Carmel-by-the-Sea City Council
April 7, 2026

CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL AGENDA
Contact: 831.620.2000 www.ci.carmel.ca.us
Mayor Dale Byrne
Councilmembers Jeff Baron, Hans Buder, Bob Delves, and
Alissandra Dramov
All meetings are held in the City Council Chambers
East Side of Monte Verde Street
Between Ocean and 7th Avenues
Regular Meeting
Tuesday, April 7, 2026
4:30 PM

HYBRID MEETING ATTENDANCE OPTIONS
This meeting will be held in person and via teleconference ("hybrid"). The public is welcome to attend the meeting in person or remotely via Zoom, however, the meeting will proceed as normal even if there are technical difficulties accessing Zoom. The City will do its best to resolve any technical issues as quickly as possible. To view or listen to the meeting from home, you may also watch the live stream on the City's YouTube page at: https://www.youtube.com/@CityofCarmelbytheSea/streams. To participate in the meeting via Zoom, copy and paste the link below into your browser and enter the passcode. https://ci-carmel-ca-us.zoom.us/j/83138976374
Webinar ID: 831 3897 6374
Passcode: 862068
Dial in: (253) 215-8782

HOW TO OFFER PUBLIC COMMENT
The public may give public comment at this meeting in person, or use the Zoom teleconference module, provided that there is access to Zoom during the meeting. Zoom comments will be taken after the inperson comments. The public can also email comments to [email protected]. Comments must be received at least 2 hours before the meeting in order to be provided to the legislative body. Comments received after that time and up to the beginning of the meeting will be made part of the record.

CALL TO ORDER AND ROLL CALL

PLEDGE OF ALLEGIANCE
A. Carmel High School Report Out
B. Proclamation recognizing American Red Cross Month
C. Non-Profit Spotlight: Community Human Services, Casa De Noche Buena and Shuman HeartHouse
D. Recognition of the Clean California designation awarded to Carmel-by-the-Sea

PUBLIC APPEARANCES
Members of the public are entitled to speak on matters of municipal concern not on the agenda during Public Appearances. Each person's comments shall be limited to 3 minutes, or as otherwise established by the Chair. While stating your name is optional, it helps to identify speakers in the meeting minutes. Under the Brown Act, public comment for matters on the agenda must relate to that agenda item, and public comments for matters not on the agenda must relate to the subject matter jurisdiction of this legislative body. Remote or in-person participants who do not comply with the requirements of the Brown Act will be muted.

ANNOUNCEMENTS
City Administrator Announcements
City Attorney Announcements
Councilmember Announcements

PUBLIC HEARINGS
1) Consideration of two consolidated appeals, APP 26070 (Hudson and Martin PC, TSD Properties, L.P.) and APP 26071 (Fenton and Keller, A.W. Shucks, LLC), appealing the Planning Commission Resolution No. 2026-04 determining that the “drinking establishment” use (UP 93-45) for A.W. Shucks has been abandoned.

ORDERS OF BUSINESS
Orders of Business are agenda items that require City Council discussion, debate, direction to staff, and/or action.
2) Discussion of draft resolutions and ordinance relating to a potential ballot measure to increase the City’s Transient Occupancy Tax from 10% to 12% and Direction regarding the submission of such ballot measure to the City’s voters at the November 3, 2026, general municipal election
3) Receive an update on the Design Traditions 1.5 project, and review the proposed Plan, defined Scope of Work, and Proposed Timeline to finalize the Residential Design Guidelines 1.5
RECESS
The City Council will take a 30-minute break around 6:30 p.m.

FUTURE AGENDA ITEMS

CLOSED SESSION
4) PUBLIC EMPLOYEE PERFORMANCE EVALUATION PURSUANT TO
GOVERNMENT CODE SECTION 54957
Title: Acting City Administrator
5) CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54957.6
Title of unrepresented employee: Acting City Administrator

6) CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54957.6;
Agency Designated Representatives: Acting Assistant City Administrator Marisa Bermudez, Police Chief Todd Trayer, and Zachery Lopes, Burke Williams & Sorensen;
Employee Organization: General Employees Unit, an Affiliated Unit of LiUNA, and Management Employees Unit, an Affiliated Unit of LiUNA

ADJOURNMENT
This agenda was posted at City Hall, Monte Verde Street between Ocean Avenue and 7th Avenue, Harrison Memorial Library, located on the NE corner of Ocean Avenue and Lincoln Street, the Carmel-bythe-Sea Post Office, 5th Avenue between Dolores Street and San Carlos Street, and the City's webpage (http://www.ci.carmel.ca.us) in accordance with applicable legal requirements.

CORRESPONDENCE RECEIVED AFTER THE POSTING OF THE AGENDA Any correspondence or supplemental materials related to items on this agenda that are received after the agenda has been posted will be distributed to the City Council and made available for public review at City Hall (Monte Verde Street between Ocean and Seventh Avenues) during regular business hours.

Written comments emailed to the City Clerk will not be read aloud, but will be posted online with the related agenda at: https://carmelbytheseaca.portal.civicclerk.com/.

SPECIAL NOTICES TO PUBLIC
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk's Office at 831-620-2000 at least 48 hours prior to the meeting to ensure that reasonable arrangements can be made to provide accessibility to the meeting (28CFR

35.102-35.104 ADA Title II).

A PROCLAMATION OF

THE CITY OF CARMEL-BY-THE-SEA
AMERICAN RED CROSS MONTH, 2026
WHEREAS, during American Red Cross Month, we celebrate by honoring our neighbors who make its humanitarian mission possible in Carmel-by-the-Sea; and WHEREAS, every day, their acts of kindness change lives, bringing relief, comfort and hope when help can’t wait; and
WHEREAS, this compassionate spirit runs deep in our community, just as it has for 145 years through the American Red Cross; and
WHEREAS, the contributions of local Red Cross volunteers (181 in the county) give hope to the most vulnerable in their darkest hours; and
WHEREAS, last year in Monterey County, volunteers helped 49 families affected by 30 home fires by addressing their urgent needs like food and lodging, as well as providing recovery support; and
WHEREAS, in addition, they installed 682 smoke alarms, collected 2,141 blood donations, provided first aid and CPR training to 2,423 residents, and assisted 112 families of our armed forces; and
WHEREAS, these collective efforts are a powerful reminder that the strength of our community lies in our shared commitment to one another; and
WHEREAS, as we mark Red Cross Month, let’s celebrate our local heroes and resolve to continue lifting each other up, so no one faces an emergency alone.

NOW, THEREFORE, BE IT PROCLAIMED THAT I, Dale Byrne, Mayor of the City of Carmelby-the-Sea, on behalf of the City Council and the citizens of Carmel, hereby proclaim March 2026 as Red Cross Month. I encourage all Americans to reach out and support its humanitarian mission.

IN WITNESS WHEREOF, I have hereunto set my hand this 7th day of April, in the year two thousand twenty-five, in Carmel-by-the-Sea, California. ______________________________
Dale Byrne, Mayor

Homeless Shelters for Women and Families:

Funding Shortfall and Program Impact

WHAT WE DO

PROGRAM DESCRIPTION
• 35-bed emergency shelters serving homeless women and families • Typical length of stay: six months
• Annual number served: ~80 (~25 women and ~15 families) • Stabilize and transition people to permanent housing with improved income, self-sufficiency, and well-being

WRAP-AROUND SUPPORTS
• Basic needs: meals, hygiene supplies, laundry facilities, clothing, and computer / internet access
• Housing-focused supports: case management, housing navigation, and rapid rehousing financial assistance
• Stability supports: connections to physical and behavioral health care, mainstream benefits, employment services, and financial planning

HOW THE SHELTERS CAME TO BE

CASA DE NOCHE BUENA
• Applied/received ~$1.3m of HEAP funding
• Raised additional ~$400k from community
• Renovated the County-owned modular building

SHUMAN HEARTHOUSE
• Developed with private philanthropy funding

SUSTAINING SHELTER BEDS
• CDNB and SHH Annual Operating Costs: approx.
$1.2m per year each
• CHS and GFW established a Special Purpose
Fund through the Community Foundation, for
community fundraising
• Government grants including but not limited to:

HHAP, ESG, CDBG, community support

CURRENT & NEAR-TERM FUNDING GAP
Annual Operating Costs:
• Approximately $1.2M each
Projected Annual Funding Shortfall (Non-cumulative; assuming no new funding) Key drivers of the gap:
• FY 2025–26: HHAP-5, and City of Monterey PLHA funds are fully depleted. • FY 2026–27: CDNB Special Purpose Fund ($345,179), HHAP-3 and HHAP4, and $764,353 deferred revenue are fully depleted.

Without new funding stream(s) this marks the beginning of a structural deficit.

Fiscal Year CDNB SHH
2026–27 ~$267K ~$655K
2027–28 ~$649K ~$905K
2028–29 ~$702K ~$958K
2029–30 ~$757K ~$1.01M

CARMEL
• These programs contribute to a wellfunctioning community and support workforce stability.
• Many clients of these programs are part of the
regional workforce that supports Carmel’s
visitor economy.
• For context, just over 1% of our homeless
services clients are Carmel residents, with
most coming from neighboring communities.

HOUSING OUTCOMES
Statewide Benchmark
• 23% to permanent housing (Cal ICH, FY 2023-24,
crisis response exits)
Casa de Noche Buena (operated by GFW + CHS)
• 50% to permanent housing (3-year avg.)
• 24% to temporary housing
Shuman HeartHouse (operated by CHS)
• 57% to permanent housing (2-year avg.)
• 17% to temporary housing

IMPACT TO PROGRAMS
Objectives:
• Avoid service reductions or shelter closure
• Phase in reductions or closure while pursuing funding Without additional funding or system-level support:
• Reduction in services or capacity
• Elimination of case management
• Conversion to overnight emergency shelter or
seasonal shelter
• Partial or full program closure
Any reduction significantly weakens outcomes and
increases long-term system costs.

CONCLUSION

WHAT WE ARE ASKING FOR
• Partnership in maintaining CDNB and SHH shelters
• Stabilization or bridge funding for FY26–27
• Exploration of replacement funding or coordinated system solutions
• Commitment to preserving services that foster housing and economic security
These programs work.

With support, they remain a pathway to stability.

Without it, homeless families and women remain stuck
in crisis and system costs rise.

Thank you for your partnership and consideration.
[email protected] [email protected]

CITY OF CARMEL-BY-THE-SEA
City Council
Staff Report
April 7, 2026

PUBLIC HEARINGS
TO: Honorable Mayor and City Council Members
SUBMITTED BY: Anna Ginette, Community Planning & Building Director APPROVED BY: Brandon Swanson, Acting City Administrator SUBJECT: Consideration of two consolidated appeals, APP 26070 (Hudson and Martin PC, TSD Properties, L.P.) and APP 26071 (Fenton and Keller, A.W. Shucks, LLC), appealing the Planning
Commission Resolution No. 2026-04 determining that the
“drinking establishment” use (UP 93-45) for A.W. Shucks has been abandoned.

RECOMMENDATION:

Staff recommends the City Council either:
1) Adopt a Resolution (Attachment 1):
a) Ordering the consolidation of the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned; b) Finding that the proposed action by the City Council is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and that none of the exceptions to the exemptions listed in section 15300.2 apply in this case; and c) Denying the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004

finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93- 45 Murray/Weaver) has been abandoned.
d) A.W. Shucks may continue to operate under Use Permit No. UP 93-45 for a period of up to six months from February 11, 2026, the date of adoption of Resolution 2026-04 by the Planning Commission in order to allow acquiring a new use permit.
-- OR --
2) Adopt a Resolution (Attachment 2):
a) Ordering the consolidation of the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned; b) Finding that the proposed action by the City Council is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case; and c) Granting the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93- 45 Murray/Weaver) has been abandoned conditional upon TSD Carmel Properties, L. P. and/or A.W. Shucks, LLC applying to the City for an amendment to Use Permit No. 93-45 to omit limited food service and add full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment.

BACKGROUND / SUMMARY:

EXECUTIVE SUMMARY
The subject of the appeal, A.W. Shucks Use Permit (UP 93-45) for a drinking establishment, was brought before the Planning Commission on October 8, 2025; December 10, 2025; January 21, 2026; and February 11, 2026, as a Director Referral (click on meeting dates to access the respective staff report).

Historical permits, decisions, determinations and the current Carmel-by-the-Sea Municipal Code uses “drinking place” and “drinking establishment” interchangeably.

Therefore, both terms are used throughout this staff report.

In summary, the Commission was provided with permitting and operational history of A.W. Shucks, how the existing use has been inconsistent with the use permit approved in the 90’s (specifically related to food service) and potential permit remedy options to allow the operation to continue.

During public testimony at each Commission hearing, both the business operator (A.W.

Shucks, LLC) and property owner (TSD Carmel Properties, L. P.) expressed their understanding of how the establishment was permitted and how it was, and currently is, consistent with the use permit, building permits, and business licenses as well as the designation as a drinking establishment by the Planning Commission in 2015.

Therefore, neither party was agreeable to amending their use permit and relinquishing the drinking establishment use. Moreover, they feel that the existing use (drinking and food service) was consistent with the approved permits and past direction provided by the City, it is their position that the drinking establishment use has not been abandoned.

At the February 2026 hearing, the Commission adopted Resolution No. 2026-04 (see Attachment 3) determining that A.W. Shucks’ drinking establishment use has been abandoned. On February 26, 2026, a timely appeal was filed by the property owner (see Attachment 4, APP 26070). Separately, an appeal was filed by the business operator (see Attachment 5, APP 26071). These appeals assert that the drinking establishment use has continued for over 65 years, that use was never abandoned, the City permitted food service and kitchen facility upgrades, and the Planning Commission erred in their decision finding the use abandoned. Further, the appellants claim that the action of the Commission was a takings and they should have been estopped from making such a decision. See additional details in the Appellant Contentions discussion below.

In accordance with the City code, the appeals are brought forward to the City Council to consider. Based on the similarities of the appellants’ contentions, staff recommends the Council consolidate the two appeals.

Similar to the February 11th Planning Commission hearing, staff has provided Council with two draft resolutions; Attachment 1, a resolution denying the appeals and upholding the Commission’s decision, and Attachment 2, a resolution granting the appeals conditioned upon the owner/operator applying for a permit amendment to maintain the drinking establishment use as primary and allow a full line restaurant as ancillary.

The intent of providing these options is to allow Council to weigh the facts and consider the establishment’s permitting history, the Commission’s rationale of their decision, the appellant’s dispute of the Commission’s decision, public testimony and deliberation prior to making a decision. In addition, providing the two options allows the City Council to memorialize their action at the April 7th hearing without the need to return at a later date to adopt a resolution.

DETAILED DISCUSSION

FACTUAL CHRONOLOGY

1. Original Approval and Early Modifications (1993-65 year 1996) 1993: The Planning Commission approved Use Permit No. UP 93-45 (Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment formerly known as Maxwell McFly’s (now A.W. Shucks). The business is located at Ocean Avenue 3 southwest of San Carlos Street, APN 010-146-017-000.

Condition of Approval No. 2 of the Use Permit stated: “The sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities.” March 3, 1994: The City issued Building Permit No. 94-47 for a commercial interior remodel allowing installation of: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker.

November 3, 1995: An application for Building Permit No. 96-81 to allow a commercial kitchen remodel was submitted.

November 20, 1995: A correction list was provided indicating that an application to amend the Use Permit was required.

December 5, 1995: An additional note was added stating that the owner was required to submit a new application for a business license for a full-line restaurant.

May 7, 1996: The City issued Building Permit No. 96-81.

June 14, 1996: Building Permit No. 96-81 was finaled. This permit allowed the installation of a stock pot burner and gas fryer.

2. Further Kitchen Expansion (2008-2009)
July 31, 2008: An application for Building Permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner was filed.

August 15, 2008: Building Permit No. 08-168C was issued.

February 11, 2009: Building Permit No. 08-168C was finaled.

3. Planning Commission Designation on September 23, 2015

September 23, 2015: At a duly noticed meeting, the Planning Commission determined that A.W. Shucks was one of the three drinking places in the city, the other two were Sade’s and Barmel. The Commission found that A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed. The Commission noted that the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission approved this designation of these three drinking places with a vote of 4-0-1.

4. Change of Ownership and Planning Director’s Determination (2023) July 1, 2023: Ownership of A.W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi).

August 8, 2023: Business License No. BL 23-041 was issued. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use.

On August 14, 2023: Community Planning and Building Director Brandon Swanson sent an email to property manager John Plastini. In this email, Mr. Swanson stated that he had determined that the City had:
• “memorialized the additional cooking equipment and restaurant operation by approving a building permit on August 15, 2008 (Permit # 08-168C)”; and • “In this case, even though the original Use Permit sets a limit on the type of equipment and menu, the City took an official action to approve the updated kitchen and the menu it was meant to prepare, thereby creating a legal nonconforming situation that is allowed to continue under Chapter 17.36 of the City’s Municipal Code.”
August 28, 2023: Director Brandon Swanson sent correspondence to Mr. Plastini stating that as he had stated in his August 14, 2023 email, the menus Mr. Plastini had provided were also approved by the City on August 15, 2008, as part of Permit # 08- 168C.
2025/26 PLANNING COMMISSION HEARINGS
October 8, 2025 Planning Commission Hearing
On October 8, 2025, the Director of Community Planning and Building, Anna Ginette referred the permit and operation history of A.W. Shucks Cocktail & Oyster Bar (A.W.

Shucks) to the Planning Commission. The referral requested the Commission opine on:
1) is A.W. Shucks operating outside of what is permitted (Use Permit, Building Permits and Business License); and if so, 2) what is the correct vehicle to achieve compliance? The recommendation by the Director in the Staff Report was that the Commission consider approving an amendment to Use Permit No. UP 93-45 to change the allowed use from a drinking establishment with limited food service to a full-line restaurant.

During this hearing, the Commission received comments from the property manager and operator of A.W. Shucks. Specifically, both expressed their disinclination to amend their Use Permit to change the allowed use from a drinking place with limited food service to a full line restaurant. During the Commission’s deliberation, several considerations were expressed, such as the permitted use should either be a full line restaurant or a drinking establishment, the operation appears to be a full line restaurant, the operation seems to be neither but more of a mix of the two, and compliance with existing permits. At the end of the deliberation, the Planning Commission’s direction was for staff to return with permitting options that would allow A.W. Shucks to operate as they currently are, while maintaining their drinking establishment use.

December 10, 2025 Planning Commission Hearing
On December 10, 2025, staff returned to the Planning Commission as directed and provided 5 potential options for the Commission to consider:

Option 1 – Amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use.

Option 2 – Uphold the Planning Commission’s 2015 designation that A.W. Shucks is a drinking establishment.

Option 3 – Consider A.W. Shucks as a nonconforming use.

Option 4 – Revert the ancillary use to limited food service.

Option 5 – Amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant.

Based on the Commission’s direction from the October 8th hearing, staff recommended Option 1, which was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code.

During public testimony on the December 10, 2025 Planning Commission hearing, members of the public came forward to speak on the A.W. Shucks hearing item, including the property manager of A.W. Shucks, John Plastini. Mr. Plastini asserted that drinking establishment use was never abandoned and A.W. Shucks has acted in good faith, including as directed by city staff and determined by the Planning Commission. In general, members of the public spoke to the operation of a different drinking establishment in the city. However, a few commentors stated that Option 5 presented to the Commission would be appropriate for A.W. Shucks.

There were numerous public comments regarding Sade’s. However, the Commission pointed out that the item that before them was related to A.W. Shucks, not Sade’s.

Subsequent to public comment and the Commission’s deliberation, the Commission expressed that Option 5 was their preference, rather than Option 1 recommended by staff.

January 21, 2026 Planning Commission Hearing
On January 21, 2026, staff was prepared to return with a draft resolution based on the Commission’s discussion and preference. However, the day of the hearing staff received correspondence from an attorney, Hudson Martin PC, representing the property owner, TSD Carmel Properties, L.P., asserting that the Planning Commission violated the Ralph M. Brown Act during the December 10, 2025 hearing and that the Commission should be estopped from making a determination of abandonment of the drinking establishment use due to their vested rights. In order to allow sufficient time to review and respond to the correspondence, the Commission continued the hearing to a date uncertain.

February 11, 2026 Planning Commission Hearing
Prior to the February 11th meeting, the Commission had previosuly stated that the concept of limiting drinking establishments in the City is one of critical importance when considering how an allowed drinking establishment operates. Essentially, the limit creates a carve out for 3 drinking establishments which should be discernable when compared to other uses. For example, one Commissioner stated that during their research, 24 restaurants in the city were identified to have a full service bar and that 5 or 6 offer no such alcohol service. The Commission also stated that when compared to a full line restaurant, the age restriction required for bars is a clear difference between the 2 uses. In addition, Commissioners suggested how the different ABC Type licenses could be used to determine whether or not a use qualifies as a bar.

Another Commissioner pointed out Condition of Approval No. 8 of Use Permit UP 93-45 and Carmel-by-the-Sea Municipal Code (CMC) Section 17.36.060 – Legal Nonconforming Uses and Buildings, Abandonment of Use, stating that any change of use must conform to the provisions of the CMC.

While most is correct, the change of use more appropriately falls under CMC Section

17.56.050 – Restricted Commercial Uses, Exercise and Abandonment of Restricted Commercial Uses, specifically subsection “C” which states “[a] restricted commercial use that has been discontinued for a period of six consecutive months shall be considered abandoned unless the property owner has filed a notice of temporary cessation as provided for in this chapter.”
CMC Section 17.56.050.C states that a “determination of abandonment by the Director may be appealed to the Planning Commission”. The determination of abandonment can be made by the Commission or by the Director. As noted, a determination of abandonment by the Director is appealable to the Planning Commission. CMC Section

17.52.030.L states that the Director has the power to refer any decision to an appropriate higher level, including the Planning Commission. In this case, the Director referred the determination of whether there has been an abandonment of use for this matter to the Commission.

Based on the City Attorney’s review of the January 21, 2026 letter from the Hudson firm, it was determined that there were no violation of the Brown Act on December 10,

2025 Commission hearing. Government Code Section 54954.2 provides that a local agency “shall post an agenda containing a brief general description of business to be transacted or discussed at the meeting….” The discussion at the December 10, 2025 Commission meeting was within the scope of the agenda description.

The Hudson letter also asserted that: “The Commission’s proposed actions would interfere with A.W. Shucks’ and TSD’s ability to continue the established business in which they have vested rights and would constitute an improper government taking.” The Hudson letter sets forth the basis for the legal position of TSD including references to building permits, the September 23, 2015 Planning Commission determination and the August 2023 email from the Community Planning and Building Director regarding a nonconforming use.

In addition to the claim of vested rights, the Hudson letter contends that the Commission is legally estopped from finding that TSD abandoned the Use Permit, citing legal authority.

The City Attorney has reviewed the assertions by the Hudson firm in regard to vested rights and estoppel. Based upon this review, the City Attorney counseled the Commission, stating if it were to determine that the current uses of A.W. Shucks constitute an abandonment of the drinking establishment, it would be subject to legal challenge based on the record as described in the Factual Chronology discussion above. The outcome of such a legal challenge cannot be predicted with accuracy.

APPELLANT CONTENTIONS FOR COUNCIL HEARING
The following discussion contains contentions and staff responses for both appeals.

The first section is TSD Carmel Properties, L.P., and the second section is A.W.

Shucks, LLC.

APP 26070 – TSD Carmel Properties, L.P. (“TSD”)
On February 26th, TSD filed a timely appeal of the Planning Commission’s action memorialized in Resolution No. 2026-04, determining that the drinking establishment use at A.W. Shucks has been abandoned. Below is a summary of the appellant’s grounds for appeal, as outlined in Attachment 4, followed by staff’s response.

Appellant Contention 1 – TSD has leased its property to drinking establishments for decades with City approval, including its current tenant A.W. Shucks.

TSD’s appeal states that since 1961, TSD continuously leased the subject property to drinking establishments and the drinking place use permit runs with the land. Moreover, TSD consistently, and in good faith, relied on “representations by City officials that its tenants’ operations were consistent with the terms of its drinking place use permit.” To support this contention, the appeal cites the Use Permit 93-45 allowing food service, building permits authorizing kitchen expansions, the 2015 Planning Commission determination that A.W. Shucks was one of the three drinking places in Carmel, and a

2023 confirmation by the Community Planning and Building Director that the new owners of the business establishment could continue to operate the business under its existing drinking place use permit.

Staff Response to Contention 1: Based on historical record, it appears that the property has been leased and operated as a bar for over 65 years.

Appellant Contention 2 – The Planning Commission erred in adopting the abandonment resolution because the use permit was never abandoned.

TSD’s appeal states that: “TSD and A.W. Shucks have clearly and consistently stated throughout this administrative process that they have not and will not abandon their rights to the drinking place use permit or the right to operate a drinking place.” The appeal cites Carmel-by-the-Sea Municipal Code (CMC) Section 17.14.040.I.3.d, which states that if more than 20% of the total number of seats are at a bar or in a separate bar room then the drinking place standards apply. A.W. Shucks has a total of 45 seats, 14 (31%) of which are at the bar. Also referenced is the December 10, 2025 Planning Commission staff report which states that full line restaurants with more than 20% of the seats are located at a bar, the CMC classifies the primary use as a drinking place and ancillary use as a full line restaurant. The appellant asserts that the Planning Commission ignored this section of the code when deeming the use abandoned and instead, based their decision on the language contained in the business license and revenue composition, neither of which are relevant under the CMC.

The appeal also states that “[a] finding of abandonment requires an intent to abandon and an act or failure to act reflecting the intent to abandon an interest in or right to use property” and there was no such act or intent in this case. On the contrary, A.W.

Shucks continuously and lawfully operated as a drinking place and therefore the use permit was never abandoned.

Staff Response to Contention 2: The December 10th staff report identified a potential permit path for the operation to continue as it does currently while maintaining the drinking establishment use (Option 1). This permit path is also explained in the August 10, 2022 History and Policies on Alcohol in Carmel-by-the-Sea white paper.

The plain language of CMC Section 17.56.050.C, states:
“Abandonment of Use. A restricted commercial use that has been discontinued for a period of six consecutive months shall be considered abandoned unless the property owner has filed notice of temporary cessation as provided for in this chapter. Failure to maintain a valid business license shall be considered substantial evidence of abandonment, and such use shall not be reestablished unless a new application is approved as required by this chapter. Establishment of any different use in a space authorized for occupancy by a numerically limited use shall be considered an abandonment of the numerically limited use. A determination of abandonment by the Director may be appealed to the Planning Commission, as provided for in CMC

17.56.040.”
In considering this language, the Planning Commission considered the fact that A.W.

Shucks has operated as it currently does for over 20 years and although the operation was permitted (see the Factual Chronology discussion above), its operation is more similar to a restaurant than a bar. The Commission weighed the length of the operation against the CMC language above and found that that abandonment commenced when the full line restaurant began.

