Residents who live in the neighborhood of Aviara have expressed concern about a senior housing development proposed for the area in 2005, which is proposed to be located adjacent to Aviara and in the southwest area of Carlsbad. Because the City of Carlsbad encourages public input into decisions that affect the lives of our residents and wants to ensure easy access to information about proposed developments, this summary of commonly asked questions and answers has been prepared to share information on the proposed project, the city’s development review process, and the local and state laws that govern this type of project.
Current Status: The proposed project application was formally withdrawn by the developer as of July 15, 2010. Therefore, there will be no additional processing of this application by the city. However, because some residents remain concerned about this previously proposed project and continue to request answers to questions about it, this FAQ sheet has been updated with new questions and answers.
Q1. What is the Pontebello Development? Who is the developer?
A. The proposed project is 428 market-rate senior condominiums and 76 senior apartments (which are being proposed to meet the project’s requirement to include low income affordable residential units). The project is also proposed to include heavy senior-oriented services/amenities. Acacia Investors owns a 61 acre property in Carlsbad which is located north of Aviara Oaks Elementary School, south of Cassia Road, east of Ambrosia Lane and west of Skimmer Court. The property is located in the southwest quadrant of the City of Carlsbad adjacent to the community known as Aviara in southwest Carlsbad. Acacia Investors submitted an application to the City of Carlsbad for a service-enriched senior only residential development currently known as Pontebello on approximately 21 acres of the 61 acre property. The remaining acreage (40 acres) is proposed to be designated as Open Space and includes the construction of the final segment of Poinsettia Lane. At the time the application was submitted, the project was known as the Bridges at Aviara. The name was subsequently changed by the developer to Pontebello.
Q2. Why did the city not simply tell the developer that they can’t develop their property as proposed because many residents in the area were in opposition and/or there were other issues with their application?
A. The city can and will advise the developers/property owners of the resident concerns and community outreach by the developer to resolve any issues is encouraged. However, ultimately, if the developer chooses to submit an application for land development and is willing to “take his/her chances” the city has an obligation to process the application as set forth by state law. City staff will work with the developer in an attempt to address concerns and/or issues before any recommendation is made to the Planning Commission and City Council. With early input from residents or other interested parties, issues can be identified and appropriately addressed as part of the project review.
Q3. What is the current status of this development application? Has the city asked the developer to withdraw the application and resubmit at a later date?
A. As noted above, the developer officially withdrew the development application on July 15, 2010. Prior to the withdrawal, there had been no activity on the application since September 2009.
Q4. Many residents of the adjacent Aviara community recently provided the city with suggestions and/or recommendations for development of the subject property which are different from those proposed by the developer. What will be done with those suggestions/recommendations?
A. It is the general policy of the city to share suggestions/recommendations from surrounding neighbors and/or other residents with developers for their consideration and knowledge of the community concerns. The city also gives consideration to these suggestions/recommendations in its review of development applications.
Q5. How many submittals/revisions did the city receive on the proposed development application and what type of comments have been provided by the city?
A. The city received an original submittal and three resubmittals from the developer for the Pontebello development. The formal application was submitted and responded to by the city in July 2005. The resubmittals were responded to in July 2006, August 2007 and June 2008 with a list of issues of concern. The issues of concern include comments on density, site design, standards compliance, etc. As indicated, the developer resubmitted plans and application materials to address the requirements and the issues of concern. As of the date of application withdrawal in July of 2010 there had been no determination made that the developer had satisfactorily addressed all of the identified issues of concern. Many issues remained outstanding at the time of withdrawal. All of the response letters provided to the developer are available for public review. If you would like to review these letters, please contact the project planner for the Pontebello development, Christer Westman at 760-602-4614 or email@example.com for assistance.
Q6. Is construction of the final segment of Poinsettia Lane more important than good design of the project, and will other land use issues be overlooked in order to move forward with construction of the road?
A. Prior to withdrawal of the subject application, there was no recommendation from city staff and no informal or formal approval of the project by the City Council. The road construction will be required by any development on this property. However, its construction is not more important than any other development issue related to a development project. The road is an important transportation link that is desired. However, the city will not overlook other important project issues or approve the Pontebello project or other development at all cost simply to ensure construction of the road. The proposed project will need to comply with all applicable standards and may have other standard infrastructure requirements (in addition to the road).
