Agenda packet — Costa Mesa City Council, February 21, 2023

CITY OF COSTA MESA

REGULAR CITY COUNCIL AND SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY*
Agenda
City Council Chambers
77 Fair Drive
6:00 PMTuesday, February 21, 2023
*Note: All agency memberships are reflected in the title "Council Member" 4:00 P.M. Closed Session
The City Council meetings are presented in a hybrid format, both in-person at City Hall and virtually via Zoom Webinar. Pursuant to the State of California Assembly Bill 361(Gov. Code §54953(b)(3)) the City Council Members and staff may choose to participate in person or by video conference.

You may participate via the following options:

1. Attending in person: Attendees are encouraged to wear masks at their discretion. If you are feeling ill, or if you've been exposed to someone with COVID-19, you may still participate in the meeting via Zoom.

2. Members of the public can view the City Council meetings live on COSTA MESA TV (SPECTRUM CHANNEL 3 AND AT&T U-VERSE CHANNEL 99) or
http://costamesa.granicus.com/player/camera/2?publish_id=10&redirect=true and online at youtube.com/costamesatv.

Note: If you have installed a zoom update, please restart your computer before participating in the meeting, to prevent audio issues.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

3. Zoom Webinar: (For both 4:00 p.m. and 6:00 p.m. meetings) Please click the link below to join the webinar:
https://us06web.zoom.us/j/98376390419?pwd=dnpFelc5TnU4a3BKWVIyRVZMallZZz09 Or sign into Zoom.com and “Join a Meeting”
Enter Webinar ID: 983 7639 0419/ Password: 905283
• If Zoom is not already installed on your computer, click “Download & Run Zoom” on the launch page and press “Run” when prompted by your browser. If Zoom has previously been installed on your computer, please allow a few moments for the application to launch automatically.
• Select “Join Audio via Computer.”
• The virtual conference room will open. If you receive a message reading, “Please wait for the host to start this meeting,” simply remain in the room until the meeting begins.
• During the Public Comment Period, use the “raise hand” feature located in the participants’ window and wait for city staff to announce your name and unmute your line when it is your turn to speak. Comments are limited to 3 minutes, or as otherwise directed.

Participate via telephone: (For both 4:00 p.m. and 6:00 p.m. meetings) Call: 1 669 900 6833 Enter Webinar ID: 983 7639 0419/ Password: 905283 During the Public Comment Period, press *9 to add yourself to the queue and wait for city staff to announce your name/phone number and press *6 to unmute your line when it is your turn to speak. Comments are limited to 3 minutes, or as otherwise directed.

4. Additionally, members of the public who wish to make a written comment on a specific agenda item, may submit a written comment via email to the City Clerk at [email protected]. Comments received by 12:00 p.m. on the date of the meeting will be provided to the City Council, made available to the public, and will be part of the meeting record.

5. Please know that it is important for the City to allow public participation at this meeting. If you are unable to participate in the meeting via the processes set forth above, please contact the City Clerk at (714) 754-5225 or [email protected] and staff will attempt to accommodate you. While the City does not expect there to be any changes to the above process for participating in this meeting, if there is a change, the City will post the information as soon as possible to the City’s website.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023
Note that records submitted by the public will not be redacted in any way and will be posted online as submitted, including any personal contact information. All pictures, PowerPoints, and videos submitted for display at a public meeting must be previously reviewed by staff to verify appropriateness for general audiences. No links to YouTube videos or other streaming services will be accepted, a direct video file will need to be emailed to staff prior to each meeting in order to minimize complications and to play the video without delay. The video must be one of the following formats, .mp4, .mov or .wmv. Only one file may be included per speaker for public comments, for both videos and pictures. Please e-mail to the City Clerk at [email protected] NO LATER THAN 12:00 Noon on the date of the meeting. If you do not receive confirmation from the city prior to the meeting, please call the City Clerks office at 714-754-5225.

Note regarding agenda-related documents provided to a majority of the City Council after distribution of the City Council agenda packet (GC §54957.5): Any related documents provided to a majority of the City Council after distribution of the City Council Agenda Packets will be made available for public inspection. Such documents will be posted on the city’s website and will be available at the City Clerk's office, 77 Fair Drive, Costa Mesa, CA 92626.

All cell phones and other electronic devices are to be turned off or set to vibrate. Members of the audience are requested to step outside the Council Chambers to conduct a phone conversation.

Free Wi-Fi is available in the Council Chambers during the meetings. The network username available is: CM_Council. The password is: cmcouncil1953.

As a LEED Gold Certified City, Costa Mesa is fully committed to environmental sustainability.

A minimum number of hard copies of the agenda will be available in the Council Chambers.

For your convenience, a binder of the entire agenda packet will be at the table in the foyer of the Council Chambers for viewing.

In compliance with the Americans with Disabilities Act, Assistive Listening headphones are available and can be checked out from the City Clerk. If you need special assistance to participate in this meeting, please contact the City Clerk at (714) 754-5225. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102.35.104 ADA Title II]. Language translation services are available for this meeting by calling (714) 754-5225 at least 48 hours in advance.

En conformidad con la Ley de Estadounidenses con Discapacidades (ADA), aparatos de asistencia están disponibles y podrán ser prestados notificando a la Secretaria Municipal. Si necesita asistencia especial para participar en esta junta, comuníquese con la oficina de la Secretaria Municipal al (714) 754-5225. Se pide dar notificación a la Ciudad por lo mínimo 48 horas de anticipación para garantizar accesibilidad razonable a la junta. [28 CFR

35.102.35.104 ADA Title II]. Servicios de traducción de idioma están disponibles para esta junta llamando al (714) 754-5225 por lo mínimo 48 horas de anticipación.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023
CLOSED SESSION - 4:00 P.M.

CALL TO ORDER

ROLL CALL

PUBLIC COMMENTS
Members of the public are welcome to address the City Council only on those items on the Closed Session agenda. Each member of the public will be given a total of three minutes to speak on all items on the Closed Session agenda.

CLOSED SESSION ITEMS:

1. PUBLIC EMPLOYMENT, WORKERS' COMPENSATION CLAIM
Pursuant to California Government Code section 54956.9 (b)(1); WCAB NO.

ADJ12715668

2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: Lorna Lyttle vs. City of Costa Mesa Orange County Superior Courts Case No. 30-2022-01268630-CU-OE-WJC

3. THREAT TO SECURITY
Pursuant to California Government Code Section 54957(a) Consultation with: Costa Mesa Director of Emergency Services, City Manager, Police Chief, Fire Chief.

4. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Pursuant to California Government Code Section 54956.8
APN: 420-012-16
Agency Negotiators: Lori Ann Farrell Harrison, City Manager Negotiating Parties: State of California

5. CONFERENCE WITH LEGAL COUNSEL - INITIATION OF LITIGATION - TWO CASES
Pursuant to California Government Code Section 54956.9 (d)(2), Potential Litigation.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

REGULAR MEETING OF THE CITY COUNCIL AND SUCCESSOR AGENCY

TO THE REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY
February 21, 2023 – 6:00 P.M.

JOHN STEPHENS
Mayor

JEFFREY HARLAN ANDREA MARR Mayor Pro Tem - District 6 Council Member - District 3

MANUEL CHAVEZ LOREN GAMEROS
Council Member - District 4 Council Member - District 2

ARLIS REYNOLDS DON HARPER
Council Member - District 5 Council Member - District 1

KIMBERLY HALL BARLOW LORI ANN FARRELL HARRISON
City Attorney City Manager

CALL TO ORDER

NATIONAL ANTHEM AND PLEDGE OF ALLEGIANCE

MOMENT OF SOLEMN EXPRESSION
[Per Council Policy 000-12, these presentations are made by community volunteers stating their own views. The City Council disclaims any intent to endorse or sponsor the views of any speaker.]

ROLL CALL

CITY ATTORNEY CLOSED SESSION REPORT
PRESENTATIONS:

1. Proclamation: Teen Dating Violence Awareness Month 23-1088

1. Proclamation: Teen Dating Violence Awareness MonthAttachments:

2. Presentation: Theodore Robins Ford 100-Year Anniversary 23-1089

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023
PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Comments are limited to 3 minutes, or as otherwise directed.

Comments on Consent Calendar items may also be heard at this time.

COUNCIL MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS Each council member is limited to 4 minutes. Additional comments will be heard at the end of the meeting.

1. Council Member Gameros

2. Council Member Harper

3. Council Member Marr

4. Council Member Reynolds

5. Council Member Chavez

6. Mayor Pro Tem Harlan

7. Mayor Stephens
REPORT – CITY MANAGER
REPORT – CITY ATTORNEY
CONSENT CALENDAR (Items 1-10)
All matters listed under the Consent Calendar are considered to be routine and will be acted upon in one motion. There will be no separate discussion of these items unless members of the City Council, staff, or the public request specific items to be discussed and/or removed from the Consent Calendar for discussion.

1. PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL

ORDINANCES AND RESOLUTIONS
23-1082
RECOMMENDATION:

City Council, Agency Board, and Housing Authority approve the reading by title only and waive full reading of Ordinances and Resolutions.

2. READING FOLDER 23-1083
RECOMMENDATION:

City Council receive and file Claims received by the City Clerk: Southern California Edison (Leslie Murtaugh), Wendy and Steven Fink, Brenda Carol Kittle, Juan Jose Rodriguez.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

3. ADOPTION OF WARRANT RESOLUTION 23-1085
RECOMMENDATION:

City Council approve Warrant Resolution No. 2694.

1. Summary Check Register week of January 23

2. Summary Check Register week of January 30

3. Summary Check Register week of February 6
Attachments:

4. MINUTES 23-1084
RECOMMENDATION:

City Council approve the Minutes of the Regular meeting of February 7, 2023. 02-07-2023 Draft MinutesAttachments:

5. EXTENSION OF CURRENT STREET SWEEPING SERVICES

CONTRACT WITH SWEEPING CORP OF AMERICA
23-1065
RECOMMENDATION:

Staff recommends the City Council:

1. Approve Amendment No. 5 (Attachment No. 1) to the Professional Services Agreement (PSA) with Sweeping Corp of America (SCA) , formerly known as CleanStreet, for Citywide street sweeping services.

2. Approve extension of time to June 30, 2023 and an increase of $248,815.48 to the compensation , totaling an annual not- to-exceed amount of $1,007,358.26.

3. Authorize the City Manager and City Clerk to execute the PSA and future amendments to the agreement within Council authorized limits with SCA.

1. Amendment No. 5 to PSA with CleanStreet

2. CleanStreet Extension Proposal
Attachments:

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

6. THIRD AMENDMENT TO THE AGREEMENT WITH WEST COAST
ARBORISTS, INC. FOR TREE MAINTENANCE SERVICES
23-1066
RECOMMENDATION:

Staff recommends the City Council:

1. Approve the Third Amendment (Attachment 1) to the Maintenance Services Agreement (MSA) with West Coast Arborists , Inc. (WCA), to provide maintenance of the City ’s urban forest, increasing the annual compensation by $150,000 for an annual not to exceed amount of $778,679.04.

2. Authorize the City Manager and City Clerk to execute the proposed amendment and future amendments to the MSA.

1. Proposed Amendment No. 3

2. WCA Agreement

3. WCA Amendment No. 1

4. WCA Amendment No. 2
Attachments:

7. SECOND READING OF AN ORDINANCE TO REPEAL CHAPTER I
(BICYCLES AND MOTORIZED BICYCLE LICENSING) TO TITLE 4
(BICYCLES) OF THE COSTA MESA MUNICIPAL CODE
23-1070
RECOMMENDATION:

Staff recommends that the City Council give a second reading to and adopt:

Ordinance No. 2023-02 to repeal Chapter I (Bicycles and Motorized Bicycle Licensing) to Title 4 (Bicycles) of the Costa Mesa Municipal Code to comply with current California law.

1. Ordinance to Repeal Title 4, Chapter I (Bicycle and Motorized Bicycle Licensing)
Attachments:

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8 REGULAR CITY COUNCIL AND

SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

8. ACCEPTANCE OF TRAINING FUNDS FROM THE CALIFORNIA

BOARD OF STATE AND COMMUNITY CORRECTIONS (BSCC) IN

ACCORDANCE WITH THE STANDARD AND TRAINING FOR

CORRECTIONS (STC), FOR CUSTODY OFFICER PERSONNEL
TRAINING.
23-1071
RECOMMENDATION:

Staff recommends the City Council:

1. Approve and authorize the Costa Mesa Police Department to reinstate membership with the California Board of State and Community Corrections (BSCC) and to adhere with policies and practices governed by their division known as Standard and Training for Corrections (STC).

2. Adopt Resolution 2023-xx in support of an application to BSCC to receive funds for training under the STC program for our custody officers.

1. BSCC ResolutionAttachments:

9. SECOND READING AND ADOPTION OF ORDINANCE NO. 2023-03 AMENDING TITLE 13 OF THE COSTA MESA MUNICIPAL CODE
(ZONING CODE) TO CLARIFY EXISTING ACCESSORY DWELLING

UNIT PROVISIONS AND TO MODIFY STANDARDS TO CONFORM TO

RECENT REVISIONS TO STATE LAW (CODE AMENDMENT CO
2022-01)
23-1076
RECOMMENDATION:

Staff recommends the City Council give second reading to and adopt Ordinance No. 2023-03 approving Code Amendment CO-2022-01, amending Title13 of the Costa Mesa Municipal Code (Zoning Code) to clarify existing accessory dwelling unit provisions and to modify standards to conform to recent revisions to State law.

1. Ordinance

2. Exhibit A to the Ordinance

3. Planning Commission Resolution PC-2022-29 (re
CO-2022-XX)
Attachments:

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9 REGULAR CITY COUNCIL AND

SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023

10. AUTHORIZE THE CITY MANAGER TO ISSUE REFUNDS FOR RETAIL

CANNABIS APPLICATION FEES
23-1080
RECOMMENDATION:

Staff recommends City Council give the City Manager, or her designee, the authority to issue refunds for retail cannabis application fees.

AT THIS TIME COUNCIL WILL ADDRESS ANY ITEMS PULLED FROM THE CONSENT

CALENDAR
------------------------------END OF CONSENT CALENDAR------------------------------- PUBLIC HEARINGS:
(Pursuant to Resolution No. 05-55, Public Hearings begin at 7:00 p.m.)

1. APPEAL OF PLANNING APPLICATION 22-21 FOR A RETAIL
CANNABIS STOREFRONT BUSINESS LOCATED AT 2001 HARBOR
BOULEVARD, SUITES 101-103 (SOUTH COAST SAFE ACCESS)
23-1081
RECOMMENDATION:

Staff recommends the City Council:
· Uphold the Planning Commission ’s decision and adopt a Resolution to deny Planning Application 22-21; or
· Overturn the Planning Commission ’s decision and adopt a Resolution to approve Planning Application 22-21, subject to conditions of approval; or · Remand Planning Application 22-21 back to the Planning Commission to reconsider the matter.

1. Resolution for Denial

2. Resolution for Approval

3. Filed Appeal Application & Applicant Supplemental Info

4. Planning Commission Resolution PC-2022-33

5. Planning Commission Minutes

6. Site Photos

7. Project Plans

8. Public Comments
Attachments:

OLD BUSINESS: NONE.

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SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda February 21, 2023
NEW BUSINESS: NONE.