Appellant Contention 3 – The Planning Commission erred in finding that the addition of food service at A.W. Shucks constituted a change in use under the drinking place use permit.

The TSD appeal makes several points under this contention. The appeal asserts that the City repeatedly approved the addition and expansion of food service for decades, citing permitting history and determinations by the Planning Commission and Community Planning and Building Director (see Factual Chronology discussion above).

Therefore, the City is estopped from deeming the use abandoned as TSD acted in good faith and relied upon the approvals and determinations in leasing the tenant space. Further, TSD was never notified of any violations of their permit.

The appeal also asserts that the Planning Commission did not fully engage in discussions relative to alternatives. Specifically, Draft Resolution No. 2 of the February 11th Planning Commission staff report, which would have allowed TSD and A.W.

Shucks to pursue a use permit amendment to allow a full line restaurant as an ancillary use while maintaining the drinking use as primary.

Staff Response to Contention 3: The Factual Chronology regarding the operations of A.W. Shucks is set forth earlier in this Staff Report. John Plastini, property manager for TSD, testified at the Planning Commission hearing that they “acted in good faith” based on the approvals and direction from the City- including the Planning Commission and Community Planning and Building Director.

Appellant Contention 4 – The abandonment resolution substantially harms TSD.

TSD’s appeal asserts that upholding the abandonment resolution would cause economic harm and a substantial adverse impact to their established business operation, resulting in a governmental taking of TSD’s property rights.

Staff Response to Contention 4: Tools and resources to verify economic data, or validity of economic assumptions based on land use, real estate and market conditions are not available. Therefore, staff cannot provide an accurate response to economic claims of this contention.

Appellant Contention 5 – The City Council should overturn the abandonment resolution.

This contention summarizes points made in Contentions 1-4, asserting that those points support overturning the Planning Commission’s resolution on abandonment. In addition, the appellant provides suggested findings and evidence.

Staff Response to Contention 5: See staff’s response to Contentions 1-4.

APP 26071 – A.W. Shucks, LLC
On February 26th, A.W. Shucks, LLC filed a timely appeal of the Planning Commission’s action memorialized in Resolution No. 2026-04, determining that the drinking establishment use at A.W. Shucks has been abandoned. Below is a summary of the appellant’s grounds for appeal, as outlined in Attachment 5, followed by staff’s response.

Appellant Contention 1 – The Commission’s findings and determination that the Premises’ “drinking establishment” use and the use permit were abandoned conflict with the City Code and the express, authorized determinations of the City’s Planning Director.

In this contention, A.W. Shucks makes a similar argument as TSD’s Contention 2; the number of seats at the bar exceeds 20% therefore the drinking place standards apply, resulting in the drinking establishment as the primary use and full line restaurant as ancillary. As such, the appellant contends that the determination of abandonment was in error and contrary to the CMC. The appeal further states that the alcoholic beverages offered exceed the limits for full line restaurants. CMC Section 17.14.040.I.3.a, states that the sale of alcoholic beverages shall be subordinate to the primary use of the full line restaurant. As evidence, the appellant provides a copy of the A.W. Shucks’ drink menu.

A.W. Shucks’ appeal states that in 2023, the Community Planning and Building Director did not find the drinking use abandoned and instead, found that the City took an official action to approve the updated kitchen and menus and therefore the operation is allowed to continue. The appellant further contends that pursuant to CMC Section

17.56.050.C, the 2023 Director’s determination that the use was not abandoned is legal and binding and that although an opportunity to appeal that determination was available, no appeal was filed.

Staff Response to Contention 1: Based on Business License BL 23-041, the total number of seats in A.W. Shucks is 45, 14 of which (31%) are at the bar while the remaining seats are at high-top tables. Therefore, CMC section 17.14.040.I.2 would apply and A.W. Shucks would be classified as a drinking place as the primary use and full line restaurant as ancillary. However during deliberation at the December 10th hearing, the Planning Commission discussed this point and found that the seats at the “Oyster Bar” are not for “true” bar seating and therefore should not be counted as part of the 31%.

Staff concurs that the menu submitted by the appellant demonstrates extensive options

for alcohol when compared to food offers and that the Community Planning and Building Director did not find the drinking establishment use abandoned in 2023.

Also see staff’s response to TSD’s Contention 2.

Appellant Contention 2 – The Commission’s finding and determination that the Premises’ “drinking establishment” use and use permit were abandoned are contrary to the evidence.

In this contention, A.W. Shucks makes a similar argument as TSD’s Contention 3. A.W.

Shucks’ appeal identifies that in 2015, the Planning Commission determined that A.W.

Shucks was one of the three drinking establishments in the City, it originally operated strictly as a drinking place and that the Use Permit (UP 93-46) “merely allowed for the addition of food service”. Further, building permits allowed for the expansion of the kitchen facility. As such, the City is precluded and estopped from denying the previous admissions. Further, the current use has not changed since 2023 and therefore there is no evidence that the use was abandoned.

A.W. Shucks’ appeal asserts that the use permit, or the CMC, does not impose revenue, unit or volume limits on food sales relative to alcohol. Therefore, the comparison should not be considered when determining whether or not the drinking establishment use was abandoned. However, the appeal points out that food is limited when compared to other full line restaurants and the kitchen is only 80 square feet in size. Conversely, A.W. Shucks offers over 400 spirits, 9 martinis, 9 specialty cocktails, 31 wines and ports, 22 beer, 3 oyster shooters and 4 mocktails.

Staff Response to Contention 2: The appellants claims that the Planning Commission determined that A.W. Shucks was one of the three drinking places in Carmel is correct.

In addition, evidence on the record supports that the subject property operated as a drinking place prior to approval of UP 93-46, which allowed the addition of limited food service.

Also see staff’s response to TSD’s Contention 3.

Appellant Contention 3 – A.W. Shucks is lawfully entitled to continue its “drinking establishment” use of the premises without a use permit.

In this contention, the appellant points out that Use Permit UP 93-46 was not related to legalizing the drinking establishment as it was established prior to a use permit requirement and is legal nonconforming. Rather, it was to allow “the addition of the sale of food to an existing drinking establishment”. The A.W. Shucks appeal then references CMC Section 17.36.050 – Nonconforming Uses, and asserts that none of the prohibited actions listed in subsections “A” through “E” and therefore a use permit is not necessary for A.W. Shucks to continue the legal nonconforming drinking establishment use.

Staff Response to Contention 3: The appellant’s claim that UP 93-46 was not related to legalizing the drinking establishment use is correct.

A drinking establishment is a restricted commercial use and therefore the additional regulations found in CMC Section 17.56.050 – Exercise and Abandonment of Restricted Commercial Uses applies (see staff’s response to TSD’s Contention 2).

Appellant Contention 4 – A.W. Shucks’ existing use of the premises comports with the City’s general plan and land use goals, and is not injurious to public health, safety, or welfare.

The A.W. Shucks appeal cites case law (Carlin v City of Palm Springs (1971) 14 Cal.App.3d 706, 711) which affirms that the California Constitution and California Government Code (Title 7 – Planning and Land Use) enables local governments to regulate, restrict or prohibit activities that threaten public health, safety, morals or general welfare. The appeal further explains that evidence in the record, including Planning Commission Resolution 2026-004, does not demonstrate that the current use, including food and drink service, is incompatible with the General Plan or land use goals. Further, it has not been demonstrated that the use is injurious to health, safety or welfare of the City, its residents, property owners, business owners or tourists.

Staff Response to Contention 4: The appellant’s claim there is no evidence in the record that operation at A.W. Shucks is injurious to health, safety or welfare is correct.

Appellant Contention 5 – The Commission’s action, including the resolution, violates constitutional principles of due process, equal protection, and “taking” private property “without just compensation.”
The A.W. Shucks appeal asserts that the City’s authority to regulate land use is also limited by the protections of the Fifth and Fourteenth Amendment as well as the California Constitution. These protections provide the property owner with vested rights to continue the drinking establishment use on the property. Therefore, the Planning Commission’s decision was arbitrary and capricious. Moreover, the Commission did not identify who abandoned the drinking establishment use or the period of time when the use was abandoned, resulting in insufficient notice to the property owner and business operator as well as a lack of evidence to support the resolution for abandonment.

Staff Response to Contention 5: These issues are related to the claims of vested rights and estoppel which have previously been addressed in this Staff Report.

Appellant Contention 6 – A.W. Shucks will sustain damages arising from the Commission’s resolution.

The appellant identifies that use permit provides A.W. Shucks’ permissible hours of operations (closing at 11:00 p.m., Sunday through Thursday and closing at 2:00 a.m., Friday and Saturday) and if the City reduces those hours, the establishment would

suffer damage (lost income and business opportunity) resulting in the potential for “economic unviability and unsustainability” of the business. In addition, changes in the business operation as a result of the Planning Commission’s resolution would cause similar and additional damage; specifically, the value of the premium purchase price paid by A.W. Shucks, LLC for the drinking establishment rights.

Staff Response to Contention 6: See staff’s response to Contention 4 of the TSD appeal.

OPTIONS FOR CITY COUNCIL
Draft Resolution – Attachment 1
a) Ordering the consolidation of the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned;
b) Finding that the proposed action by the City Council is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and that none of the exceptions to the exemptions listed in section 15300.2 apply in this case; and c) Denying the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned.
d) A.W. Shucks may continue to operate under Use Permit No. UP 93-45 for a period of up to six months from February 11, 2026, the date of adoption of Resolution 2026-04 by the Planning Commission in order to allow acquiring a new use permit.

Draft Resolution – Attachment 2
a) Ordering the consolidation of the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned;
b) Finding that the proposed action by the City Council is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case; and

c) Granting the appeals filed by TSD Carmel Properties, L. P. (APP 26070) and A.W. Shucks, LLC (APP 26070) of Planning Commission Resolution 2026-004 finding that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned conditional upon TSD Carmel Properties, L. P. and/or A.W. Shucks, LLC applying to the City for an amendment to Use Permit No. 93- 45 to omit limited food service and add full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment.

ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA), specifically Public Resources Code section 21065(c) and CEQA Guidelines section 15378, defines a project as an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, where such activity involves a discretionary approval in the form of the issuance of a lease, permit, license, certificate or other entitlement for use by a public agency. Should Council adopt the Resolution in Attachment 1, the action would result in a determination that A.W. Shucks’ existing drinking establishment use is abandoned, which does not satisfy the definition of a project that is subject to CEQA above because it would involve the abandonment, not issuance, of an entitlement, and also because even with the abandonment of the drinking establishment use there would be no direct, on-the-ground physical change in the environment as A.W. Shucks would still be permitted to continue serving food and drink (including alcohol) under its existing hours and menus (at least for up to six months). The fact that A.W. Shucks may pursue and acquire a new or amended use permit as a result of the adoption of Resolution 1 does not convert adoption of Resolution 1 into a project subject to CEQA because it isn’t the adoption of Resolution 1 that will grant such an entitlement, but rather a future City action. It is pure speculation to try to predict whether A.W. Shucks will seek or secure a new or amended use permit and the City will be required to conduct the appropriate level of CEQA review before granting any such new or amended use permit.

Should Council adopt the Resolution in Attachment 2, that action also would not satisfy the definition of a project that is subject to CEQA as it would grant the appeals and maintain the status quo with no on-the-ground physical change in the environment given A.W. Shucks would be permitted to continue operating as a drinking establishment serving food and drink (including alcohol) under its existing hours and menus while it applied for an amended use permit to omit limited food service and add full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment. The fact that A.W. Shucks may decide not to file an application for an amended use permit in response to the adoption of Resolution 2 does not convert Resolution 2 into a project subject to CEQA because no direct or indirect physical changes could occur unless and until the appeals were brought back to the City Council for further consideration and action and the City will be required to conduct the appropriate level of CEQA review before taking any action that could result in such

a direct or indirect physical change in the environment.

Assuming arguendo that adoption of Resolution 1 and/or 2 does qualify as a project that is subject to CEQA, the project would fall under numerous CEQA exceptions.

Indeed, under either Resolution, A.W. Shucks will be permitted to continue operating as it currently does in the short term while it pursues a new or amended use permit to either proceed as a full line restaurant or to continue as a drinking establishment with a full line restaurant as an allowed ancillary use but either way A.W. Shucks will still continue serving food and drink (including alcohol) under its existing hours and menus.

The only difference between the two is that if A.W. Shucks is no longer considered a drinking establishment use it would not be allowed to eliminate food service and return to being only a drinking establishment. As such, the project would fall squarely under the common sense exemption found in CEQA Guidelines section 15061(b)(3) as there would be no possibility that the activity would result in any physical changes to let alone any significant adverse effects on the environment. Under these facts, the project would also clearly fall under both the Class 1 categorical exemption in CEQA Guidelines section 15301 (which covers the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing facilities) and the Class 5 categorical exemption in CEQA Guidelines section 15305 (which covers minor alterations in land use limitations) because there would be no change to the existing, baseline conditions at A.W. Shucks, no expansion of and no changes in A.W. Shucks current commercial/retail/hospitality land use. And none of exceptions in CEQA Guidelines Section 15300.2 would negate the project from qualifying from either the Class 1 or Class 5 categorical exemptions as the project site does not entail any unusual circumstances or an environmental resource of hazardous or critical concern, there are no successive projects of the same type in the same place that could result in cumulative impacts, and the subject property does not contain a hazardous waste site or a historic resource, nor is it within an officially designated state scenic highway.

FISCAL IMPACT:

N/A
PRIOR CITY COUNCIL ACTION:

N/A
ATTACHMENTS:

1. DRAFT RESOLUTION NO. 1_final

2. DRAFT RESOLUTION NO. 2_final

3. Resolution 2026-004-PC - 02-11-26 - Director Referral - AW Shucks

4. APP 26070 (AW Shucks - TSD)

5. APP 26071 (AW Shucks)

ATTACHMENT 1
1 DRAFT RESOLUTION NO. 1

CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL
RESOLUTION NO. 2026-___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA

ORDERING THE CONSOLIDATION OF THE APPEALS BY TSD CARMEL PROPERTIES, L.P. (APP 26070) AND A.W. SHUCKS, LLC (APP 26071) (“APPEALS”) OF PLANNING COMMISSION RESOLUTION 2026-004 FINDING THAT THE DRINKING ESTABLISHMENT AT A.W. SHUCKS COCKTAIL & OYSTER BAR (UP 93-45 MURRAY/WEAVER) LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL (CC) ZONING DISTRICT, APN 010-146-017-000, HAS BEEN ABANDONED; FINDING THE APPEALS ARE HEREBY DENIED; AND FINDING THAT THIS ACTION BY

THE CITY COUNCIL IS NOT A PROJECT UNDER CEQA AS DEFINED IN PUBLIC RESOURCES CODE SECTION 21065 AND CEQA GUIDELINES SECTION 15378, AND

ASSUMING IT IS A PROJECT, IT IS EXEMPT UNDER CEQA GUIDELINES SECTIONS 15061(b)(3) (COMMON SENSE EXEMPTION), 15301 (EXISTING FACILITIES), 15305 (MINOR ALTERATIONS IN LAND USE LIMITATIONS) AND NONE OF THE EXCEPTIONS

TO THE EXEMPTIONS APPLY IN THIS CASE
WHEREAS, on December 8, 1993, the Planning Commission approved Use Permit No.

UP 93-45 (Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment (formerly Maxwell McFly’s, now A.W. Shucks Cocktail & Oyster Bar) and whether or not the operation is consistent with the use approved under Use Permit No. UP 93-45; and WHEREAS, Condition of Approval No. 2 of UP 93-45 states that “the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities.”; and WHEREAS, on March 3, 1994, the City issued building permit No. 94-47 for a commercial interior remodel allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker; and
WHEREAS, on November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correct list was updated crossing out “use permit” and writing in “business license only” and indicated that compliance was done April 22, 1996. On May 7, 1996, the city issued the building permit and on June 14, 1996, it was finaled. This permit allowed the installation of a stock pot burner and gas fryer; and WHEREAS, on July 31, 2008, an application for building permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an over, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009; and

ATTACHMENT 1
2 WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission determined that A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed, the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1; and WHEREAS, on July 1, 2023, ownership of A.W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi). Business License No.

BL 23-041 was issued on August 8, 2023. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use; and WHEREAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation; and
WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Permit No. UP 93-45 (Murray/Weaver); and
WHEREAS, at the October 8, 2025, Planning Commission meeting, the Commission received a Director’s Referral to discuss the permit and operation history of A.W. Shucks, and a potential amendment to Use Permit No. UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Permit for a drinking establishment; and WHEREAS, at the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission’s 2015 designation that A.W. Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staff’s recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code (CMC); and WHEREAS, on December 10, 2025, having considered all the written and documentary evidence, the administrative record, staff report, oral testimony, and other evidence presented, the City of Carmel-by-the-Sea Planning Commission expressed the view that the drinking establishment use has been abandoned and the use shall come into conformance. In addition, the Commission identified that Options 5 would fit the existing model of the business operation; and
WHEREAS, on February 11, 2026, the Planning Commission of the City of Carmel-bythe-Sea approved Resolution 2026-04 determining that the Drinking Establishment at A.W.

Shucks has been abandoned; and
WHEREAS, on February 26, 2026, an appeal was filed by A.W. Shucks, LLC of Planning Commission Resolution 2026-04; and

ATTACHMENT 1
3 WHEREAS, on February 26, 2026, an appeal was filed by TSD Carmel Properties, L.P. of Planning Commission Resolution 2026-04.

NOW, THEREFORE, BE IT RESOLVED that based on the above findings and evidence, City Council of the City of Carmel-By-The-Sea does hereby:

1. Find the facts (“Facts”) set forth in the recitals above are true and correct and are incorporated herein by reference.

2. Find that this action by the City Council is not a project under CEQA as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378, and assuming it is a project, that it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and that none of the exceptions to the exemptions listed in section 15300.2 apply in this case.

Implementation of the City Council’s action would result in no change to the existing, on the ground baseline conditions which substantiates that there would be no changes and thus no direct, indirect or foreseeable cumulative impacts or significant effects as a result of the action.

3. Determine that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned for more than six months in accordance with Carmel-by-the-Sea Municipal Code Section 17.56.050.C based upon the Facts and following findings:
(1) Use Permit 93-45 (UP 93-45) was adopted on December 8, 1993, to authorize the addition of the sale of food to an existing drinking establishment for a business then known as Maxwell McFly’s and now known as AW Shucks (“Business”) located at Ocean SW of San Carlos Avenue (“Property”).
(2) Condition 2 of UP 93-45 stated: “The sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities.” (3) Condition 8 of UP 93-45 stated: “This use permit shall become void and of no further force or effect upon termination or discontinuance of the use for any period of time exceeding six months.”11
(4) Since 1993, building permits have been issued to this Business for a commercial kitchen including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner.
(5) On August 8, 2023, Business License No. BL 23-041 was issued which authorized a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use.
(6) For at least the last six months, AW Shucks has not operated as a drinking establishment with the sale of limited food as approved by UP 93-45. (7) The uses of the Property where the Business is located are subject to the conditions of UP 93-45.

ATTACHMENT 1
4 (8) A Use Permit may only be amended upon application to the City which is approved by the Planning Commission.
(9) UP 93-45 has not been amended since December 8, 1993. (10) A building permit does not amend a Use Permit.
(11) A business license does not amend a Use Permit.

4. A.W. Shucks may continue to operate under Use Permit No. UP 93-45 for a period of up to six months from February 11, 2026, the date of adoption of Resolution 2026-04 by the Planning Commission in order to allow acquiring a new use permit.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THESEA this 7th day of April 2026, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED: ATTEST:

Dale Byrne, Mayor Nova Romero, MMC, City Clerk

ATTACHMENT 2
1 DRAFT RESOLUTION NO. 2

CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL
RESOLUTION NO. 2026-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA

ORDERING THE CONSOLIDATION OF THE APPEALS BY TSD CARMEL PROPERTIES, L.P. (APP 26070) AND A.W. SHUCKS, LLC (APP 26071) (“APPEALS”) OF PLANNING COMMISSION RESOLUTION 2026-004 FINDING THAT THE DRINKING ESTABLISHMENT AT A.W. SHUCKS COCKTAIL & OYSTER BAR (UP 93-45 MURRAY/WEAVER) LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL (CC) ZONING DISTRICT, APN 010-146-017-000, HAS BEEN ABANDONED; GRANTING THE APPEALS CONDITIONAL UPON TSD CARMEL PROPERTIES, L.P AND/OR A.W. SHUCKS, LLC APPLYING TO THE CITY FOR AN AMENDMENT TO USE PERMIT NO. UP 93-45 TO OMIT LIMITED FOOD SERVICE AND ADD FULL LINE RESTAURANT AS AN ANCILLARY USE THAT IS GREATER THAN 10% OF THE PRIMARY

USE AS A DRINKING ESTABLISHMENT FOR THE SUBJECT PROPERTY LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL (CC) ZONING DISTRICT, APN 010-146-017-000; AND FINDING THAT THIS

ACTION BY THE CITY COUNCIL IS NOT A PROJECT UNDER CEQA AS DEFINED IN PUBLIC RESOURCES CODE SECTION 21065 AND CEQA GUIDELINES SECTION 15378,

AND/OR ASSUMING IT IS A PROJECT, FINDING IT IS EXEMPT UNDER CEQA GUIDELINES SECTIONS 15061(b)(3) (COMMON SENSE EXEMPTION), 15301 (EXISTING FACILITIES), 15305 (MINOR ALTERATIONS IN LAND USE LIMITATIONS) AND NONE OF

THE EXCEPTIONS TO THE EXEMPTIONS APPLY IN THIS CASE
WHEREAS, on December 8, 1993, the Planning Commission approved Use Permit No.

UP 93-45 (Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment (formerly Maxwell McFly's, now A.W. Shucks Cocktail & Oyster Bar) and whether or not the operation is consistent with the use approved under Use Permit No. UP 93-45; and WHEREAS, Condition of Approval No. 2 of UP 93-45 states that "the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities."; and WHEREAS, on March 3, 1994, the City issued building permit No. 94-47 for a commercial interior remodel allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker; and
WHEREAS, on November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correct list was updated crossing out "use permit" and writing in "business license only" and indicated that compliance was done April 22, 1996. On May 7, 1996, the city issued the building permit and on June 14, 1996, it was finaled. This permit allowed the installation of a stock pot burner and gas fryer; and

ATTACHMENT 2
2 WHEREAS, on July 31, 2008, an application for building permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an over, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009; and
WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission determined that A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed, the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1; and WHEREAS, on July 1, 2023, ownership of A.W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi). Business License No.

BL 23-041 was issued on August 8, 2023. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use; and WHEREAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation; and
WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Permit No. UP 93-45 (Murray/Weaver); and
WHEREAS, at the October 8, 2025 Planning Commission meeting, the Commission received a Director's Referral to discuss the permit and operation history of A.W. Shucks, and a potential amendment to Use Permit No. UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Permit for a drinking establishment; and WHEREAS, at the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission's 2015 designation that A.W. Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staff's recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code (CMC); and WHEREAS, on December 10, 2025, having considered all the written and documentary evidence, the administrative record, staff report, oral testimony, and other evidence presented, the City of Carmel-by-the-Sea Planning Commission expressed the view that the drinking establishment use has been abandoned and the use shall come into conformance. In addition, the Commission identified that Options 5 would fit the existing model of the business operation; and

ATTACHMENT 2
3 WHEREAS, on February 11, 2026, the Planning Commission of the City of Carmel-bythe-Sea approved Resolution 2026-04 determining that the Drinking Establishment at A.W.

Shucks has been abandoned; and
WHEREAS, on February 26, 2026, an appeal was filed by A.W. Shucks, LLC of Planning Commission Resolution 2026-04; and
WHEREAS, on February 26, 2026, an appeal was filed by TSD Carmel Properties, L.P. of Planning Commission Resolution 2026-04
NOW, THEREFORE, BE IT RESOLVED that based on the above findings and evidence, City Council of the City of Carmel-By-The-Sea does hereby:

1. Find the facts ("Facts") set forth in the recitals stated above are true and correct and are incorporated herein by reference.

2. Find that the this action by the City Council is not a project under CEQA as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378, and assuming it is a project, that it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case.

Implementation of the City Council’s action would result in no change to the existing, on the ground baseline conditions which substantiates that there would be no changes and thus no direct, indirect or foreseeable cumulative impacts or significant effects as a result of the proposed action.

3. The City Council hereby grants the Appeals filed by TSD Carmel Properties, L.P. (APP 26070) and A.W. Shucks, LLC (APP 26071), conditional upon TSD Carmel Properties, L.P. and/or A.W. Shucks, LLC applying to the City within forty-five (45) calendar days of the date of approval of this Resolution an amendment (“Amendment”) to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment for the property (APN 010-146-017-000).

4. If TSD Carmel Properties, L.P. and/or A.W. Shucks, LLC files an application for an Amendment to Use Permit No. UP-45 within forty-five (45) calendar days of the date of approval of this Resolution and the Planning Commission approves the Amendment with appropriate findings, then the action by the City Council on this Resolution shall be deemed final as of the date of that action by the Planning Commission subject to a timely appeal of the Planning Commission action on the Amendment to the City Council.

5. If TSD Carmel Properties, L.P. and/or A.W. Shucks, LLC does not file an application for an Amendment to Use Permit No. UP-45 within forty-five (45) calendar days of the date of approval of this Resolution, then staff is directed to issue a notice of further hearing on the Appeals before the City Council for a determination by the City Council of whether to grant or deny the Appeals from Planning Commission Resolution 2026-04.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THESEA this 7th day of April 2026, by the following vote:

AYES:

ATTACHMENT 2
4 NOES:

ABSENT:

ABSTAIN:

APPROVED:

Dale Byrne, Mayor
ATTEST:

Nova Romero, MMC, City Clerk

Docusign Envelope ID: A90E0134-6513-4881-B 12F-5CE435FF63B3

CITY OF CARMEL-BY-THE-SEA

PLANNING COMMISSION
PLANNING COMMISSION RESOLUTION NO. 2026-04

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARMEL-BY-THE-SEA DETERMINING THAT THE DRINKING ESTABLISHMENT AT A.W. SHUCKS COCKTAIL & OYSTER BAR (UP 93-45 MURRAY/WEAVER) LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL {CC) ZONING DISTRICT, APN 010-146-017-000,

HAS BEEN ABANDONED AND FINDING THAT THE PLANNING COMMISSION'S ACTION IS NOT A PROJECT UNDER CEQA AS DEFINED IN PUBLIC RESOURCES CODE SECTION 21065 AND CEQA GUIDELINES SECTION 15378, AND ASSUMING IT IS A PROJECT, IT IS EXEMPT UNDER CEQA GUIDELINES SECTIONS 15061{b){3) {COMMON SENSE EXEMPTION), 15301 {EXISTING FACILITIES), 15305 {MINOR ALTERATIONS IN LAND USE LIMITATIONS) AND NONE OF THE

EXCEPTIONS TO THE EXEMPTIONS APPLY IN THIS CASE
WHEREAS, on December 8, 1993, the Planning Commission approved Use Permit No. UP 93-45 (Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment (formerly Maxwell McFly's, now A.W. Shucks Cocktail & Oyster Bar) and whether or not the operation is consistent with the use approved under Use Permit No. UP 93-45; and WHEREAS, Condition of Approval No. 2 of UP 93-45 states that "the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities."; and WHEREAS, on March 3, 1994, the City issued building permit No. 94-47 for a commercial interior remodel allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker; and
WHEREAS, on November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correct list was updated crossing out "use permit" and writing in "business license only" and indicated that compliance was done April 22, 1996. On May 7, 1996, the city issued the building permit and on June 14, 1996, it was finaled.