Q7. Many Aviara residents do not believe that the extension of Poinsettia Lane is needed in the area. Has an analysis been completed that determines the road is needed? Is it a high priority?
A. Poinsettia Lane is a major arterial designated on the Circulation Element of the General Plan and is needed to complete the circulation pattern in the area. Cassia Road is not expected to carry traffic diverted from a major arterial due to the missing link on Poinsettia Lane. Also, the intersection at Cassia Road and El Camino Real was not designed for the added traffic volumes due to the diverted traffic. The Poinsettia and El Camino Real intersection will be designed and constructed to handle the added traffic volume. The noted portion of Poinsettia Lane has not been removed from the Circulation Element and the expectation is that it will be built when development occurs. The developer will be responsible for the road similar to all other developments in Carlsbad. With that all said, the Council is willing to wait for the construction to take place as a result of private development. It is not a high priority at this time.
Q8. Are the traffic counts for Ambrosia, Poinsettia and Cassia conducted by the city available for public review?
A. Yes. All traffic counts on file are available for citizen review. The information is a public record and is available through the city's Transporation Department. If you would like to review the traffic counts, you may contact the Transportation Department, Engineering Division directly at 760-602-2720.
Q9. How much has been collected to date in fees to allow for the construction of the extension of Poinsettia Lane? If there are adequate funds, why won't the city just go ahead and build the road rather than wait for a developer to do it?
A. When building permits are issued in the boundaries of the district that will pay for the road, a fee is paid into the district fund. The current account balance is $8 million. These funds can be used to pay for the core improvements of Poinsettia Lane which includes grading for the full width of the roadway, the median curbs, 18 feet of paving on either side of the median and any drainage facilities associated with the roadway grading. The estimated cost for these improvements is $13.5 million. Therefore, as shown, there are not adequate funds available at this time to complete these core road improvements. However, as additional development occurs, the fund balance will increase. It is anticipated by the city that the properties in the district develop per the existing General Plan from both a land use and density perspective, there will be adequate funds raised to fully fund the core improvements. Above and beyond these core improvements are the frontage improvements required by the developer. For the extension of Poinsettia, these improvements will include median paving and landscaping, the outer 14 feet of paving, the outer curb and gutter, sidewalk and parkway landscaping. The estimated cost of these frontage improvements is $2.2 million. The city does not currently have adequate funding to build this road. Therefore, the city will wait for the road to be built when development occurs and adequate funds are available for construction.
Q10. Is Pontebello a residential or a commercial development?
A. Although arguments can be, and have been, made both ways, the city ultimately determined that the proposed Pontebello project was a residential development with a high level of resident services/amenities rather than commercial based upon a number of relevant criteria which include the fact that the development will not be licensed by the state as a medical care facility. The residential development was proposed to have a high level of senior-oriented services/amenities, many of which are required by state law to qualify as a senior-only development. However, none of these services, as proposed, would have been available to the general public.
Q11. What is the current and proposed zoning and general plan designations for the property?
A. The current zoning for the property is Limited Control (which is a "place holder" zoning) and One-Family Residential (R-1). The proposed zoning was residential density-multiple (RD-M) and open space. The current general plan designation is Residential Low-Medium Density (0 to 4 units per acre) and Open Space. Based on current estimates of net developable acreage for the project, a maximum of 152 residential units could be constructed on the site with the existing zoning and general plan designation. The proposed General Plan designation was Residential High Density (15-23 units per acre) and Open Space. This revised zoning and General Plan designation would allow for the estimated 504 residential units proposed in the developer application. The General Plan designation change represents a significant increase in density and has been identified as a concern by city staff and others. The increased density request would have been studied as part of the required California Environmental Quality Act environmental review. If the project had proceeded, a full Environmental Impact Report would have been prepared and made available for public review. Since the developer has withdrawn the development application for Pontebello, there will be no further action taken on the proposed zoning and general plan change. There also will be no EIR completed for the project.
Q12. Has the city approved this project or ensured approval of this project through any of its actions to date?