ADDITIONAL COUNCIL /BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND

SUGGESTIONS

ADJOURNMENT

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11 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1088 Meeting Date: 2/21/2023
TITLE:

Proclamation: Teen Dating Violence Awareness Month 2023 DEPARTMENT: City Manager’s Office

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12 WHEREAS, Teen dating violence, also known as dating abuse, is a serious and growing problem throughout California; and
WHEREAS, Each year, an estimated 1 in 12 high school students is physically hurt on purpose by a dating partner, and 1 in 3 adolescents report verbal, emotional, physical, or sexual dating abuse each year; and WHEREAS, 1 in 11 female teens & 1 in 15 male teens reported experiencing physical violence in the last year; and WHEREAS, organizations such as Human Options are igniting social change by educating Orange County to recognize relationship violence as an issue that threatens everyone, advocating for those affected by abuse, extending a safe place for victims, and empowering survivors on their journey of healing; and WHEREAS, the theme for Human Options February campaign is “#HEALTHYLOVE, The New Normal ,” and all those participating are encouraged to wear orange to raise awareness about dating violence; and WHEREAS, Teen dating violence intervention and prevention programs can help to ensure a positive school climate and safe learning environment for all youth ages 12 to 24; and WHEREAS, Education and outreach programs to community members address warning signs of teen dating violence among youth before behaviors escalate and protect the safety of targeted youth; and WHEREAS, multiple strategies are required, such as teaching safe and healthy relationship skills , engaging influential adults and peers, disrupting the developmental pathways toward partner violence, creating protective environments, strengthening economic support for families, and supporting survivors to increase safety and lessen harm; and WHEREAS, Teen dating violence has been linked to other forms of violence and aggression against peers, including bullying, sexual harassment, sexual violence, and physical violence; and WHEREAS, Survivors of teen dating violence have increased risk for truancy, dropout, teen pregnancy, suicide, having eating disorders, and engaging in other harmful behaviors such as the use of alcohol, tobacco, and other drugs; and WHEREAS, the City of Costa Mesa is committed to engaging teens and adults to promote social norm s that support healthy relationships to transform our communities and ensure everyone has access to the tools to intervene when they witness teen dating violence.

NOW, THEREFORE, I, John B Stephens, Mayor of the City of Costa Mesa, do hereby proclaim Febru ary 2023 as Teen Dating Violence Awareness and Prevention Month. I encourage community leaders to empower and educate teens to develop healthy and violence-free relationships throughout their lives, raise awareness about the dynamics of teen dating violence, and support youth in learning the skills to have safe and healthy relationships.

Dated this 21st day of February 2023.

_____________________________________________________
John B. Stephens, Mayor of the City of Costa Mesa
13 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1089 Meeting Date: 2/21/2023
TITLE:

Presentation: Theodore Robins Ford 100-Year Anniversary DEPARTMENT: City Manager’s Office

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14 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1082 Meeting Date: 2/21/2023
TITLE:

PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND

RESOLUTIONS
RECOMMENDATION:

City Council, Agency Board, and Housing Authority approve the reading by title only and waive full reading of Ordinances and Resolutions.

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15 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1083 Meeting Date: 2/21/2023
TITLE:

READING FOLDER
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:

City Council receive and file Claims received by the City Clerk: Southern California Edison (Leslie Murtaugh), Wendy and Steven Fink, Brenda Carol Kittle, Juan Jose Rodriguez.

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16 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1085 Meeting Date: 2/21/2023
TITLE:

ADOPTION OF WARRANT RESOLUTION
DEPARTMENT: Finance Department
PRESENTED BY: Carol Molina, Finance Director
CONTACT INFORMATION: Carol Molina at (714) 754-5243
RECOMMENDATION:

City Council approve Warrant Resolution No. 2694.

BACKGROUND:

In accordance with Section 37202 of the California Government Code, the Director of Finance or their designated representative hereby certify to the accuracy of the following demands and to the availability of funds for payment thereof.

FISCAL REVIEW:

Funding Payroll Register No. 23-02 “A” Off Cycle for $1,137.48 and 23-03 On Cycle for $2,986,359.55 and City operating expenses for $ 2,772,733.54.

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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1084 Meeting Date: 2/21/2023
TITLE:

MINUTES
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:

City Council approve the Minutes of the Regular meeting of February 7, 2023.

Page 1 of 1 ends

118
Minutes – Regular Meeting – February 7, 2023 Page 1 of 11

REGULAR CITY COUNCIL AND SUCCESSOR AGENCY TO THE

REDEVELOPMENT AGENCY, COSTA MESA PUBLIC FINANCING

AUTHORITY, COSTA MESA FINANCING AUTHORITY, AND
HOUSING AUTHORITY - FEBRUARY 7, 2023 - MINUTES
CALL TO ORDER– The Closed Session meeting was called to order by Mayor Stephens at 4:01 p.m.

ROLL CALL

Present: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds (arrived 4:20 p.m.), Mayor Pro Tem Harlan, and Mayor Stephens.

Present Via Zoom: Council Member Harper.

Absent: None.

PUBLIC COMMENTS – NONE.

CLOSED SESSION ITEMS:

1. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: Carrin A. Leaman vs. City of Costa Mesa
Orange County Superior Courts Case No. 30-2021-01196302-CU-OR-CJC

2. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Pursuant to California Government Code Section 54956.9, (d)(1) Name of Case: SoCal Recovery, LLC, a California limited liability company v. City of Costa Mesa, United States District Court, Central District of California, Case No. 8:18-cv-01304-JVS-PJW.

3. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Pursuant to California Government Code Section 54956.9, (d)(1) Name of Case: Raw Recovery, LLC et al v. City of Costa Mesa, United States District Court, Central District of California, Case No. 8:18-cv-01080-JVS-AGR

4. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Pursuant to Subdivision (d)(1) of Section 54956.9, California Government Code Name of Case: Ohio House, LLC v. City of Costa Mesa, USDC, Central District of CA, Case No. 8:19-cv-01710-DOC (KESx)
119
Minutes – Regular Meeting – February 7, 2023 Page 2 of 11

5. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Firefighters Association (CMFA).

6. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Firefighters Management Association (CMFMA).

7. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Police Management Association (CMPMA).

8. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Management Association (CMDMA).

9. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Unrepresented Executive Employees

10. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Confidential Management Unit

11. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6, (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager Name of Employee Organization: Costa Mesa Unrepresented Part Time Employees

12. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION - TWO CASES
Pursuant to California Government Code Section 54956.9 (d)(2), Potential Litigation.

Ms. Hall Barlow, City Attorney, reported that one of the anticipated litigation cases was pertaining to a demand letter received from Patrick Munoz, Rutan & Tucker LLP pertaining to Appeal of Planning Application 22-21.

City Council recessed at 4:05 p.m. for Closed Session.

Closed Session adjourned at 5:30 p.m.
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Minutes – Regular Meeting – February 7, 2023 Page 3 of 11 CALL TO ORDER – The Regular City Council and Successor Agency to the Redevelopment Agency, Costa Mesa Public Financing Authority, Costa Mesa Financing Authority, and Housing Authority meeting was called to order by Mayor Stephens at 6:00 P.M.

NATIONAL ANTHEM AND PLEDGE OF ALLEGIANCE
A video was played of the National Anthem and Mayor Stephens led the Pledge of Allegiance.

MOMENT OF SOLEMN EXPRESSION
Led by Mr. John Begin.

ROLL CALL

Present: Council Member Chavez, Council Member Gameros, Council Member Marr (arrived 6:10 p.m.), Mayor Pro Tem Harlan, and Mayor Stephens.

Present Via Zoom: Council Member Harper (left at 7:55 p.m.) and Council Member Reynolds

Absent: None.

CITY ATTORNEY CLOSED SESSION REPORT – No reportable action.

PRESENTATIONS:

Mayor Stephens presented a proclamation to representatives from Vanguard University Black Student Union and Orange Coast College Black Student Union in recognition of Black History Month.

PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Speaker spoke on the draft housing element, the election and Measure K, and an ethics policy.

Jay Humphrey spoke on the Mobile Home parks zoning and Measure K.

Speaker, spoke in appreciation on lowering the speed limits, spoke on traffic collisions, and requested a four legged crosswalk at 19th St. and Newport Blvd.

Nigel Bress spoke on his business and the digital filing cabinet tool, Apace CC+.

Juana Treijo spoke on high rent increases and on rent control.

Kim Hendricks, speaking on behalf of Fairview Park Alliance, spoke on Fairview Park.

Jenn Tanaka, Member of Costa Mesa Alliance for Better Streets, spoke in appreciation of reducing speed limits, spoke on a traffic calming policy, spoke on enforcement, spoke on a timeline for the Measure K visioning process, and the timeline for the Housing Element.

Speaker, thanked the City Council and staff for approving Active Transportation projects, and spoke on replacing a car trip with a walk or bike trip.

Andrew Barnes spoke on Someone Cares Soup Kitchen and their to go packages and people eating outside causing trash issues, urged the soup kitchen to reopen inside dining, and spoke on enforcement for speed limits.
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Minutes – Regular Meeting – February 7, 2023 Page 4 of 11 Speaker, spoke on the election and Measure K, and on campaign donations.

David Martinez spoke on racial equity and condemning racism.

COUNCIL MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS Council Member Chavez spoke on Love Costa Mesa helping a local resident, the new mobile command unit, and spoke on the recent traffic stop incident and racial equity.

Council Member Gameros spoke on taking a tour of the homeless shelter, volunteers helping on community service projects, and spoke on the traffic stop incident.

Council Member Reynolds thanked staff for responsiveness, congratulated Public Works Department on obtaining grants and for reducing speed limits throughout the city, spoke on committees being in person and zoom, and spoke on the recent traffic stop incident.

Mayor Stephens spoke on the new mobile command vehicle, spoke on the Renascence School, and spoke on the recent traffic stop incident and inclusivity.

REPORT – CITY MANAGER – Ms. Farrell Harrison, spoke on the recent traffic stop incident, spoke on rental assistance programs, Fair Housing Workshop on February 15 th, Dump Day and shredding event on March 4 th, and congratulated a local photographer who will be photographing the Philadelphia Eagles.

REPORT – CITY ATTORNEY – NONE.

CONSENT CALENDAR (Items 1-6)
MOVED/SECOND: Council Member Chavez/Mayor Pro Tem Harlan MOTION: Approve recommended actions for consent calendar items 1-6 The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Harper, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.

Nays: None

Absent: None
Abstain: Mayor Stephens recused himself on item 3 the Warrant Resolution due to campaign contributions received.

Motion carried: 7-0

1. PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND

RESOLUTIONS
ACTION:

City Council, Agency Board, and Housing Authority approved the reading by title only and waived full reading of Ordinances and Resolutions.
122
Minutes – Regular Meeting – February 7, 2023 Page 5 of 11

2. READING FOLDER
ACTION:

City Council received and filed Claims received by the City Clerk: Adrian Aguilar, Julio Ascencio, State Farm Mutual with Jefferson Kirk Given, Wiliam Harvill, Mark Herschthal, Victoria Maldonado, Piotr Pramowski, Juan David Veramancini.

3. ADOPTION OF WARRANT RESOLUTION
Mayor Stephens recused himself on this item due to campaign contributions received.

ACTION:

City Council approved Warrant Resolution No. 2693.

4. MINUTES
ACTION:

City Council approved the Minutes of the Regular meeting of January 17, 2023 and the Special Study Session of January 24, 2023.

5. AUTHORIZE THE USE OF SOURCEWELL’S NATIONAL COOPERATIVE

AGREEMENT WITH NATIONAL AUTO FLEET GROUP FOR THE PURCHASE OF

NEW AND REPLACEMENT CITY VEHICLES AND EQUIPMENT
ACTION:

1. City Council authorized the use of Sourcewell’s National Cooperative Agreement No. 091521-NAF (Attachment 1) with National Auto Fleet Group for the purchase of new and replacement City fleet vehicles - cars, vans, SUV’s, trucks and related equipment - as approved during the annual budget process.

2. Authorized the City Manager and the City Clerk to execute all documents necessary to utilize the Sourcewell National Cooperative Agreement for one year with two one-year renewals authorized in respective annual budgets through FY 2024-25 for an annual not-to exceed amount of $2,000,000.

6. SECOND READING AND ADOPTION OF AN ORDINANCE TO AMEND THE CITY OF COSTA MESA’S MUNICIPAL CODE 3-151 APPEALS FROM ACTION OF

POLICE CHIEF
ACTION:

City Council adopted Ordinance No. 2023-01 to amend Section 3-151 (Appeals from Action of Police Chief) Chapter VI (Special Animal Permit) of Title 3 (Animal Regulations) of the CMMC to grant appeal authority to the City Manager in place of the City Council for Special Animal Permit related actions taken by the Chief of Police. ---------------------------------------END OF CONSENT CALENDAR------------------------------------------ 123
Minutes – Regular Meeting – February 7, 2023 Page 6 of 11 PUBLIC HEARINGS:
(Pursuant to Resolution No. 05-55, Public Hearings begin at 7:00 p.m.)

1. REPEAL OF THE ORDINANCES UNDER CHAPTER I (BICYCLES AND MOTORIZED BICYCLE LICENSING) TO TITLE 4 (BICYCLES) OF THE COSTA MESA MUNICIPAL CODE
Presentation by Acting Police Captain Wadkins.

Public Comments:

Speaker, spoke in support of the item.

Speaker, spoke in support of the item, spoke on additional recommendations by the Active Transportation Committee, and updating ordinances.

Jay Humphrey, Costa Mesa, spoke in support of the project, and spoke on addressing traffic concerns regarding electric bicycles.

Speaker, spoke in support of the item, and on eliminating the requirement that bikes in parks must be parked in a bike rack.

Speaker, spoke on electric bikes.

David Martinez spoke in support of the item and on eliminating the requirement that bikes in parks must be parked in a bike rack.

MOVED/SECOND: Council Member Chavez/Council Member Marr MOTION: Approve recommended actions.

The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Harper, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.

Nays: None

Absent: None
Abstain: None
Motion carried: 7-0
ACTION:

City Council introduced for first reading Ordinance No. 2023-02 to repeal Chapter I (Bicycles and Motorized Bicycle Licensing) to Title 4 (Bicycles) of the Costa Mesa Municipal Code to comply with current California law.
124
Minutes – Regular Meeting – February 7, 2023 Page 7 of 11

2. CITY COUNCIL FIRST READING OF AN ORDINANCE TO AMEND TITLE 13 OF THE

COSTA MESA MUNICIPAL CODE (ZONING CODE) TO MODIFY EXISTING

ACCESSORY DWELLING UNIT (ADU) STANDARDS TO CONFORM WITH RECENT

REVISIONS TO STATE LAW AND TO CLARIFY LOCAL PROVISIONS TO IMPROVE PERMIT PROCESSING (CODE AMENDMENT CO 2022-01)
Presentation by Mr. Yeager, Associate Planner.

Public Comments:

Speaker, spoke on the need for housing, ADU’s, HCD’s comments in their letter of March 2022 regarding exterior staircases, and spoke on Jr. ADU’s and garage conversions.

MOVED/SECOND: Mayor Pro Tem Harlan/Council Member Marr
MOTION: Approve recommended actions.

The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Harper, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.