This permit allowed the installation of a stock pot burner and gas fryer; and WHEREAS, on July 31, 2008, an application for building permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an over, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009; and
ATTACHMENT 3

Docusign Envelope ID: A90E0134-6513-4881-B 12F-5CE435FF63B3 WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission determined that A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed, the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1; and WHEREAS, on July 1, 2023, ownership of A.W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi). Business License No. BL 23-041 was issued on August 8, 2023. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use; and WHEREAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation; and
WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Permit No. UP 93-45 (Murray/Weaver); and
WHEREAS, at the October 8, 2025 Planning Commission meeting, the Commission received a Director's Referral to discuss the permit and operation history of A.W. Shucks, and a potential amendment to Use Permit No. UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Permit for a drinking establishment; and WHEREAS, at the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission's 2015 designation that A.W. Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staff's recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code (CMC); and
WHEREAS, on December 10, 2025, having considered all the written and documentary evidence, the administrative record, staff report, oral testimony, and other evidence presented, the City of Carmel-by-the-Sea Planning Commission expressed the view that the drinking establishment use has been abandoned and the use shall come into conformance. In addition, the Commission identified that Options 5 would fit the existing model of the business operation; ATTACHMENT 3

Docusign Envelope ID: A90E0134-6513-4881-B12F-5CE435FF63B3 and
WHEREAS, in accordance with CMC Section 17.54.010.C, the findings and actions of the Planning Commission shall be final and conclusive from and after the date of final action unless an appeal is filed with the City Council.

NOW, THEREFORE, BE IT RESOLVED that based on the above findings and evidence, Planning Commission of the City of Carmel-By-The-Sea does hereby:

I. The facts ("Facts") set forth in the recitals above are true and correct and are incorporated herein by reference.

2. Find the proposed action by the Commission is not a project under CEQA as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378, and assuming it is a project, it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case. The subject property does not contain a hazardous waste site or a historic resource, nor is it within an officially designated state scenic highway. Implementation of the Commission's action would result in no change to baseline conditions which substantiates that there would be no foreseeable cumulative impacts or significant effects as a result of the action.

3. Determine that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned for more than six months in accordance with Carmel-by-the-Sea Municipal Code Section 17.56.050.C based upon the Facts and following findings:
(1) Use Permit 93-45 (UP 93-45) was adopted on December 81 1993 to authorize the addition of the sale of food to an existing drinking establishment for a business then known as Maxwell McFly's and now known as AW Shucks ("Business") located at Ocean SW of San Carlos Avenue ("Property").
(2) Condition 2 of UP 93-45 stated: "The sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities. 11 (3) Condition 8 of UP 93-45 stated: "This use permit shall become void and of no further force or effect upon termination or discontinuance of the use for any period of time exceeding six months."
(4) Since 1993, building permits have been issued to this Business for a commercial kitchen including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner.

ATTACHMENT 3

Docusign Envelope ID: A90E0134-6513-4881-B 12F-5CE435FF63B3 (5) On August 8, 2023, Business License No. BL 23-041 was issued which authorized a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use.
(6) For at least the last six months, AW Shucks has not operated as a drinking establishment with the sale of limited food as approved by UP 93-45. (7) The uses of the Property where the Business is located are subject to the conditions of UP 93-45.
(8) A Use Permit may only be amended upon application to the City which is approved by the Planning Commission.
(9) UP 93-45 has not been amended since December 8, 1993. (10) A building permit does not amend a Use Permit.
(11) A business license does not amend a Use Permit.

4. A.W. Shucks may continue to operate under Use Permit No. UP 93-45 for a period of up to six months from the date of this decision in order to allow acquiring a new use permit.

PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE CITY OF CARMEL-BY-THESEA this 11th day of February 2026, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

Ahlborn, Karapetkov, Locke, LePage
Allen
ATTEST:
to'lf�t1ffl1� n
Planning Commission Secretary
ATTACHMENT 3

CITY OF CARMEL-BY-THE-SEA APPEAL FORM
Appeals to a Board or Commission must be made by completing and submitting an Appeal Form with the City Clerk. Appeals shall be filed within 10 calendar days following the date of action and paying the required filing fee as established by City Council resolution.

Appeals to the City Council must be made by completing and submitting an Appeal Form with the City Clerk.

Appeals shall be filed within 10 working days fol/owing the date of action and paying the required filing fee as established by City Council resolution.

TSO Carmel Properties, L.P.

Name of Appellant
P.O Box 223061, Carmel, CA 93922
City of Carmel-By-The-Sea
Mailing Address of Appellant
Office of the City Clark
FEB26�
:;.. : � ;? ,w-•
(831) 601-1675 [email protected]; [email protected] Phone Number Email address
Send correspondence to the following party (if different than Appellant):

Hudson Martin P.C.

Name
P.O. Box 112, Monterey, CA 93942
Mailing Address
(831) 375-3151 [email protected]
Phone Number Email address
Planning Commission
Commission, Board, Official or Department whose action is being appealed OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET Physical location of property involved (street location or address): ______________ _ 3, 4, 9, and 11 76
Lot Block
010-146-017-000
APN
Date of decision being appealed: _2_/_1 _1 _/2_0_2_6 ______ _ Specific action or decision being appealed: ______________________ _ Planning Commission Resolution No. 2026-04
Grounds for appeal (attach additional pages if necessary): _________________ _ See attached documentation setting forth the grounds for the appeal.

Reference Chapter 17. 54 of the Carmel-by-the-Sea Municipal Code "Appeals" revised 1/2020 ATTACHMENT 4

City of Carmel-by-the-Sea
Attn: City Council
City Hall
11[ Hudson Martin PC
February 26, 2026
Monte Verde Street (between Ocean and 7th Avenue)
Carmel-by-the-Sea, CA 93921
RE: Appeal of Planning Commission Resolution No. 2026-04 Deemed Abandonment of Use Permit (UP 93-45)
Our File No. TSDPI 0018
Dear City Council:

TSO Carmel Properties, L.P. ("TSD") hereby submits this appeal of the Planning Commission Resolution No. 2026-04, which deemed as abandoned TSD's drinking place use permit (UP 93-45) ("Abandonment Resolution").

TSO respectfully requests that the City Council overturn the Abandonment Resolution because TSO has never abandoned the drinking place use permit. TSD has continuously leased its property to tenants operating under the drinking place use permit for decades, without incident, and has relied in good faith on the representations of City officials that its tenants' operations were consistent with its use permit. The Planning Commission's adoption of the Abandonment Resolution ignores this history and amounts to an unlawful government taking.

The Abandonment Resolution also sends the message that TSD, its tenants, and other business own,�r-; cannot rely upon prior City approvals, and that the continuation of their businesses is subject to whims of whomever is serving on the Planning Commission. This should not be allowed.

I. TSD Has Leased Its Property to Drinking Establishments for Decades With City Approval, Including to Its Current Tenant A.W. Shucks.

TSD's drinking place use permit runs with the land of the Doud Arcade, located at Ocean Avenue and San Carlos Street in Carmel-by-the-Sea (APN 010-146-017-000). Since 1961, TSD has l;Ontinuously leased the property to drinking establishments, including Whitney's, Maxwell McFly's, and its current tenant A.W. Shucks Cocktail & Oyster Bar ("A.W. Shucks"). (See Ex. 1, Declaration of John Plastini, enclosed herewith and incorporated by reference; Ex. 2, Declaration of Timothy J. Meroney, enclosed herewith and incorporated by reference.) For decades, TSO has consistently and in good faith relied on representations by City officials that its tenants' operations were consistent with the terms of its drinking place use pemiit. Since 1993, TSD's tenants have served both alcohol and food as part of their operations.

That year, the tenant (then Maxwell McFly's) sought permission from the Planning Commission to add food service (e.g., oysters). The Planning Commission approved the sale of food as an ancillary use under the drinking place use permit, including permitting limited facilities for the Locations Carmel, California 831.375.3151
Palm Desert, California 760.227.7307 www. hudsonm arti n. com ATTACHMENT 4

City of Cannel-By-The-Sea
Appeal to City Council
February 26, 2026

preparation of food in the tenant space. (Ex. 3, Use Permit 93-45.) TSD authorized tenant improvements for these facilities.

In 1994 and 1995, the tenant (A.W. Shucks) sought to expand its food service and the obtained building permits for (i) commercial interior remodeling for food preparation and (ii) a commercial kitchen. The City did not require a new use permit to be issued as part of this remodeling; a notation on the correction list for the 1995 building permit application crossed out a line providing for a new use pennit and replaced it with the statement "business license only." The City issued the final building permit in 1996, and the tenant improvements proceeded with TSO's approval. In 2008, the City issued a building permit relating to the tenant's food service, which included City approval of kitchen equipment and a drink and food menu. Notably, notwithstanding the tenant improvements and kitchen equipment changes, the floor space occupied by the kitchen has never increased beyond that approved in 1993.

According to a former Carmel Building Official, "TSO and A. W. Shucks followed all necessary procedures and obtained all approvals necessary to remodel and maintain the Use Permit granted by the City" and "[a]t no point during the past review processes did staff ever consider revoking the Use Permit because A.W. Shucks' operations involved food service." (See Ex. 2, Declaration ofTimothy J. Meroney, ,r,r 10, 12.)
In 2015, the Planning Commission designated A. W. Shucks as one of three drinking places in the City. The other drinking places were Barmel and Sade's. At the time of the designation, the Planning Commission was aware that A.W. Shucks served both alcohol and food and that most of its seating was at the bar or in the bar room.

In 2023, A. W Shucks was sold to its current owners. As part of the sale, TSO contacted the City to obtain confirmation that the new owners could continue to operate the business under its existing drinking place use permit. Planning Director Brandon Swanson confirmed to TSO that "even though the original Use Permit sets a limit on the type of equipment and menu, the City took an official action to approve the updated kitchen and the menu it was meant to prepare, thereby creating a legal nonconforming situation that is allowed to continue under Chapter 17.36 of the City's Municipal Code." He further confirmed that the 2023 version of A.W. Shucks' menu was the same as that approved by the City in 2008, and could continue to be served in whole or in part. Following this confirmation, TSO provided a landlord consent and authorization for the assignment of the existing lease to A.W. Shucks' new owners and the business sale closed.

A. W. Shucks' operations have remained unchanged since the 2023 ownership change.

The business is continuing to use the same drink and food menu that the City approved in 2008, and continues to devote most of its seats to the bar and bar room,just like in 2015 when the City designated it as one of the three drinking places in Carmel.

Notwithstanding this, in February 2025, the Director of Community Planning and Building opened an investigation into whether A.W. Shucks' operations were consistent with ATTACHMENT 4

City of Carmel-By-The-Sea
Appeal to City Council
February 26, 2026

TSD's drinking place use permit after receiving an anonymous inquiry. The timing of the inquiry coincided with another drinking place, Sade's, seeking a new location from which to operate following the conclusion of its lease on Lincoln Street. 1 TSO never received formal notification of the inquiry. Instead, one of its owners first learned of the inquiry during a casual conversation at a Carmel Rotary meeting in early October 2025. TSO then reached out to the City to learn more. TSO was initially informed by the City that the matter was scheduled to go before the Planning Commission to "clean up some paperwork" to conform the use pennit to requirements in the Carmel Municipal Code. TSO, in good faith, sought to cooperate with both the City, including the Planning Department staff and the Planning Commission, and A. W. Shucks to address the situation.

The matter was initially noticed for the Planning Commission's meeting on October 8, 2025, and later continued to December 10, 2025, January 21, 2026, and finally February 11, 2026. The Planning Commission considered up to five different options to resolve the inquiry. (See Ex. 4, December 10, 2025 Staff Report). However, by the February 11, 2026 meeting, these options were reduced to two alternatives: (1) a resolution determining and finding that TSD's drinking place use permit (UP 93-45) had been abandoned (Draft Resolution 1) (i.e., the Abandonment Resolution); or (2) a resolution directing staff to communicate with TSO and A.W.

Shucks regarding an amendment of the drinking place use permit to omit limited food service and add full-line restaurant as an ancillary use that is greater than 10% of the primary drinking place use ("Draft Resolution 2"). (See Ex. 5, February 11, 2026 Staff Report). Both TSO and A.W. Shucks submitted public comments in advance of the meeting advocating for the adoption of Draft Resolution 2. (See Ex. 6, Public Comment from TSO dated February 11, 2026, enclosed herewith; Ex. 7, Public Comment from A.W. Shucks dated February 11, 2026, enclosed herewith; see also Ex. 8, Public Comment from TSO dated January 21, 2026, enclosed herewith.)
During the February 11, 2026, meeting, the Planning Commission received an additional presentation from staff, took additional public comments (including from counsel for TSO, A. W.

Shucks, and Sade's), and deliberated. The Planning Commission's deliberations focused on the Abandonment Resolution and included minimal discussion of Draft Resolution 2. The Commissioners' comments reflected their beliefs that the drinking place use had been abandoned, that prior acts of City officials (including the now fonner Planning Director) were not binding, and that there would be no harm to either TSO or A.W. Shucks if the drinking place use permit were deemed abandoned. In a 4 to 1 vote, the Planning Commission adopted the Abandonment Resolution. (See Ex. 9, Planning Commission Resolution No. 2026-04.) 1 Although Sade's owner, Parker Logan, has denied making the inquiry, he and his associates were actively involved in Planning Commission meetings regarding the use pennit. He also hired counsel to advocate in favor of the Abandonment Resolution and has attempted to intimidate the owners ofTSD and A.W. Shucks, including by causing a disruption at A. W. Shucks after the January 21, 2026, Planning Commission meeting and sending text messages to TSD's owner and manager. (See Ex. I, Declaration of John Plastini [Text Messages).) ATTACHMENT 4

City of Carmel-By-The-Sea
Appeal to City Council
February 26, 2026

II. The Planning Commission Erred in Adopting the Abandonment Resolution Because the Use Permit Was Never Abandoned.

The Planning Commission erred by adopting the Abandonment Resolution because TSD's drinking place use pennit was never abandoned and A.W. Shucks has continuously operated as a drinking place, notwithstanding its food service.

TSO and A.W. Shucks have clearly and consistently stated throughout this administrative process that they have not and will not abandon their rights to the drinking place use pennit or the right to operate a drinking place. A finding of abandonment requires an intent to abandon and an act or failure to act reflecting the intent to abandon an interest in or right to use property. (See Hansen Bros. Enters., Inc.,� Bd. o/Supen1isors (1996) 12 Cal.4th 533,569; Gebhard v.

Stephens (1968) 68 Cal.2d 864, 890-891 .) There is no such intent or act here.

Moreover, TSO and A.W. Shucks have, in fact, used the drinking place use pennit for decades. Even following its 2023 ownership change, A. W. Shucks has continually operated as a drinking place under the Cannel Municipal Code ("CMC''). The CMC defines drinking places as "Businesses serving beverages for consumption on the premises as a primary use and including on-sale service of alcohol including beer, wine, and mixed drinks" (CMC § 17.68.050), and full-line restaurants as "Restaurants providing a full line of prepared food and drinks using nondisposable plates, glasses and utensils for immediate consumption on the site" (CMC § 17.68.050). If a full-line restaurant has a bar as an ancillary use, the CMC mandates that !lQ more than 20% of the seating be located at a bar or a separate bar room. (See CMC § 17.14.040.l.3.d (Full Line Restaurants) ("The applications, menus and plans indicate that the business will primarily be a restaurant - full line, and that no more than 20 percent of the total number of seats are at a bar or in a separate bar room. If the use does not meet this standard, the standards in subsection (1)(2) of this section, Drinking Places, shall also apply to the use."). "If a full-line restaurant provides more than 20% of its seats at a bar [ or separate bar room], the CMC class(fies the use as a drinking place as the primary use and restaurant as an ancillary use." (Ex. 4, December 10, 2025 Staff Report at p. 2 (emphasis added); see also CMC § 17.14.040.l.3.d.) Because a use permit is required for either use, the Planning Commission may authorize the ancillary use (full-line restaurant) to exceed 10% of the primary use for a fullline restaurant that has 20% or more of its seats located in a bar or bar room. (See CMC § 17.14.040.B.3.) A.W. Shucks serves alcohol and food in two rooms-a bar room with an alcohol bar, oyster bar, and high-top tables and a dining room with standard dining tables-with more than 20% of its seats located in the bar room. (Ex. 7, Public Comment from A.W. Shucks dated February 11, 2026.) Accordingly, under the CMC, A.W. Shucks is properly classified as a drinking place (primary use) with full-line restaurant as an ancillary use.

In deeming the drinking place use pennit abandoned, the Planning Commission ignored the applicable CMC provision classifying A.W. Shucks as a drinking place. The Planning Commission did so despite (i) a staff report and presentation identifying these provisions and applying them to A. W. Shucks' operations (see Staff Report for December l 0, 2025, Planning Commission Meeting), and (ii) a statement from the City Attorney during the February l I, 2026, ATTACHMENT 4

City of Cannel-By-The-Sea
Appeal to City Council
February 26, 2026

meeting that it was legally pennissibly under the CMC to have a drinking place as a primary use and a full line restaurant as an ancillary use even if the ancillary were a greater percentage than the primary use. The Planning Commission instead based its decision on language in A. W.

Shucks' business license and testimony from its current owner regarding its revenue composition, even though neither factor is relevant to detennining the classification of the business' operations under the CMC. (See Ex. 9, Planning Commission Resolution No. 2026-04, ,i 3(11) ("A business license does not amend a use pennit.").) Given that TSO and A.W. Shucks have never expressed any intent to abandon the drinking place use permit, and A.W. Shucks has continuously operated as a drinking place under the CMC, there is no basis to conclude that TSD's drinking place use pennit was ever abandoned.

III. The Planning Commission Erred in Finding that the Addition of Food Service at A.W. Shucks Constituted a Change in Use Under the Drinking Place Use Permit.

The Planning Commission also erred by concluding that the current food service at A.W.

Shucks constitutes a "different use" triggering an abandonment of the drinking place use permit, as the City repeatedly approved the addition and expansion of the food service under the use pennit over the last several decades.

Over thirty years ago, in 1993, the Planning Commission approved the sale of food as an ancillary use under the drinking place use permit, including permitting limited facilities for the preparation of food in the tenant space. Within the next several years, the City issued building permits authorizing expanded food service facilities (in 1994 and 1995) without requiring the issuance of a new use permit. A notation on the correction list for the 1995 building pennit application crossed out reference to a new use permit and instead replaced it with a notation requiring a new "business license only." In 2008, the City issued a building permit for additional kitchen renovations and a drink and food menu. Finally, in 2015, the City designated A.W.

Shucks as one of three drinking places in Carmel with full knowledge of its expanded food service (which is the same exact food service offered to date-the menu has not changed since 2008). The Planning Director con finned in 2023, as part of A.W. Shucks' ownership change, that the expanded food service was permissible. By taking these actions, the City both expressly and implicitly represented that the food service was allowed under the CMC and consistent with the drinking place use permit. TSO and its tenants reasonably relied on these representations.

The City, including the Planning Commission, is bound by the representations and the decisions of its officials, including the Planning Director. The Planning Commission incorrectly concluded during the February 11, 2026 meeting that the (now former) Planning Director's 2023 communication to TSO constituted a non-binding "ministerial act." The Planning Director is a senior official within the Building and Planning Department who has authority to make decisions regarding use permits. (See CMC § 17.56.050.) Therefore, Planning Director's representations to TSO regarding A. W. Shuck's food service carried weight and constitute an official decision to which the City is bound. (Ibid.)
ATTACHMENT 4

City of Caimel-By-The-Sea
Appeal to City Council
February 26, 2026

Furthennore, due to the long history of City approvals and representations at various levels over several decades, the City, and by extension the Planning Commission, is estopped from asserting that the drinking place use pennit can be deemed abandoned because of the addition and expansion of food service at A.W. Shucks. (See e.g., City of Long Beach v. Mansell ( 1970) 3 Cal.3d 462, 489 ("Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estoppcd must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury."); Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297,306 (same).) Estoppel may be applied against the government where justice requires, including to avoid injustice when doing so justifies any adverse impact on the public interest. (See Driscoll, 67 Cal.2d at 306; Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1262 1263.) In this case, the Planning Commission's adoption of the Abandonment Resolution is both unjust and contrary to the public interest.

For decades, TSD has engaged in regular, good faith communications with the City regarding the tenant businesses operating under its drinking place use permit and has relied upon the City's approvals in leasing the tenant space. TSD has followed the City's rules in leasing its property to diinking establishments and has never been notified of any violations. Even when this administrative process began and TSD was informed that the process was intended to "clean up the paperwork" regarding the use permit, TSD, in good faith, sought to cooperate with both the City, including the Planning Department staff and the Planning Commission, and its tenant A.W. Shucks io address the situation. On February 11, 2026, TSD and A.W. Shucks informed the Planning Commission that they were interested further discussing Draft Resolution 2, which would have given TSD and A.W. Shucks the opportunity to engage with staff regarding an amendment of the drinking place use permit to add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking place, consistent with the CMC. Even though TSD told the Planning Commission during the meeting that it wanted clarification about how Draft Resolution 2 would be implemented if agreed upon, the Planning Commission did not engage TSD in a discussion relating to that alternative presented by the Planning Commission.

Instead, the Planning Commission deemed the use permit abandoned.

The Planning Commission's complete lack of engagement with TSD regarding Draft Resolution 2 and its decision to ignore decades of representations by the City to TSD suggest that an amendment of the use permit was never genuinely in prospect. The Abandonment Resolution does not even mention the two alternatives presented at the February 11, 2026, meeting and its recitals only refer to discussions and deliberations at the December I 0, 2025, meeting. The public record from the December 10, 2025, meeting makes clear that the Planning Commission's proposed decision to deem TSD's drinking place use permit abandoned was influenced by extensive public comments and discussion of non-agenda items relating to Sade's Cocktails, and an interest in making TSD's use permit available to Sade's. In fact, in adopting the Abandonment Resolution, the Planning Commission gave no thought whatsoever to A.W.

ATTACHMENT 4

City of Cannel-By-The-Sea
Appeal to City Council
February 26, 2026

Shucks' ability to operate following the deemed abandonment-until the City Attorney raised the practical question of how the business could continue to operate if it did not have a use pennit.

The public has a strong interest in the consistent and fair enforcement oflaws by its government, free of any appearances of impropriety or preferential treatment. The public should be able to trust and rely upon the representations of its government officials. Local business owners in particular need consistency and reliability to start and thrive, especially when making important decisions on long-tenn investments in the community. If the City upholds the Abandonment Resolution even though TSO has played by the rules for decades, never received notice of any violations involving its drinking place use permit, and requested the opportunity to amend its use pennit consistent with the CMC, the City will be sending a strong signal to all businesses about the reliability of City leadership and the potential risks for operating in this community.2
IV. The Abandonment Resolution Substantially Harms TSD.

The Planning Commission's adoption of the Abandonment Resolution interferes with and substantially, adversely impacts TSD's established business operations, and serves as a governmental taking of its property rights.

TS D's interest in the continued operation of its business, specifically leasing its property to drinking establishments, is a personal, vested property right and should be precluded from extinction by municipal action. (See, e.g., Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1526-1527 ("Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use pennit in the first instance. Certainly, this right is sufficiently personal, vested and important to preclude its extinction by a nonjudicial body."); cf Halaco Engineering Co. ,� South Central Coast Regional Commission ( l 986) 42 Cal.3rd 52, 63 (noting "the vested rights doctrine derives from the constitutional guarantee that property may not be taken without due process and just compensation").) TSO has leased the Doud Arcade tenant space to drinking establishments for seven decades. The City acknowledged this history when it first approved the use permit authorizing the sale of food in 1993, and again when designating A.W. Shucks as one of the three drinking places in Carmel in 2015.

The Doud Arcade is the only property on Ocean Avenue with a drinking place use pennit.

The property's prime location, paired with its drinking establishment history and current designation as one of only three drinking places in the Carmel, makes the property valuable and attractive to tenants. Given this unique and inimitable combination, the deemed abandonment of the drinking place use pennit will not only cause TSO economic hann but will also irreparably change the character of its Property and sever its historic connection to the community. 2 If the City Council were to now adopt the change in position and conclude that A.W. Shucks' operations constitute a "different use" under the drinking place use permit despite this factual history, TSD should at least be given the opportunity to file a notice of temporary cessation under CMC 17.56.040 to avoid the loss of the permit.

ATTACHMENT 4

City of Carmel-By-The-Sea
Appeal to City Council
February 26, 2026

The economic harm to TSO's established business operations cannot be understated. Due to the Abandonment Resolution, TSO can no longer engage in the business ofleasing its property to drinking establishments as it has for the last 65 years. It will no longer be able to market the tenant space to drinking establishments and, to attract other types of businesses, TSO may need to renovate the space or otherwise other improvements (such as the expansion of the food preparation area to accommodate the operations necessary for a full-line restaurant). Further, without the highly-coveted drinking place use permit and associated historic drinking place designation, the property and leasehold interest will be less attractive to future property purchasers and tenants thereby significantly reducing the value of the property and the leasehold interest long-term. Finally, TSO may end up losing its long-standing tenant for three decades, A.W. Shucks. There is uncertainty surrounding A.W. Shucks' continued operation. The business' current owners previously infonned the Planning Commission that the drinking place use permit was a factor in their decision to purchase the business and that deeming the drinking place use permit abandoned would adversely impact the business and their investment expectations. (See Statement from Karen Basi during the October 8, 2025, Planning Commission Meeting.) Although the Abandonment Resolution gives TSO and A.W. Shucks six months to apply for a new use permit, there is no guarantee that permit will be issued.3 The Planning Commission assumed during the February 11, 2026, meeting that the permit would be for a fullline restaurant. However, A.W. Shucks does not currently meet the CMC classification for a fullline restaurant because over 20% of its seats are dedicated to a bar room. (See discussion, supra.) Under the CMC, A.W. Shucks would instead need to be classified as a drinking placean impossible outcome given the Planning Commission's resolution and its apparent intent to make the drinking place permit available to a different bar. The only alternative would be for A.W. Shucks to change its business model to satisfy the CMC requirements. This forced change may adversely impact A.W. Shucks' operations, resulting in the sale of its business for a reduced price (A.W. Shucks' owners have advised the drinking place use permit had an estimated value of $250,000 as part of the sale) and either premature termination of or renegotiation of its lease with TSO (which currently has nine years remaining). The total damages to TSO from the loss of the drinking place use permit include not only the $250,000 value of the permit that was estimated as part of the A.W. Shucks' ownership change, but also the lost income from the premature termination of or renegotiation of the A.W. Shucks lease, the reduced rental income for the leasehold space in perpetuity, and the diminution in value in the Doud Arcade.