A. No. There has been no approval of the project and no actions taken to date by the City Council and/or city staff that provides for any approval or implied approval, including the project's proposed density as referenced in the recently adopted 2005-10 Housing Element. Development applications are all reviewed for compliance with existing standards, including design, and the appropriate environmental review is completed. The City Council takes no action to approve or deny a development project, or indicate its approval or denial, until a formal application is before them for consideration at a public hearing. Because the application for the Pontebello development has been withdrawn, there will be no further processing of the application and no approvals granted. For a development application such as the Pontebello development, the process includes completion of staff's comprehensive review of the application and the EIR. A recommendation is then made by city staff to the Planning Commission which then makes a recommendation to the City Council for consideration. Community input is valuable to the review process, and residents are encouraged to share their opinions with the project planner at their earliest convenience. There, however, will be no further processing of the Pontebello development application due to its withdrawal in July 2010.
Q13. Has the project been included in the recently approved Housing Element, or has the property been designated for higher density housing in the Housing Element?
A. Part of the proposed project was included and part was not included in the Housing Element. For information purposes, it is important to note that the Housing Element is part of the General Plan. It is required by state law to provide an assessment of both current and future housing needs within the community and the constraints to meeting those needs. The Housing Element must also provide a comprehensive strategy that establishes goals, policies and programs to provide safe, decent and affordable housing for all residents of the community at all income levels. Specific to the proposed development, the site for the 428 market rate senior condominiums was not included in the Housing Element as an eligible high density site for affordable housing purposes. The applicant submitted information stating that the proposed condominiums will only be affordable to upper income seniors, even with the proposed higher density. Because these homes, if approved, will not be affordable to low or moderate income households, this portion of the project would not be counted for Housing Element compliance purposes because the units would not have been affordable if built.
Because the application was submitted by the property owner for the 76 affordable senior apartments at the time the Housing Element was being prepared, it was included as a potential site for low income affordable homes within the Housing Element. This site's inclusion within the Housing Element as a potential site for meeting the city's low income needs did not, and does not, imply approval of the project itself. The project was still required to undergo considerable review and be presented to the Planning Commission and City Council in a public hearing setting with a staff recommendation for approval.
Q14. What is "spot zoning?" Does the Housing Element legitimize "spot zoning?"
A. As explained by the City Attorney's Office, "spot zoning'" is the rezoning of an isolated parcel of land in a manner that is inconsistent or incompatible with adjacent parcels. Spot zoning is illegal only when the legislative body acts unreasonably or without substantial evidence.
As noted previously, the Housing Element is an element of the city's General Plan and represents a blueprint for what building is proposed to happen in what parts of the city. It is the only element that must be certified by the State of California's Department of Housing and Community Development. State requirements indicate that the city must identify adequate sites within Carlsbad that provide for high density housing to provide the community's regional share of affordable units for low and moderate income households. It is very important to note that although the city must identify sites that can be rezoned to higher density within its Housing Element to meet the state requirements, the City Council must follow up with approval of the required general plan and zoning amendments following required public hearings before those land use designations become effective.
Q15. What does the term “Presumption of Validity” for the Housing Element mean? And, what does it mean in terms of approval for future high density development projects identified within the Housing Element?
A. As explained by the City Attorney’s Office, the “presumption of validity” is a legal term that applies to a certified Housing Element if it is legally challenged. With a State-certified Housing Element, the burden of proof of invalidity shifts to the challenger. Implementing the Housing Element programs, including the rezoning of identified properties, will be a subsequent action. The city must make a good faith effort to implement the Housing Element and revisit and compensate for any programs which are not implemented in the next Housing Element cycle. The City may be subject to financial penalties and/or a more difficult approval process for the next Housing Element if the city does not fully implement its Housing Element. The Housing Element was approved by the City Council and certified by the state. A new Housing Element will need to be prepared by the end of 2012. Our performance in the next couple of years will determine how difficult or extensive our new state requirements will be.
Q16. What is the process for studying, reviewing and responding to the environmental impacts of the proposed development?