Nays: None

Absent: None
Abstain: None
Motion carried: 7-0
ACTION:

City Council introduced for first reading, by title only, Ordinance No. 2023-03 approving Code Amendment CO-2022-01, amending Title 13 of the Costa Mesa Municipal Code (Zoning Code) to modify the City’s accessory dwelling unit (ADU) standards to conform to recent revisions to State law, and to clarify several existing provisions to improve ADU permit processing.

OLD BUSINESS:

1. RETAINER AGREEMENTS BETWEEN THE CITY OF COSTA MESA AND COMPLEX

APPELLATE LITIGATION GROUP, LLP FOR LEGAL SERVICES
Presentation by Ms. Hall Barlow, City Attorney
Mayor Stephens recused himself from the item due to campaign contributions received from the attorney, stepped down from the dais and left the Council Chambers.

Public Comments:

Cynthia McDonald spoke on the rate increase, requested total anticipated fees, and spoke on the cases.
125
Minutes – Regular Meeting – February 7, 2023 Page 8 of 11 MOVED/SECOND: Council Member Marr/Council Member Chavez MOTION: Approve recommended actions.

The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, and Mayor Pro Tem Harlan.

Nays: None

Absent: Council Member Harper
Abstain: Mayor Stephens
Motion carried: 5-0-1-1
ACTION:

1. City Council approved the Agreements between the City of Costa Mesa and the law firm of Complex Appellate Litigation Group, LLP in connection with the pending lawsuits entitled The Ohio House LLC v. City of Costa Mesa, United States District Court for the Central District of California, Case No. 8:19-cv-01710-JVS (GJSx), Insight Psychology and Addiction, Inc. v. City of Costa Mesa, United States District Court for the Central District of California, Case No. 8:20-cv-00504-MEMF-JDE, SoCal Recovery, LLC v. City of Costa Mesa, 9th Circuit Court of Appeals No. 20-55820, RAW Recovery, LLC v. City of Costa Mesa, 9th Circuit Court of Appeals No. 20-55870.

2. Authorized the City Manager and the City Clerk to execute the Agreements.

City Council recessed into a break at 8:00 p.m.

City Council reconvened at 8:10 p.m.

NEW BUSINESS:

1. CDBG CV HOMELESSNESS PREVENTION AND SERVICES TO LOW/MODERATE

INCOME HOUSEHOLDS
Presentation by Mr. Robbins, Neighborhood Improvement Manager.

Public Comments: None.

MOVED/SECOND: Mayor Pro Tem Harlan/Council Member Marr
MOTION: Approve recommended actions.

The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.

Nays: None

Absent: Council Member Harper,
Abstain: None
Motion carried: 6-0-1
126
Minutes – Regular Meeting – February 7, 2023 Page 9 of 11 ACTION:

1. City Council approved the reallocation of $344,000 in Community Development Block Grant - Coronavirus (CDBG-CV) funds from Program Administration ($274,000) and the Motel Isolation Voucher Program ($70,000) for street outreach, workforce development, senior meals, and homeless youth programs.

2. Authorized the City Manager (or their designee) and the City Clerk to execute all agreements and/or amendments to the agreements to award CDBG-CV funding in the amount of $70,000 for Trellis International, $189,000 for City Net, and $35,000 for Project Hope Alliance, each for a one-year term.

3. Approved the appropriation of $50,000 in CDBG-CV funds to provide meals for Costa Mesa senior citizens.

2. CITY OF COSTA MESA, COSTA MESA PUBLIC FINANCING AUTHORITY, COSTA

MESA FINANCING AUTHORITY, AND COSTA MESA HOUSING AUTHORITY

FINANCIAL STATEMENTS, AND HOUSING SUCCESSOR ANNUAL REPORT FOR THE PERIOD ENDING JUNE 30, 2022.

Presentation by Ms. Molina, Finance Director.

Public Comments: None.

MOVED/SECOND: Mayor Stephens/Council Member Chavez
MOTION: Approve recommended actions.

The motion carried by the following roll call vote:

Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.

Nays: None

Absent: Council Member Harper,
Abstain: None
Motion carried: 6-0-1
ACTION:

1. City Council received and filed the following reports for the fiscal year ended June 30, 2022:
a. Annual Comprehensive Financial Report (ACFR);
b. Air Quality Improvement Fund Compliance Report;
c. Audit Communication Letter; and
d. Independent Accountant's Report on Agreed-Upon Procedures Applied to Appropriation Limit Worksheets.

2. City Council and Costa Mesa Public Financing Authority received and filed the Costa Mesa Public Financing Authority audited financial statements for the fiscal year ended June 30, 2022.
127
Minutes – Regular Meeting – February 7, 2023 Page 10 of 11

3. City Council and Costa Mesa Financing Authority received and filed the Costa Mesa Financing Authority audited financial statements for the fiscal year ended June 30, 2022.

4. City Council and Housing Authority received and filed the following reports for the fiscal year ended June 30, 2022:
a. Independent Financial Audit of the Costa Mesa Housing Authority, including the Low and Moderate Income Housing Asset Fund; and
b. The Fiscal Year 2021-22 Housing Successor Annual Report prepared under the California Health and Safety Code Section 34176.1 as the housing successor and Section 34328 as a housing authority.

ADDITIONAL COUNCIL/BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND

SUGGESTIONS
Council Member Gameros requested to adjourn in honor of Devin Clark a resident who passed away.

ADJOURNMENT –The Mayor adjourned the meeting at 9:13 p.m. in memory of Devin Clark. 128
Minutes – Regular Meeting – February 7, 2023 Page 11 of 11 Minutes adopted on this 21st day of February, 2023.
___________________________
John Stephens, Mayor
ATTEST:
___________________________
Brenda Green, City Clerk
129

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1065 Meeting Date: 2/21/2023
TITLE:

EXTENSION OF CURRENT STREET SWEEPING SERVICES CONTRACT WITH SWEEPING

CORP OF AMERICA
DEPARTMENT: PUBLIC WORKS DEPARTMENT/MAINTENANCE SERVICES DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: ROBERT RYAN, MAINTENANCE SERVICES MANAGER, (714) 327-7499
RECOMMENDATION:

Staff recommends the City Council:

1. Approve Amendment No. 5 (Attachment No. 1) to the Professional Services Agreement (PSA) with Sweeping Corp of America (SCA), formerly known as CleanStreet, for Citywide street sweeping services.

2. Approve extension of time to June 30, 2023 and an increase of $248,815.48 to the compensation, totaling an annual not-to-exceed amount of $1,007,358.26.

3. Authorize the City Manager and City Clerk to execute the PSA and future amendments to the agreement within Council authorized limits with SCA.

BACKGROUND:

The City of Costa Mesa is responsible for the maintenance and regular sweeping of 977 streets, which includes over 850 miles of curb and gutter. On February 6, 2015, the City entered into a five (5) year agreement with three (3) additional one-year renewal periods with CleanStreet to provide weekly street sweeping services citywide. The final one-year extension period ends on February 28, 2023.

In October of 2021, the State of California Department of Industrial Relations (DIR) as a part of Public Works Case No. 2020-005, determined that street sweeping maintenance services for the City of Elk Grove constitute as public work, and is therefore subject to prevailing wage.

As the current agreement term is ending, the work needed to be re-bid and a new contract

Page 1 of 3 ends

130
File #: 23-1065 Meeting Date: 2/21/2023
As the current agreement term is ending, the work needed to be re-bid and a new contract established. The Costa Mesa City Attorney’sOffice reviewed the ruling by the DIR regarding the City of Elk Grove and determined that street sweeping services in Costa Mesa would be subject to prevailing wage as well and would be required in the new contract.

ANALYSIS:

On November 8, 2022, the Purchasing Division advertised a Request for Proposal (RFP) No. 23-06 for Street Sweeping Services as required by the City of Costa Mesa Municipal Code. The RFP was posted on the Planet Bids website.

Sweeping Corp of America (SCA) and Guardian Street Sweeping submitted proposals in response to the RFP. Guardian Street Sweeping submitted required forms and a cost proposal, however, they did not provide documentation establishing they met all minimum requirements. Therefore, Guardian Street Sweeping’s proposal is considered non-responsive.

SCA met all the minimum requirements and submitted the forms. As the SCA’sproposal is still under review, Public Works coordinated with the Purchasing Division to negotiate a four-month extension of the current contract (Attachment No. 2). This four-month extension will provide additional time for Public Works, Finance, and City leadership to review the new proposal and provide appropriate recommendations to City Council at a future meeting.

ALTERNATIVES:

The City Council could reject the proposed amendment and redirect staff to proceed with awarding the contract. However, this will require additional analysis and detailed fiscal review. As the contract is expiring on February 28, 2023, staff does not recommend this alternative.

FISCAL REVIEW:

The funding for the four-month extension of the contract is available in the Fiscal Year 2022-23 Public Works Department operations budget.

LEGAL REVIEW:

The City Attorney’sOffice has reviewed this report, prepared the Amendment No. 5 to the PSA, and approves them both as to form.

CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goal:
· Strengthen the Public’s Safety and Improve the Quality of Life

Page 2 of 3 ends

131
File #: 23-1065 Meeting Date: 2/21/2023
CONCLUSION:

Staff recommends that City Council:

1. Approve Amendment No. 5 (Attachment No. 1) to the Professional Services Agreement (PSA) with Sweeping Corp of America (SCA), formerly known as CleanStreet for Citywide street sweeping services;

2. Approve extension of time to June 30, 2023 and an increase of $248,815.48 to the compensation totaling an annual not-to-exceed $1,007,358.26; and

3. Authorize the City Manager and City Clerk to execute the PSA and future amendments to the agreement within Council authorized limits with SCA.

Page 3 of 3 ends

132
1 CleanStreets
Amendment Five
Rev. 08-2022
AM

ENDMENT NUMBER FIVE

TO PROFESSIONAL SERVICES AGREEMENT
WITH

CLEANSTREET
Thi
s Amendment Number Five (“Amendment”) is made and entered into this 21st day of February, 2023 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and CLEANSTREET, a California corporation (“Consultant”).

WH
EREAS, City and Consultant entered into an agreement on March 1, 2015 for Consultant to provide street sweeping services (the “Agreement”); and WH
EREAS, City and Consultant amended the Agreement through the First Amendment, dated June 15, 2015, to permit Consultant to lease space at City's Corporation Yard to store equipment used in connection with Consultant's services; and WH
EREAS, City and Consultant further amended the Agreement through the Second Amendment, dated January 2, 2018, to permit annual adjustments to Consultant's compensation based on Consumer Price Index ("CPI") data for the Los Angeles-Riverside-Orange County area, and increased Consultant's compensation by 2.6 percent (2.6%) based on the CPI increase from March 2016 to March 2017; and
W
HEREAS, City and Consultant increased Consultant's compensation by 2.5 percent (2.5%) based on the CPI increase for February 2018 to February 2019 through the Third Amendment to the Agreement, dated May 1, 2019; and
WH
EREAS, City and Consultant increased Consultant’s compensation by 3.1% through the Fourth Amendment to the Agreement, dated May 17, 2022; and W
HEREAS, Section 4.1 of the Agreement provides for a term of five (5) years, with the automatic extensions for three (3) additional one (1) year periods, terminating on February 28, 2023; and
WH
EREAS, City and Consultant desire to extend the term for four (4) additional months , through June, 30, 2023; and
WH
EREAS, City desires to increase Consultant’s maximum compensation to One Million Seven Thousand Three Hundred Fifty-Eight Dollars and Twenty-Six Cents ($1,007,358.26).

N
OW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. The ter
m of the Agreement shall be extended through June 30, 2023.

2. S
ection 2.1 of the Agreement shall be amended to reflect that Consultant’s total compensation shall not exceed One Million Seven Thousand Three Hundred Fifty- Eight Dollars and Twenty-Six Cents ($1,007,358.26).

3. A
ll terms not defined herein shall have the same meaning and use as set forth i n the A
greement.

ATTACHMENT NO. 1
133
2 CleanStreets
Amendment Five
Rev. 08-2022

4. All other terms, conditions, and provisions of the Agreement shall remain in full force and effect.

5. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above.

CONSULTANT

________________________________ Date: __________________________ Signature

________________________________
Name and Title

CITY OF COSTA MESA

__________________________________ Date: __________________________ Lori Ann Farrell Harrison
City Manager

ATTEST:

__________________________________
Brenda Green
City Clerk

APPROVED AS TO FORM:

__________________________________ Date: __________________________ Kimberly Hall Barlow
City Attorney

APPROVED AS TO INSURANCE:

__________________________________ Date: __________________________ Ruth Wang
Risk Management
134
3 CleanStreets
Amendment Five
Rev. 08-2022

APPROVED AS TO CONTENT:

________________________________ Date: __________________________ Robert Ryan
Project Manager

DEPARTMENTAL APPROVAL:

________________________________ Date: __________________________ Raja Sethuraman
Public Works Director

APPROVED AS TO PURCHASING:

________________________________ Date: __________________________ Carol Molina
Finance Director
135
4 CleanStreets
Amendment Five
Rev. 08-2022

136
1937 West 169th Street, Gardena, California 90247 (800) 225-7316 x108 CleanStreet.com E-mail: [email protected]
January 11, 2023
Mr. Paul Mackinen
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Email: [email protected]
RE: STREET SWEEPING PROPOSAL
Dear Mr. Mackinen,
CleanStreet is willing to extend street sweeping services for an additional month to month at the same rate and conditions.

Please feel free to give me a call if you have any questions or comments.

Sincerely,

CLEANSTREET
Rick Anderson
Director of Business Development
Cell: (310) 740-1601
Office: (800) 225-7316 x108
ATTACHMENT NO. 2
137

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1066 Meeting Date: 2/21/2023
TITLE:

THIRD AMENDMENT TO THE AGREEMENT WITH WEST COAST ARBORISTS, INC. FOR TREE

MAINTENANCE SERVICES
DEPARTMENT: PUBLIC WORKS DEPARTMENT/MAINTENANCE SERVICES DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: ROBERT RYAN, MAINTENANCE SERVICES MANAGER, (714) 327-7499
RECOMMENDATION:

Staff recommends the City Council:

1. Approve the Third Amendment (Attachment 1) to the Maintenance Services Agreement (MSA) with West Coast Arborists, Inc. (WCA), to provide maintenance of the City’s urban forest, increasing the annual compensation by $150,000 for an annual not to exceed amount of $778,679.04.

2. Authorize the City Manager and City Clerk to execute the proposed amendment and future amendments to the MSA.

BACKGROUND:

The City of Costa Mesa entered into a two (2) year agreement with WCA (Attachment 2) for comprehensive tree maintenance services on October 1, 2019, terminating on November 30, 2021 with the option to extend the term for one (1) successive two (2) year period. On December 1, 2021, the City and WCA entered the First Amendment to the agreement (Attachment 3) to exercise the two- year renewal period terminating on November 30, 2023. On February 17, 2022, the City and WCA entered into the Second Amendment to the Agreement (Attachment 4), increasing the annual compensation by $12,327.04 based on a Consumer Price Index increase of two percent (2%) for the 2021-2022 Fiscal Year, as permitted by the agreement.