The Planning Commission erred to the extent that it determined that TSO would not suffer damages if the drinking place use permit were deemed abandoned. To the contrary, the deemed abandonment of the TS O's drinking place use permit constitutes an unlawful taking by the City, for which TSO is in the process of obtaining a professional appraisal for the purposes of seeking renumeration from the City, if the Abandonment Resolution is not overturned. 3 When the Planning Commission adopted the Abandonment Resolution, there was discussion of including a provision in the resolution that would waive the new pennit application fee. However, the adopted resolution contains no such language.

ATTACHMENT 4

City of Cannel-By-The-Sea
Appeal to City Council
February 26, 2026

V. The City Council Should Overturn the Abandonment Resolution.

For decades, TSD has used its drinking place use permit to lease its property to drinking establishments, including A. W. Shucks. The drinking place use permit has never been abandoned and remains in use to date. Further, A. W. Shucks is properly classified under the CMC as a drinking place, the expansion of its food service operations was approved by the City, and, notwithstanding a change in ownership, its operations are the same as when the City designated A.W. Shucks as one of three drinking places in the City in 2015. Given TSO and A.W. Shucks' historic and current operations, and their good faith reliance on the City's representations over the last thirty years, the Abandonment Resolution should never have been adopted by the Planning Commission and will cause significant, unnecessary, and otherwise avoidable harm to TSO and A.W. Shucks if it were go into effect. Accordingly, TSO respectfully requests that the City Council consider adopting the Draft Proposed Findings and Evidence attached hereto and overturn the Abandonment Resolution.

Encl.

Cc:

Client
Sincerely,

HUDSON MARTIN PC
nnette K. Witten, Esq.

Managing Partner
Christina Goebelsmann, Esq.

Senior Litigation Attorney
A.W. Shucks c/o Derric Oliver, Fenton & Keller ([email protected]) ATTACHMENT 4

DRAFT PROPOSED FINDINGS AND EVIDENCE
I. Use Permit 93-45 (UP 93-45) was adopted on December 8, 1993 to authorize the addition of the sale of food to an existing drinking establishment for a business then known as Maxwell McFly's and now known as A.W. Shucks ("A.W. Shucks") located at Ocean SW of San Carlos Avenue ("Property"). UP 93-45 runs with the Property.

2. Condition of Approval No. 2 of UP 93-45 states that "the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities."

3. On March 3, 1994, the City issued building permit No. 94-47 for commercial interior remodeling at the Property allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker. The City did not require a new use permit or amendment of the existing use permit.

4. On November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correction list was updated crossing out "use permit" and writing in "business license only" and indicated that compliance was done April 22, 1996. On May 7, 1996, the City issued the building permit and on June 14, 1996, it was finaled. This permit allowed the installation of a stock pot burner and gas fryer. The City did not require a new use permit or amendment of the existing use permit, and a business license does not amend a use permit.

5. On July 31, 2008, an application for building permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009. The City approved a drink and food menu as part of the issuance of this building permit, but did not require a new use permit or amendment of the existing use permit.

6. From 1993 to the present, the Property owner, TSO Carmel Properties L.P., has authorized remodeling and tenant improvements consistent with the issued building ATTACHMENT 4

pennits. Notwithstanding the commercial kitchen remodeling and installation of kitchen equipment as provided the building permits, the floor space occupied by the kitchen at A.W. Shucks has never increased beyond that approved in 1993.

7. On September 23, 2015, at a duly noticed meeting, the Planning Commission detennined that A.W. Shucks was one of the 3 drinking places in the City, as A.W. Shucks originally operated strictly as a drinking place; and by approval of UP 93-45, ancillary food service was allowed, the establishment is pennitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1.

8. On July 1, 2023, ownership of A. W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi).

9. On August 28, 2023, the Planning Director sent correspondence to the Property owner, TSO Carmel Properties L.P., stating that the City memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No.

BP 08-l 68C in 2008, and that A.W. Shucks could continue to operate under UP 93-45, provided there was no change in its then current use and operation.

10. From 2023 to the present, A. W. Shucks has not changed its use or operations. A. W.

Shucks has continued to offer the same menu that was approved as part of Building Pennit No. BP 08-l 68C in 2008 and identified in the Planning Director's 2023 correspondence, and continues to have 20% or more of its seats located at the bar or in the bar room.

11. From 1993 to the present, neither the Property owner, TSO Cannel Properties L.P., nor the business operators of A.W. Shucks or its predecessors, have expressed an intent to abandon UP 93-45 or to discontinue the drinking establishment operations at the Property or A. W. Shucks.

12. In February 2025, the Director of Community Planning and Building received an inquiry asking if A. W. Shucks is operating consistent with the use as approved and conditioned under UP 93-45.

13. At the October 8, 2025 Planning Commission meeting, the Commission received a Director's Referral to discuss the pennit and operation history of A.W. Shucks, and a potential amendment to UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Pennit for a drinking establishment.

ATTACHMENT 4

14. At the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission's 2015 designation that A.W.

Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staff recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-bythe-Sea Municipal Code (CMC). Subsequent to their deliberation, the Commission expressed a preference for Option 5 but did not take a vote and instead directed staff to prepare a draft resolution.

15. Prior to the January 26, 2026, Planning Commission meeting, staff received correspondence from counsel for the Property owner, TSO Carmel Properties L.P. In order to allow sufficient time to review and respond to the correspondence, the Commission continued the hearing to a date uncertain as requested by staff.

16. At the February 11, 2026, Planning Commission meeting, staff returned to the Commission with two alternatives for the Planning Commission's consideration:
1) adoption of a resolution determining that the drinking establishment at A. W. Shucks has been abandoned for more than six months, and amendment of UP 93-45 to convert the allowed use from a drinking place to a full line restaurant, subject to the written consent of A.W. Shucks' owner and the Property owner, TSO Carmel Properties, L.P.; or 2) adoption of a resolution directing staff to communication with A. W. Shucks' owner and the Property owner, TSO Carmel Properties, L.P., regarding an amendment to UP 93- 45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use. Subsequent to their deliberation, the Commission adopted the a modified draft resolution for the first alternative, with a vote of 4-1-0 (Planning Commission Resolution No. 2026-04).

17. Planning Commission Resolution No. 2026-04 determines that the drinking establishment at A. W. Shucks (UP 93-45) has been abandoned for more than six months in under Carmel-by-the-Sea Municipal Code Section 17.56.050.C, and provides that A.W. Shucks may continue to operate under Use Permit No. UP 93-45 for a period of up to six months from the date of this decision in order to allow acquiring a new use permit.

18. The determination in Planning Commission Resolution No. 2026-04 that the drinking establishment at A.W. Shucks (UP 93-45) has been abandoned for more than six months ATTACHMENT 4

is erroneous. A.W. Shucks operations are properly classified as drinking place as a primary use and restaurant as an ancillary use, under Carmel-by-the-Sea Municipal Code Section 17.14.040.1.3.d.

ATTACHMENT 4

EXHIBIT 1
ATTACHMENT 4

DECLARATION OF JOHN PLASTINI
2 I, John Plastini, declare as follows:
3 1. I am a competent adult who has, and at all times mentioned herein has had, 4 personal knowledge of the facts contained in this declaration. If called upon to testify, I could 5 and would testify competently as to the truth of the facts stated herein. 6 2. I submit this declaration in support ofTSD Carmel Properties, L.P.'s appeal of 7 Planning Commission Resolution No. 2026-04.
8 3. I am one of the owners ofTSD Carmel Properties, L.P. ("TSD"), which owns the 9 Doud Arcade, a commercial property located at Ocean A venue and San Carlos Street 10 ("Property").
11 4. Since January 1, 1988, I have been responsible for TSD's day-to-day management 12 and operations. As a result, I am familiar with TSD's historic and current operations, including 13 the Property's history; current and past tenants and leases; tenant operations; tenant 14 improvements, including building permits, use permits, and business licenses; and the drinking 15 place use permit (UP 93-45) ("Use Permit") that runs with the Property. 16 5. The Property was originally occupied by Whitney's, a bar that was established in 17 the 1940s. Although the original bar was torn down when the Doud Arcade was built in the 18 1960s, the drinking establishment use continued with Whitney's as a tenant of the Doud Arcade. 19 6. In fact, since the Doud Arcade opened in 1961, TSD has continuously leased the 20 property to drinking establishments.
21 7. When Whitney's was sold in 1977 and its lease was assigned to the new owners, 22 the bar was renamed Maxwell McFly's. The bar was part of a three-bar franchise, with the other 23 two locations being Sly McFly's on Cannery Row (still in operation) and Maggie McFly's in 24 Southern California.
25 8. In 1993, Maxwell McFly's was sold and its lease was assigned to new owners. 26 The new owners sought permission from the Planning Commission to sell food. The Planning 27 Commission approved the sale of food as an ancillary use, including permitting limited facilities 28 for the preparation of food in the tenant space.

DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

9. TSO authorized tenant improvements, including remodeling and the installation of 2 kitchen equipment (e.g., microwave oven, gas steamer, soup preparation and refrigeration 3 facilities) in 1993; remodeling and the installation of kitchen equipment (e.g., a soup warmer, 4 prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, 5 sink, dishwasher and coffee maker) in 1994; and remodeling and the installation of kitchen 6 equipment (e.g., stock pot burner and gas fryer) around 1995 to 1996. During this period, the 7 owners changed the bar's name to A.W. Shucks.
8 10. In 2005, A.W. Shucks was sold and the lease was assigned to the new owners. In 9 2008, these owners obtained a building permit to change kitchen equipment (e.g., installation of a 10 new griddle, fryer, oven, and salamander, and removal of stock pots and a steamer). TSD 11 accordingly authorized these tenant improvements.
12 11. Notably, notwithstanding the tenant improvements and kitchen equipment 13 changes, the floor space occupied by the kitchen equipment was never increased beyond that 14 approved in 1993.
15 12. In 2015, the Planning Commission designated A. W. Shucks as one of three 16 drinking places in the City. A.W. Shucks offered the same drink and food service then as it does 17 now, but it was still considered a drinking establishment because of its bar seating, high-top table 18 seating in the bar room, and its limited food preparation space. 19 13. In 2023, A.W. Shucks was sold and the lease was assigned to the new owners. As 20 part of this sale and prior to TSO assigning the lease, I contacted the City to obtain confirmation 21 that the new owners could continue to operate the business under the Use Permit. Planning 22 Director Brandon Swanson confinned that "even though the original Use Permit sets a limit on 23 the type of equipment and menu, the City took an official action to approve the updated kitchen 24 and the menu it was meant to prepare, thereby creating a legal nonconforming situation that is 25 allowed to continue under Chapter 17.36 of the City's Municipal Code." He further confinned 26 that the 2023 version of the A.W. Shucks' menu was the same as that approved by the City in 27 2008, and could continue to be served in whole or in part. Following this confirmation, TSD 28 provided a landlord consent and authorization for the assignment of the existing lease to A.W. 2 DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

Shucks' new owners and the business sale closed. The current lease has approximately nine years 2 remaining in its term.
3 14. A. W. Shucks' operations have remained unchanged since the 2023 ownership 4 change. It is continuing to use the same menu that the City approved in 2008, is still using the 5 same limited food preparation space to serve this menu, and still has most of its seats at the bar or 6 in the bar room.
7 15. TSO never received a formal notification from the City that the Director of 8 Community Planning and Building had opened an investigation into whether A.W. Shucks' 9 operations were consistent with the Use Permit. I personally learned about the inquiry during a IO casual conversation at a Rotary meeting in early October 2025, when another Rotary member 11 commented to me "I see that you're on the Planning Commission agenda for next week's meeting 12 for A.W. Shucks." I did not know what this comment was referring to and contacted A.W. 13 Shucks' current owners for more information. I was informed by the current owners that City 14 staff had stopped by the Property to take pictures, stating that they needed to "clean up some 15 paperwork." Planning Director Anna Ginette confirmed the same two days before the October 8, 16 2025, Planning Commission meeting.
17 16. TSO has, in good faith, always sought to cooperate with the City regarding the 18 Property and its tenant operations. I attended the October 8, 2025, Planning Commission meeting 19 with the expectation that there would be a productive discussion with the Planning Commission 20 and staff regarding the Use Permit. During that meeting, I explained the Property's historic 21 operations and how the addition and expansion of food service at A.W. Shucks was welcomed by 22 the City because food helps reduce some of the adverse behavior associated with drinking. I also 23 informed the Planning Commission that, as part of A.W. Shuck's ownership change in 2023, the 24 Planning Director confirmed that the operations were permissible, and that the Use Permit 25 provided value and TSO would be harmed if it were lost. The Planning Commission continued 26 the meeting to December I 0, 2025.
27 17. In advance of the December 10, 2025, the Planning Commission issued a staff 28 report that identified five "Potential Permitting Options," ranging from keeping the status quo, to 3 DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

amending the Use Pennit, to deeming the Use Pennit abandoned. I attended the meeting and 2 informed the Planning Commission that the Use Permit and drinking place use had never been 3 abandoned, reminded them of the history and prior communications between TSD and the City, 4 and explained how both businesses have relied, in good faith, on the approvals and directions 5 provided by City officials. Also in attendance in that meeting was Parker Logan, the owner of 6 another bar (Sade's), his attorney, and his supporters who collectively spoke for over an hour 7 about how the Use Permit should be made available for that bar-even though that bar has 8 nothing to do with the TSD or A.W. Shucks. The Planning Commission considered and appeared 9 to be influenced by the comments of these attendees during their deliberations. The meeting was 10 subsequently continued to January 21, 2026.
11 18. I attended the January 21, 2026, meeting, which the Planning Commission 12 continued to a "date to be determined" after receiving correspondence from TSD's attorneys. 13 Parker Logan was present for the meeting and was upset about the continuance. After the 14 meeting, he and several of his associates caused an incident at A.W. Shucks that resulted in a 15 filing of a violent incident report by the owners of A. W. Shucks. He also sent me a harassing text 16 message, a true and correct copy of which is attached to this declaration. 17 19. The Planning Commission ultimately reset the Use Permit matter for February 11, 18 2026. The agenda for the meeting reduced the five "Potential Permitting Options" from the 19 December l 0, 2025, meeting to two alternatives: ( 1) a resolution determining and finding that the 20 Use Permit had been abandoned; or (2) a resolution directing staff to communicate with TSO and 21 A. W. Shucks regarding an amendment of the drinking place use permit to omit limited food 22 service and add full-line restaurant as an ancillary use that is greater than 10% of the primary 23 drinking place use. Both TSD and A.W. Shucks submitted public comments, through their 24 respective attorneys, requesting the adoption of the second alternative. 25 20. I attended the February 11, 2026 meeting, along with one of TS D's attorneys, and 26 again informed the Planning Commission that the Use Permit had never been abandoned, that the 27 Use Permit had value and TSD would be harmed by a deemed abandonment, and that both TSD 28 and A.W. Shucks wanted to have the opportunity to pursue amendment of the Use Permit as set 4 DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

1 forth in the second alternative. I notified the Planning Commission about the intimidating and 2 harassing behavior of Parker Logan that A. W. Shucks and I had experienced since the January 21, 3 2026, meeting, and underscored that the Use Permit and A.W. Shuck's operations had nothing to 4 do with Sade's. Notwithstanding this, and the comments made by TSD's attorney and A.W. 5 Shucks' attorney, the Planning Commission voted 4 to 1 to adopt the resolution deeming the Use 6 Permit abandoned.
7 21. The Planning Commission reached the wrong decision during the February 11, 8 2026, meeting, and the City Council must correct this error. 9 22. TSD and A.W. Shucks have never expressed any intent to abandon the drinking 10 place use permit, and A.W. Shucks has continuously operated as a drinking place notwithstanding 1 1 the addition and expansion of food service at the bar. 12 23. For decades, TSO has followed the rules, engaged with the City, and relied upon 13 the representations by the City officials at various levels-including the Planning Department, the 14 Planning Director, and the Planning Commission-in allowing its drinking establishment tenants 15 to serve food and make tenant improvements to support this food service. 16 24. TSD has never received any notice of any alleged violation of the conditions in the 17 Use Permit and would have taken corrective action if needed in response to any such notice. 18 Even through this process, TSO has been willing to engage with the City regarding a potential 19 amendment of the Use Permit to allow a full-line restaurant as an ancillary use to help "clean up 20 some of the paperwork" but was denied that opportunity by the Planning Commission. 21 25. The deemed abandonment of the Use Permit will interfere with and harm TS D's 22 established business of leasing the Property to drinking establishments. With the deemed 23 abandonment, TSD no longer has a drinking place use permit that runs with its land and can no 24 longer market its tenant space to this type of establishment. The loss has a significant, adverse 25 impact on the value of the Property and the associated leasehold interest, as well as the 26 marketability of the tenant space. Further, due to the deemed abandonment, there is uncertainty 27 surrounding A.W. Shucks' continued operations. If that business fails, TSO will lose a long28 standing tenant and the value of its current lease. 5 DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

26. Finally, as I explained to the Planning Commission, I have been subjected to 2 harassment and intimidation tactics surrounding the City's inquiry into the Use Permit by the very 3 person who stands to benefit the most from the unlawful taking of our Use Permit. In advance of 4 submitting this appeal, I received another text message from Parker Logan with a threat to stop 5 pursuing TSD's rights because .. otherwise the outcome may not be exactly what you want." A 6 true and correct copy of this text message is attached to this declaration. It is very difficult to 7 understand how the City can show favoritism towards an individual who behaves negatively 8 towards others. It is in particularly difficult on our family to be treated this way and to have our 9 rights taken away without due process having served our City and our community for decades IO with kindness and honesty.
11 12 I declare under penalty of perjury that the foregoing is true and correct and that this : : declaration was executed at Carmel, State of California, on Februa�0�--- 15 ct:.�P
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DECLARATION OF JOHN PLASTINI
ATTACHMENT 4

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I highly doubt Karen and Randy
want to rip out the kitchen and
become a bar again ...

I didn't know we were fighting.

It is rny understanding there
were inquiries made to the
Planning Departrnent and
forwarded to the Planning
Cornrnission concerning cleaning
up paperwork In regard to A.W.

Shucks, business, and use
permit. Existing permits, memos,
emails, all confirm A.W. Shucks
Use is legal and non-conforming.

We are waiting for Planning
Commission final deterrnination
on this matter.
+ \I, iMessage
permit to be released and put
1,1,... ______ .. , ..... _ -- ... -� ... �- _, __ _
EXHIBIT TO PLASTINI DECLARATION - PAGE 1
ATTACHMENT 4

3:03.
◄ Phone
....,.,.. Nere to just al
( nit to be relea�
'e u5e
)Ut
ce
then this could al' if
the planning com. Parker
>_dkes
a determination that you can
operate with both a fu II Ii ne
restaurant and a drinking
establishment I'm definitely
going to appeal it. What is your
reasoning to want to hold on to
that use permit even though it's
not being used?
Edited
Even the type of Liqour License
is being held for the restaurant is
a type 47 which is for a general
eating establishment and it must
operate as a bona
fide restaurant.

Edited
If the state gets involved in this,
which on the current path will
give them reason to -it will also
raise the question on whether it
serves the ADA community
properly.
+
OJ
EXHIBIT TO PLASTINI DECLARATION - PAGE 2
ATTACHMENT 4

3:00
<
B l of 1
Sorry, one shouldn't text and
walk at the same time
But since it was abandoned/
violated when the kitchen was
installed it's raining questions to
its validity. It's no secret I have
legal representation. And the
city attorney even stated that
there is a problem.... I am
prepared to take this as far as it
can go which from a legal
standpoint will uncover every
possibility of improper operation
obligations.

But ... This could all go away and
you could be the hero.

FYI, I'm on my way down to
Lincoln to reset time clock in the
alley. I am not "lurking".

A use permit is not transferable.
+
That's true why are you talking to
me? Let the city decide.
iMessage
tsecause you're a representative
.. . . . . �
EXHIBIT TO PLASTINI DECLARATION - PAGE 3
ATTACHMENT 4

<
Well played sir. Parker �
Dirty.

Unheroic.

Slimy.

But stil� well played.

Today 1:22 AM
The city is wiUing to give you a
use permit that allows for a fuU
line restaurant with alcohol on
ocean ave.. that's a huge win.

Because I'm sure you remember
that they use permit was for
limited food to prevent their from
being another full line restaurant
on Ocean Avenue ...

What if you win the appeal but
don't get the restaurant ?
t think the restaurant permit is
way more valuable than than a
drinking permit.

This could be a win for
everyone . If you let it be ....
... otherwise the outcome might
not be exactly what you want
+ iMessage
EXHIBIT TO PLASTINI DECLARATION - PAGE 4
ATTACHMENT 4

EXHIBIT2
ATTACHMENT 4

uocus1,gn tnve1ope 1u: l:ll:ltlbUJf4•U:,uA-4<.;<.;A-t:l(.;tif-U\1013U153565 DECLARATION OF TIMOTHY J. MERONEY
2 I, Timothy J. Meroney, declare as follows:
3 1. I am a competent adult who has, and at all times mentioned herein has had, 4 personal knowledge of the facts contained in this declaration. If called upon to testify, I could 5 and would testify competently as to the truth of the facts stated herein. 6 2. I submit this declaration in support of TSO Carmel Properties, L.P. 's appeal of 7 Planning Commission Resolution No. 2026-04.
8 3. I served as a Building Official with the Planning and Building Department of the 9 City of Carmel-by-Sea, California from December 1984 to August 2007, when I retired. As a 10 Building Official, I was responsible for reviewing and approving plans and applications for 11 building pennits and use permits in the City. Through my position, I gained knowledge of and 12 became familiar with the Carmel Municipal Code, including provisions relating to the issuance of 13 the permits that fell within my area of responsibility. I also gained knowledge of and became 14 familiar with many of the properties and businesses in the City, and their building and use 15 permits, including TSO Carmel Properties, L.P. ("TSD") and A.W. Shucks Cocktail & Oyster Bar 16 ("A.W. Shucks").
17 4. All plans, applications and approvals that were issued during my tenure as I 8 Building Official were approved by both myself, the Planning Department and/or Planning 19 Director at the time of the reviews and approvals. Building permits approved and issued by me 20 were done so after review and approval of the Planning Director and/or Planning Commission 21 each time, unless the application was merely either electrical, mechanical, or plumbing repairs 22 and no use permits were involved.
23 5. Each and every application that was submitted to our department was reviewed at 24 our weekly staff meeting to evaluate and disseminate to the correct staff for further scrutiny and 25 approval, especially any business that was operating under a use permit. If deemed necessary, the 26 application would be referred to the Planning Commission for further review and approval. 27 6. Any application submitted for review at our staff meetings prior to processing 28 often would have certain aspects either crossed-out or lined-out since staff detennined that no DECLARATION OF TIMOTHY J. MERONEY
ATTACHMENT 4

uocus1gn t:nve10pe 1u: l:tl:11::SbUJ t+U:)UA-4t..:t..:A-l::S(.;I) (-U!:IU 1 JU 1 bJbt:ib further review of that specific item or subject required further scrutiny. If it was determined by 2 Planning Staff and/or the Planning Director, who was always at these meetings, that the 3 application and work proposed would not affect any Use Permit conditions then they would 4 merely "line-out" that category on the application so it could proceed through the permit process 5 and plan-check by me.
6 7. TSO owns the Doud Arcade located at Ocean A venue and San Carlos Street 7 ("Property").
8 8. In the City, use permits run with the land and not individual businesses. A 9 drinking place use permit (UP 93-45) ("Use Permit") runs with TSD's Property.

9. A.W. Shucks is a well-known and well-established bar located at TSD's Property 11 that offers drink and food service.
12 10. A. W. Shucks has operated with drinking place as a primary use and food service 13 as an ancillary under the Use Permit and other approvals from the Planning and Building 14 Department.
15 11. During my tenure as Building Official, TSO and A.W. Shucks followed all 16 necessary procedures and obtained all approvals necessary to remodel and maintain the Use 17 Permit granted by the City.
18 12. For example, during past reviews and approvals, A. W. Shucks was required to 19 maintain a specific number of barstools around the bar and provide additional exiting and 20 accessible restrooms available to patrons. A.W. Shucks and the property owner, TSO, were 21 compliant with these requirements.
22 13. Based upon the review process discussed above, the issuance of building permits 23 relating to the Property, including any remodeling, necessarily included a review of whether the 24 application and work proposed would affect any Use Permit conditions. To my knowledge, none 25 of the building permits for the Property issued during my tenure were found to affect any Use 26 Permit conditions. And, at no point during the past review processes did staff ever consider 27 revoking the Use Permit because A.W. Shucks' operations involved food service. 28 //
DECLARATION OF TIMOTHY J. MERONEY
ATTACHMENT 4

Docu1lgn Envelope ID: 99B60374-D5DA-4CCA.BC67�013D153565

14. At A. W. Shucks, the food service has always been ancillary to the bar use, with the 2 bar being the main focus of the business. Customers are allowed to enter the establishment and 3 sit at the bar and enjoy a beverage without ordering food. This is not permitted under the terms of 4 a "restaurant" use. A full-line restaurant may not utilize any bar area for the sole purpose of 5 serving alcoholic beverages only.
6 15. To the best ofmy knowledge, TSD and A.W. Shucks have followed all the 7 guidelines pursuant to the approvals granted years ago by myself and the Planning and Building 8 Department and/or Planning Commission. To the best of my knowledge, they still meet those 9 requirements today as set-forth years ago.

16. In my opinion, the Use Permit has not been abandoned. A.W. Shucks remains 11 primarily a "bar" establishment, or "pub" as it were, with food service as an ancillary use. The 12 fact that the establishment can serve alcoholic beverages at the bar without serving food is the 13 primary basis under the Use Permit. This is exactly how it was reviewed and approved through 14 the past permit process.
15 17. In my opinion, loss of the Use Permit through any deemed abandonment or re16 classification of the use would be unfair, a violation of the rights of the approved Use Permit, and 17 a financial detriment to TSO as the property owner and A.W. Shucks as the operating business. 18 19 I declare under penalty of perjury that the foregoing is true and correct and that this 20 declaration was executed at Carmel, State of California, on February 26, 2026. 21 22
23 24
25 26
27 28
Timothy J. Meroney
DECLARATION OF TIMOTHY J. MERONEY
ATTACHMENT 4

Odocusign.

