice must be published, posted and mailed
at least 10 days before the hearing. Please notice the item for a wiN: Housing and
Redevelopment Commission meeting on ('.))... )? , 2002. ~t(~\
Thank you.
HOUSING & REDEVELOPMENT DIRECTOR DATE
CITY OF CARLSE,AD
CITY CLEnK'S Oh'!CE
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2917 State St.
Commercial Building
Housing & Redevelopment
Commission
November 12, 2002
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Parking In-Lieu Fee
1. The proposed project is consistent with the
goals and objectives of the Village Master
Plan and Design Manual.
2. The proposed use is consistent with the land
use district in which the property is located.
3. Adequate parking is available within the
Villa.ge to accommodate the project's parking
demands.
4. The In-Lieu Fee Program has not been
suspended or terminated by the Housing and
Redevelopment Commission.
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Economic Impact
Positive Financial Impact on City and
Agency
• Increase in tax increment.
• Catalyst for other improvements in the
area.
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DRB Recommendation
♦ ORB voted 4 to Oto recommend
approval of project with findings to grant ·
participation in the parking in-lieu fee.
program.
♦ Project will have positive financial
impact and assist in fulfilling the goals
and objectives of the Master Plan.