ANALYSIS:

WCA has provided tree maintenance services to the City for over 20 years. The City has added over 700 new trees to its urban forest through Capital Improvement Projects (CIP) and through the Parkway Tree Planting Program since the beginning of the most recent agreement effective October 1, 2019. The newly planted trees require regular maintenance. As a result, staff requests City Council approval of the Third Amendment to the MSA to increase the compensation by $150,000 to ensure sufficient funding to continue to plant and provide proper care of newly planted trees. The additional funding will allow the Department to plant up to 100 new trees by June 30, 2023. The

Page 1 of 2 ends

138
File #: 23-1066 Meeting Date: 2/21/2023
additional funding will allow the Department to plant up to 100 new trees by June 30, 2023. The locations for the new trees will be identified through resident requests via the City’s new online Parkway Tree Planting Program. Additionally, staff will identify vacant tree sites in various parks and Westside in order to increase the tree canopy in deficient areas.

The first five years are critical for the long-term health and vitality of a tree. Proper watering and pruning will help provide for a healthy mature tree, and reduce future maintenance costs and potential failure. The new trees will be monitored on a regular basis. Automatic tree watering bags will be utilized in non-irrigated parkways. Tree stakes and ties will be inspected and adjusted as needed. Additionally, young trees will be trimmed and trained to ensure proper growth.

ALTERNATIVES:

The City Council could reject the proposed amendment and redirect staff to proceed with awarding the contract as is. This would require staff to reduce the maintenance and planting of new trees and preserve funding for dead tree removal, urgent special requests, prioritize trimming of mature trees and emergency responses.

FISCAL REVIEW:

The funding for the increase is available in the Fiscal Year 2022-23 Public Works Department operation budget. The department will be seeking an increase in its operating budget in future years for “Young Tree Care Program” to maintain newly planted trees.

LEGAL REVIEW:

The City Attorney’sOffice has reviewed this report, prepared the Third Amendment to the MSA, and approves them both as to form.

CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goal:
· Strengthen the Public’s Safety and Improve the Quality of Life CONCLUSION:

Staff recommends that City Council:

1. Approve the Third Amendment (Attachment 1) to the Maintenance Services Agreement with West Coast Arborists, Inc. (WCA), to provide maintenance of the City’s urban forest, increasing the annual compensation by $150,000 for an annual not to exceed amount of $778,679.04.

2. Authorize the City Manager and City Clerk to execute the proposed amendment and future amendments to the MSA.

Page 2 of 2 ends

139
1 West Coast Arborists, Inc.

Amendment Three
Rev. 08-2022
A

MENDMENT NUMBER THREE

TO MAINTENANCE SERVICES AGREEMENT
WITH
WEST COAST ARBORISTS, INC.

Thi
s Amendment Number Three (“Amendment”) is made and entered into this 21st day of February, 2023 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and WEST COAST ARBORISTS, INC. , a California corporation (“Contractor”).

W
HEREAS, City and Contractor entered into a Maintenance Services agreement dated October 1, 2019 for Contractor to provide tree maintenance services (the “Agreement”) by piggybacking onto the Encinitas Contract; and
W
HEREAS, the Agreement provided an initial term through November 30, 2021, with the option for the City to extend the term for one (1) successive two (2) year period, contingent upon an extension to the Encinitas Contract; and
W
EHEREAS, the Encinitas Contract was extended for a period of three (3) years, through January 8, 2025; and
W
HEREAS, on November 30, 2021, City and Contractor entered into Amendment Number One which extended the term for two (2) years, through November 30, 2023; and W
EHREAS, on February 17, 2021, City and Contractor entered into Amendment Number Two which increased prices and increased Contractor’s maximum annual compensation to an amount not to exceed Six Hundred Twenty -Eight Thousand Six Hundred Seventy -Nine Dollars and Four Cents ($628,679.04).

W
HEREAS, City now desires to increase Contractor’s maximum comp ensation by One Hundred and Fifty Thousand Dollars ($150,000.00) for a total compensation not to exceed Seven Hundred Seventy -Eight Thousand Six Hundred and Seventy -Nine Dollars and Four Cents ($778,679.04.00).

N
OW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. S
ection 2.1 of the Agreement shall be amended to reflect that Contractor ’s total compensation shall not exceed Seven Hundred Seventy -Eight Thousand Six Hundred and Seventy-Nine Dollars and Four Cents ($778,679.04.00). Contractor shall be paid according to the fee schedule set forth in the Agreement and Amendments to the Agreement.

2. A
ll terms not defined herein shall have the same meaning and use as set forth in the Agreement.

3. A
ll other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full force and effect.

ATTACHMENT 1
140
2 West Coast Arborists, Inc.

Amendment Three
Rev. 08-2022

4. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above.

CONTRACTOR

________________________________ Date: __________________________ Signature

________________________________
Name and Title

CITY OF COSTA MESA

__________________________________ Date: __________________________ Lori Ann Farrell Harrison
City Manager

ATTEST:

__________________________________
Brenda Green
City Clerk

APPROVED AS TO FORM:

__________________________________ Date: __________________________ Kimberly Hall Barlow
City Attorney

APPROVED AS TO INSURANCE:

__________________________________ Date: __________________________ Ruth Wang
Risk Management

141
3 West Coast Arborists, Inc.

Amendment Three
Rev. 08-2022

APPROVED AS TO CONTENT:

________________________________ Date: __________________________ Robert Ryan
Project Manager

DEPARTMENTAL APPROVAL:

________________________________ Date: __________________________ Raja Sethuraman
Public Works Director

APPROVED AS TO PURCHASING:

________________________________ Date: __________________________ Carol Molina
Finance Director
142
ATTACHMENT 2
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144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
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180
181
182
ATTACHMENT 3
183
184
185
186
187
188
ATTACHMENT 4
189
190
191
192
193
194
195
196

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1070 Meeting Date: 2/21/2023
TITLE:

SECOND READING OF AN ORDINANCE TO REPEAL CHAPTER I (BICYCLES AND MOTORIZED BICYCLE LICENSING) TO TITLE 4 (BICYCLES) OF THE COSTA MESA MUNICIPAL CODE DEPARTMENT: POLICE DEPARTMENT
PRESENTED BY: BRYAN WADKINS, ACTING CAPTAIN
CONTACT INFORMATION: BRYAN WADKINS, ACTING CAPTAIN, (714) 754-5354 RECOMMENDATION:

Staff recommends that the City Council give a second reading to and adopt:

Ordinance No. 2023-02 to repeal Chapter I (Bicycles and Motorized Bicycle Licensing) to Title 4 (Bicycles) of the Costa Mesa Municipal Code to comply with current California law.

BACKGROUND:

At its regular meeting on February 7, 2023, the City Council gave first reading to and introduced Ordinance No. 2023-02 by a 7-0 vote.

ANALYSIS:

The Ordinance is being presented for second reading and final adoption. If approved, repeal of Chapter I to Title 4 would be effective 30 days after adoption.

ALTERNATIVES:

The City Council may give second reading and adopt the Ordinance as proposed, modify the Ordinance, or not adopt the Ordinance. If the City Council chooses to make substantive modifications to the Ordinance after introduction, the modified Ordinance would need to be brought back at a future meeting for second reading and adoption.

FISCAL REVIEW:

There is no fiscal impact to adopting Ordinance No. 2023-02 to repeal Chapter I (Bicycles and Motorized Bicycle Licensing) to Title 4 (Bicycles) of the Costa Mesa Municipal Code.

LEGAL REVIEW:

The City Attorney’s Office has reviewed this report and approved it as to form.

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File #: 23-1070 Meeting Date: 2/21/2023
CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goal:
· Strengthen the Public's Safety and Improve the Quality of Life CONCLUSION:

Staff recommends that the City Council give second reading to and adopt Ordinance No. 2023-02.

The adoption of the proposed Ordinance would repeal Chapter I (Bicycles and Motorized Bicycle Licensing) to Title 4 (Bicycles) of the Costa Mesa Municipal Code to comply with current California law.

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ATTACHMENT 1
1 ORDINANCE NO. 2023-02

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, REPEALING CHAPTER I OF TITLE 4 OF THE COSTA MESA

MUNICIPAL CODE

THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY
ORDAIN AS FOLLOWS:

Section 1. Chapter I (Bicycle and Motorized Bicycle Licensing ) of Title 4 (Bicycles) of the Costa Mesa Municipal Code is hereby repealed.

Section 2 . The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law.

Section 3. Effective Date. This Ordinance shall take effect thirty (30) days after its final passage.

Section 4. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law.

PASSED AND ADOPTED this 21st day of February, 2023.

John Stephens, Mayor

ATTEST: APPROVED AS TO FORM:

Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney 199
ATTACHMENT 1
2 STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss

CITY OF COSTA MESA )

I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the above and foregoing Ordinance No. 2023-02 was duly introduced for first reading at a regular meeting of the City Council held on the 7th day of February, 2023, and that thereafter, said Ordinance was duly passed and adopted at a regular meeting of the City Council held on the 21st day of February, 2023, by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this 21st day of February, 2023.

BRENDA GREEN, CITY CLERK

(SEAL)

200

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1071 Meeting Date: 2/21/2023
TITLE:

ACCEPTANCE OF TRAINING FUNDS FROM THE CALIFORNIA BOARD OF STATE AND

COMMUNITY CORRECTIONS (BSCC) IN ACCORDANCE WITH THE STANDARD AND TRAINING FOR CORRECTIONS (STC), FOR CUSTODY OFFICER PERSONNEL TRAINING.

DEPARTMENT: POLICE DEPARTMENT, SUPPORT SERVICES DIVISION PRESENTED BY: DAVID CASAREZ, LIEUTENANT
CONTACT INFORMATION: DAVID CASAREZ, LIEUTENANT, (714) 754-5266 RECOMMENDATION:

Staff recommends the City Council:

2. Adopt Resolution 2023-xx in support of an application to BSCC to receive funds for training under the STC program for our custody officers.

BACKGROUND:

BSCC is an independent statutory agency that provides leadership to the adult and juvenile criminal justice systems, expertise on Public Safety Realignment issues, a data and information clearinghouse, and technical assistance on a wide range of community corrections issues, and gains their authority under California Penal Code sec. 6024. In addition, the BSCC promulgates regulations for adult and juvenile detention facilities, conducts regular inspections of those facilities, develops standards for the selection and training of local corrections and probation officers, and administers significant public safety-related grant funding.

The BSCC is charged with developing and maintaining information on realignment programs and practices so that local entities can access information about promising practices and innovative approaches.

The BSCC also inspects for compliance of standards and directs funding for construction of local adult and juvenile detention facilities and ensures that the local jail projects meet recent Legislative mandates to provide program space to rehabilitate offenders.

The BSCC’s work involves extensive collaboration with stakeholders, including local probation

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File #: 23-1071 Meeting Date: 2/21/2023
The BSCC’s work involves extensive collaboration with stakeholders, including local probation departments, sheriffs, county administrative offices, justice system partners, community-based organizations, and others. The BSCC sets standards and provides training for local adult and juvenile corrections and probation officers. It is also the administering agency for a host of federal and state public safety grants.

Policy for the agency is set by the 13-member Board of State and Community Corrections, whose member are prescribed by statute (California Penal Code Sec. 6025), appointed by the Governor and the Legislature, and subject to approval by the state Senate. The Board Chair reports directly to the Governor. Statutes relating to authority, programs and mandates are in the California Penal and Welfare and Institutions Codes, with operating regulations in Title 15 of the California Code of Regulations and physical plant regulations in Title 24.

The City of Costa Mesa Jail was a member of BSCC in 2013 and received funds from BSCC to help offset the cost to train our custody officers. In June 2013, when the City began contracting for jail services with an outside vendor, the City of Costa Mesa no longer qualified to be a member of BSCC and as a result, no longer qualified to receive training funds.

ANALYSIS:

As of September 6, 2022, the City of Costa Mesa Jail is being operated by custody officers, who are City personnel. As a member of BSCC, the Police Department will receive up to $10,000 annually to use towards training the City’s custody officers.

The Police Department currently meets the requirements to become a member of BSCC and intends to reestablish its membership on July 1, 2023.

ALTERNATIVES:

The City Council could choose not to reestablish the Police Department’smembership with BSCC; however, this option is not recommended because The City would not qualify for the $10,000 funds towards annual training offered by BSCC.

FISCAL REVIEW:

There is no cost to be a member of BSCC.

LEGAL REVIEW:

The City Attorney’s Office has reviewed this report and resolution and approves them as to form.

CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goal:
· Strengthen the Public’s Safety and Improve the Quality of Life.

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File #: 23-1071 Meeting Date: 2/21/2023
CONCLUSION:

Staff recommends the City Council:

2. Adopt Resolution 2023-xx in support of an application to BSCC to receive funds for training under the STC program for our custody officers.

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ATTACHMENT 1
Resolution No. 2023-xx Page 1 of 2

RESOLUTION NO. 2023-xx

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA

SUPPORTING AN APPLICATION TO THE CALIFORNIA BOARD OF STATE

COMMUNITY CORRECTIONS (BSCC) TO RECEIVE FUNDS FOR TRAINING UNDER THE STANDARDS FOR TRAINING FOR CORRECTIONS (STC) PROGRAM.

THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY RESOLVE AS FOLLOWS:

WHEREAS, the City Council of the City of Costa Mesa supports the training and education of its Police Department, including the City of Costa Mesa Jail; and WHEREAS, California Penal Code Title 7, Chapter 5, Article 2 and 3, commencing with Section 6035, provides that the city may receive State aid in order t o train custodial personnel in a local detention facility; and
WHEREAS, the BSCC sets standards and provides training for local adult and juvenile corrections and probation officers; and
WHEREAS, the City of Costa Mesa wishes to avail itself of such training.

NOW, THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF COSTA MESA AS FOLLOWS:

Section 1. While receiving State aid, the Costa Mesa Police Department’s Jail will adhere to the stand ards for selection and training, established by the Board of State Community Corrections (BSCC), as required under Penal Code Section 6035.

Section 2. This resolution will take effect immediately.

PASSED AND ADOPTED this __ day of ___, 2023.

___________________________________
John Stephens, Mayor

ATTEST: APPROVED AS TO FORM:

________________________ ___________________________________ Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney 204
ATTACHMENT 1
Resolution No. 2023-xx Page 2 of 2

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss

CITY OF COSTA MESA )

I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the above and foregoing is the original of Resolution No. 2023-xx and was duly passed and adopted by the City C ouncil of the City of Costa Mesa at a regular meeting held on the ___ day of ___, 2023, by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this __ day of __, 2023.

_________________________________

BRENDA GREEN, CITY CLERK

205

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1076 Meeting Date: 2/21/2023
TITLE:

SECOND READING AND ADOPTION OF ORDINANCE NO. 2023-03 AMENDING TITLE 13 OF

THE COSTA MESA MUNICIPAL CODE (ZONING CODE) TO CLARIFY EXISTING ACCESSORY

DWELLING UNIT PROVISIONS AND TO MODIFY STANDARDS TO CONFORM TO RECENT REVISIONS TO STATE LAW (CODE AMENDMENT CO 2022-01)
DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT/PLANNING

DIVISION
PRESENTED BY: JENNIFER LE, DIRECTOR OF ECONOMIC AND DEVELOPMENT SERVICES CONTACT INFORMATION: CHRIS YEAGER, ASSOCIATE PLANNER, 714-754-4883 RECOMMENDATION:

BACKGROUND:

The City of Costa Mesa has historically allowed ADUs and similar uses (such as granny flats) as either permitted or conditionally permitted uses. In response to State mandates effective on January 1, 2020, the City Council adopted an Urgency Ordinance at its December 17, 2019 meeting to establish temporary provisions permitting ADUs and JADUs in the City’sresidential zones. Later, on March 2, 2021, the City Council adopted Ordinance 2021-03 to establish permanent regulations, which provide the City’s current ADU regulations.