Certificate Of Completion
Envelope Id: 99B60374-D5DA-4CCA-BC67-090130153565 Status: Completed Subject: Complete with Docusign; TSD Carmel Properties• Declaration of Tim Meroney • REVISED FOR EXE CUTI. ..

Source Envelope:

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Status: Original
2/26/2026 12:24:45 PM
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Timothy J. Meroney
[email protected]
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Electronlc Record and Signature Disclosure:

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Jeannette Witten
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PO Box 112
Monterey, CA 93942
[email protected]
IP Address; 50.211.212.93
Location: DocuSign
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Sent: 2/26/2026 12:25:29 PM
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ATTACHMENT 4

EXHIBIT3
ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

FINDINGS FOR DECISION
UP 93-45
Murray Weaver/Paul Elliot
S/s Ocean bet. San Carlos and Dolores
Block 76, Lots 3 and 4
ADOPTED: 12/08/93
8 December 1993
CONSIDERATION: Consideration of a use permit authorizing the addition of the sale of food to an existing
drinking establishment in the Central
Commercial (CC) Land Use District.

FINDINGS OF FACT:

1. That the applicants propose to purchase Maxwell McFly's, an existing bar use than has been in continuous use for
many years.

2. That the applicants propose .to amend the use to include a seafood menu to be served at an "oyster bar".

3. That the business is located in the Central Commercial (CC) Land us·e District in the Doud Arcade on Ocean Avenue.

4. That the use was legally established prior to the need for a use permit.

5. That the applicant has agreed to reduce the hours of operation to 11:00 a.m. to 11:00 p.rn., five days a week, and to retain the 2:00 a.m. closing hour only on weekends.

6. That the use receives 4-5 deliveries each week which are made by small truck and unloaded on Ocean �venue prior to 10:00 a.m.

7. That the total number of seating has not been indicated but a plan indicating the seating will be a condition
of approval.

8. That there are two toilets and three sinks on the premises.

9. That other uses in the vicinity include retail uses selling apparel, candles, gifts, and arts and crafts, and a
restaurant.

GENERAL FINDINGS (17.18,010 Municipal Code):

1. That the use has existed for a number of years and that the use as existing and with the addition of food would not generate odors, fumes, dust, light, glare, radiation or refuse that would be injurious to surrounding uses or to the district.

ATTACHMENT 4

UP 93-45/Murray/Weaver
Findings for Decision
8 December 1993
Page Two

2. That the hours of operation of the existing use would be reduced and as modified would not generate levels of noise that adversely affect the health, safety, or welfare of neighboring properties or uses.

3. That the use is existing and would not increase traffic noise in excess of the "normally acceptable" range identified in the General Plan.

4. That the addition of limited food service would not make excessive demands on the provision of public services,
including water supply, sewer capacity, energy supply,
communication facilities, police protection, and fire
protection.

5. That the use has two exits which provide adequate ingress and egress to and from the proposed location.

6. That allowing the addition of limited food service would not conflict with the City's goal of achieving and maintaining a balanced mix of uses that serve the needs of both local and non-local populations. Although provisions of the Municipal Code prohibit of any new food uses on oc·ean Avenue, the operation of a drinking place is functionally equivalent to an eating place in terms of altering the balanced mix of uses. Adding limited food sales to a bar would not increase the impact of such uses on Ocean Avenue.

7. That as proposed the use is compatible with surrounding land uses and would not conflict with the purpose established for the district within which it would be located.

8. That the addition of limited food service to a drinking place would not be in conflict with the City's General Plan, nor the Local Coastal Plan.

9. That the proposed change to the use would not be injurious to public health, safety or welfare.

10. That there are no other drinking places in operation located on Ocean Avenue that do not have authority to sell food.

That granting the use permit would not set a precedent for the approval of similar uses whose incremental effect would be detrimental to the City, or would be in conflict with the General Plan nor the City's Local Coastal Plan.

11. That use is located in the Central Commercial (CC) Land Use District and there is no off-street parking to accommodate the long-term parking needs of employees or business owners.

This is an existing non-conformity and would not be increased through approval of this permit.

12. That the capacity of surrounding streets is adequate to serve the automobile and delivery truck traffic generated by the proposed use.

ATTACHMENT 4

UP 93-45/Murray/Weaver
Findings for Decision
8 December 1993
Page Three
DECISION: Approve the use permit subject to the following conditions:

1. That the hours of operation shall not exceed 11:00 a.m. to 0 11:00 p.rn., Sunday through Thursday, and 11:00 a.m. to 2:00 a.rn., Friday and Saturday.

That the sale and service of food shall limited to the menu submitted with this application. The perrnittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food service shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities. No take-out food shall be allowed.

3. That the applicants shall submit a floor plan prior to issuance of the business license.

4. The use shall be conducted in a manner consistent with the presentations and statements submitted with the application and at the public hearing and any change in the use which would alter the findings or conditions adopted as part of this permit shall require approval of a new use permit by the Planning Commission.

5. The use shall be limited to the space applied for and shall not include any exterior display of merchandise nor shall the use expand unless such expansion is approved by the Planning Commission.

6. All water fixtures within the premises in which the use is located shall be retrofitted with water conservation hardware and shall be inspected for conformance with the standards contained in Section 15.28.020 of the Municipal Code prior to establishment of the use.

7. Approval of this application does not permit an increase in water use on the project site. Should the Monterey Peninsula Water Management District determine that the use would result in an increase in water use as compared to the previous use, this use permit will be scheduled for reconsideration and the appropriate findings will be prepared for review and adoption by the Planning Commission.

8. This use permit shall become void and of no further force or effect upon termination or discontinuance of the use for any period of time exceeding six months.

9. Violations of the terms of this use permit or other ordinances of the City may constitute grounds for revocation of this use permit by the Planning Commission.

ATTACHMENT 4

UP 93-45/Murray/Weaver
Findings for Decision
8 December 1993
Page Four

10. This use permit supercedes and replaces any previous use permits issued for this site.

11. Upon termination or revocation of this use permit for any reason, the use shall immediately cease and shall not be re-established without issuance of a new use permit.

12. Trash and garbage and containers for recycling materials shall be stored in metal containers on private property, screened from public view and disposed of in the manner established in Chapter 16, Title B of the Municipal Code.

13. Prior to the establishment of this use, the business operator exercising the privilege conferred by this permit shall obtain a business license from the City. An active business lice�se shall be maintained in comp�iance with all applicable City Codes at all times that the use is in operation.

14. The use authorized by this use permit must be established within six months from the date of Planning Commission
approval. The Commission may authorize an extension of an additional six months without a new public hearing.

Failure to establish the use shall render this permit null and void and without effect.

ATTACHMENT 4

A.w. <;\'\vJ<.�

CITY OF CARMEL-BY-THE-SEA

PLANNING COMMISSION

AGENDA CHECKLIST
BLOCK:_IL LOT: 3 & 4
MEETING DATE: 17 November 1993

FIRST HEARING
ITEM NO: UP 93-45
CONTINUED FROM:

OWNER: Weaver/Elliot
SUBJECT: CONSIDERATION OF A USE PERMIT AUTHORIZING THE

ADDITION OF LIMITED FOOD SERVICE TO AN EXISTING

DRINKING PLACE
ISSUES: '-- I
.... _.,,
,.- I
i
ENVIRONMENTAL REVIEW: Exern t
Carlos & Dolores ZONING: cc
Would the addition of limited food sales to a bar be
consistent with City policy and ordinances?
OPTIONS:

1. Approve the use permit and direct staff to prepare Findings for Approval for adoption at the 8 December 1993 meeting.

2. Do not approve the use permit and adopt the Findings for Denial dated 27 October 1993.

3. Continue Consideration.

RECOMMENDATION:

Option #1
ATTACHMENTS:

1. Staff Report dated 17 November 1993.

2. Staff Report dated 13 October 1993.

3. Application Materials.

4. Findings for Denial dated 27 October 1993.

STAFF CONTACT: Brian Roseth, Director
ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

STAFF REPORT
TO: CHAIRMAN KENNEDY AND PLANNING COMMISSIONERS
FROM: BRIAN ROSETH, DIRECTOR OF COMMUNITY PLANNING AND

BUILDING
DATE: 17 NOVEMBER 1993
SUBJECT: UP 93-45/WEAVER/ELLIOT
On 13 October 1993 the Planning Commission reviewed a request to add an oyster bar to a drinking establishment on Ocean Avenue.

The Commission voted to deny the request and directed staff to prepare Findings for Denial. On 27 October 1993 the Findings for Denial were pulled from the Consent Calendar and the Commission voted to review the decision before it was final. A public hearing was noticed for this date to allow a second review by the Commission.

When the Commission first reviewed this application staff recommended approval. This recommendation was beaed on the functional equivalence of a bar to a restaurant when considering the overall mix of land uses on Ocean Avenue. If these uses are viewed as equivalent, approval of food service in a bar would not violate the intent of Measure-H. Staff's recommendation at the end of the 13 October Staff Report that the zoning ordinance be amended if the permit were approved was intended only as a suggestion - not as a legal requirement. Staff recommends.that the Commission reconsider the Staff Report of 13 October 1993 and take action to approve or deny the permit based on land use issues, not on whether the Code should be amended.

ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

STAFF REPORT
TO: CHAIRMAN KENNEDY AND PLANNING COMMISSIONERS
FROM: BRIAN ROSETH, DIRECTOR OF COMMUNITY PLANNING AND

BUILDING
DATE: 13 OCTOBER 1993
SUBJECT: UP 93-45/MURRAY WEAVER/PAUL ELLIOT
I. INTRODUCTION
The City has received a request for a use permit for the Maxwell McFly's bar on Ocean Avenue. This permit request is triggered by a change of ownership and a proposal to add an oyster bar to the operation. Under the zoning ordinance, the primary use is SIC 5813 - Drinking Place and the oyster bar would be an ancillary use of SIC 5812 - Specialty Eating Place. One issue raised by this application is whether the sale of food can be allowed under the zoning ordinance which prohibits the establishment of any new food uses within buildings facing Ocean Avenue.

II. THE EXISTING OPERATION
Maxwell McFly's has been a long established bar within the City and pre-dates many of the Municipal Code provisions regulating land uses. The operation has no use permit and is considered a legal nonconforming use. The business is operated exclusively as a drinking place with no kitchen, no food preparation or display and no food sales. The use operates daily from 11:00 a.m. to 2:00 a.rn. As a nonconformity, changes can only be made upon approval of a use permit. From staff's review the existing operation appears to meet City standards for a drinking place.

III. THE PROPOSED OPERATION
The applicant requests approval to add a light seafood menu to be served at an oyster bar (see attached menu). There would not be a full kitchen but facilities for soup and steamed shellfish would involve some food preparation. The limited nature of the proposal suggests that this function would be ancillary to the primary Drinking Place classification and that the appropriate ancillary classification is Specialty Eating Place. To help reduce impacts on the community, the applicants have suggested a willingness to reduce late hours of operation to 11:00 p.m. (Sunday through Thursday).

ATTACHMENT 4

UP 93-45/Weaver/Elliot
Staff Report
13 October 1993
Page Three
Arguments supporting denial of this permit include the following:

1. No food is currently sold and adding food sales would violate Standard No. 9. This use was not one of the fifteen food uses identified in the recent ordinance amending Measure-H. 2, Once this proposal is implemented, food use will become established at this location. If successful, it is likely that future requests will be filed to expand food sales.

Eventually, it will become another full restaurant. This is contrary to the intent of the General Plan and the zoning ordinance.

3. The General Plan encourages a reduction in the number of bars. Changes to existing bars should not be allowed if they would extend the life of the use. If this existing bar
remains limited in scope its lack of success may ultimately result in its replacement by a conforming use. This would directly implement Policy Pl-21 of the General Plan.

VI. RECOMMENDATION
Staff recognizes sound arguments on both sides of this issue.

However, the community impacts of a bar are typically greater than those of a food use and any action that the City can take to dilute these impacts appears to offer the greater benefit. Staff recommends that the Commission grant the use permit and allow limited food sales along with a reduction in hours of operation to midnight - Sunday through Thursday. Staff also recommends preparation of an ordinance amending the Municipal Code to recognize that there are sixteen (16) food uses operating on Ocean Avenue rather than the fifteen (15) specified in Ordinance No. 93-26. If the Commission concurs with this recommendation staff will prepare Findings and Conditions for adoption on 27 October 1993.

ATTACHMENT 4

9-93 THU 1 €1 : 04
AW. S�UQKS-�OOCKTAIL AND OYSTER BAB
(McFly's)
As purchasers-in contract of McFly's bar at Ocean and San Carlos, we feel the needs of the community (and, of course, ourselves as business operators) would be better served by the introduction of light food as a support function to the bar. While the bar has been in operation for many years, it has shown a· marked drop in revenues during the last decade and a further pronounced downward trend since 1989. We believe this reflects not only reces�ionary factors but more significantly points out the nationwide move away from "drinking bars" tn general. Health concerns, drunk driving consequences, law enforc$ment priorities and a leaning toward moderation have all hflf ped shape th� move away from "liquor onlY- bars.

It is likely the clientele of Ocean Avenue will be better served and with less "�ad element'' impacts to the neighborhood commun�y if a supplementary food service is added to the existing bar. This service will attract a broader and more desirable customer array for both the tourist pedestrian and Carmel local.

Our concept, then, Is to:
1) Redecorate the bar with a more open, Jig ht, upscale motif Including new lighting, wall treatments and fumiture--while keeping the attractive back bar in.place. 2) Add a small "oyster bar" counter at the end of the existing bar. This visual but simple addition will serve a limited array of salads. soyp and shellfish, requiring minor preparation and will omit the need for any major cooking equipment. Simple, quick, but qualify oriented will be lhe aim of our menu (now being prepared in draft form).

We are looking forward to this venture as we have had previous success with this concept and believe It offer'S a vlable business opportunity with virtually no negative consequences resulting in a small but worthwhffe oompfiment to Ocean Avenue and Carmel--especially given the current use at McFly's.

Yours,

PAUL ELLIOTT
MURAAYW2
�-
ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

DEPARTMENT OF COMMUNITY PLANNING AND BUILDING

FINDINGS FOR DENIAL
UP 93-45
Murray Weaver/Paul Elliot
S/s Ocean bet. San Carlos and Dolores
Block 76, Lots 3 and 4 27 October 1993
CONSIDERATION: Applicant requests a use permit to authorize FINDINGS OF FACT:
the addition of the sale of food to an existing
drinking establishment located in the Central
Commercial (CC) Land Use District.

1. The existing drinking place (SIC 5813), known currently as Maxwell McFly's, is a long-established use on the property.

This use is nonconforming due to lack of a use permit.

2. The existing use is classified as a drinking place and has no ancillary uses. There is no kitchen on site and no food is prepared or served on the premises.

3. The Municipal Code regulates land uses through zoning standards established in Title 17. There are separate
standards for eating places (SIC 5812) and for drinking places (SIC 5813).

4. The proposed change of use for which a use permit was requested was to add an oyster bar and to allow the sale of soups, salads and shellfish as an ancillary use.

5. In conformance with Section 17.06.034.E of the Municipal Code, ancillary uses may be authorized only when such uses are allowed as primary uses within the applicable zoning district, The standards for approval of a primary use also must be met when adding an ancillary use.

FINDINGS FOR DECISION (17.06.030)

1. The addition of food sales within the drinking place would add SIC 5812 (eating place} as an ancillary use.

2. Standard #9 for approval of eating places requires that "the use would not increase the number of food stores or eating places within structures facing Ocean Avenue." This
requirement was established as an implementation measure of Objective 01-6 of the General Plan.

ATTACHMENT 4

UP 93-45/Weaver/Elliot
Findings for Denial
27 October 1993
Page Two
"01-6 Protect and enhance the balanced mix of uses in the central business area, particularly along Ocean
Avenue to ensure a high quality, pedestrian oriented
commercial environment providing a wide variety of
goods and services to local residents."

3. The existing use is not a food use within the meaning of Standard #9 for eating places.

4. Approval of the requested permit would add a new food use in a structure facing Ocean Avenue in direct violation of Standards #9 in the Municipal Code.

5. Approval of the permit would be contrary to the intent of the General Plan.

DECISION: Deny the use permit.

ATTACHMENT 4

ATTACHMENT 4

EXHIBIT4
ATTACHMENT 4

TO:

SUBMITTED BY:

APPROVED BY:

SUBJECT:

CITY OF CARMEL-BY-THE-SEA
Planning Commission
Staff Report
December 10, 2025

ORDERS OF BUSINESS
Chair LePage and Planning Commissioners
Anna Ginette, Community Planning & Building Director
Anna Ginette, AICP, Director of Community Planning and Building Director Referral: Continued from the October 8, 2025 Planning Commission hearing, discussion on the determination of the AW.

Shucks Use Permit.

Application: Director Referral Applicant: N/A
APN: 010-146-017-000
Block & Lot: Block: 79 Lot: All Lots 3 & 4
Owner: TSO Carmel Properties LP
Location: Ocean Ave 3 Southwest of San Carlos Street
Recommendation:

Staff recommends the Planning Commission consider additional information provided by staff, consider the potential permit options and deliberate on the permit and operation history of AW. Shucks Cocktail & Oyster Bar.

Summary, Background, and Project Description:

EXECUTIVE SUMMARY
On October 8, 2025, the Planning Commission was presented with the permit and operation history of AW. Shucks Cocktail & Oyster Bar (AW. Shucks). Specifically, is A.W. Shucks operating outside of what is permitted (Use Permit, Building Permits and Business License) and if so, what is the correct vehicle to achieve compliance. During this hearing the Commission received comments from the property manager and operator of AW. Shucks, which are detailed in the Staff Analysis discussion below.

Specifically, both expressed their disinclination to amend their Use Permit to change the allowed use from a drinking place with limited food service to a full line restaurant.

During the Commission's deliberation, several considerations were expressed, such as a permitted use should either be a full line restaurant or a drinking establishment, the operation appears to be a full line restaurant, the operation seems to be neither but more of a mix of the two and compliance with existing permits. At the end of the deliberation, the Planning Commission's direction was for staff to return with options to ATTACHMENT 4

allow A.W. Shucks to operate as they currently are.

BACKGROUND AND PROJECT DESCRIPTION
A detailed discussion on permit history was provided in the October 8, 2025, Planning Commission staff report (linked here) for the Commission to consider, weigh the facts before them and provide staff with direction on moving forward.

The discussion below provides a synopsis of the October 8, 2025 Planning Commission hearing, the history of alcohol in the City of Carmel-by-the-Sea, and identifies potential permit options for the applicant.

Staff Analysis:

Property Owner and Business Operator Testimony
During public testimony at the October 10, 2025 Planning Commission hearing, the property manager of A.W. Shucks, John Plastini, provided historical information relative to site's operation as a drinking establishment and testified to how "a straight drinking establishment poses a lot of problems" and "they (the owners) made the determination to soften it on Ocean Avenue and the Commission and City embraced it" (referring to the Planning Commission's approval of Use Permit No. UP 93-45). He further stated that with the added food service, the adverse behavior associated with drinking was reduced. Subsequently, a request to expand the food service was submitted to the city and through working with the Planning Division and Building Division, the expansion was approved. Plastini also identified that in 2015, AW. Shucks was "established as a drinking establishment" (referring to the 2015 Planning Commission determination) and when ownership changed in 2023, the Director of Community Planning and Building determined that the use was legal nonconforming and the new owner could continue to operation. In conclusion, Plastini stated that "there is value in the Use Permit" and losing it would be "a major concern".

The owner of AW. Shucks, Karen Basi, also testified. She stated that when she purchased the business from the previous owner, the was no change in the operation.

Basi expressed concerns with how a change in a permitted use could result in a negative impact to the value of her business and investment. In summary, Basi testified that the Use Permit for a drinking place was a component in determining the value of the business and her purchase price, and "taking" that use from her will affect her and her investment.

History of Alcohol In Carmel
The Commission found it important to consider the City's history of limiting the number of allowed drinking establishments. A more detailed discussion can be found in Attachment 1 - Alcohol White Paper. In summary, Carmel's restrictions on alcohol go back to the late 1880's where it initially began as "marketing tool" for financial purposes, it progressed into fulfilling a moral responsibility. Property deeds were encumbered by restrictive language prohibiting the sale, exchange or gifting "intoxicating liquor". This language was so restrictive it included a clause allowing the property to revert back to the granter if the covenant was breached. In 1936, the California Supreme Court found that Carmel's general plan vision of being a "bone dry town" is considered abandoned.

ATTACHMENT 4

Subsequently (1950's), two liquor licenses were issued for a bar and restaurant and a liquor store by the Alcoholic Beverage Control (ABC). However, City Ordinance No. 122 NS limited the sale of liquor downtown between 6
th and 7
th streets and Mission and
Monte Verde, unless liquor sales were in conjunction with another business. ABC found that the City's ordinance was outside of the city's police powers by implementing regulations under ABC's jurisdiction. The white paper identifies that the restriction on the number drinking places was for the purpose of implementing LUP Policy P1-22.

However, it does not discuss how the city came to the decision that three was the appropriate number.

The white paper discusses combining uses within the confines of the CMC (see discussion on page 15 of Attachment 1). This discussion is noteworthy as it is the basis of Option 1 discussed below. Simply put, if a full line restaurant provides more than 20% of its seats at a bar, the CMC classifies the use as a drinking place as the primary use and restaurant as an ancillary use.

Potential Permitting Options
As directed by the Planning Commission, the options below are provided for consideration. It is important to note that the property owner is well within their right to request a proposal that suits their needs and no formal application has been submitted to Community Planning and Building.

Option 1 - Amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use.

As discussed in the white paper, CMC section 17 .14. 040.1.3.d - Restaurant, Full Line, states that no more than 20% of the total number is seats shall be located at the bar and if this standard cannot be met, the standards contained in 17.14.040.1.2- Drinking Places, shall apply. Essentially, the code language regulates full line restaurants as a drinking place in this case.

Based on Business License BL 23-041, the total number of seats in A.W. Shucks is 45, 14 of which are at the bar. The remaining seats are at high-top tables. The bar seats equate to 31 % of the total seats. Therefore, CMC section 17.14.040.1.2 shall apply and A.W. Shucks would be classified as a drinking place as the primary use and full line restaurant as ancillary.

Pursuant to CMC section 17.14.040.8.3, a Use Permit granted by the Planning Commission is required for establishing an ancillary use greater than 10% of the primary use. Applying the bar seating percentage, it would be appropriate for the applicant to request a Use Permit for a full line restaurant as an ancillary use of 69%.

This option requires a discretionary decision by the Planning Commission but is within the confines of the CMC. In addition, this option supports the desires of the property owner and operator of the business establishment.

Option 2 - Uphold the Planning Commission's 2015 designation that A.W.

Shucks is a drinking establishment.

As discussed in the October 8, 2025, Planning Commission staff report, the ATTACHMENT 4

Commission formally considered and designed A.W. Shucks as a drinking establishment. Upholding this decision would require no application by the property owner or action by the Planning Commission. However, it leaves little clarity in terms of the permit record.

Option 3 - Consider A.W. Shucks as a nonconforming use.

As presented by staff and the property manager, the Director of Community Planning and Building provided an email to the property manager on August 28, 2023, stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C. As defined in CMC Section 17.68-090 a "non-conforming use" is " [a] use of a structure or land that was lawfully established and maintained, but that does not conform with the currently applicable use regulations for the zoning district in which the use is located by reason of adoption or amendment of this title or by reason of annexation of territory to the City." If it is determined that the current operation of the business is a "non-confirming use", this option is similar to Option 2, as no action would be required.

Option 4 - Revert the ancillary use to limited food service.

This option would require A.W. Shucks to pull back their food service, obtain any necessary building permit(s) to removing kitchen/cooking equipment and amend their business permit (including revision to their menu offerings).

As testified by Basi, this option would be detrimental to her operation and would be inconsistent with the business components she purchased and invested in. Although not typically a land use issue, the economic impact of this option could be considered.

Option 5 - Amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant.

This option was presented to the Commission on October 8, 2025 for consideration.

Based on the testimony of Plastini and Basi, this is not a viable option. In addition, the percentage of bar seats is over the 20% limitation resulting in Option 1 as superior.

Other Project Components:

Environmental Review
This item is limited to a discussion and no action is required by the Planning Commission. Therefore, it is not a project under CEQA as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378.

Attachments:

1. Attachment 1_Alcohol Whitepaper_S-10-22
ATTACHMENT 4

EXHIBIT 5
ATTACHMENT 4

TO:

SUBMITTED BY:

APPROVED BY:

SUBJECT:

Application:

CITY OF CARMEL-BY-THE-SEA
Planning Commission
Staff Report
February 11, 2026

PUBLIC HEARINGS
Chair LePage and Planning Commissioners
Anna Ginette, Community Planning & Building Director
Anna Ginette, AICP, Director of Community Planning and Building Director Referral: Continued from the October 8, 2025,
December 10, 2025 and January 21, 2026 Planning Commission hearings, consideration and adoption of a resolution regarding A.W. Shucks Cocktail & Oyster Bar (located on Ocean Avenue 3 Southwest of San Carlos Street, in the Central Commercial (CC) Zoning District) including: (1) a resolution determining and finding that the use as a drinking establishment has been abandoned and the resolution would also amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant which amendment would be subject to the written consent of AW Shucks or, in the alternative (2) a resolution directing staff to communicate with AW Shucks regarding an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use.

Proposed CEQA Action: Find that the Planning Commission's determination is not a project subject to CEQA and assuming it is a project it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations).

Applicant: N/A
APN: 010-146-017-000 Owner: TSO Carrnle Properties LP
Block & Lot: Block: 79 Lot: All of Lots 3 & 4
Location: Ocean Avenue 3 Southwest of San Carlos Street Recommendation:

Staff recommends the Planning Commission either:

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ATTACHMENT 4

1. Adopt a Resolution (Attachment 1 ):
a. Finding that the proposed action by the Commission is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061 (b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and that none of the exceptions to the exemptions listed in section 15300.2 apply in this case.
b. Determine that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned for more than six months in accordance with Carmel-by-the-Sea Municipal Code Section 17.56.050.C with findings as stated in the Resolution.
c. Amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant, subject to the written consent of the AW Shucks business owner and the property owner and subject to a return to the Commission with a proposed amendment to Use Permit No. UP 93-45. d. If the AW Shucks business owner and the property owners submit to the City written consent to an amendment to Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant, then staff is directed to return to the Commission with an amendment to the Use Permit 93-45 with appropriate findings.
-- OR --

2. Adopt a Resolution (Attachment 2):
a. Finding that the proposed action by the Commission is not a project, as defined in Public Resources Code section 21065(c) and therefore is not subject to CEQA, and/or assuming arguendo it is a project, finding it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and Paae 61 of 399
ATTACHMENT 4

none of the exceptions to the exemptions listed in section 15300.2 apply in this case.
b. Directing staff to communicate with the business owner of AW Shucks and the property owner regarding an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment. c. If the business owner of AW Shucks and the property submit to the City written consent to an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment, then staff is directed to return to the Commission with an amendment to the Use Permit 93-45 with appropriate findings.