A. Based on a preliminary review of the proposed project, city staff concluded that the subject project could result in potentially significant environmental impacts. Consequently, a determination was made that the project required preparation of a comprehensive EIR. In November 2008, the City Council authorized preparation of the EIR for the proposed project and hired a consultant to do it. The EIR includes an analysis of 1) project aesthetics; 2) agricultural resources; 3) air quality; 4) biological resources; 5) cultural resources; 6) geology and soils; 7) hazards and hazardous materials; 8) hydrology and water quality; 9) land use planning, which includes the impacts of the substantial density increase; 10) noise; 11) population/housing; 12) public services and utilities; 13) recreation; 14) traffic/circulation/ parking; and 15) alternatives. The EIR was subsequently placed on hold as of September 1, 2009, due to the developer’s inability to move the project forward. The development application was then withdrawn on July 15, 2010, which eliminates the need for the EIR.
Q17. Why is affordable housing for low income households required of developers, and how are these developments located within the city?
A. The city is required by state law to provide affordable housing for all income groups – very low, low, moderate and upper income. Generally, the market is meeting the housing need for upper income households in Carlsbad. The city, however, must establish programs and/or laws to require and/or provide affordable housing for low and moderate income households within Carlsbad because the market is not doing it. As a result of this state law requirement, the city implemented an Inclusionary Housing Ordinance in 1993 which requires all residential developers to provide at least 15 percent of their homes as an affordable product for low income households.
Generally, the developer is allowed to pick the site and/or type of project to meet this requirement. However, the starting point is that the affordable development, except for very small developments, must be included at a location within the proposed development boundaries. In some cases, developers are allowed to build the affordable dwellings outside of their development property. However, they must still develop within their same quadrant of the city and at an appropriate location in terms of services and other amenities, such as employment centers. Because the southwest and southeast parts of the city had the largest residential growth to date, the larger majority of affordable housing projects are also located there. However, these areas do not have more than their fair share of affordable housing.
Q18. Was the proposed affordable housing project for the Pontebello development being constructed on an easement granted to the Aviara community for parkway improvements that are maintained by HOA fees and/or are any other easements proposed to be built upon by the developer?
A. A preliminary title report must be submitted to the city which identifies any easements and other encumbrances on a development property. All easements must be noted on the project plans and appropriately addressed. The engineering staff studies these issues and other related issues in their review of development applications, and acts accordingly.
Q19. Did the city work with the project developer(s) for several years and still allow them to submit an application that is not acceptable to the community?
A. Staff often meets with developers to discuss their ideas and proposals for property they own and/or property they are interested in purchasing. During these meetings, staff will provide information on current zoning, general plan designations, development standards, community vision and/or concerns, etc. However, simply meeting with a property owner and providing information does not mean that staff or the Council supports the application ultimately submitted by the developer. The developer/property owner submits an application for what he/she would like to build on his/her private property, and sometimes these applications might conflict with community and/or staff opinion. All development applications are reviewed in detail and staff spends many hours working through project issues before any recommendation is developed and the project is finalized for the public hearings. This application review is not just a formality. All development applications go through a rigorous review which is demonstrated in the quality development currently available within Carlsbad. The public has an opportunity to comment during the review process and at the public hearings.
Q20. What opportunities will the public have to weigh in on the proposed project or others?
A. Interested persons can provide input to the project planner during the application review process. The project planner for the Pontebello development was Christer Westman. He may be contacted at Christer.firstname.lastname@example.org or at 760-602-4614. There is also an opportunity to provide comments on the EIR when a draft is complete. Following the project review, staff prepares a recommendation on the application. This recommendation is presented to the Planning Commission during a public hearing. Interested persons may provide input and speak during the public hearing before the Commission. The Planning Commission takes action on the proposed application which is then presented as a recommendation to the City Council. There is another public hearing before the City Council takes any action on the development application. Interested persons can provide input and speak during the public hearing before the Council. To receive notice of the public hearings, interested persons may contact the project planner to be placed on a notice mailing list. Property owners within 600 feet of a proposed development will be mailed a formal notice of the public hearings. All others should request that their name and address be placed on a mailing list if they would like a formal public hearing notice mailed to them, or subscribe to the email notification list by accessing the city website at www.carlsbadca.gov.