Currently, the City’sADU provisions specify that ADUs can be established through new construction or the conversion of existing floor area (remodels), and are subject to specific development standards including, but not limited to, the number of allowed units on one lot, floor area, setbacks, and height.

The City’sADU provisions were adopted in compliance with State law and are intended to increase the City’soverall housing supply while also providing additional affordable housing opportunities. The City’sADU provisions are also adopted to ensure that ADUs remain as an accessory use to the primary dwellings on the lot, and that ADUs do not adversely impact surrounding residents or the community at large. The City’sadopted ADU provisions are comprehensive, more flexible than the State requirements, and have resulted in a successful local housing program with growing community interest.

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File #: 23-1076 Meeting Date: 2/21/2023
State Law Changes and HCD Letter
Recent State laws were enacted modifying the California Government Code regarding ADUs and JADUs, including AB 2221 and SB 897. As a result, modifications to the City’slocal ADU provisions are required in order to maintain consistency with State law. Pursuant to Government Code Section 65852.2(a)(4), if a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of the Government Code, then that ordinance shall be considered “null and void.” In addition, in March 2022 the California Department of Housing and Community Development (HCD) provided a letter to the City indicating that the City’sADU provisions included inconsistencies with State law. In response to HCD, Housing Element Program 3E is included in the 6th Cycle Housing Element re-adopted by the City Council in November 2022. Housing Element Program 3E specifies that the City will revise the ADU Ordinance as appropriate by December 2024. This Code Amendment implements and completes Housing Element Program 3E ahead of schedule.

Planning Commission Review
Staff prepared an Ordinance modifying the City’s existing ADU provisions to address State law changes and HCD comments and to clarify provisions to improve processing. On October 24, 2022, the Planning Commission adopted Resolution No. PC-2022-29 finding the Ordinance exempt from the provisions of the California Environmental Quality Act (CEQA) and recommended approval of the Ordinance to the City Council with a 6-0 vote (Ereth absent). As part of its motion, the Planning Commission provided comments to recommending that the Council consider additional modifications to facilitate additional ADUs in common interest developments, prohibit mechanical equipment with required four-foot setbacks, and improve design requirements for garage conversions, balconies, and entries. (Refer to the attachment). The Planning Commission’srecommended changes have been incorporated into the proposed ordinance. Refer to the February 7, 2023 City Council report for a detailed description of the Ordinance.

PUBLIC NOTICE:

Pursuant to Government Code 36933, a summary of the proposed Ordinance was published once in the newspaper no less than 5 days prior to the February 21, 2023 second reading. A summary of the adopted ordinance will be published within 15 days after the adoption.

As of this report, no written public comments have been received. Any additional written comments received will be forwarded under separate cover.

ANALYSIS:

At its regular meeting of February 7, 2023, the City Council gave first reading to and introduced Ordinance No. 2023-03 by a 7-0 vote.

February 7 Agenda Report:
<https://costamesa.legistar.com/View.ashx?M=F&ID=11619544&GUID=9214AA6A-AB9F-4774-97C9 -1DF87054B9C9>

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File #: 23-1076 Meeting Date: 2/21/2023
February 7 Meeting video:
<https://costamesa.granicus.com/player/clip/3945?
view_id=14&redirect=true&h=e0562605c4967a6dc4775c9c59afde2b> No changes to the proposed Ordinance were made. The Ordinance is being presented for second reading and final adoption. If approved, the Ordinance would become effective 30 days after the second reading.

Ordinance No. 2023-03 is included as Attachment 1 to this report.

ALTERNATIVES:

FISCAL REVIEW:

The adoption of the proposed Ordinance will not have any fiscal impact on the City’s budget.

LEGAL REVIEW:

The proposed Ordinance and this report have been prepared in conjunction with and approved by the City Attorney’s Office.

CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council goal:
· Diversify, Stabilize and Increase Housing to Reflect Community Needs CONCLUSION:

Staff recommends the City Council give second reading to and adopt Ordinance No. 2023-03 approving Code Amendment CO-2022-01, amending Title 13 of the Costa Mesa Municipal Code (Zoning Code) to clarify existing accessory dwelling unit provisions and to modify standards to conform to recent revisions to State Law.

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ATTACHMENT 1
-1-
ORDINANCE NO. 2023-03

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA
MESA APPROVING CODE AMENDMENT CO-2023-01 AMENDING
CHAPTER V, ARTICLE 1, SECTION 13-35 (ACCESSORY DWELLING UNITS) OF TITLE 13 OF THE COSTA MESA MUNICIPAL CODE TO

CLARIFY EXISTING ACCESSORY DWELLING UNIT PROVISIONS AND

TO MODIFY STANDARDS TO CONFORM TO RECENT REVISIONS TO

STATE LAW

THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1: Findings. The City Council finds and declares as follows:

WHEREAS, updates to the City’s Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (JADU) provisions are required to provide consistencies between the City’s Zoning Code and the State law; and

WHEREAS, in response to the implementation of State and local law regarding ADUs and JADUs, City staff found inconsistencies in the Zoning Code that require updating; and

WHEREAS, recently adopted State housing laws, including AB 2221 and SB 987, require updates to the City’s ADU and JADU provisions; and

WHEREAS, Government Code section 65852.2(a)(4) provides in part, “if a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void;” and

WHEREAS, this Ordinance is necessary to implement State and local ADU provisions, establish the minimum development standards in the Costa Mesa Municipal Code to regulate ADUs, and to ensure consistency with State law.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY ORDAINS AS FOLLOWS:

SECTION 2: Code Amendment. Section 13-35 (Accessory Dwelling Units). Chapter V, Article 1, Section 13-35 (Accessory Dwelling Units) of Title 13, Planning, Zoning and Development of the Costa Mesa Municipal Code, as specified in Exhibit A, attached hereto and incorporated herein by this reference, is hereby amended as set forth therein.

SECTION 3. Repeal. All portions of prior ordinances, including those within Urgency Ordinance 19-19, to the extent that they are inconsistent with the terms of this Ordinance are hereby repealed and replaced by this Ordinance.
209

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SECTION 4. Compliance with CEQA. Adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelines Section 15282(h), in that the adoption of an ordinance regarding second units in a single-family or multifamily zone by a city or county to implement the provisions of Sections 65852.1, 65852.150 and 65852.2 is exempt from the requirements of CEQA. In addition, the proposed ordinance amendment is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) in that there is no possibility that the minor updates to the City’s ADU provisions will have a significant impact on the environment.

SECTION 5. Inconsistencies with State Law. Any provision of this Ordinance which is inconsistent with State law shall be interpreted in a manner which is the most limiting on the ability to create ADUs or Junior ADUs, but which is consistent with State law. Any provision of the Costa Mesa Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.

SECTION 6. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Costa Mesa hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

SECTION 7. Effective Date. This Ordinance shall take effect on the 31st day after adoption.

SECTION 8. Certification. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law.

SECTION 9. Transmit Ordinance to HCD. The City Clerk is directed to send a copy of this ordinance to the Department of Housing and Community Development within 60 days of the adoption of this Ordinance.

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PASSED AND ADOPTED this _____ day of ________, 2023

_________________________________
Mayor

ATTEST: APPROVED AS TO FORM

______________________________ ________________________________ Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney 211

-4-

I, Brenda Green, City Clerk of the City of Costa Mesa, do hereby certify that the above and foregoing is a true and correct copy of Ordinance No. 2023-03 ____ introduced at a regular meeting of the City Council of the City of Costa Mesa held on the ____ day of _____, 2023, and was thereafter adopted at a regular meeting held on the _____ day of _______, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

Said ordinance has been published or posted pursuant to law.

Witness my hand and the official seal of the City of Costa Mesa this ____ day of _______, 2023.

_________________________________
Brenda Green, City Clerk
212
ATTACHMENT 2
Exhibit A to the Ordinance
13-35. Accessory dwelling units.
(a) Purpose, general plan consistency, definitions.
(1) Purpose and interpretation. The intent of this section is to ensure that accessory dwelling units (ADUs) and Junior ADUs remain as an accessory uses in residential and mixed-use zones, that the structures on parcels are organized to accommodate an ADU and/or Junior ADU, and that such dwelling units do not adversely impact surrounding residents or the community. This section 13-35 is intended to retain the ability of the city to regulate ADUs in terms of design, aesthetics, massing and integration with existing structures and to comply with the requirements of state law.
(2) General plan consistency. In adopting these standards, the city recognizes that the approval of dwelling units may, in some instances, result in dwelling densities exceeding the maximum densities prescribed by the general plan. The city finds that this occurrence is consistent with the general plan, as allowed under state planning and zoning law applicable to ADUs, and that the amendment furthers the goals, objectives, and policies of the general plan housing element. (3) Definitions. For purpose of this section 13-35 only:
a. The terms “accessory dwelling unit” (ADU), “public transit,” “passageway” and “tandem parking” all have the same meaning as that stated in Government Code section 65852.2 as that section may be amended time to time. b. “Junior ADU” shall have the same meaning as that stated in Government Code section 65852.22(h)(1) as that section may be amended from time to time.
c. A structure is considered “existing” if a building permit was issued and finaled before an ADU or JADU application is submitted under this section. d. The terms “single-family dwelling” and “multifamily dwelling” exclude all detached accessory structures.
e. The term “single-family dwelling” is a dwelling (excluding any ADU or Junior ADU) that is not attached to another dwelling. Single-family dwellings may include detached single-family homes where there is more than one (1) primary dwelling on a lot.
f. A “multifamily dwelling” is a dwelling (excluding any ADU or Junior ADU) within a multifamily dwelling structure.
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213
g. A “multifamily dwelling structure” is a structure which contains at least two (2) lawful dwellings within the structure, excluding ADUs and Junior ADUs.

Storage rooms, boiler rooms, passageways, attics, basements, garages and other non-habitable spaces are considered within a “multifamily dwelling structure” if such non-habitable spaces are within the same structure as at least two (2) other multifamily dwellings.
(b) Accessory dwelling units.
(1) Residential and mixed use zones only. ADUs are permitted in single-family, multifamily, and mixed use zones (i.e., zones where single-family and/or multifamily dwellings are allowed), and only on a legal lot with proposed or existing residential dwelling(s) which will remain on site. By way of illustration only, the zones where accessory dwellings are allowed are shown on the Citywide Land Use Matrix at section 13-30. If there is any conflict between the requirement that ADUs be approved in (and only in) zones where single-family and multifamily dwellings are allowed and the Land Use Matrix, the former shall control. (2) Underlying zone. Except as otherwise provided in this section, ADUs shall conform to the development standards of the underlying zone. (3) Ministerial. Any application for an ADU that meets the requirements of this section shall be approved ministerially by the city by applying the standards herein and without a public hearing or notice of decision or zoning approval. (4) Maximum number of dwelling units. The following is the maximum number of ADUs and or Junior ADUs allowed on any lot. Only one category may be used per lot including lots that include a mixture of single-family and multiple family dwellings with the exception as allowed in subsection “c” below.
a. Single-family. Only one ADU and only one Junior ADU may be permitted on a lot with a proposed or existing single-family dwelling subject to the following:

1. Conversion within a single-family dwelling.
(i) An ADU or Junior ADU may be within the existing footprint of a lawful single-family dwelling. Alternatively, an ADU may be within a lawfully constructed existing accessory structure; in this case up to one hundred fifty (150) square feet may be added beyond the physical dimensions of the existing accessory structure solely to accommodate ingress and egress to the ADU; and
(ii) Each such ADU and Junior ADU must have independent exterior access from the single-family dwelling, and have side and rear setbacks sufficient for fire safety; or
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214

2. New construction. One (1) new construction ADU may be permitted on a lot with proposed or existing single-family dwelling. One (1) new construction Junior ADU may be allowed on the lot if the Junior ADU is to be in a single-family dwelling that meets all applicable legal standards. b. Multifamily. Junior ADUs are not allowed on a lot with more than one residence. ADUs are not allowed within new construction residences where, after construction, there will be at least two (2) residences on the lot (e.g. detached residential structures, duplexes, apartments); up to two (2) ADUs are allowed with such structures pursuant to subsection 3, below. For lots with an existing legal multifamily dwelling (e.g., a legal non-conforming multifamily dwelling), the applicant may have ADU(s) pursuant to one of the following:

1. Maximum ADUs within existing multifamily dwelling structure. No more than twenty-five (25) percent, with any partial unit rounded down) of the number of existing multifamily dwelling units on the lot, but at least one (1) unit, shall be permitted as ADU(s) constructed within the enclosed non- livable space (e.g., storage rooms, boiler rooms, hallways, attics, basements, or garages) of the existing multifamily dwelling structures; or

2. Maximum attached ADUs. No more than one (1) attached ADU is permitted. The ADU shall be attached to the multifamily dwelling structure; or

3. Maximum detached ADUs. No more than two (2) detached ADUs are permitted. Both units shall be detached from every residence on site (but need not be detached from each other). This section shall apply to detached structures that are converted and new construction detached ADUs. Conversion detached ADUs are not subject to height, setbacks, and maximum square footage; or

4. Maximum mixed (detached/within) ADUs. No more than twenty-five (25) percent, with any partial unit rounded down) of the number of existing multifamily dwelling units on the lot, but at least one (1) unit, shall be permitted as ADU(s) constructed within the enclosed non-livable space (e.g., storage rooms, boiler rooms, hallways, attics, basements, or garages) of the existing multifamily dwelling structures; and no more than two ADUs that are detached from each multifamily dwelling structure on site.
c. Common Interest Developments. One conversion ADU may be permitted per unit on lots developed with common interest developments. (5) Maximum size.
a. Single-family.
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215

1. Detached. For lots with a proposed or existing single-family dwelling, a detached ADU shall not have more than one thousand two hundred (1,200) square feet.

2. Attached. An ADU attached to a single-family dwelling shall be no more than the greater of fifty (50) percent of the square footage of the existing single-family dwelling or one thousand (1,000) square feet. b. Multifamily, exterior construction.