Summary, Background, and Project Description:

October 81 2025 Planning Commission Hearing
On October 8, 2025, the Planning Commission was presented with the permit and operation history of A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) (see Planning Commission staff report, linked here), for which the Commission to considered, weighed and provided staff with direction on moving forward. Specifically, is A.W.

Shucks operating outside of what is permitted (Use Permit, Building Permits and Business License); and if so, what is the correct vehicle to achieve compliance. The recommendation by the Director in the Staff Report was that the Commission consider approving an amendment to Use Permit No. UP 93-45 to change the allowed use from a drinking establishment with limited food service to a full-line restaurant. This amendment would not result in a change or expansion of the current operation.

During this hearing, the Commission received comments from the property manager and operator of A.W. Shucks. Specifically, both expressed their disinclination to amend their Use Permit to change the allowed use from a drinking place with limited food service to a full line restaurant. During the Commission's deliberation, several considerations were expressed, such as the permitted use should either be a full line restaurant or a drinking establishment, the operation appears to be a full line restaurant, the operation seems to be neither but more of a mix of the two, and compliance with existing permits. At the end of the deliberation, the Planning Commission's direction was for staff to return with options to allow A.W. Shucks to operate as they currently are.

December 10, 2025 Planning Commission Hearing
On December 10, 2025, staff returned to the Planning Commission as directed and provided 5 potential options for the Commission to consider (see Planning Commission Paae 62 of 399
ATTACHMENT 4

staff report, linked here).

Option 1 - Amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use.

Option 2 - Uphold the Planning Commission's 2015 designation that A.W. Shucks is a drinking establishment.

Option 3 - Consider A.W. Shucks as a nonconforming use.

Option 4 - Revert the ancillary use to limited food service.

Option 5 - Amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant.

Based on the Commission's direction from the October a
th hearing, staff recommended
Option 1, which was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code.

During public testimony on the December 10, 2025 Planning Commission hearing, members of the public came forward to speak on the A.W. Shucks hearing item, including the property manager of A.W. Shucks, John Plastini. Mr. Plastini asserts that drinking establishment use was never abandoned and A.W. Shucks has acted in good faith, including as directed by city staff and determined by the Planning Commission. In general, members of the public spoke to the operation of a different drinking establishment in the city. However, a few commentors stated that Option 5 presented to the Commission would be appropriate for A.W. Shucks.

There were numerous public comments regarding Sade's. However, the Commission pointed out that the item that before them was on A.W. Shucks, not Sade's.

Subsequent to public comment and the Commission's deliberation, the Commission expressed that as presented, Option 5 was their preference.

January 21, 2026 Planning Commission Hearing
On January 21, 2026, staff was prepared to return with a draft resolution based on the Commission's discussion and preference. On January 21, 2026, staff received correspondence from an attorney representing the property owner, TSO Carmel Properties, L. P. In order to allow sufficient time to review and respond to the correspondence, the Commission continued the hearing to a date uncertain as requested by staff.

FACTUAL CHRONOLOGY

1. Original Approval and Early Modifications (1993-1996) 1993: The Planning Commission approved Use Permit No. UP 93-45 {Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment formerly known as Maxwell McFly's (now A.W. Shucks). The business is located at Ocean Avenue 3 southwest of San Carlos Street, APN 010-146-017-000.

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ATTACHMENT 4

Condition of Approval No. 2 of the Use Permit stated: "The sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities." March 3, 1994: The City issued Building Permit No. 94-47 for a commercial interior remodel allowing installation of: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker.

November 3, 1995: An application for Building Permit No. 96-81 to allow a commercial kitchen remodel was submitted.

November 20, 1995: A correction list was provided indicating that an application to amend the Use Permit was required.

December 5, 1995: An additional note was added stating that the owner was required to submit a new application for a business license for a full-line restaurant.

May 7, 1996: The City issued Building Permit No. 96-81.

June 14, 1996: Building Permit No. 96-81 was finaled. This permit allowed the installation of a stock pot burner and gas fryer.

2. Further Kitchen Expansion (2008-2009)
July 31, 2008: An application for Building Permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner was filed.

August 15, 2008: The building permit for this work was issued.

February 11, 2009: The permit was finaled.

3. Planning Commission Designation on September 23, 2015 September 23, 2015: At a duly noticed meeting, the Planning Commission determined that AW. Shucks was one of the three drinking places in the city, the other two were Sade's and Barmel. The Commission found that AW. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed. The Commission noted that the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission approved this designation of these three drinking place with a vote of 4-0-1.

4. Change of Ownership and Planning Director's Determination (2023) July 1, 2023: Ownership of AW. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to AW. Shucks LLC (Karen Basi).

Paae 64 of 399
ATTACHMENT 4

August 8, 2023: Business License No. BL 23-041 was issued. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use.

On August 14, 2023: Planning Director Brandon Swanson sent an email to property manager John Plastini. In this email, Mr. Swanson stated that he had determined that the City had:
• "memorialized the additional cooking equipment and restaurant operation by approving a building permit on August 15, 2008 (Permit# 0B-168C)"; and • "In this case, even though the original Use Permit sets a limit on the type of equipment and menu, the City took an official action to approve the updated kitchen and the menu it was meant to prepare, thereby creating a legal nonconforming situation that is allowed to continue under Chapter 17. 36 of the City's Municipal Code."
August 28, 2023: Planning Director Brandon Swanson sent correspondence to Mr.

Plastini stating that as he had stated in his August 14, 2023 email, the menus Mr.

Plastini had provided were also approved by the City on August 15, 2008, as part of Permit# 08-168C.

Staff Analysis:

On December 10, 2025, the Commission stated that the concept of limiting drinking establishments in the City is one of critical importance when considering how an allowed drinking establishment operates. Essentially, the limit creates a carve out for 3 drinking establishments which should be discernable when compared to other uses.

For example, one Commissioner stated that during their research, 24 restaurants in the city were identified to have a full service bar and that 5 or 6 offer no such alcohol service. The Commission also stated that when compared to a full line restaurant, the age restriction required for bars is a clear difference between the 2 uses.

In addition, Commissioners suggested how the different ABC Type licenses could be used to determine whether or not a use qualifies as a bar.

Another Commissioner pointed out Condition of Approval No. 8 of Use Permit UP 93-45 and Carmel-by-the-Sea Municipal Code (CMC) Section 17.36.060 - Legal Nonconforming Uses and Buildings, Abandonment of Use, stating that any change of use must conform to the provisions of the CMC.

While most is correct, the change of use more appropriately falls under CMC Section

17.56.050 - Restricted Commercial Uses, Exercise and Abandonment of Restricted Commercial Uses, specifically subsection "C" which states "[a] restricted commercial use that has been discontinued for a period of six consecutive months shall be considered abandoned unless the property owner has filed a notice of temporary cessation as provided for in this chapter."
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ATTACHMENT 4

CMC Section 17.56.050.C states that a "determination of abandonment by the Director may be appealed to the Planning Commission". The determination of abandonment can be made by the Commission or by the Director. As noted, a determination of abandonment by the Director is appealable to the Planning Commission. CMC Section 17.52.030.L states that the Director has the power to refer any decision to an appropriate higher level, including the Planning Commission. The Director is referring to the Commission the determination of whether there has been an abandonment of use for this matter.

The Commission concluded their deliberation and gave direction to proceed with Option 5, which is included the Resolution attached as Attachment 1.

Correspondence Received for the January 21. 2026 Planning Commission Hearing On January 21, 2026, staff received correspondence from Hudson Martin PC (Attachment 3), attorneys representing the property owner, TSD Carmel Properties, L.

P. (TSD). The January 21, 2026 letter asserts that the Planning Commission violated the Ralph M. Brown Act during the December 10, 2025 hearing.

The City Attorney has reviewed the letter from the Hudson firm and has determined that there were no violations of the Brown Act on December 10, 2025. Government Code Section 54954.2 provides that a local agency "shall post an agenda containing a brief general description of business to be transacted or discussed at the meeting .... " The discussion at the December 10, 2025 Commission meeting was within the scope of the Agenda description. The City Attorney will be responding to the Hudson firm on behalf of the Commission in regard to the alleged violations of the Brown Act.

The January 21, 2026 Hudson letter also asserts that: "The Commission's proposed actions would interfere with A.W. Shucks' and TSD's ability to continue the established businesses in which they have vested rights and would constitute an improper government taking." The Hudson letter sets forth the basis for the legal position of TSO including references to building permits, the September 23, 2015 Planning Commission determination and the August 2023 email from then Director Brandon Swanson regarding a nonconforming use.

In addition to the claim of vested rights, the Hudson letter contends that the Commission is legally estopped from finding that TSO abandoned the Use Permit citing legal authority.

The City Attorney has reviewed the assertions by the Hudson firm in regard to vested rights and estoppel. Based upon this review, if the Commission were to determine that the current uses of A.W. Shucks constitute an abandonment of this drinking establishment, then this determination would be subject to legal challenge based on the record as described in the Factual Chronology above. While it is not possible to predict with accuracy how a court would rule in the event of such a legal challenge, there is a risk that a court might find that the doctrines of vested rights and/or estoppel apply based on the record.

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ATTACHMENT 4

Draft Resolution - Attachment 1
Staff has prepared a draft resolution (Attachment 1) based on Planning Commission's direction from the December 10, 2025 hearing determining and finding that the use as a drinking establishment has been abandoned and the Resolution, based on Option 5 described in the December 10, 2025 Staff Report, would amend Use Permit No. UP 93- 45 to convert the allowed use from a drinking place to a full line restaurant which amendment would be subject to the written consent of AW. Shucks business owner and property owner. This Resolution includes a provision that the amendment would be subject to the written consent of AW. Shucks business owner and property owner because there is no provision in the City Municipal Code to allow an amendment to a Use Permit with the consent of the permit holder.

Draft Resolution - Attachment 2
As an alternative, Staff has prepared a draft Resolution (Attachment 2) directing staff to communicate with A.W. Shucks business owner and property owner regarding an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use. This Resolution is based on Option 1 which was described in the December 10, 2025 Staff Report and would allow A.W. Shucks to continue business based upon its current operations.

Other Project Components:

Environmental Review
Public Resources Code Section 21065(c) defines a project as an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, where such activity involves the issuance of a lease, permit, license, certificate or other entitlement by a public agency. Should the Commission adopt the Resolution in Attachment 1, the action would result in a determination that the existing use is abandoned, which does not satisfy the definition above. Likewise, the second part of the action, amending the use permit to convert the permitted use from a drinking establishment to a full line restaurant, is subject to the consent of the A W. Shucks property owner. It is not reasonably foreseeable that the adoption of Resolution in Attachment 1 would result in an indirect physical change in the environment through the future issuance/approval of an amended use permit, thus it does not meet this definition.

Should the Commission adopt the Resolution in Attachment 2, the action would result in staff providing the property owner with the necessary application forms for submittal in order to request a use permit amendment to allow omitting limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use.

This action would not meet the definition of a project found in Public Resources Code Section 21065(c).

If A. W. Shucks elects to amend their Use Permit and a full line restaurant is approved (Attachment 1), then there would be no change in the current baseline. This is also the case if the Planning Commission adopts the Resolution in Attachment 2. Pursuant to Paae 67 of 399
ATTACHMENT 4

CEQA Guidelines Section 15125, the environmental setting (existing physical environmental conditions) constitutes the baseline conditions. This fundamental concept is necessary for environmental review as it provides an understanding of potential impacts resulting from project implementation. In this particular case, evidence on the record corroborates that the current operation of A.W. Shucks includes the preparation, sale and service of food items and beverages, including alcohol.

If it is assumed that an amendment to either allow a full line restaurant (Resolution Attachment 1) or to add a full line restaurant as an ancillary use greater than 10% (Resolution Attachment 2) is a project under CEQA, then the operational component of the business would not change, resulting in no change to the baseline condition. The "General Rule", also referred as the "common sense" exemption, (CEQA Guidelines Section 15061 [b][3]) states that CEQA only applies to projects which have the potential to cause a significant effect on the environment and where it can be seen with certainty there is no possibility the activity may have a significant effect on the environment, the activity is not subject to CEQA. Therefore, a project resulting in no change to the baseline condition would not be subject to CEQA under the common sense exemption.

Further, the assumed project would qualify for a Class 1 Categorical Exemption pursuant to Section 15301 - Existing Facilities and a Class 5 Categorical Exemption pursuant to Section 15305 - Minor Alteration in Land Use Limitations.

None of the exceptions to the exemptions found in Section 15300.2 apply in this case.

The subject property does not contain a hazardous waste site or a historic resource, nor is it within an officially designated state scenic highway. Implementation of the project would result in no change to baseline conditions which substantiates that there would be no foreseeable cumulative impacts or significant effects as a result of the project.

Attachments:

1. Attachment 1 - Draft Resolution (AW Shucks)

2. Attachment 2 - Draft Resolution (AW Shucks)
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ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

PLANNING COMMISSION
PLANNING COMMISSION RESOLUTION NO. 2026-XX

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARMEL-BY-THE-SEA DETERMINING THAT THE DRINKING ESTABLISHMENT AT A.W. SHUCKS COCKTAIL & OYSTER BAR (UP 93-45 MURRAY/WEAVER) LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL (CC) ZONING DISTRICT, APN 010-146-017-000 HAS BEEN ABANDONED AND AMENDING USE PERMIT NO. UP 93-45 TO CONVERT THE ALLOWED USE FROM.A DRINKING PLACE TO A FULL LINE RESTAURANT SUBJECT TO THE

WRITTEN CONSENT OF THE AW SHUCKS BUSINESS OWNER AND PROPERTY OWNER AND

FINDING THAT THE PLANNING COMMISSION'S ACTION IS NOT A PROJECT UNDER CEQA AS DEFINED IN PUBLIC RESOURCES CODE SECTION 21065 AND CEQA GUIDELINES SECTION 15378,

AND ASSUMING IT IS A PROJECT, IT IS EXEMPT UNDER CEQA GUIDELINES SECTIONS 1506l(b)(3) (COMMON SENSE EXEMPTION), 15301 (EXISTING FACILITIES), 15305 (MINOR

ALTERATIONS IN LAND USE LIMITATIONS) AND NONE OF THE EXCEPTIONS TO THE

EXEMPTIONS APPLY IN THIS CASE
WHEREAS, on December 8, 1993, the Planning Commission approved Use Permit No. UP 93-45 {Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment {formerly Maxwell McFly's, now A.W. Shucks Cocktail & Oyster Bar) and whether or not the operation is consistent with the use approved under Use Permit No. UP 93-45; and WHEREAS, Condition of Approval No. 2 of UP 93-45 states that "the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities."; and WHEREAS, on March 3, 1994, the City issued building permit No. 94-47 for a commercial interior remodel allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker; and
WHEREAS, on November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correct list was updated crossing out "use permit" and writing in "business license only" and indicated that compliance was done April 22, 1996. On May 7, 1996, the city issued the building permit and on June 14, 1996, it was finaled.

This permit allowed the installation of a stock pot burner and gas fryer; and WHEREAS, on July 31, 2008, an application for building permit No. 08-168C allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle Paae 69 of 399
ATTACHMENT 4

with 2 burners and an over, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009; and
WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission determined that A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed, the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1; and WHEREAS, on July 1, 2023, ownership of A.W. Shucks changed from M & M Coastal Enterprises {Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi). Business License No. BL 23-041 was issued on August 8, 2023. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use; and WHEREAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation; and
WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Permit No. UP 93-45 (Murray/Weaver); and
WHEREAS, at the October 8, 2025 Planning Commission meeting, the Commission received a Director's Referral to discuss the permit and operation history of A.W. Shucks, and a potential amendment to Use Permit No. UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Permit for a drinking establishment; and WHEREAS, at the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission's 2015 designation that A.W. Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staff's recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code (CMC); and
WHEREAS, on December 10, 2025, having considered all the written and documentary evidence, the administrative record, staff report, oral testimony, and other evidence presented, Paae 70 of 399
ATTACHMENT 4

the City of Carmel-by-the-Sea Planning Commission expressed the view that the drinking establishment use has been abandoned and the use shall come into conformance. In addition, the Commission identified that Options 5 would fit the existing model of the business operation; and
WHEREAS, in accordance with CMC Section 17.54.010.C, the findings and actions of the Planning Commission shall be final and conclusive from and after the date of final action unless an appeal is filed with the City Council.

NOW, THEREFORE, BE IT RESOLVED that based on the above findings and evidence, Planning Commission of the City of Carmel-By-The-Sea does hereby:

1. The facts ("Facts") set forth in the recitals above are true and correct and are incorporated herein by reference.

2. Find the proposed action by the Commission is not a project under CEOA as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378, and assuming it is a project, it is exempt under CEQA Guidelines sections 1506l(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case. The subject property does not contain a hazardous waste site or a historic resource, nor is it within an officially designated state scenic highway. Implementation of the Commission's action would result in no change to baseline conditions which substantiates that there would be no foreseeable cumulative impacts or significant effects as a result of the action.

3. Determine that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned for more than six months in accordance with Carmel-by-the-Sea Municipal Code Section 17.56.050.C based upon the Facts and following findings:
(1) Use Permit 93-45 (UP 93-45) was adopted on December 8, 1993 to authorize the addition of the sale of food to an existing drinking establishment for a business then known as Maxwell McFly's and now known as AW Shucks ("Business") located at Ocean SW of San Carlos Avenue ("Property").
(2) Condition 2 of UP 93-45 stated: "The sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities." (3) Condition 8 of UP 93-45 stated: "This use permit shall become void and of no further force or effect upon termination or discontinuance of the use for any period of time exceeding six months."
Paae 71 of 399
ATTACHMENT 4

(4) Since 1993, building permits have been issued to this Business for a commercial kitchen including the installation of a salamander, char broiler, griddle with 2 burners and an oven, a fryer and stock pot burner.
(S) On August 8, 2023, Business License No. BL 23-041 was issued which authorized a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use.
(6) For at least the last six months, AW Shucks has not operated as a drinking establishment with the sale of limited food as approved by UP 93-45. (7) The uses of the Property where the Business is located are subject to the conditions of UP 93-45.
(8) A Use Permit may only be amended upon application to the City which is approved by the Planning Commission.
(9) UP 93-45 has not been amended since December 8, 1993. (10} A building permit does not amend a Use Permit.
(11) A business license does not amend a Use Permit.

4. Amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant, subject to the written consent of AW Shucks business owner and the property owner and subject to a return to the Commission with a proposed amendment to Use Permit No. 93-45 with appropriate findings.

5. If the AW Shucks business owner and property owner submit to the City written consent to the amendment to Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant, then Staff is directed to return to the Commission with such amendment to Use Permit No. UP 93-45 with appropriate findings.

PASSEDANDADOPTED BY THE PLANNING COMMISSION OF THE CITY OFCARMEL-BY-THESEA this 11th day of February 2026, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Paae 72 of 399
ATTACHMENT 4

APPROVED:

Michael LePage
Chair
ATTEST:

Shelby Gorman
Planning Commission Secretary
Paae 73 of 399
ATTACHMENT 4

CITY OF CARMEL-BY-THE-SEA

PLANNING COMMISSION
PLANNING COMMISSION RESOLUTION NO. 2026-XX

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARMEL-BY-THE-SEA

DIRECTING STAFF TO COMMUNICATE WITH THE PROPERTY OWNER REGARDING AN AMENDMENT TO USE PERMIT NO. UP 93-45 TO OMIT LIMITED FOOD SERVICE AND ADD FULL LINE RESTAURANT AS AN ANCILLARY USE THAT IS GREATER THAN 10% OF THE PRIMARY USE FOR THE SUBJECT PROPERTY LOCATED AT OCEAN AVENUE 3 SOUTHWEST OF SAN CARLOS STREET, IN THE CENTRAL COMMERCIAL (CC) ZONING DISTRICT, APN 010-146-017-000. AND

FINDING THAT THE PROPOSED ACTION ASSOCIATED WITH THE PLANNING COMMISSION'S

DETERMINATION IS NOT A PROJECT UNDER CEQA AS DEFINED IN PUBLIC RESOURCES CODE SECTION 21065 AND CEQA GUIDELINES SECTION 15378, AND/OR ASSUMING IT IS A PROJECT, FINDING IT IS EXEMPT UNDER CEQA GUIDELINES SECTIONS 15061(b)(3) (COMMON SENSE EXEMPTION), 15301 (EXISTING FACILITIES), 1530S (MINOR ALTERATIONS IN LAND USE

LIMITATIONS) AND NONE OF THE EXCEPTIONS TO THE EXEMPTIONS APPLY IN THIS CASE WHEREAS, on December 8, 1993, the Planning Commission approved Use Permit No. UP 93-45 (Murray/Weaver) authorizing the addition of limited food sales to an existing drinking establishment (formerly Maxwell Mcfly's, now A.W. Shucks Cocktail & Oyster Bar) and whether or not the operation is consistent with the use approved under Use Permit No. UP 93-45; and WHEREAS, Condition of Approval No. 2 of UP 93-45 states that "the sale and service of food shall [be] limited to the menu submitted with this application. The permittee shall not be authorized to establish a full kitchen with stove, grill or oven. Food services shall be limited to a microwave oven, gas steamer, soup preparation and refrigeration facilities."; and WHEREAS, on March 3, 1994, the City issued building permit No. 94-47 for a commercial interior remodel allowing installation of the following: soup warmer, prep sink, refer, display rack, prep refer, small steamer, large steamer, stock pot, Type II hood, sink, dishwasher and coffee maker; and
WHEREAS, on November 3, 1995, an application for building permit No. 96-81 to allow a commercial kitchen remodel was submitted. On November 20th a correction list was provided indicating that an application to amend the Use Permit was required. An additional note was added on December 5, 1995, stating that the owner was required to submit a new application for a business license for a full-line restaurant. The correct list was updated crossing out "use permit" and writing in "business license only" and indicated that compliance was done April 22, 1996. On May 7, 1996, the city issued the building permit and on June 14, 1996, it was finaled.

This permit allowed the installation of a stock pot burner and gas fryer; and WHEREAS, on July 31, 2008, an application for building permit No. 08-168( allowing a commercial kitchen remodel, including the installation of a salamander, char broiler, griddle Paae 74 of 399
ATTACHMENT 4

with 2 burners and an over, a fryer and stock pot burner was filed. This permit was issued August 15, 2008 and finaled February 11, 2009; and
WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission determined that A.W. Shucks Cocktail & Oyster Bar (A.W. Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45, ancillary food service was allowed, the establishment is permitted to be open until 12:00 a.m., and the majority of the floor space is occupied by the bar. The Commission memorialized this designation with a vote of 4-0-1; and WHEREAS, on July 1, 2023, ownership of A.W. Shucks changed from M & M Coastal Enterprises (Mike and Michelle Sapon) to A.W. Shucks LLC (Karen Basi). Business License No. BL 23-041 was issued on August 8, 2023. This license approved a use classified as a full-line restaurant as the primary use and a drinking place as an ancillary use; and WHERAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Permit No. BP 08-168C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation; and
WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Permit No. UP 93-45 (Murray/Weaver); and
WHEREAS, at the October 8, 2025 Planning Commission meeting, the Commission received a Director's Referral to discuss the permit and operation history of A.W. Shucks, and a potential amendment to Use Permit No. UP 93-45. Subsequent to their deliberation, the Commission directed staff to return with options to allow A.W. Shucks to operate as they currently are while potentially retaining their Use Permit for a drinking establishment; and WHEREAS, at the December 10, 2025 Planning Commission meeting, staff returned to the Commission as directed and provided potential options: 1) amend Use Permit No. UP 93-45 to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, 2) uphold the Planning Commission's 2015 designation that A.W. Shucks is a drinking establishment, 3) consider A.W. Shucks as a nonconforming use, 4) revert the ancillary use to limited food service, or 5) amend Use Permit No. UP 93-45 to convert the allowed use from a drinking place to a full line restaurant. Staffs recommended Option 1 as it was consistent with the applicable policies of the Carmel-by-the-Sea General Plan and Local Coastal Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code (CMC); and
Paae 75 of 399
ATTACHMENT 4

WHEREAS, in accordance with CMC Section 17.54.010.C, the findings and actions of the Planning Commission shall be final and conclusive from and after the date of final action unless an appeal is filed with the City Council.

NOW, THEREFORE, BE IT RESOLVED that based on the above findings and evidence, Planning Commission of the City of Carmel-By-The-Sea does hereby:

1. Find the facts ("Facts") set forth in the recitals stated above are true and correct and are incorporated herein by reference.

2. Find that the proposed action by the Commission is not a project under CEQA, as defined in Public Resources Code Section 21065 and CEQA Guidelines Section 15378, and/or assuming it is a project, find it is exempt under CEQA Guidelines sections 15061(b)(3) (Common Sense Exemption), 15301 (Existing Facilities) and 15305 (Minor Alterations in Land Use Limitations) and none of the exceptions to the exemptions listed in section 15300.2 apply in this case. The subject property does not contain a hazardous waste site or a historic resource, nor is it within an officially designated state scenic highway. Implementation of the Commission's action would result in no change to baseline conditions which substantiates that there would be no foreseeable cumulative impacts or significant effects as a result of the proposed action.

2. Direct staff to communicate with the AW Shucks business owner and property owner regarding an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment.

3. If the business owner of AW Shucks and the property owner submit to the City written consent to an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use as a drinking establishment, then Staff is directed to return to the Commission with such amendment to Use Permit No. UP 93-45 with appropriate findings.

PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE CITYOF CARMEL-BY-THESEA this 11th day of February 2026, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Paae 76 of 399
ATTACHMENT 4

APPROVED:

Michael LePage
Chair
ATTEST:

Shelby Gorman
Planning Commission Secretary
Paoe 77 of 399
ATTACHMENT 4

EXHIBIT6
ATTACHMENT 4

City of Carmel-by-the-Sea
Planning Commission
lfiudson Martin PC
February 11, 2026
Attn: Chair Michael LePage
P.O. Box CC
Carmel-by-the-Sea, CA 93921
(Y'ia Email: [email protected])
RE: Public Comment for February 11, 2026, Planning Commission Meeting Agenda Item# 5, A.W. Shucks Cocktail & Oyster Bar/ Amendment to UP 93-45 Our File No. TSDP10018
Dear Planning Commission:

This public comment is sent on behalf of our client, TSD Cannel Properties, L.P. ("TSO"), regarding Agenda Item No. 5 on the Planning Commission's agenda for its February 11, 2026 meeting. This agenda item provides for the consideration and adoption of a resolution that either (I) determines and finds that TSD's drinking place use permit (UP 93-45) has been abandoned ("Draft Resolution 1 "); or (2) directs staff to communicate with TSD and A.W.

