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Agua Hedionda Development Plan Sidesteps CEQA

Freelance videographer Beverley Woodworth shot and edited this story on the 85/15 Plan proposed for the Agua Hedionda Lagoon.

Photo by Alison St John

The strawberry fields east of Interstate Five in Carlsbad, where the proposed Agua Hedionda 85/15 Project would be built, Aug. 5, 2015

A plan to build a state-of-the-art outdoor mall overlooking a Carlsbad coastal lagoon could set a new model for dealing with environmental reviews.

A plan to build a new state-of-the-art outdoor mall overlooking a North County lagoon could set a new standard for upscale malls in San Diego County.

The developer may also set a new standard for dealing with time-consuming environmental impact reports.

As you drive north on Interstate 5, you pass fields in Carlsbad where strawberries are still harvested and sold fresh to passersby. It’s here that Los Angeles-based developer, Caruso Affiliated, is planning to build the mall — anchored by Nordstrom — on the south shore of the Agua Hedionda lagoon.

The 85/15 Plan

Bryce Ross, vice president of Caruso Affiliated, holds frequent meetings to show people the site and describe the plan. It’s called the Agua Hedionda 85/15 Plan because 85 percent of the 203-acre lagoon-front property will be preserved as open space Ross said, and only 15 percent will be developed as a retail shopping and entertainment promenade.

Standing on the south shore of the lagoon, Ross points to watercolor paintings that show how the existing strawberry fields will be moved further east, bordered by public trails and view points overlooking the water.

“You can see there’s a post and rail fence that borders the trail on either side,“ Ross said. “We’re going to acquire the property, dedicate it to a land trust and make it publicly accessible in a responsible and thoughtful way, so the public can view and enjoy this property, while also protecting the habitat, the wildlife and the lagoon.”

Ross said Caruso Affiliated has been in Carlsbad since 2011, holding meetings and developing a specific plan — the 85/15 Plan — based on the input of the community. Last month, the developer presented the city with 20,000 signatures from residents supporting a Citizen’s Initiative to vote on the 85/15 Plan. By law that means the City Council must either vote on it or put it on the ballot for a public vote.

Photo by Beverely Woodworth

The Agua Hedionda Lagoon in Carlsbad, looking back toward the south shore where the 85/15 project would be located. July 2015

The community has already voted to protect much of the land along the lagoon as open space in Proposition D in 2006, said environmental advocate Diane Nygaard.

Standing on the north shore, Nygaard points back toward the strawberry fields, and said many people had no idea what they were signing when they put their names on the initiative.

“People signed the petition thinking that they were saving the strawberry fields,“ Nygaard said. "They have done that time and time again over the years. What the signature gatherers forgot to tell them is that there’s a 585,000-square-foot shopping center attached to what they thought was saving the strawberry fields. They didn’t mention that.”

What is open space?

Photo by Beverley Woodworth

The Agua Hedionda Lagoon in Carlsbad, looking east toward 85 percent of the land that would be preserved under the Agua Hedionda 85/15 Plan, July 2015.

The 85/15 Plan does preserve more land as open space than Proposition D, but Nygaard questions what will be included in that extra open space.

“That open space includes a 25-foot tall restaurant," Nygaard said. “It includes produce markets, two-and-a-half acres of parking lots to serve the shopping center. Somehow we don’t think that counts as open space, we think that’s a commercial operation.“

Ross said the 85 percent of open space will include a farm-to-table restaurant that will serve produce grown on the adjacent fields. The concern is what constitutes open space: Carlsbad’s definition also allows some commercial uses.

Photo by Beverley Woodworth

The site of the Agua Hedionda 85/15 Project, looking west toward Interstate 5, where an outdoor mall would be developed on 15 percent of the property. July 2015

What will the mall look like?

When it comes to details of what will be built on the 15 percent of the land to be developed, Ross has few specifics. It will reflect what the company knows Carlsbad residents want, he said, based on three years of community outreach.

“Something that’s really unique, that represents what Carlsbad is all about,” Ross said. "A great place to spend time with friends and family, low buildings, great character, a lot of community events, like movies in the park, concerts in the park, mommy and me, yoga in the park. We’re really all about creating an environment for the community to come together.”

Outings to "The Grove" in LA, a Caruso shopping center that is well thought of, is part of the company's outreach efforts.

The specific plan to be voted on in the Citizen's Initiative contains conceptual information about the development, such as a 35-foot height limit, but no engineering drawings.

A video on the project’s website shows a few seconds of a baby crawling across a grassy park, and a couple dining out. "Fifteen percent would be improved,” says the voice track, "to create an open air shopping, dining and entertainment promenade, done the right way.“

A new approach to environmental reports

By focusing on the 85 percent of the property to be preserved as open space, the developer has avoided providing more specific details of the 15 percent to be developed. And by collecting enough signatures for a Citizen’s Initiative, Caruso is also avoiding the rigorous reviews of the California Environmental Quality Act or CEQA.

Environmental attorney Livia Borak of Coast Law Group in Encinitas said the California Supreme Court ruled last year that an ordinance passed by a Citizen's Initiative is not subject to review under CEQA. Until now, CEQA review has been a stringent litmus test for new development that can take more than a year to complete.

“For decades developers have been trying to figure out ways to avoid doing that,” Borak said. “It costs money to change projects, it costs money to do mitigation measures. That’s why - now that there’s this loophole for developers and now that the Supreme Court has made clear that it’s available - more and more people are going to be trying to take advantage of it.”

Photo by Beverley Woodworth

Caruso Vice President Bryce Ross, with a map of the proposed Agua Hedionda 85/15 Project. July 2015

Caruso’s Ross said it’s true that if the Citizen’s Initiative is approved, the Carlsbad development is exempt from CEQA review. However, he said, the developer has prepared 4,300 pages of its own environmental analysis of the plan that the Carlsbad city staff are now reviewing.

This is important because once the project is voted on — if it’s approved — it cannot be changed.

“However, Caruso Affiliated being a company that’s so focused on delivering to the community exactly what they want, we can do all sorts of things to make sure that the ultimate plan is consistent with what the community wants to see," Ross said.

Nygaard is not reassured that the developer — but not the city — can make changes to the plan after it is approved.

“It’s Caruso’s way or the highway,” Nygaard said. “No opportunity for any of the normal give and take that really makes a project a better fit for the community.“

By paying as much as $20 a signature for a Citizen’s Initiative, Nygaard said, the developer can avoid going through a more expensive CEQA review. Now, she said, the ball is in Carlsbad’s court. The city must choose whether to approve the Agua Hedionda 85/15 specific plan outright, or put it on the ballot. If it chooses the public vote, the city, not the developer, will foot the bill for the special election.

The Carlsbad City Council will vote on the initiative as soon as Aug. 25.

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