1. Detached. For lots with an existing legal multifamily dwelling structure proposing one (1) new construction detached ADU, the ADU shall not exceed one thousand two hundred (1,200) square feet. For lots with an existing or proposed legal multifamily dwelling structure proposing two (2) detached ADUs, the ADUs shall not exceed eight hundred (800) square feet; or

2. Attached. For lots with an existing legal multifamily dwelling structure, an attached ADU shall not exceed the greater of1,000 square feet or fifty (50) percent of the average floor area of the existing multiple family dwelling units.
c. Interior conversions. Notwithstanding subsections a and b immediately above, ADUs which are converted from space entirely within lawful existing structures, and ADUs entirely within proposed lawful single-family dwellings, are not subject to a limit on maximum square footage.
(6) Minimum size.
a. ADUs may be efficiency units. Notwithstanding the general limitation on efficiency units being no smaller than two hundred twenty (220) square feet, ADUs may also be less than two hundred twenty (220) square feet, provided that they are no smaller than one hundred fifty (150) square feet, and comply with all other legal requirements.
(7) Conversions of dwelling units.
a. Total conversion of single-family dwelling. An entire existing single-family dwelling may be converted to an ADU if the ADU complies with all applicable requirements of this section and a new single-family residence with a total gross floor area exceeding that of the ADU is constructed in full compliance with code requirements.
b. Partial conversion/addition. A portion of the existing single-family or multifamily dwelling may be converted to an ADU with new additional square footage, which additional square footage shall comply with all standards -4-
216
applicable to attached ADUs, and all converted square footage shall comply with standards applicable to conversions. The maximum square footage of the attached ADU shall be based upon the size of the existing dwelling before construction of the ADU addition.
(c) Junior ADUs.
(1) Rule. Junior ADUs shall comply with the requirements of this subsection (c), in addition to the requirements of subsection (d) of this section 13-35. (2) Maximum size. A Junior ADU shall not exceed five hundred (500) square feet in gross floor area.
(3) Owner occupancy requirement. The owner of a parcel proposed for a Junior ADU shall occupy as a primary residence either the primary dwelling unit or the Junior ADU. Owner-occupancy is not required if the owner is a governmental agency, land trust, or “housing organization” as that term is defined in Government Code section 65589.5(k)(2), as that section may be amended from time to time. (4) Short-term rentals prohibited. A Junior ADU shall not be rented for periods of less than 31 days unless otherwise authorized by the municipal code. (5) Location of Junior ADU. A Junior ADU shall be entirely within an existing or proposed single-family dwelling.
(6) Kitchen requirements. A Junior ADU shall include an efficiency kitchen, including a cooking facility with appliances, outlet for a small refrigerator, food preparation counter and storage cabinets that are of reasonable size in relation to the size of the Junior ADU.
(7) Parking. No additional parking is required beyond that already required for the primary dwelling.
(8) Fire protection; utility service. For the purposes of any fire or life protection ordinance or regulation or for the purposes of providing service for water, sewer, or power, a Junior ADU shall not be considered a separate or new unit, unless the Junior ADU was constructed in conjunction with a new single-family dwelling. No separate connection between the Junior ADU and the utility shall be required for units created within a single-family dwelling, unless the Junior ADU is being constructed in connection with a new single-family dwelling. (9) Exterior and interior access. The Junior ADU shall include an exterior entrance separate from the main entrance to the single-family dwelling. If the Junior ADU shares bathroom facilities with the main dwelling, the Junior ADU shall also have interior entry to the main dwelling’s living area. -5-
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(d) Development standards. All ADUs and Junior ADUs must comply with the following requirements:
(1) Ministerial project. Any application for an ADU or Junior ADU that meets the requirements of this section shall be approved without a public hearing. (2) Application by owner. An application for a building permit for an ADU or Junior ADU building permit shall be made by the owner of the parcel on which the primary unit sits and shall be filed with the city on a city-approved application form and subject to the established fee set by city council resolution as it may be amended from time to time.
(3) Separate sale prohibited. Except as otherwise provided by law (e.g., Government Code section 65852.26), ADUs and Junior ADUs may not be sold or otherwise conveyed separate from the primary residence. (4) Utilities.
a. All ADUs and Junior ADUs must be connected to public utilities (or their equivalent), including water, electric, and sewer services. b. Except as provided in subsection c immediately below, the city may require the installation of a new or separate utility connection between the ADU and the utility. For Junior ADUs, see subsection (c)(8), above. c. No separate connection between the ADU and the utility shall be required for units created within a single-family dwelling, unless the ADU is being constructed in connection with a new single-family dwelling. d. Each ADU and Junior ADU shall have a separate mailing address as assigned by the City.
(5) Recorded covenants. Before obtaining a building permit, the owner shall file with the county recorder, in a form approved by the city attorney, a covenant which does all of the following:
a. Prohibit the sale of the ADU and Junior ADU separate from the single- family residence; and
b. Unless subsequently prohibited by an amendment to state law, for ADUs approved on or after January 1, 2025, the ADU shall be considered legal only as long as either the primary residence or the ADU is occupied by the owner of record or state law is amended to prohibit such requirements. Junior ADUs require owner occupancy of either the single-family dwelling or the Junior ADU; and
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c. Restrict the ADU or JADU to the maximum size allowed by Municipal Code section 13-35, as it may be amended from time to time; and d. Unless authorized by this Code, prohibit renting the ADU for periods less than thirty-one (31) days; and
e. Confirm that the restrictions shall be binding upon any successor in ownership of the property, and lack of compliance shall result in legal action against the property owner for noncompliance.
(6) Passageway. No passageway shall be required in conjunction with the construction of an ADU.
(7) Building permits required. Applications for ADUs and Junior ADUs shall conform to the requirements for, and shall obtain, a building permit consistent with the requirements of Title 5 (Buildings and Structures). By way of reference only, current requirements generally require all dwellings to have no less than two hundred twenty (220) square feet. Fire sprinklers shall not be required if they are not required for the primary residence; if, however, the ADU is attached to the primary dwelling, and if an addition to the dwelling would require sprinklers for an addition to the primary dwelling in the same location, then sprinklers shall be required.
(8) Setbacks.
a. None. No setbacks are required for either: (1) those portions of ADUs that are created by converting existing living area or existing accessory structures to a new ADU; or (2) constructing new ADUs in the same location, while not exceeding the existing dimensions, including height. Notwithstanding the foregoing, ADUs shall, at minimum, comply with setbacks that are sufficient for fire and life safety.
b. Other setbacks. For all other ADUs, there shall be a minimum of setbacks of four (4) feet from side and rear property lines and full compliance with all applicable front yard setbacks for the underlying zone. Second floor ADUs shall provide setbacks in conformance with the underlying zone. All mechanical equipment associated with the ADU shall maintain the minimum setbacks.
c. Distance between structures. The minimum required distance between a detached ADU and the primary dwelling unit, and all other structures on the property, including garages, shall be six (6) feet.
(9) Height. Except as authorized in subsection b, below, in no event may any portion of a new construction ADU exceed two (2) stories or exceed the height of any other dwelling that could legally be on the property. In all cases, a height of at -7-
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least eighteen (18) feet shall be allowed for ADUs. An additional two feet in height may be permitted to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit. Furthermore, except as authorized in subsection a and b, below, an ADU shall be entirely only on the first floor. a. Second floor or two-stories. An ADU on a lot which has an existing lawfully constructed dwelling, may be in whole or in part on a second floor, or be a two (2) story ADU, if all five (5) of the following occur:

1. All portions of the ADU structure on a second floor are at least twenty-five (25) feet from the front property line; and

2. Each stairwell for the ADU is interior or complies with subsection (10), below; and

3. The second floor of any portion of the ADU, if built above a detached garage, does not exceed the footprint of the garage; and

4. No windows are installed on the second floor on side elevations if such windows are within twenty-five (25) feet of a neighboring dwelling and face the neighboring property unless such windows have a minimum sill height of at least five (5) feet; and

5. The second floor (or the entire two (2) story ADU as applicable) meets the setbacks applicable to additions for the underlying zone. b. Within structure. The ADU is built entirely within either:

1. A proposed or existing lawfully constructed single-family dwelling, except that an external stairwell to the ADU which meets all requirements of this code, including the requirements of subsection (10), below, may be constructed to allow access to the ADU; or

2. The non-habitable space of an existing multifamily structure or within an accessory structure on a lot with a multifamily structure. (10) Exterior stairways, balconies.
a. Exterior Stairways. A new exterior stairway to a second-floor ADU shall not be visible from the public right of way at the front of the property. Second floor landings using an exterior stairway shall be kept to the minimum size required to comply with applicable codes. Stairways and landings shall incorporate screening materials designed to eliminate views into abutting properties. Stairways and landings, which exceed building code minimum sizes, are prohibited. Stairways and landings shall not be counted toward residential open space requirements.
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b. Balconies. New balconies which face the street and are located at the front of the main residential structure are permitted provided that the balcony be set back a minimum of twenty (20) feet from the front property line. On corner properties, balconies may face the side street provided that they maintain the setback for the underlying zone. Balconies within 25 feet of a neighboring residence shall incorporate screening to ensure there are no direct views into the abutting property. New construction balconies that are not facing the front of the property or a side street, are prohibited. c. Roof Decks. No new roof decks are allowed for ADUs. (11) Architectural standards.
a. Attached ADUs. Each ADU which is attached to the primary dwelling shall appear to be part of the primary dwelling. It shall have the same design, materials, finishes, and colors as the primary dwelling and shall be in accordance with code design standards and guidelines applicable to the zone. b. Detached ADUs. Any detached ADU shall be compatible in exterior appearance with the primary unit or units in terms of design, materials, finishes, and colors within the same property on which it is proposed to be constructed, in accordance with code design standards and guidelines applicable to the zone.
c. Junior ADUs. Junior ADUs shall match exterior appearance with the primary unit in terms of design, materials, finishes, and colors within the same property on which it is proposed to be constructed, in accordance with code design standards and guidelines applicable to the zone. (12) Garage conversions.
a. No blank façade. When a garage is converted to an ADU, if the façade of the converted garage is visible from a public right-of-way, the façade shall implement at least one of the following:
i. be covered with landscaping that covers at least fifty (50) percent of the wall, or
ii. include openings of at least 10% of the façade with at least one door that complies with section 13 below or one window which matches the material and design of the existing windows on the residence.
b. Driveway. The driveway may only be removed if it is replaced with landscaping or open space, and the curb cut and driveway apron are removed and replaced with a curb and gutter which meet city standards. Partial -9-
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driveway removals may be permitted if the remaining driveway provides the minimum parking dimensions per subsection 14 below.
(13) Entry. The entrance to an ADU or Junior ADU shall match the materials and color of the primary residence(s), not be located on the same building elevation as the main reentrance of the primary residence(s) and shall be located along the building side, rear, or within the interior of the property, unless the Economic and Development Services Director approves an alternative configuration due to unique development circumstances.
(14) Parking.
a. The owner may provide parking that is at least eight and a half (8.5) feet wide and eighteen (18) feet long and may be provided as:

1. Tandem parking on an existing driveway in a manner that does not encroach onto a public sidewalk; or

2. Within a setback area or in locations determined feasible by the city.

Locations will be determined infeasible based upon specific site or regional topographical or fire and life safety conditions, or that such parking is not permitted anywhere else in the city.
b. When an existing garage, carport, or covered parking structure is converted or demolished in conjunction with the construction of an ADU or converted to an ADU, the off-street parking spaces do not have to be replaced, notwithstanding any other provision of this code to the contrary (e.g., the definition of “driveway” in section 13-6, Table 20-8(c) a driveway does not lose its status as a lawful “driveway” if it leads to a structure that was either converted from a garage into either an ADU or Junior ADU or demolished in conjunction with the construction of an ADU or Junior ADU. In no event shall the demolition of a garage be considered “in conjunction with” the construction of an ADU if the ADU will not be constructed within any portion of the footprint of the demolished garage.
(15) Non-conforming. The city shall not require, as a condition of a permit for an ADU or Junior ADU the correction of nonconforming development standards. (16) Short-term rentals prohibited. ADUs and Junior ADUs shall not be rented for a term of less thirty-one (31) days, unless otherwise authorized by this code. (17) Open space and landscaping. ADUs which exceed eight hundred (800) square feet in gross floor area shall meet the open space requirements of section 13-32 and shall be subject to provide landscaping as required in section 13- 106. (Ord. No. 11-10, § 1, 9-20-11; Ord. No. 18-03, § 5, 1-16-18; Ord. No. 21-03, § 3, 3-2-21)
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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1080 Meeting Date: 2/21/2023
TITLE:

AUTHORIZE THE CITY MANAGER TO ISSUE REFUNDS FOR RETAIL CANNABIS APPLICATION FEES
DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT/PLANNING

DIVISION
PRESENTED BY: JENNIFER LE, DIRECTOR OF ECONOMIC AND DEVELOPMENT SERVICES CONTACT INFORMATION: JENNIFER LE, (714) 754-5270
RECOMMENDATION:

Staff recommends City Council give the City Manager, or her designee, the authority to issue refunds for retail cannabis application fees.

BACKGROUND:

On November 3, 2020, the voters of Costa Mesa approved Measure Q (“The City of Costa Mesa Retail Cannabis Tax and Regulation Measure”) authorizing City Council to adopt ordinances to establish retail cannabis regulations, taxation, and zoning requirements.

At their regular meeting on June 1, 2021, City Council adopted a fee resolution to establish application processing fees and service charges related to cannabis business permit (CBP) and conditional use permit (CUP) applications.

The agenda report and attachments for the fee resolution item can be found at this link:
<http://ftp.costamesaca.gov/costamesaca/council/agenda/2021/2021-06-01/PH-3.pdf> On August 12, 2021, the City began accepting applications for retail cannabis businesses including storefronts and non-storefronts (delivery). To date, the City has received a total of 62 retail cannabis storefront applications and are in different stages of the cannabis permit review and approval process.

Of the 62 cannabis retail storefront applications, a total of 17 Conditional Use Permit (CUP) applications have gone before the Planning Commission for review and approval, with 14 of the 17, or 82 percent, being approved to operate. Of the remaining three applications presented to the Planning Commission, two were denied and have requested appeals before the City Council (one of the two City Council appeal hearings is scheduled on Tuesday, February 21, 2023), and one application was continued to the Planning Commission meeting of Monday, February 27, 2023 for consideration.

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As of this date, there are 45 remaining retail cannabis storefront permit applications that are in various stages of the review and approval process, as follows: a total of 20 applicants are in the Conditional Use Permit stage of the process; an additional 4 applicants are in the Cannabis Business Permit stage of the process; another 15 applicants are in the pre-application stage of the process; and 6 applications are on a pre-application waitlist. Please see the below Exhibit 1 for a cannabis permit process summary.

Staff is requesting City Council authorize the City Manager to issue full refunds for any and all applicants who elect to withdraw their cannabis applications from the permit application and review process.

ANALYSIS:

Due to the large volume of CUP applications that are awaiting processing, as well as the significant amount of time associated with processing each individual CUP, staff is recommending that refunds be offered to retail cannabis applicants interested in voluntarily withdrawing their applications.

Despite numerous City employees in multiple departments involved in cannabis permit processing, the number of outstanding applications remains high.

Refer to Table 1 below for a summary of the remaining retail cannabis applications to be processed.

Table 1 - Remaining Retail Cannabis Applications
Further, staff anticipates resources currently allocated to processing retail cannabis applications will need to be realigned to begin implementing recent State legislation that mandates changes to the City’sGeneral Plan and Municipal Code to ensure compliance with new State laws promulgated under the following:

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Further, other required City efforts include City visioning and rezoning work consistent with the legally required Housing Element update, State mandated planning for the reuse of the State-owned Fairview Developmental Center site as per the Omnibus State Budget Bill for Fiscal Year 2021-22, and other legally required housing policies and programs. Given the need to ensure compliance with recent changes in State law and other City Council objectives and priorities, retail cannabis applicants may decide that continuing in the permit process may be further protracted and elect to withdraw their applications.

The application fee for a retail CBP is $19,732 and for a retail cannabis CUP is $18,499. Since the pre-application fee is minimal at $1,500, the Finance Director has the authority to issue those refunds.

ALTERNATIVES:

Council may opt to not approve the recommended actions and direct staff accordingly.