Shucks Cocktail & Oyster Bar ("A.W. Shucks") regarding an amendment of the use permit to omit limited food seivice and add a full line restaurant as an ancillary use that is greater than 10% of the primary drinking place use ("Draft Resolution 2").

For the reasons set forth herein, TSD objects to the adoption of Draft Resolution 1 and, so long as the specific details of Draft Resolution 2 are addressed in a fair and agreeable manner, TSD agrees with the adoption Draft Resolution 2.

I. TSD Obiects to Adoption of Draft Resolution 1 Because It Has Not Abandoned Its Drinking Place Use Permit.

As the Commission is well-aware, and as was discussed in TSD's public comment for the Commission's January 21, 2026, meeting, TSD's drinking place use permit runs with the land of the Doud Arcade, located at Ocean Avenue and San Carlos Street in Carmel-by-the-Sea, California (APN 010-146-017-000). TSD has held the drinking place use permit at the Doud Arcade since 1961 and has continuously leased the property to businesses operating under legal and legal non-confonning uses approved by the Commission-including A.W. Shucks. 1 TSD vehemently opposes any attempt by the Commission to deem TSD's drinking place use permit abandoned. Any such action would interfere with AW. Shucks' and TSD's ability to 1 Of note, Carmel Municipal Code section 17 .68.050 does not limit "Drinking Places" to bars, but rather defines them as "Businesses serving beverages for consumption on the premises as a primary use and including on-sale service of alcohol including beer, wine, and mixed drinks." (Emphases added}.

Locations Carmel, California 831.375.3151
Palm Desert, California 760.227.7307 www.hudsonmartin.com ATTACHMENT 4

City of Cannel-By-The-Sea
Planning Commission
February 11, 2026

continue the established businesses in which they have vested rights and would constitute an improper government talcing. (See, e.g., Goat Hill Tavern v. City of Costa Mesa (1992) 6 CaJ.App.4th 1519, 1529 ("Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance. Certainly, this right is sufficiently personal, vested and important to preclude its extinction by a nonjudicial body."); Halaco Engineering Co. v. South Central Coast Regional Commission (1986) 42 Cal.3rd 52, 63 (noting "the vested rights doctrine derives from the constitutional guarantee that property may not be taken without due process and just compensation").)
For over three decades, the Commission has repeatedly approved legal non-conforming uses under TSD's drinking place permit and TSO has reasonably and in good faith relied on those approvals. The amended use permit was approved in 1993 when the existing tenant business operated a bar and oyster bar. In 1995, the Commission approved a building application allowing the addition of a commercial kitchen and expressly did not require a new use permit as part of this change. A similar building permit was approved in 2008. And, in 2015, the Commission designated A.W. Shucks as one of three drinking places in the City, with fu11 knowledge of the legal non-conforming use of the business as a drinking place with food service.

Finally, in 2023, the Commission provided A.W. Shucks and TSD with a written opinion stating that A.W. Shucks' operations were a legal non-conforming use that did not require a new use permit. Nothing about A.W. Shucks' operations has changed since the 2023 approval, and the Commission has not offered any valid basis to reverse its prior decisions.

During the December 10, 2025 meeting, the Commission considered a staff report that offered several options to address the use permit including a option to amend the existing drinking places use permit to omit limited food service and add full line restaurant as ancillary use that is greater than 10% of the primary use, similar to the current Draft Resolution 2. Staff recommended this option and, in response to the Commission's questions about deeming the use permit abandoned, informed the Commission that abandonment would not be supported by the record given the Commission's past actions and TSD's reliance on those actions.

TSO asserted in its prior public comment that Commission is legally estopped from finding that TSD abandoned the use permit, and reasserts that position now. (See e.g., City of Long Beach v. Mansell (1970) 3 Cal.3d 462; Cal. Evid. Code § 623.) In the staff report for the February 11, 2026, meeting, staff has recommended adoption of Draft Resolution 2 and noted that ''The City Attorney has reviewed the assertions by the Hudson firm in regard[s] to vested rights and estoppel. Based upon this review, if the Commission were to determine that the current uses of A. W. Shucks constitute an abandonment of this drinking establishment, then this determination would be subject to legal challenge based on the record as described in the Factual Chronology above. While it is not possible to predict with accuracy how a court would rule in the event of such a legal challenge, there is a risk that a court might find that the doctrines of vested rights and/or estoppel apply based on the record." ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Com.mission
February J J, 2026
Page3 of4
Further, TSD remains concerned about the Commission conflating the issue of A. W.

Shucks' legal non-conforming use under TSD's drinking place permit with the availability of drinking place use permits in Carmel-by-the-Sea generally, as evidenced by the extensive public comments and discussion of non-agenda items relating to an unrelated business (Sade's Cocktails) during the Commission's December 10, 2025 meeting. TSD is particularly troubled by the comments made by Chair LePage during the meeting that TSD, in which he stated that TSD would not be banned, but that the unrelated business (Sade's) would be harmed, if the use permit were deemed abandoned. TSD disputes these comments and reminds the Commission that TSD and A.W. Shucks will be harmed if the use pennit is deemed abandoned. TSD also notes that, on January 20, 2026, it sent a cease and desist letter under the Brown Act relating to the Commission's actions during the December meeting, and that, notwithstanding the staff report's statement that "[t]he City Attorney will be responding to the Hudson firm on behalf of the Commission in regard to the alleged violations of the Brown Act," it has yet to receive a response from the Commission.

Finally, even if the Commission had a legal and factual basis to deem TSD's drinking place use permit abandoned, it has no authority to determine and find that the use permit has been abandoned for more than six months. To the contrary, the current owners of A.W. Shucks have continuously operated their business as a legal non-conforming use under the drinking place permit since 2023, and TSD has consistently asserted that the drinking place use permit remains in use and has not been abandoned.

II. TSD Agrees with Adoption of Draft Resolution 2 and is \Villing to Engage in Good Faith Discussions with Staff Regarding an Amendment of its Existing Drinking Place Use Permit.

On its face, TSD agrees with Draft Resolution 2, which provides for the adoption of a resolution that ( 1) "Direct[ s] staff to communicate with the AW Shucks business owner and property owner regarding an amendment to Use Pennit No. UP 93-45 to omit limited food service and add a full line restaurant as an anci11ary use that is greater than 10% of the primary use as a drinking establishment" and (2) "If the business owner of AW Shucks and the property owner submit to the City written consent to an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an anci11ary use that is greater than 10% of the primary use as a drinking establishment, then Staff is directed to return to the Commission with such amendment to Use Permit No. UP 93-45 with appropriate findings." (See Attachment 2 - Draft Resolution (AW Shucks).) TSD's support of this draft resolution is conditioned upon obtaining additional, specific details regarding the resolution, as TSO wants to ensure that any corresponding interpretations of the resolution and any potential amendments to its drinking place use permit are addressed in a fair and agreeable manner before it decides whether to consent to any potential amendments.

As noted above, TSO has held its drinking place use permit since 1961 and has engaged in regular, good faith communications with the Commission regarding the tenant businesses operating under the permit. TSO views Draft Resolution 2 as recognizing its rights to the ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
February 11, 2026

drinking place permit, while also enabling A. W. Shucks to continue its operations and the City to clarify and confonn its record for the use permit. Accordingly, TSD agrees with the adoption of Draft Resolution 2, as TSD would like the opportunity to engage with staff regarding an amendment of its drinking place use permit (UP 93-45) to omit limited food service and add a full line restaurant as an ancillary use that is greater than I 00/o of the primary use as a drinking place, and after such engagement make an informed decision regarding whether it will consent to any amendments of its drinking place use pennit
Sincerely,

HUDSON MARTIN PC
Cc:

Client
Chair Michael LePage, [email protected]
Vice Chair Erin Allen, [email protected]. us
Commissioner Stephan Karapetkov,
[email protected]
Commissioner Robert Delves, [email protected]
Commissioner Stephanie Locke, [email protected]. us
AW Shucks c/o Derric Oliver, [email protected]
KW�
nnette K. Witten, Esq.
aging Partner
ATTACHMENT 4

EXHIBIT7
ATTACHMENT 4

ClllllfTOPHIR B. PANETTA
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ELIZABETH II.. Lf.1Ttl1101:'.R
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KENlil!TJI S llLEINKOPf'
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DEltJIC O. OLIV!lt
MAIi.CO A. LUCIDO
CHRl!TOPHllt M. LONG
GLADYS RODU<lUU•MORAl.ES
CAaOL S. MILBURN
IRADLIY I. UVANO
CHIUSTOPHBR J. NANIIINI
TAU L. CUMENS
ENNANUl!L PEltEA JIMENU:
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ALYSSA CARBONBL MATSUHARA
KALI N. SMILEY
ELJ2ABETII A. HERll
NEOIN P. ROTH
lleRRJcG.OUva

FENTON & KELLER
A PR01USIONAI. CORPORATION

ATTORNEYS AT LAW
1101 MONTEREY-SALINAS HIGHWAY
POST OFFICE BOX 791
MONTEREY, CALIFORNIA 93942-0791
Tl!LEPHONI! (131) 173-1241
FACSIMILE (Ill) 373-7219
www, Fe9100K ell er .com
February 11, 2026
VIA EMAIL ([email protected]
Cannel-by-the-Sea Planning Commission
c/o City Clerk
P.O. Box CC
Carmel-by-the-Sea, CA 93921
Re: A. W. Shucks Cocktail & Oyster Bar's public comments LltWH L. PENTON
1,u-,00,
or i;ou11U1. __
CHAIIJ.U R, ltlLLBk
SARA B. BOYNS
TltOY A. ltlNGSllAYEN
BltlAN D. CALL
[email protected]
ext.207
Planning Commission Regular Meeting, Feb. 11, 2026, Agenda Item #5 (UP 93•45) Our File: 60621. 71033
Dear Planning Commissioners:
•This law firm represents A.W. Shucks, LLC, the owner-operator of A.W. Shucks Cocktail & Oyster �ar ("A. W. Shucks") located at Ocean A venue 3 Southwest of San Carlos Street in Carmel-by-the-Sea ("Citf'). This letter offers A.W. Shucks' public comments with respect to Use Permit No. UP 93-45 ("Use Permit"). These comments are in addition to A.W.

Shucks' previously-submitted written coinments, which are attached and incorporated here for inclusion in the admirustrative record as Exhibit A.

In swn, A.W. Shucks supports and respectfully asks the Planning Commission to adopt City staff's proposed "option 2" resolution directing City staff to "communicate with AW Shucks regarding an amendment to Use Permit No. UP 93-45 to omit limited food service and add a full line restaurant as an ancillary use that is greater than 10% of the primary use." (Staff Report, Attachment 2.) Conversely, A.W. Shucks strongly objects to, and respectfully asks the Planning Commission to reject, the proposed "option I" resolution "determining and finding that drinking
the use as a drinking establishment has been abandoned and convert the allowed use from a place to a full line restaurant." (Staff Report, Attachment I.) ATTACHMENT 4

Carmel-by-the-Sea Planning Commission
February 11, 2026
Page2

1. The A.W. Shucks "drinking place'' use is a vested right, independent of the Use Permit, and cannot be unilaterally "taken" by the City.

The City confinned that use of the A.W. Shucks site as a "drinking place" was established prior to the City's enactment of the relevant land use regulations. As explained in the Planning Commission Staff Report for the public meeting on October 8, 2025, "On December 8, 1993, the Planning Commission approved Use Pennit No. UP 93-45 (see Attachment A) authorizing the addition of food sales to an existing drinking establishment (Maxwell McFly's).

Under Finding of Fact No. 4, the Commission found that the use was legally established prior to the need for a Use Pennit." (Emphases added.)
Consistent with Finding of Fact No. 4, the proposed "option 2" resolution now at issue includes a recital (top of p. 2), stating: "WHEREAS, on September 23, 2015, at a duly noticed meeting, the Planning Commission detennined that A.W. Shucks Cocktail & Oyster Bar (A.W.

Shucks) was one of the 3 drinking places in the city. A.W. Shucks originally operated strictly as a drinking place and by approval of UP 93-45. anci11ary food service was allowed ... " (Emphasis added.) In other words, this recital again confinns A.W. Shucks' use as a "drinking establishment" is a vested right, and that the Use Permit relates to food service, not the "drinking establishment" vested right.

Indeed, A.W. Shucks' "drinking place" use is based upon a vested right, irrespective of the Use Permit, and the City has no legal or constitutional authority to ''take" that vested property right. And, importantly, A.W. Shucks reasonably and in good faith relied on the Use Permit and the City's related approvals, actions, and findings in purchasing the business.

2. The City approved the very same kitchen improvements that form the purported basis for the proposed/alternative "abandonment" finding.

As explained in the Planning Commission Staff report for the public meeting on December 10, 2025, ''the Director of Community Planning and Building provided an email to the property manager on August 28, 2023, stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Pennit No. BP 08- 168C." Similarly, a recital in both of the proposed resolutions states, "WHEREAS, on August 28, 2023, correspondence was sent to the property manager of the subject parcel stating that the city memorialized the additional cooking equipment and approved the current menu as part of the approval of Building Pennit No. BP 08-168-C and that A.W. Shucks can continue to operate under UP 93-45, provided there was no change in its then current use and operation." Significantly, neither of the two proposed resolutions before the Planning Commission today include any recital of any "fact" indicating that A. W. Shucks has, since August 28, 2023, made any "change in its then current use and operation" because no such change occurred.

Rather, it appears the only "change" at issue is the City's potential reversal of its long-standing position on this issue, apparently prompted by "an inquiry" presumably filed by one who potentially stands to benefit from any such potential "change." Toward that end, the next recital in both proposed resolutions states, "WHEREAS, in February 2025, the Director of Community Planning and Building received an inquiry asking if A.W. Shucks is operating consistent with the use as approved and conditioned under Use Pennit No. UP 93-45 (Murray/Weaver)." ATTACHMENT 4

Carme1-by-the-Sea Planning Commission
February t 1, 2026
Page3
However, the applicab)e legal standard is not, "rob Peter to pay Paul." Rather, if the City wants to issue a "drinking establishment" use permit for Sade's bar, it shou)d pursue an amendment to the City Code to increase the three "drinking establishment" use permits limit, as further discussed below.

3. A.W. Shucks' "drinking place" use was not "abandoned." The proposed "option 1" resolution states, in paragraph 3: "Determine that the drinking establishment at A.W. Shucks Cocktail & Oyster Bar (UP 93-45 Murray/Weaver) has been abandoned for more than six months in accordance with Carmel-by-the-Sea Municipal Code Section 17.56.050.C based upon the Facts," which "Facts" include the expansion of food service and the related addition of related kitchen equipment at A.W. Shucks as expressly authorized by the City.1 In fairness, the City can't, on one hand, issue a business license2 and building permits authorizing additional food service-related equipment and improvements, while on the other hand, years later, point to those very same City authorizations as evidence that A.W. Shucks abandoned the City-issued Use Permit.

Carmel Municipal Code ("CMC") section 17.56.050.C generally defines "abandonment of use" as one "that has been discontinued for a period of six consecutive months." However, there is no evidence that A.W. Shucks ever "discontinued" its operations as a cocktail and oyster bar. At most, if anything, A.W. Shucks-with City approval-expanded its food service offerings (never a bad idea at a "drinking establishment"). However, expansion of one service (food) does not constitute an abandonment of another service (beverages). 3 Abandonment of a vested right requires a showing, by clear and convincing evidence, of (I) an intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right. (Hansen Bros. Enters., Inc. v. Bd. of Supervisors (1996) 12 Cal.4th 533, 569 (lapse of use of vested right in nonconforming use did not constitute abandonment); Gerhard v. Stephens (1968) 68 Ca1.2d 864, 889 ("abandonment hinges upon the intent of the owner to forego all future conforming uses of his property and the trier of fact must find the conduct demonstrating the intent 'so decisive and conclusive as to 1 In the Planning Commission Staff Report for the public meeting on January 21, 2026, City staff acknowledges the lack of basis to support an "abandonment" finding, explaining: "Based on previous actions/detenninations by the city" [e.g., the City issued building pennits] and the lack of a fonnal detennination of abandonment," City staff prepared a proposed resolution of"abandonment."
2 Of course, a business license isn't a land use pennit; as such, it has no bearing on the Use Permit. 3 It appears some City officials and/or staff interpret the City Code's definition of "drinking places" as limited to bars selling/serving alcohol. However, that interpretation conflicts with the plain language of the "drinking places" definition in CMC section 17.68.050: "Drinking Places. Businesses serving beverages [i.e., not necessarily "alcohol beverages"] for consumption on the premises as a primary use and including on-sale service of alcohol..." {Emphasis added.) By the plain language of this definition, a coffee shop in Cannel, for example, whose primary use is "serving beverages" must have a "drinking place" use permit. The point here is that the City can and should reconsider its restricted commercial use permit classifications, definitions, and limitations, and amend City Code to reflect current realities and the desires of the City and its residents and business owners, consistent with CMC section 17.68.020 (Uses Not Classified). For example, the City could create a use specifically for bars, such as Sade's, limiting patrons to those ages 21+ and requiring a type 48 ABC license, which the owner of Sade's apparently holds. Indeed, as explained in the Planning Commission Staff Report for the public meeting on December 10, 2025, the white paper (Attachment I to that Staff Report) "does not discuss how the city came to the decision that three was the appropriate number" of "drinking establishment" use pennits the City could issue.

ATTACHMENT 4

Carmel-by-the-Sea PJanning Commission
February 11, 2026
Page4
indicate a clear intent to abandon."').) Mere cessation of use does not itself amount to abandonment, although duration of nonuse may be a factor in detennining whether the right has been abandoned. (Ibid.; Pardee Constr. Co. v. Calif. Coastal Comm. (1979) 95 Cal.App.3d 471, 481 (multi-year delay in building additional, previously pennitted units did not constitute abandonment of vested right.)
Indeed, one need look no further than its business name ("A.W. Shucks Cocktails & Oyster Bar") or the sign long adorning its entrance (referencing "Bar" and "Cocktails") to confirm that neither A.W. Shucks, nor its predecessor owners/operators, abandoned the "drinking place" business use. A look through the glass windows at A.W. Shucks' entrance confirms the same: it is primarily a cocktails and oyster bar. A look inside A.W. Shucks leads to the same conclusion, as evidenced by the centerpieces of A.W. Shucks' business operation: an expansive bar; large, lighted bar shelves prominently displaying more than 100 bottles of spirits and wine; an 8-tap beer dispenser; barstools; a bartender; a barback; and high-top tables. See photographs, taken February l 0, 2025, attached and incorporated here as Exhibit B.

Based on the foregoing, there is no evidence, let alone clear and convincing evidence, to establish that A.W. Shucks or its predecessor owners/operators ever intended to abandon its "drinking establishment" use or acted in any way to imply they did not claim or retain any interest in maintaining such use. Therefore, the Planning Commission should reject proposed "option 1" resolution as contrary to the facts and law.

4. The proposed "option 2" resolution is consistent with City Code.

As explained in the Planning Commission Staff Report for the public meeting on January 21, 2026, "Based on the Commission's direct from the October g th hearing, staff recommended
Option 1 [current "option 2"], which was consistent with the applicable policies of the Carmelby-the-Sea General Plan and Local CoastaJ Program and the applicable requirements contained in the Carmel-by-the-Sea Municipal Code." This text is also included as a recital in both proposed resolutions before the Planning Commission today.

As explained in the Planning Commission Staff Report for the public meeting on December I 0, 2025, "[t]he white paper discusses combining uses within the confines of the CMC (see discussion on page 15 of Attachment 1). This discussion is noteworthy as it is the basis of Option 1 [current "option 2") discussed below. Simply put, if a full line restaurant provides more than 20% of its seats at a bar [which is and has been the case at A.W. Shucks], the CMC classifies the use as a drinking place as the primary use and the restaurant as an ancillary use."
As also explained in that Staff Report, "the total number of seats at A. W. Shucks is 45, 14 of which are at the bar. The remaining seats are at high-top tables. The bar seats equate to 31% of the total seats. Therefore, CMC section 17.14.040.1.2 shall apply and A.W. Shucks would be classified as a drinking place as the primary use and full line restaurant as ancillary ....

Applying the bar seating percentage, it would be appropriate for the applicant to request a Use Permit for a full line restaurant as an ancillary use of 69%. This option requires a discretionary decision by the Planning Commission but is within the confines of the CMC. In addition, this option supports the desires of the property owner and operator of the business establishment." ATTACHMENT 4

Cannel-by-th�Sea Planning Commission
February 11, 2026
Page5
The foregoing is consistent with the proposed "option 2" resolution, which resolution A. W. Shucks can support.

5. The proposed "option 1" resolution is unfounded, and as drafted, would most likely result In an immediate appeal and a "dual track" process.

The proposed "option 1" resolution (paragraphs 3-4) requires written consent of A. W.

Shucks and the property owner, and that the proposed amended Use Pennit return to the Planning Commission for further consideration. However, paragraph 2 of the proposed "option 2'' resolution includes a Planning Commission determination that the "drinking establishment" use has been "abandoned."
If the Planning Commission were to adopt this proposed "option I" resolution as drafted, the Planning Commission's action would likely result in "dual track" processes: (1) City Council appeal; and (2) City staff discussions with A.W. Shucks and the property owner regarding the proposed amendment to the Use Pennit. The Planning Commission could avoid that undesirable "dual track" by revising the proposed "option l" resolution to state that the Planning Commission's abandonment detennination is merely ''preliminary." •••••
In sum, no legal or factual basis exists to require A. W. Shucks ( or the owner of the land with which the Use Pennit runs) to surrender its legally vested property right to continue its ongoing operations as a "drinking establishment," whether by a finding and detennination of "abandonment" or otherwise. If the City's motivation is to enable Sade's to reopen as a bar, the City has other avenues it can pursue to do so-short of violating A.W. Shucks' and/or its landowners rights-to achieve a "win-win" scenario for everyone.

A.W. Shucks appreciates the Planning Commission's consideration of these important issues and sincerely hopes the Planning Commission will act accordingly, starting by rejecting the proposed "option 1" resolution.

Enclosures
Very truly yours,

FENTON & KELLER
A Professional Corporation
� �--
Derric G. Oliver
cc: Chair, Michael LePage - mlenagefiilci.carmel.ca.us
Vice Chair, Erin Allen- [email protected]
Commissioner, Stephan Karapetkov - skaranetkov(a.,ci .cannel. ca. us Commissioner, Robert Delves - rdelves�ci.cannel.ca.us
Commissioner, Stephanie Locke- [email protected]
ATTACHMENT 4

Carmel-by-the-Sea Planning Commission
February 11, 2026
Page6
CPB Director, Anna Ginette - [email protected]
City Administrator, Brandon Swanson- [email protected] TSD Carmel Properties, L.P., legal counsel-Jeanette Witten �[email protected]), Christina Goebelsmann ([email protected]), and Sarah Devine ([email protected])
ATTACHMENT 4

EXHIBIT A
Attachment to A.W. Shucks Cocktail & Oyster Bar's Public Comment Letter Dated February 11, 2026
ATTACHMENT 4

From: Karen Basi <[email protected]>
Date: Fri, Jan 23, 2026 at 2:14 PM
Subject: Planning commision letter
To: Ginette Anna <agin�[email protected]>, [email protected],us <[email protected],us>
Cc: <tsdcarmelpropertjes@gmait com>
Hello Anna and Brandon,
I was planning to read the attached statement letter aloud at Wednesday's meeting but because of the delay, I understandably could not do so. However, l feel it is important for the record to have a copy sent to you and the commission. The attachment was written on January 21 and written with respect and discretion as not to mention names per say but I am sure it wouldn't be difficult to know the parties involved. In addition to this letter, I would like to add to my concern that my husband and I were met with an extremely uncomfortable incident;shortly after we left the planning meeting. It was upsetting enough to state that we will now be seeking legal representation.

I tried emailing you yesterday but failed to send so now without further delay, I would like to share the incident just to bring you a heightened awareness regarding actions of the "Inquirer" in this matter. He, along with a large group of "followers" filed into our restaurant shortly after the meeting around 4:45 p.m. Clearly unsettled he approached my husband and I wanting to find out why the meeting was postponed and what we had to do with it. He kept asking and approaching us with questions of which we had no information to offer. This interrogation led to an accusatory verbal confrontation between my husband and the "inquirer". He challenged mine and my husband's integrity with insults and disrespect. It was loud, and witnessed by staff and patrons. He and one woman in his group made sure to all could hear when calling out explicit names directed to my husband as they and the rest of the group got up and left .. Such harassment is not acceptable at any time but especially if it occurs inside your own establishment and disrupts our staff and patrons. This incident led to a workplace violence report along with other statements signed by witnesses documenting the event. I have been very patient, careful not to react and let this matter run its course in what hopefully to be a professional manner but the "inquirer"s issues have greatly interfered with the process resulting in us experiencing unfair and unprovoked publicity and now personal harassment along the way.

With sincerity,
Karen Basi
AW Shucks
<Planning commission letter.pdf>
ATTACHMENT 4

Good evening, Commissioners,
My name is Karen Basi. My husband Randy and I are the owners of A.W. Shucks.

I would like to state our concern regarding the way this inquiry and investigation have been conducted and the unwelcome ramifications it has caused much anguish and unjustified harm-to us personally, to our business, to our employees, and to the community we serve.

I'd like to share that we feel we were initially misled and not fully informed about the purpose and intent of this inquiry. Nor do we feel proper notifications have been given to us or others involved which included our landlord. What I was told to be a simple fix became something much bigger issue beginning with commentary implying that our business is being operated improperly.

Along with that same indication, my name and business were publicly listed in The Pinecone in an article written in a manner that suggested or implied wrongdoing. That publication was damaging to our reputation and subjected us to public scrutiny and embarrassment I or we did not deserve. Such that I have been confronted by customers, acquaintances, local business owners and many readers questioning our operations and has created a divide as to whether A.W. Shucks is a restaurant or a bar with many people eagerly wanting to know what I intend to do next. Including a direct phone call from the inquirer himself quizzing me on my intentions. I/we should not have been or be placed in a position where we must publicly defend ourselves when we have done nothing wrong. Those implications are simply false.

What has been especially troubling is learning that individuals associated with this inquiry again including the inquirer, entered my restaurant multiple times, late at night without notice and while not in my presence to photograph my staff, and bar area, then stand on my barstools to photograph my credentials while customers were inside. These actions were intrusive, inappropriate, and alarming. They created fear, discomfort and aroused uncertainty amongst my employees and patrons. As a result, some of my staff asked what is going to happen to our establishment and whether they should seek employment elsewhere. Customers who love coming have unease of change as well. That is a direct consequence of how this process has been handled.