FISCAL REVIEW:

If all remaining cannabis retail storefront applications were voluntarily withdrawn and refunds were requested, approximately $900,000 could be refunded. (Refunds could also be provided to delivery applicants, if requested.) This scenario is highly unlikely as some applicants will wish to remain in the process.

However, the funds have already been collected by the City and are available for reimbursement subject to a Cannabis Reimbursement Request and Release Form to be developed and approved by the City Attorney in concert with the Finance Department who would process the refunds as per City Manager approval.

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LEGAL REVIEW:

This report has been approved as to form by the City Attorney’s Office.

CITY COUNCIL GOALS AND PRIORITIES:

This item is administrative in nature.

CONCLUSION:

Staff recommends City Council give the City Manager, or her designee, the authority to issue refunds for retail cannabis application fees paid to the City by any and all cannabis applicants voluntarily choosing to withdraw from any stage of the City’s cannabis retail permit application and review process.

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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1081 Meeting Date: 2/21/2023
TITLE:

APPEAL OF PLANNING APPLICATION 22-21 FOR A RETAIL CANNABIS STOREFRONT BUSINESS LOCATED AT 2001 HARBOR BOULEVARD, SUITES 101-103 (SOUTH COAST SAFE

ACCESS)
DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT /

PLANNING DIVISION
PRESENTED BY: MICHELLE HALLIGAN, CONTRACT PLANNER
CONTACT INFORMATION: MICHELLE HALLIGAN, (714) 754-5608
RECOMMENDATION:

Staff recommends the City Council:
· Uphold the Planning Commission’s decision and adopt a Resolution to deny Planning Application 22-21; or
· Overturn the Planning Commission’sdecision and adopt a Resolution to approve Planning Application 22-21, subject to conditions of approval; or · Remand Planning Application 22-21 back to the Planning Commission to reconsider the matter.

APPLICANT OR AUTHORIZED AGENT:

The authorized agent is Randall Longwith on behalf of Access Costa Mesa, Inc. dba South Coast Safe Access, and the property owner, Vaccher Family Trust.

BACKGROUND:

Project Site / Environs
The subject property is located at 2001 Harbor Boulevard. The approximate one-acre mid-block property is located on the west side of Harbor Boulevard, bounded by Charle Street to the west. The site is zoned C2 (General Business District) and is surrounded by C2 zoned properties to the north and south. Other commercial properties, zoned C1 (Local Business District), are located across Harbor Boulevard to the east. Residential properties, zoned R2-HD (Multiple-Family Residential District, High Density) are located across Charle Street to the west. The site has a General Plan Land

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Use Designation of General Commercial.

Existing development on the subject property consists of a two-story, 21,086-square-foot commercial building. The first floor includes 4,667 square feet of retail space (3 tenant suites are proposed for the cannabis retail operation and currently vacant; two other tenant suites are occupied by Mar Vac (JV Electronics Inc.), an electronics retail business) and a 6,752-square-foot space for Mar Vac’s warehouse. The second floor includes 5,947 square feet of office space (4 tenant suites are occupied by a counseling use, Yellowstone Recovery), which specializes in addiction recovery, and one tenant suite is occupied by Mar Vac for office use). The site includes a 66-space surface parking lot with ingress/egress on Harbor Boulevard and Charle Street.

Application Request
The applicant requests a Conditional Use Permit (CUP) to establish “South Coast Safe Access,” a retail cannabis storefront. The proposed establishment would occupy a 3,720-square-foot area on the first floor, adjacent to Harbor Boulevard. The proposed cannabis retail establishment proposes to be open between the hours of 7 AM and 10 PM, seven days a week.

Planning Commission Denial
The application was heard by the Planning Commission at their November 28, 2022 meeting. One letter in support of the proposed project was received and states that the applicant’s other businesses (located outside of the City) have been successful and the proposed use would be helpful to the City of Costa Mesa. Two letters in opposition to the proposed use were received. One of the opposition letters contained a statement in opposition to retail cannabis in general, and the other letter commented that the proposed cannabis establishment would negatively impact residential uses along Charle Street, and be incompatible with various youth programs and substance addiction recovery programs in the vicinity. Written comments were provided to the Planning Commission for consideration and are available at the link provided below in the Public Notice section of the report.

After receiving the staff report and staff presentation, considering the applicant’spresentation, and considering public testimony, a motion was made to approve the Conditional Use Permit (CUP) and failed for lack of a second to the motion. A subsequent motion was then made to deny the application and was seconded.

Following the motion for denial, the Commission members provided comments on the motion. The Commissioners that supported the motion for denial stated that based on the evidence presented in the administrative record they could not make the necessary Conditional Use Permit finding that that the proposed use “issubstantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area”.The Commissioners stated that the application was not compatible and would be detrimental to the counseling use with addiction recovery and rehabilitation programs operating in a suite located directly above the proposed cannabis retail establishment. The Commissioners that did not support the motion for denial stated that they could generally not differentiate the proposed site from other similar applications the Commission had approved, and that the individual business owners should individually manage site land use inconsistencies. In addition, it was noted that although the use is located in close proximity to the addiction recovery counseling use, the counseling operators were notified of the proposed

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cannabis application and did not reach out to the Planning Commission indicating concern.

The Planning Commission denied the application request on a 4-2 vote.

Links to the staff report and meeting video for the November 28, 2022 Planning Commission hearing are provided below:
· Staff Report & Attachments -
<https://costamesa.legistar.com/LegislationDetail.aspx?ID=5945896&GUID=BDEA2256-A0F6- · Video -
<https://costamesa.granicus.com/player/clip/3925?
The final denial Resolution reflecting the November 28, 2022 Planning Commission action is provided as Attachment 4 to the report.

Appeal of Planning Commission’s Decision to Deny the Application On December 5, 2022 an appeal of Planning Commission’sdenial of the project was filed by David Dewyke, an owner of the proposed cannabis establishment. In addition to the appeal application, the appellant’sattorneys submitted several follow-up letters to the City and requested an appeal hearing be scheduled before the Council on February 21, 2023. The appeal application and supplemental information is included as Attachment 3 of this report.

ANALYSIS:

The following analysis addresses the topics raised in the December 5, 2022 appeal application.

Pursuant to CMMC Section 13-10(i)(2)(c), the Planning Commission has the authority to “approve, conditionally approve or deny applications for conditional use permits...”.Additionally and pursuant to CMMC Sections 13-28(B) and 13-200.93(c)(1), subject to the approval of the Planning Commission, a CUP is required for the establishment of cannabis retail storefronts in a commercial zone. All cannabis operators in Costa Mesa are required to obtain a Conditional Use Permit (CUP). As defined in the CMMC, a CUP is “adiscretionary approval usually granted by the Planning Commission which allows a use or activity not allowed as a matter of right, based on specified findings” [emphasis added]. Unlike uses that are listed in the CMMC that are permitted “by-right”,a use that requires a CUP necessitates the Planning Commission to use their judgment to determine whether a proposed project meets the required CUP findings and should be entitled.

REQUIRED CUP FINDINGS
As indicated above and pursuant to the CMMC, the Planning Commission must make findings in order to support a decision to approve or deny a conditional use permit. CMMC Title 13, Section 13- 29(g), requires that the Planning Commission consider and make the following specific findings in conjunction with a CUP review:
· The proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area;

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· Granting the conditional use permit will not be materially detrimental to the health, safety and general welfare of the public or otherwise injurious to property or improvements within the immediate neighborhood; and
· Granting the conditional use permit will not allow a use, density or intensity which is not in accordance with the General Plan designation and any applicable specific plan for the property.

ISSUES RAISED IN THE APPEAL
The appellant letter states that the basis for the Planning Commission denial for the subject application “is not supported by substantial evidence, is arbitrary and capricious and finally, is in violation of a settlement agreement between the City, the property owner and the applicant”.

To the contrary, the Planning Commission decision was based specifically on the findings required by CMMC Title 13, Section 13-29(g).
· The Planning Commission denial decision “is not supported by substantial evidence” The Planning Commission decision to deny the application was based on its determination that the project does not meet the findings required pursuant to CMMC Title 13, Section 13-29(g). Primarily, the Planning Commission could not make the required finding that “the proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area”. The record of the Planning Commission’sdecision indicates that the majority of the Planning Commission determined that the proposed cannabis use was not “substantially compatible” with the addiction recovery counseling use (“Yellowstone Recovery”) located on the same property (“same general area”).

The counseling use is called “Yellowstone Recovery Outpatient Treatment” and involves individual and group counseling for clients in addiction recovery for drugs and alcohol including marijuana ( <https://www.yellowstonerecovery.com/>). On October 26, 2020, the Planning Commission approved Zoning Application 20-07 for a deviation in parking requirements for group counseling at Yellowstone Recovery. The counseling use is located in suites 200, 210, and 220 of the subject property (above the proposed cannabis retail use). The counseling use is permitted to operate between the hours of 9 AM and 9 PM, Monday through Friday, although staff may be onsite between 8 AM and 10 PM Monday through Friday and on weekends between 8 AM and 4 PM. The link to the October 26, 2020 Planning Commission staff report is provided below:
<http://ftp.costamesaca.gov/costamesaca/planningcommission/agenda/2020/2020-10-26/PH-2.pdf> The appellant also argues that “the denial of the proposed project was not based on the rules and regulations that currently exist in the City’sMunicipal Code”. The Municipal Code establishes rules and regulations for cannabis uses.

Separation Requirements pursuant to CMMC Section 13-200.93(e) stipulates that no cannabis retail storefront use shall be located within 1,000 feet from a K-12 school, playground, licensed child daycare, or homeless shelter, or within 600 feet from a youth center as defined in CMMC Title 9, Chapter VI, Section 9-485, that is in operation at the time of submission of a completed cannabis business permit application. The subject site complies with the required separation from the sensitive

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business permit application. The subject site complies with the required separation from the sensitive uses identified in this Code section.

Separately and in addition to the minimum separation requirements established by the Code, the CMMC also requires that the Planning Commission consider the CUP findings in making a decision to grant a CUP to a retail cannabis storefront. If the findings cannot be made, the Planning Commission is obligated to deny the CUP request. In this case, the Planning Commission reviewed the facts presented and determined that the cannabis retail use was not substantially compatible with the “Yellowstone”Recovery”addiction counseling use located on the subject property and above the proposed retail storefront. Therefore, the Planning Commission did consider “the rules and regulations that currently exist in the City’sMunicipal Code” and made its determination that the proposed use did not meet the findings for granting a CUP.

At the Planning Commission hearing, when Commissioners inquired about the addiction counseling use, the property owner was not present and the applicant was unable to provide information regarding the use. The application for appeal stated that the counseling operator’s“leaseexpires in less than 30 days” and that they have “been advised they will not be permitted to remain as a holdover tenant.” In response to these statements, staff conducted a site visit and determined Yellowstone Recovery was still in full operation. Staff then requested supplemental documentation about Yellowstone Recovery’s lease agreement.

On Tuesday, February 14, 2023, the appellant provided two sublease agreements for the counseling use. The original sublease agreement for Yellowstone Recovery was effective March 1, 2015 to September 30, 2017. An extension of the sublease agreement was signed on October 1, 2020, but the timeframe of the sublease was listed as between October 3, 2017 and December 31, 2022. JV Electronics Inc. clarified in a letter dated February 10, 2023, that Yellowstone Recovery’ssublease expired on December 31, 2022. Yellowstone Recovery was informed by email on January 26, 2023 and by letter on February 11, 2023 that they must vacate the property no later than April 30, 2023.

The applicant did not provide this information prior to or at the November 28, 2022 Planning Commission public hearing However, the Council may consider this information, submitted after the appeal, in their “de novo” review.

As of February 15, 2023, staff observed that Yellowstone Recovery was still operating at the subject property.
· The Planning Commission denial decision “is arbitrary and capricious” Generally, a decision is considered “arbitrary and capricious” when a decision is made without reasonable grounds or adequate consideration of the circumstances. However in the case of the subject Planning Commission decision, the Planning Commission specifically agreed by majority vote that they could not make the CMMC required finding that “the proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area”.The Planning Commission decision in regard to this finding was centered on their concern with the addiction recovery counseling use located on the same site and directly above the proposed cannabis retail storefront, and the inherent incompatibility

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between the two uses.

The appellant indicates that “forthe Planning Commission to attempt to impose new personal notice, open house, translation, and/or sensitive receptor conclusion of the public hearing is the definition of arbitrary and capricious, and represents nothing more than the Commission improperly substituting its own personal opinions for the desires of the voters and the lawfully established requirements of the CMMC”. However, many cannabis storefront applications have been approved after similar inquiries about the applicant’s outreach efforts and community feedback. During the hearing, the applicant’srepresentative indicated that they were not aware of the addiction recovery counseling operation and that there had not been any communication with the counseling business. · The Planning Commission denial decision “is in violation of a settlement agreement between the City, the property owner and the applicant” The appellant argues that a previous settlement agreement between the City, the property owner and the applicant requires that the City “make good faith efforts to expeditiously process the CUP application and schedule a hearing thereon in a manner consistent with the other Phase 1 CUP storefront retail applications whose pre-applications were deemed complete on or about September 10, 2021”. The appellant further argues that the application “was not processed in good faith” because the Planning Commission denied the application “solely on personal opinion, biases and flagrant disregard of the standards set forth in Measure Q and the CMMC”.

The appellant’sstatements are in error. The application was processed in good faith and a Planning Commission hearing was scheduled consistent with the agreed upon timeline (i.e., consistent with other Phase 1 applications whose pre-applications were submitted around the same time). The Settlement Agreement did not and cannot pre-commit or dictate the outcome of the Planning Commission’s decision ahead of the public hearing process.

The Planning Commission action does not reflect bias or flagrant disregard of the standards set forth in Measure Q and the CMMC. To the contrary, the Planning Commission diligently reviewed the subject application pursuant to the CMMC’sminimum standards and requirements for cannabis uses and the required findings for a CUP as contained in the CMMC.

CITY COUNCIL DE NOVO HEARING
Pursuant to CMMC Chapter 9, Appeal and Review Procedures, the City Council shall conduct a new or “de novo” review of the matter being appealed. Evidence that may be considered includes the Council staff report and the Planning Commission reports, Resolution, and findings. However, the hearing is not limited to the grounds stated for the appeal or the evidence that was previously presented to the Planning Commission. The City Council may exercise its independent judgment and discretion in making a decision. The City Council’s decision on the matter is final.

The Council may:

1. Uphold the Planning Commission’s decision and adopt a Resolution to deny Planning Application 22-21. A draft Resolution for denial is provided as Attachment 1 consistent with the Planning Commission decision.

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File #: 23-1081 Meeting Date: 2/21/2023

2. Overturn the Planning Commission’s decision and adopt a Resolution to approve Planning Application 22-21, subject to conditions of approval. A draft Resolution for approval is provided as Attachment 2 and includes applicable conditions of approval.

3. Remand Planning Application 22-21 back to the Planning Commission to consider the supplemental information provided by the appellant after the Planning Commission hearing.

ENVIRONMENTAL DETERMINATION:

Per CEQA Guidelines Section 15270(a), CEQA does not apply to projects which a public agency rejects or disapproves. However, if the City Council desires to overturn the Planning Commission decision and approve the proposed use, the project is categorically exempt from the provisions of CEQA pursuant to CEQA Guidelines Section 15301 for the permitting and/or minor alteration of Existing Facilities, involving negligible or no expansion of the existing use. This project site contains an existing commercial building that has been used for commercial activities and the application does not propose an increase in floor area or other substantial expansion of the existing or prior commercial use.