ATTACHMENT 4

I will admit at our October meeting, I came in without a full understanding of the history and sequence of events which lead up to the issue of debate but was led to believe there would be a straightforward resolution and would be given specific criteria and options. Instead, at the most recent meeting, we again were caught off guard and met with public testimony that exposed what appeared to be the true motivation behind this inquiry. To take from us and give to another. Then came a determination made by the Commission. A determination that was made without a meaningful consultation or notification with me/us or my landlord.

That shift undermined any confidence I had in a fair and transparent process.

I would like to also remind Commissioners as testified, A.W. Shucks exists in its current form because of the desire to provide a unique and inviting atmosphere and experience for its visitors in Carmel by The Sea. This was achieved through proper permitting and approvals authorized by the City Planning Commission itself.

We purchased A.W. Shucks 2 1/2 years ago because of that uniqueness and have not materially changed its operations. It is the same as it has been for nearly 3 decades and it remains fully compliant with all business and liquor licensing requirements we've been issued. I'd also like to emphasize our higher purchase price reflected the understanding the use permit would remain as is and that we were legal non-conforming.

When I was explicitly told that the city "dropped the ball" at some point regarding our use-permit and now they need to correct that mistake any change will have a direct impact on the value of our investment, and we would suffer additional damage.

Throughout this entire matter, we have acted in good faith, have been honest and forthcoming and should not be required to defend our integrity, livelihood, or reputation because of miscommunication, procedural failures, or competing interest.

While administrative errors may occur, it is unacceptable that the consequences of those errors being placed squarely on a compliant, law-abiding business owner who is working hard to make a positive not negative impact on this community.

ATTACHMENT 4

I respectfully ask that the Commission consider not just policy, but the real human and reputational consequences of how this process has unfolded.

In the meantime, although we have endured much angst and unrest and unexpected hardship, my husband and I remain committed to operating a responsible, well-run establishment.

Thank you for your time.

Respectfully submitted,
Karen Basi
Owner, A.W. Shucks
ATTACHMENT 4

EXHIBIT B
Attachment to A.W. Shucks Cocktail & Oyster Bar's Public Comment Letter Dated February 11, 2026
ATTACHMENT 4

ATTACHMENT 4

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ATTACHMENT 4

ATTACHMENT 4

ATTACHMENT 4

ATTACHMENT 4

ATTACHMENT 4

EXHIBITS
ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
I Hudson Martin PC
January 21, 2026
Attn: Chair Michel LePage
P.O. Box CC
Carmel-by-the-Sea, CA 93921
(Via Email: sgorma111ti.�ci. car me/. ca. us)
RE: Public Comment for January 21, 2026, Planning Commission Meeting Agenda Item # 5, A. W. Shucks Cocktail & Oyster Bar/ Amendment to UP 93-45 Our File No. TSDP10018
Dear Planning Commission:

This public comment is sent on behalf of our client, TSO Carmel Properties, L.P. ("TSO"), regarding Agenda Item No. 5 on the Planning Commission's agenda for its January 21, 2026 meeting and the related proposed resolution declaring that TSD's drinking place use pennit (UP 93-45) has been abandoned.

As the Commission is well-aware, TSD's drinking place use pennit runs with the land of the Doud Arcade, located at Ocean Avenue and San Carlos Street in Carmel-by-the-Sea, California (APN 010-146-017-000). TSO has held the drinking place use permit at the Doud Arcade since 1961 and has continuously leased the property to businesses operating under legal and legal non-conforming uses approved by the Commission-including A.W. Shucks Cocktail & Oyster Bar ("A. W. Shucks"). Notwithstanding this, the Commission now intends to reverse decades of prior decisions and deem TSD's drinking place use permit abandoned as of January 21, 2026, based upon a retroactive application of its proposed determination of the same date to require A. W. Shucks to operate under a full line restaurant permit rather than a drinking place use permit.

The Commission's proposed actions would interfere with A.W. Shucks' and TSD's ability to continue the established businesses in which they have vested rights and would constitute an improper government taking. (See, e.g., Goat Hill Tavern v. City of Costa Mesa ( 1992) 6 Cal.App.4th 1519, 1529 ("Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance. Certainly, this right is sufficiently personal, vested and important to preclude its extinction by a nonjudicial body."); Halaco Engineering Co. v. South Central Coast Regional Commission (1986) 42 Cal.3rd 52, 63 (noting "the vested rights doctrine derives from the constitutional guarantee that property may not be taken without due process and just compensation").)
For over three decades, the Commission has repeatedly approved legal non-conforming uses under the drinking place permit and TSO has reasonably and in good faith relied on those approvals. The amended use permit was approved in J 993 when the existing tenant operated Locations Carmel, California 831.375.3151
Palm Desert, California 760.227.7307 www.hudsonmartin.com ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
January 21, 2026

a bar and oyster bar. In 1995, the Commission approved a building application allowing the addition of a commercial kitchen and expressly did not require a new use permit as part of this change. A similar building permit was approved in 2008. And, in 2015, the Commission designated A.W. Shucks as one of three drinking places in the City, with full knowledge of the legal non-conforming use of the business as a drinking place with food service. Finally, in 2023, the Commission provided A.W. Shucks and TSD with a written opinion stating that A.W. Shucks' operations were a legal non-conforming use that did not require a new use permit. (See Exhibit A.) Nothing about A.W. Shucks' operations has changed since the 2023 approval, and the Commission has not offered any valid basis to reverse its prior decisions.

In fact, during the December 10, 2025 meeting, the Commission considered a staff report that offered several options to address the use permit including 1) amendment of the use permit to omit limited food service and add full line restaurant as ancillary use that is greater than I 0% of the primary use, 2) upholding the Commission's 2015 designation of A.W. Shucks as a drinking establishment without further action, 3) considering A. W. Shucks as a legal, nonconforming use as the Commission has for the last thirty years, 4) reverting the ancillary use to limited food service, or 5) amending the use permit to convert the allowed use from a drinking place to a full line restaurant. Staff recommended Option I and, in response to the C<;>mmission 's questions about deeming the use permit abandoned, informed the Commission that abandonment would not be supported by the record given the Commission's past actions and TSO's reliance on those actions. Indeed, the Commission is legally estopped from finding that the TSO abandoned the use permit. (See e.g., City of Long Beach v. Mansell (1970) 3 Cal.3d 462; Cal. Evid. Code § 623 ("Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.").) Concemingly, the Commission has conflated the issue of A.W. Shucks' legal nonconforming use under TSO's drinking place permit with the availability of drinkjng place use pennits in Carmel-by-the-Sea generally, and has improperly relied on the latter to try to justify its proposed actions. The public record makes clear that the Commission's proposed decision to deem TSO's drinking place use permit abandoned was influenced by extensive public comments and discussion of non-agenda items relating to Sade's Cocktails during the Commission's December I 0, 2025 meeting. Notably, the December 10, 2025 meeting agenda did not provide notice to TSO that the Commission would be considering a potential government taking of TSD's use pennit during the meeting, or that the Commission would be doing so to make the use permit available to Sade's. The January 21, 2026 meeting agenda also fails to clearly notice the proposed taking, though the agenda meeting includes a proposed resolution deeming TSD's use permit abandoned (at pages 71 to 74). As the Commission is undoubtedly aware, the Brown Act prohibits the Commission from taking action on and discussing non-agenda items during its meetings. (Gov. Code§ 54954.2, subd. (a)(l)(E)(3); accord Gov. Code§ 54954.3, subd. (a)(l).) The Commission violated the Brown Act by allowing these discussions in the first place and persists with this violation by now proposing a government taking of TSO's drinking place use permit based upon those discussions. TSO accordingly has sent a cease and desist letter under ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
January 21, 2026
Page3 of3
the Brown Act relating to the Commission's actions, a copy of which is enclosed herewith for reference.

Finally, even if the Commission had a legal and factuaJ basis to deem TSD's drinking place use pennit abandoned, it has no authority to establish January 21, 2026 as the effective date of abandonment. Municipal Code section 17.56.050.C provides, "A restricted commercial use that has been discontinued for a period of six consecutive months shall be considered abandoned unless the property owner has filed notice of temporary cessation as provided for in this chapter. . . . Establishment of any different use in a space authorized for occupancy by a numerically limited use shall be considered an abandonment of the numerically limited use." The Commission authorized A. W. Shucks to operate as a legal non-conforming uses under the drinking place permit in 2023 and is only now proposing to find that its operations constitute "a different use" that require a different use pennit. Accordingly, under the Municipal Code, TSD should have six months from the date of the Commission's decision that A. W. Shucks' operations constitute a "different use" to file a notice of temporary cessation to avoid the loss of its drinking place use permit. Municipal Code section 17.56.040 provides permit holders, such as TSD, the opportunity to file a notice of temporary cessation to preserve a use permit pending repairs or improvements to a property, or to conduct a tenant search. TSO is entitled to file such a notice to avoid the loss of its vested property interest in the use permit due to governmental action.

Based upon the foregoing, TSO opposes the Commission's proposed resolution requiring A.W. Shucks' to operate under a full line restaurant permit rather than a drinking place use permit and declaring that TSD's drinking place use permit (UP 93-45) has been abandoned as a result.

Encl.

Cc:

Client
Chair Michael LePage, [email protected]
Vice Chair Erin Allen, [email protected] us
Sincerely,
HUDSON
�(<(<}�4"

MARTIN PC
1'nette K. Witten, Esq.

Managing Partner
Commissioner Stephan Karapetkov, [email protected] Commissioner Robert Delves, rdel [email protected]. us
Commissioner Stephanie Locke, [email protected]
ATTACHMENT 4

EXHIBIT A
ATTACHMENT 4

From: Brandon Swanson <[email protected]>
Date: August 28, 2023 at 11 :25:02 AM PDT
To: John plastini <[email protected]>
Subject: AW Shucks LLC Menu
John,
Following up from our phone call just now, this email serves as confirmation that the menus you provided (attached), were also approved August 15th, 2008, as part of Permit# 08-168C. These menus maintain the same legal nonconforming status that I referenced in my previous email sent on August 14th, 2023, therefore they are allowed to be served in whole or in part. Please note that our past practice has been that minor modifications to restaurant menus may be made without the need for City approval.

Take care,
-Brandon
Brandon Swanson [he, him, his]
Director, Community Planning and Building
City of Carmel-by-the-Sea
(831) 620-2024
Please take our Customer S_atisfaction Survey.

ATTACHMENT 4

On Mon, Aug 14, 2023 at 4:26 PM Brandon Swanson <[email protected]> wrote:

John,
Thank you for sending this. I have not had a chance to write you a formal memo, but I did want to at least respond to you today and confirm that based on the records that we have available, my determination is that the City memorialized the additional cooking equipment and restaurant operation by approving a building permit on August 15th, 2008 (Permit# 08-168C). In this case, even though the original Use Permit sets a limit on the type of equipment and menu, the City took an official action to approve the updated kitchen and the menu it was meant to prepare, thereby creating a legal nonconforming situation that is allowed to continue under Chapter 17.36 of the City's Municipal Code.

Take care,
-Brandon
Brandon Swanson [he, him, his]
Director, Community Planning and Building
City of Carmel-by-the-Sea
(831) 620-2024
Please take our Customer Sati.s.f�n Survey.

ATTACHMENT 4

On Mon, Aug 14, 2023 at 1 :52 PM John plastini <[email protected]> wrote:

Brandon,
Per our conversation, please find email with attachment of A.W. Shucks menu.

Any questions please do not hesitate to contact me as always thank you for the assistance in this matter.

Best,
John Plastini
Sent from my iPhone
Begin forwarded message:

From: Lisa Miller <fQr.efamily@apl,__c_o_m>
Date: August 14, 2023 at 1 :48:09 PM PDT
To: John Plastini <[email protected]>
Subject: AW Shucks LLC Menu
Hi John
Per your request, please find attached our current menu.

If there is anything else I can provide, just let me know! We appreciate all of your help!
Lisa
ATTACHMENT 4

' J
Organic Lemon Drop ............................................ 14 Crop Organic Meyer Lemon Vodka/ Cointreau/
Fresh Pressed Lemon Juice/ Simple Syrup
Naked & Famous ................................................. 14 Mezcal /Chartreuse/ Aperol / Fresh Pressed Lime Juice
RubyRow ......................................................... 13 Finlandia Grapefruit/ Cointreau/ Fresh Pressed Lim e Juice/ Cranberry Juice/ Grapefruit Juice
Buffalo Trace Manhattan ....................................... 14 Buffalo Trace Bourbon/ Sweet Vermouth/ Bitters
Agave Nectar Margatini ........................................ 14 Tres Generaciones Tequila/ Organic Agave Nectar/
Fresh Pressed Lime Juice/ (No Salt Please)
Raz Lemon Drop ................................................. 13 S�
edka Raz Vodka/ St. George Raspberry Liqueur/
Triple Sec/ Fresh Pressed Lemon Juice/ Cranberry Juice
Pink Panties ..................................................... 13 Wheatley Vodka/ Dekuyper Watermelon Pucker/
Pineapple Juice
Hawaiian Negroni ............................................... 13 White Ginger Gin/ Campari / Sweet Vermouth
D·rtyM ! arganta .................................................. 14 Milagro Reposado /Cointreau/ Fresh Pressed Lime Juice/
Orange Juice/ Olive Brine/ Served Up with 2 Olives
Remy Sazerac .................................................... 14 Remy Martin 1738 Cognac/ Simple Syrup/ Bitters/ Absinthe Vesper ............................................................ 1s Tito's Handmade Vodka/ No let's Gin/ Lillet
Paper Plane Cocktail. ........................................... 15 Buffalo Trace Bourbon/ Aperol /Amaro/
Fresh Pressed Lemon Juice

WE PROUDLY FEATURE
13S Scotches/ 18 Irish Whiskeys/ 22 Rums
50 Vodkas/ 81 Bourbon & Whiskeys/ 36 Gins
64 Tequilas/ 45 Imported Liqueurs
Beer
Draft Beer
Shockers Ale/ Allagash Wheat/
Firestone Hopnosis IPA/ Sculpin IPA
Kon a Longboard Lager/ Stella Artois .......................... 7 .5 Anderson Valley Oatmeal Stout .................................. 8.5 ChimayTrapiste (served in goblet) ............................... 8.5 Bottled Beer (Domestic) ...................................... 4.5 Bud/ Bud Light/ Coors Light
Bottled Beer (Hand Crafted Domestic) ..................... 6.5 Anchor Steam/ Blue Moon
Bottled Beer (Imported) ..................................... 6.S Corona/ Corona Light/ Heineken/ Modelo/
St. Pauli's (Non-Alcohol)
Guinness Draft/ Fort Point Hazy IPA (Can) ................ 6.5 Angry Orchard Cider ........................................... 6.S New Amsterdam Vodka/ Ginger Beer/ Fresh Pressed Lime Juice. (Copper Mug available for purchase 29.95)
Cadillac Margarita .............................................. 15 Tres Generaciones Tequila/ Cointreau/ Fresh Pressed Lime Juice/ Sour Mix/ Grand Gala Float
Shucks Top Shelf ................................................ 14 Cazadores Blanco/ Cointreau/ Fresh Pressed Lime Juice/
Sour Mix
Pomegranate Margarita ........................................ 15 Tres Generaciones Tequila/ Pama/ Fresh Pressed Lime Juice/ Sour Mix/ Cranberry Juice
St. Germain Squeeze ............................................ 14 Hendrick's Gin/ St. Germain/ Grapefruit Juice
Long Island Iced Tea ............................................ 13 Vodka/ Gin/ Rum/ Tequila/ Triple Sec/ Fresh Pressed
Lemon Juice/ Simple Syrup/ Coca-Cola
Old Fashioned ................................................... 13 Knob Creek Rye/ Bitters/ Orange/ Cherry/ Sugar
Mai Tai ............................................................ 13 Myers Platinum Rum/ Pineapple & Orange Juice/
Grenadine/ Whalers Float
Mojito ............................................................. 14 Myers Platinum Rum/ Fresh Pressed Lime Juice/
Sugar/ Fresh Mint/ Soda
Sunsplash ........................................................ 12 Stoli Ohranj Vodka/ Cointreau/ Orange Juice/ Sour Mix
Boulevardier ..................................................... 14 Basil Hayden/ Campari / Sweet Vermouth

OYSTER SHOOTERS
13 Bloody Mary Oyster Shooter
Svedka Vodka/ House Bloody Mary Mix/ Fresh Oyster
Tequila Lime Shooter
Chilled Sauza Tequila/ Fresh Oyster/ Cocktail Sauce
, , Horseradish/ Salsa
Served Up Martini-Style
Peppar Oyster Shooter
House-infused Peppar Stoli Vodka
Fresh Oyster/ Cocktail Sauce/ Horseradish/ Salsa
Served Up Martini-Style
Beverages
Bottled Water .................................................. 4.95 Panna (Flat) or Pellegrino (Sparkling) 500ml
SoftDrinks/Tea/Coffee ..................................... 4.5 Coke/ Diet Coke/ Sprite/ Ginger Ale/ Lemonade
Shirley Temple/ Roy Rogers ................................. 4. 75 Ginger Beer/ Red Bull ........................................ 4.75 Henry Weinhard's Root Beer ................................. 4.75 Fruit Juice ....................................................... 4.5 Apple/ Cranberry/ Grapefruit/ Orange/ Pineapple
ATTACHMENT 4

- -.e,,,,, I

STARTERS
Deep Fried Calamari ........................................... 17 Steamed Artichoke ............................................. 13 Jumbo Prawn Cocktail.. ....................................... 19 Crabmeat Cocktail.. ............................................ 22 Dungeness/Rock Crab
Bay Shrimp Cocktail ........................................... 13 Peel & Eat Prawns .............................................. 14 Smoked Salmon Plate ......................................... 17 Chilled Seafood Sampler ...................................... 30 3 Oysters, Bay Shrimp, Crab, Salmon, and Peel & Eat Shrimp Crab Cake a la Carte ........................................... 13 •

CHOWDER OR CHILI

8.50 CUP / 10.50 BOWL
Clam Chowder
New England (White) I Manhattan (Red)
or Rose (a special blend of both)
Spicy Vegetarian Chili (Vegan)
SALADS
Dressing: Ranch, Louie, Italian, Blue Cheese, Oil & Vinegar Shucks Garden Salad ........................................... 10 Caesar Salad ..................................................... 12 Add the following to above salads:

Chicken (+9) I Bay Shrimp (+8)
Jumbo Prawns (+15) I Dungeness/Rock Crab (+16)
Prawn Louie ..................................................... 26 Crab Louie Dungeness/Rock .................................. 29 Crab & Prawn Louie Dungeness/Rock ...................... 31 Crab Cake with Caesar Salad ................................. 21 "ONLY OTTERS EAT FRESHER OYSTERS"
OYSTERS on the HALF SHELL

FRESH OYSTERS
Selection Varies
Served with House-Made Cocktail Sauce & Mignonete
19 HALF DOZEN I 38 DOZEN
SALSA OYSTER SHOOTER 5
"OYSTERS SHUCKEFELLER"
Broiled in the Shell with Butter, Garlic, Wine,
Seasoning and topped with Parmesan Cheese
21 HALF DOZEN I 42 DOZEN

FRIED PACIFIC OYSTERS
Cornmeal-Panko Fried with our
House-Special Remoulade
21 HALF DOZEN
ueep rneu uLaman C11 \.ntps \Ur ud1ue11 .ldldUJ ........... �u Beer Battered Jumbo Prawns & Chips (or Garden Salad)
SIX (6) .................. 22 NINE (9) .................... 25 Beer Battered Fish Burger .................................... 19 with Fries or Garden Salad (Caesar +2)

FRIED COMBO PLATTER
28 Calamari, Fish, and Prawns
with Fries or Garden Salad

FROM THE GRILL
With lettuce, Tomato, Onion, and Pickles on Grilled Sesame Seed Bun. Served with Fries or Garden Salad (Caesar +2) Half Pound Burger ............................................. 15 Marinated Chicken Breast Burger ........................... 15 Vegan Veggie Burger (Whole Wheat Bun) ................. 12 Add Grilled Onions, Cheddar or Jack Cheese to any of the above items (+2 ea)/ Blue Cheese, Avocado or Bacon (+4 ea)

PO'BOY SANDWICH
OYSTER or SHRIMP 21
Cornmeal-Panko Fried, Special-Blend Lettuce,
Tomato, and Mayo on a Rustic Ciabatta
with House-Made Shucks Sweet & Sour Slaw

SANDWICHES
Served on Toasted Italian Sourdough with Fries
or Garden Salad (Caesar +2)
Seafood Salad ................................................... 18 Rock Crab and Shrimp with Celery, Onions, Mayo &
Seasonings, Lettuce, Tomato, and Onion
Albacore Tuna Salad ........................................... 16 with Lettuce, Tomato & Onion
Albacore Tuna Melt (with Jack Cheese) ....................... 18 Smoked Turkey Breast ......................................... 16 with Jack Cheese, Lettuce, Tomato, and Onion
Grilled Cheese (with Cheddar Cheese) ......................... 14

SANDWICH COMBOS
HALF Sandwich: TUNA, TURKEY OR GRILLED CHEESE
(Seafood Salad or Tuna Melt +2.5) with choice of:

Soup .......................................... 16 CUP I 18 BOWL fries ............................................................ 14 Garden Salad ................................................... 14 Caesar Salad ................................................... 16

SOUP AND SALAD COMBO
(Caesar +2)
Cup with Garden Salad ........................................ 15 Bowl with Garden Salad ...................................... 17 SIDES
French Fries ....................................................... 6 House-Made Sweet & Sour Cole Slaw ......................... 4 ATTACHMENT 4

BROWN ACT LETTER
ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
ff Hudson Martin PC
January 20, 2026
Attn: Chair Michel LePage
P.O.Box CC
Carmel-by-the-Sea, CA 93921
11a Certified Mail
RE: Ralph M. Brown Act Cease and Desist Letter
Our File No. TSDPl 0018
Dear Planning Commission:

This letter is sent on behalf of our client, TSD Carmel Properties, L.P. ("TSD"), to notify you of violations of the Ralph M. Brown Act ("Brown Act") that occurred during a regular meeting of the Planning Commission ("Commission") on December 10, 2025, in which the Commission undertook discussion of multiple items that were not on the meeting agenda.

As you know, the Brown Act is an open meeting law that provides for public attendance at and participation in the meetings oflocal legislative bodies. Under the Brown Act, the Commission is required to post online, at least seventy-two (72) hours before each meeting, an agenda that contains a brief description of each item of business to be transacted or discussed at the meeting. (Gov. Code§ 54954.2, subd. (a)(l).) Additionally, the Commission is required to provide an opportunity for public comment, subject to reasonable restrictions. (See Gov. Code §§ 54954.3, subds. (a) & (b).) Importantly, however, "[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3 ." (Gov. Code § 54954.2, subd. (a)(l)(E)(3); accord Gov. Code§ 54954.3, subd. (a)(l).) The Commission may not act on items not appearing on the agenda absent an emergency, a need for immediate action, or the inclusion of the item on an agenda for a prior meeting that occurred not more than five calendar days prior to the date action is taken. (Gov. Code§ 54954.2, subd. (b).) During the meeting on December 10, 2025, the Commission allowed extensive public comment on and discussion of multiple items that were not on the meeting agenda. The meeting agenda only provided notice of: (i) a tour of inspection; (ii) announcements; (iii) a consent agenda addressing the November 12, 2025, meeting minutes and a monthly activity report; (iv) a "Director Referral: Continued from the October 8, 2025 Planning Commission hearing, discussion on the determination oftheA.W. Shucks Use Permit"; (v) public hearings on five matters, namely APP 25328 (Coria), DS 25126 (Chroman), DS 25139 (Kshire Property Investments LLC), DS 25244 (Del Santo), and SI 25276 (Halore); (vi) a director's report; and (vii) future agenda items. A copy of the agenda is enclosed herewith for reference.

Locations Carmel, California 831.375.3151
Palm Desert, California 760.227.7307 www.hudsonmartin.com ATTACHMENT 4

City of Carmel-By-The-Sea
Planning Commission
January 20, 2026
Page2 of3
Notwithstanding this, the Commission devoted near]y one hour of the allotted meeting time for the A.W. Shucks agenda item to other items that were not on the agenda. When the Commission should have been taking pubJic comment on and discussing whether A.W. Shucks was operating in compJiance with the drinking pJaces use permit he]d by its landlord, TSD, the Commission instead took numerous public comments advocating for "saving" from closure an unrelated business, Sade's Cocktails ("Sade's"). In fact, the Commission spent more time discussing Sade's situation with its owner, Parker Logan, than discussing the noticed agenda item with the owners of A.W. Shucks and TSO.

The Commission ultimately shifted its discussions and deliberations away from the noticed agenda item regarding A.W. Shucks to non-agenda items impacting the rights ofTSD and other businesses. First, the Commission discussed whether TSD had abandoned the use permit that runs with its land. As the Commission is aware, TSO has reasonably relied upon a 2023 written opinion from the Commission finding that A.W. Shucks' operations are a legal nonconforming use under the permit and has never expressed an intention to abandon the permit.

The meeting agenda did not provide notice to TSD that the Commission would be considering a potential government taking ofTSD's use permit during the meeting, or that it would be doing so to make the use permit available to Sade's. It is apparent that the Commission's discussions in this regard were influenced by the public comments relating to Sade's. Notably, Chair LePage even commented during the meeting that TSO would not be harmed if its use pennit were deemed abandoned, but that Sade's wou]d be harmed if TSD were to retain the pennit. Second, the Commission discussed potential amendments to the Municipal Code that would limit the issuance of drinking place use pennits to businesses like Sade's, which holds a Type 48 liquor license. As the Commission knows, of the three businesses currently operating under drinking place use pennits in Carmel, only Sade's holds a Type 48 liquor license. The other two businesses-AW. Shucks and Bannel-hold a Type 47 liquor license. In its apparent efforts to find legislative solutions to benefit Sade's in response to the public comments taken during the meeting, the Commission proceeded with a lengthy discussion of this non-agenda item despite not having provided A.W. Shucks, Barmel, TSD, or the other ho]ders of the existing drinking place use pennits notice and the opportunity to be heard on this matter. Finally, the Commission briefly discussed whether other accommodations or Municipal Code amendments could help Sade's to continue in operation, including increasing the total number of drinking place use permits in Carmel from three to four. Again, this item was not included on the agenda and was outside the scope of the noticed agenda items.

As set forth above, the Commission blatantly and repeatedly violated the Brown Act during the December I 0, 2025 meeting by engaging in extended discussion and consideration of non-agenda items. Accordingly, TSO hereby demands that the Commission (i) cease-and-desist from engaging in discussions and taking any actions during its meetings on items that are not included in its meeting agendas, and (ii) ensure that any items to be transacted or discussed at the meetings are included on the meeting agendas as required by the Brown Act.

In accordance with Government Code section 54960.2, TSO requests that the Commission respond to this letter within thirty (30) days, or by February 19, 2026.

ATTACHMENT 4