ALTERNATIVES:

The City Council has the following alternatives:

1. Deny the request. The City Council may uphold the Planning Commission’sdecision and adopt a Resolution to deny the request;

2. Approve the request, subject to conditions of approval. The City Council may overturn the Planning Commission’s decision and approve the request subject to conditions of approval;

3. Remand the request back to the Planning Commission.

FISCAL REVIEW:

There are no fiscal impacts with this agenda item.

LEGAL REVIEW:

The City Attorney’s Office has reviewed this report and approves it as to form.

PUBLIC NOTICE:

Pursuant to Title 13, Section 13-29(d), of the Costa Mesa Municipal Code, three types of public notification have been completed no less than 10 days prior to the date of the public hearing:

1. Mailed notice. A public notice was mailed to all property owners and occupants within a 500-foot radius of the project site. The required notice radius is measured from the external boundaries of the property. (See attached Notification Radius Map.)

2. On-site posting. A public notice was posted on each street frontage of the project site.

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File #: 23-1081 Meeting Date: 2/21/2023

3. Newspaper publication. A public notice was published once in the Daily Pilot newspaper.

As of this report, three written public comments have been received and are provided as an attachment to this report. Any additional public comments received prior to the February 21, 2023 City Council meeting will be provided separately.

Notice for the Planning Commission hearing was provided in the same manner as described above.

For the Planning Commission hearing, three written public comments were received (labeled PH-3) and can be found at the link below.
· Planning Commission Public Comments:
<https://costamesa.legistar.com/View.ashx?M=E3&ID=922033&GUID=AE7C3FD6-1F4E- CITY COUNCIL GOALS AND PRIORITIES:

This item is administrative in nature.

CONCLUSION:

Yellowstone Recovery occupies the suites directly above the proposed cannabis storefront and is an individual and group counseling that specializes in alcohol and substance addiction recovery. After diligent review of the record and considering testimony from the public and the applicant, the Planning Commission determined that the proposed cannabis retail storefront was not a compatible use when located on the same property and directly below the addiction recovery use. Specifically, the Planning Commission could not make the required finding that “the proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area”, and denied the application.

The applicant appealed the Planning Commission’sdecision to deny the CUP request to the City Council. In conjunction with the appeal, the appellant also provided supplemental information showing that the counseling use’slease expired in December 31, 2022. On January 26, 2023 via email and on February 11, 2023 via letter, JV Electronics Inc. notified Yellowstone Recovery that they are to vacate the property by April 30, 2023. As of the writing of this report, the addiction counseling use remains in operation at the site.

Since the City Council’sreview of the application is “de novo”, the Council may approve, deny, or remand the application back to the Planning Commission.

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ATTACHMENT 1
Resolution No. 2023-xx Page 1 of 4
RESOLUTION NO. 2023-xx

A RESOLUTION OF THE CITY COU NCIL OF THE CITY OF COSTA
MESA, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION ’S DECISION AND DENY PLANNING APPLICATION 22-21 FOR A RETAIL CANNABIS STOREFRONT BUSINESS LOCATED AT 2001 HARBOR
BOULEVARD, SUITES 101-103 (SOUTH COAST SAFE ACCESS)

THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY FINDS AND DECLARES AS FOLLOWS:

WHEREAS, Planning Application 22-21 was filed by Randall Longwith with Costa Mesa Access, Inc. dba South Coast Safe Access, authorized agent for the property owner, Vaccher Family Trust, requesting approval of the following:

A Conditional Use Permit to operate a storefront retail cannabis business within a 3,720-square-foot tenant space within an existing commercial building located at 2001 Harbor Boulevard, Suites 101, 102, and 103. The business would sell pre - packaged cannabis and pre -packaged cannabis products directly to customers onsite, subject to conditions of approval and other City and State requirements; WHEREAS, a duly noticed public hearing was held by the Planning Commission on November 28, 2022 with all persons having the opportunity to speak for and against the proposal, and the project was denied by the Planning Commission on a 4-2 vote; WHEREAS, an appeal of the Planning Commission’s denial of the project was filed on December 5, 2022;
WHEREAS, a duly noticed public hearing was held by the City Council on February 21, 2023 with all persons having the opportunity to speak for and against the appeal; WHEREAS, the project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City’s environmental procedures, and the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15270(a) in that CEQA does not apply to projects which a public agency rejects or disapproves.

NOW, THEREFORE, based on evidence in the record and the findings contained in Exhibit A, the City Council hereby upholds the decision of the Planning Commission to DENY Planning Application 22-21.

249

Resolution No. 2023-xx Page 2 of 4
PASSED AND ADOPTED this 21st day of February, 2023.

_____________________________
John Stephens, Mayor

ATTEST: APPROVED AS TO FORM:

________________________ _____________________________ Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss

CITY OF COSTA MESA )

I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the above and foregoing is the original of Resolution No. 2023-XX and was duly passed and adopted by the City Council of the City of Costa Mesa at a regular meeting held on the 21st day of February 2023, by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this 21st day of February 2023.

_________________________________
Brenda Green, City Clerk

250

Resolution No. 2023-xx Page 3 of 4

EXHIBIT A

FINDINGS

A. Pursuant to CMMC Section 13-29(g), when granting an application for a conditional use permit, the review authority shall find that the evidence presented in the administrative record substantially meets required findings. The Applicant failed to meet its’ burden to demonstrate that the pro posed project would comply with all of the requirements of Section 13 -29(g)(2) and therefore the City Council is unable to make all of the required findings to approve the propose d use as set forth herein below:

Finding: “The proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area.”

Facts in Support of Finding: The proposed cannabis establishment would be located on the first floor of a two-story, multitenant commercial building.

The business located on the same property and occupying the second floor suites directly above the proposed cannabis storefront is an individual and group counseling provider (i.e., Yellowstone Recovery) that spe cializes in alcohol and substance addiction recovery. After careful consideration of the evidence presented in the record the Planning Commission determined that the proposed cannabis retail storefront would not be substantially compatible with the existing onsite counseling use, which serves a clientele that is in recovery for alcohol and/or substance addiction and is located on the same site and in the second floor tenant suites directly above the proposed cannabis retail storefront. While the applicant provided a statement that Yellowstone Recovery was to leave the site by April 2023, Yellowstone Recovery is still in operation at the site and its departure cannot be guaranteed.

Finding: “Granting the conditional use permit or minor conditional use permi t will not be materially detrimental to the health, safety and general welfare of the public or otherwise injurious to property or improvements within the immediate neighborhood.”

Facts in Support of the Finding: The proposed cannabis establishment would potentially be materially detrimental to the general welfare of the public in that the proposed cannabis retail use is not substantially compatible with the existing addiction recovery use operating on the same site and in the second floor tenant suites directly above the proposed cannabis retail storefront.

Finding: “Granting the conditional use permit or minor conditional use permit will not allow a use, density or intensity which is not in accordance with the general plan designation and any applicable specific plan for the property.”

Facts in Support of the Finding: The proposed use is consistent with General Plan policies related to economic development and jobs. In addition, 251

Resolution No. 2023-xx Page 4 of 4
the proposed cannabis retail storefront is consistent with the commercial General Plan land use designation for the site , and would not result in a density or intensity that is not in accordance with the General Plan.

252
ATTACHMENT 2
Resolution No. 2023-xx Page 1 of 15
RESOLUTION NO. 2023-xx

A RESOLUTION OF THE CITY COU NCIL OF THE CITY OF COSTA MESA, CALIFORNIA, TO OVERTURN THE PLANNING COMMISSION ’S DECISION AND APPROVE PLANNING APPLICATION 22-21 FOR A RETAIL CANNABIS STOREFRONT BUSINESS LOCATED AT 2001 HARBOR BOULEVARD, SUITES 101- 103 (SOUTH COAST SAFE ACCESS)

THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY FINDS AND DECLARES AS FOLLOWS:

A Conditional Use Permit to operate a storefront retail cannabis business within a 3,720-square-foot tenant space within an existing commercial building located at 2001 Harbor Boulevard, Suites 101, 102, and 103. The business would sell pre - packaged cannabis and pre -packaged cannabis products directly to customers onsite, subject to conditions of approval and other City and State requirements; WHEREAS, a duly noticed public hearing was held by the Planning Commission on November 28, 2022 with all persons having the opportunity to speak for and against the proposal, and the project was denied by the Planning Commission on a 4-2 vote; WHEREAS, an appeal of the Planning Commission’s denial of the project was filed on December 5, 2022;
WHEREAS, a duly noticed public hearing was held by the City Council on February 21, 2023 with all persons having the opportunity to speak for and against the appeal; WHEREAS, pursuant to the California Environmental Quality Act (CEQA), the project is exempt from the provisions of CEQA per Section 15301 (Class 1), for Existing Facilities;
NOW, THEREFORE, based on evidence in the record and the findings contained in Exhibit A, and subject to the conditions of approval contained within Exhibit B, the City Council hereby overturns the decision of the Planning Commission and APPROVES Planning Application 22-21.

253
Resolution No. 2023-xx Page 2 of 15
PASSED AND ADOPTED this 21st day of February, 2023.

_____________________________
John Stephens, Mayor

ATTEST: APPROVED AS TO FORM:

________________________ _____________________________ Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss

CITY OF COSTA MESA )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this 21st day of February 2023.

_________________________________
Brenda Green, City Clerk

254
Resolution No. 2023-xx Page 3 of 15

EXHIBIT A

FINDINGS

A. Pursuant to CMMC Section 13-29(g), when granting an application for a conditional use permit , the review authority shall find that the evidence presented in the administrative record substantially meets required findings. The proposed project complies with Costa Mesa Municipal Code Section 13-29(g)(2) because:

Finding: “The proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area.”

Facts in Support of Finding:

The subject site is located within the C2 Zoning District (General Business District). The C MMC defines the C2 zone as “intended to provide for those uses which offer a wide range of goods and services which are generally less compatible with more sensitive land uses of a residential or institutional nature.” The subject property is located on Harbor Boulevard, one of the City’s major arterials. The General Plan states that, “The Harbor Boulevard commercial corridor accounts for almost one -third of the City’s commercial land. Businesses along the boulevard account for 40 percent of the City’s total retail sales...” Adjacent uses along the corridor include several multi -tenant commercial centers with a variety of commercial businesses (automotive, pharmacies, medical office, and other retail).

Pursuant to the CMMC, cannabis retail storefronts are conditionally permitted uses in the City’s commercial zones and are subject to extensive regulation (as specifically described in this report). These regulations are adopted to prevent land use inconsistencies with adjacent properties. Additionally, the proposed cannabis retail storefront use is not located within 1,000 feet of a K- 12 school, playground, licensed child daycare, or homeless shelter, or within 600 feet of a youth center. All retail sales would take place underroof, no outdoor storage or sales are proposed nor would be allowed.

The proposed storefront would be located in the first floor suites closest to Harbor Boulevard, with hours of operation limited to 7 AM and 10 PM. The existing counseling use on the second floor is approved to serve client s between 9 AM and 9 PM, with staff onsite between 8 AM and 10 PM. While this use is inconsistent with the proposed retail cannabis use, evidence was presented to the City Council that the counseling use on site will be discontinued by the end of April 202 3 due to a lack of agreement on lease terms. The electronic and warehousing uses are located in the middle and rear of the subject property, closest to Charle Street. Based on the existing and anticipated uses, no history of complaints regarding the exist ing operations on the site, and observations of ample parking, staff does not anticipate that the use would be materially detrimental to adjacent nonresidential uses, nearby residents , nor the existing businesses onsite , 255
Resolution No. 2023-xx Page 4 of 15
provided that the counseling business moves to another location as the City was advised.

However, the parking lot access to Charle Street is currently developed with a vehicle gate that can restrict ingress and egress to the site from the adjacent residential street. In order to ensu re that the proposed storefront does not increase traffic conditions on Charle Street, a proposed condition of approval has been included in the attached Resolution that requires that gate to be closed and locked between 6:00 PM and 8:00 AM.

The use would be conditioned to be compliant with applicable local and State laws and to minimize potential impacts to surrounding properties. Staff does not anticipate that the proposed retail cannabis use would be materially detrimental to the adjacent uses. Therefore, the retail cannabis use would be compatible with other properties within the area, and in compliance with local and State requirements.

Finding: “Granting the conditional use permit or minor conditional use permit will not be materially detrimental to the health, safety and general welfare of the public or otherwise injurious to property or improvements within the immediate neighborhood.”

Facts in Support of the Finding: The applicant submitted evidence that the drug and alcohol recover y counseling service located above the proposed cannabis retail storefront use will be moving offsite by the end of April 2023.

In addition, t he proposed cannabis retail storefront use would follow safety measures detailed in a professionally -prepared sec urity plan. The security plan was evaluated for compliance by the City’s cannabis consultant, HdL.

Measures designed to maintain safety at the site include, but are not limited to, at least one security guard would be onsite at all times and security devices shall be installed before operation. Examples of security devices include window and door alarms, motion -detectors, limited access areas, and a monitored video surveillance system covering all exterior entrances, exits, exterior loading and unloading, a nd all interior limited access spaces. In addition, the business employees, including part -time staff, must pass a live scan background check and obtain an identification badge from the City. The conditions of approval include, but are not limited to, the aforementioned security measures to ensure that the use would not be materially detrimental to the health, safety and general welfare of the public or be otherwise injurious to property or improvements within the immediate neighborhood.

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Resolution No. 2023-xx Page 5 of 15
Facts in Support of the Finding: The proposed retail use is located within an existing commercial building on a property that has a General Plan land use classification of “General Commercial.” No additional square footage is proposed and the proposed retail cannabis establishmen t would occupy vacant spaces within an existing multitenant commercial building that includes office, retail, and warehousing uses. The previous occupants of the subject suites were leased for other retail and office uses and, therefore, approving the CUP would not increase site intensity. As stated in the General Plan Land Use Element, the use is consistent with General Plan policies related to providing a mixture of commercial goods, services, and employment opportunities; expanding the City’s tax base; and promoting the incubation of unique and specialized businesses.

B. The project is categorically exempt from the provisions of CEQA pursuant to CEQA Guidelines Section 15301 for the permitting and/or minor alteration of Existing Facilities, involving negligible or no expansion of the existing use. This project site contains an existing commercial building that has been used for commercial activities and the application does not propose an increase in floor area or other expansion of the existing or prior commercial use. The project is consistent with the applicable General Plan land use designation and policies as well as with the applicable zoning designation and regulations.

C. The project is subject to a traffic impact fee, pursuant to Chapter XII, Article 3 Transportation System Management, of Title 13 of the Costa Mesa Municipal Code.

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EXHIBIT B

CONDITIONS OF APPROVAL

General

Plng. 1. The use of this property as a cannabis storefront (without delivery to customers) shall comply with the approved plans and te rms described in the resolution, these conditions of approval, and applicable sections of the Costa Mesa Municipal Code (CMMC) . The Planning Commission may modify or revoke any planning application based on findings related to public nuisance and/or noncompliance with conditions of approval [Title 13, Section 13-29(o)].

2. Approval of the planning/zoning application is valid for two years from the effective date of this approval and will expire at the end of that period unless the applicant establishes the use by one of the following actions: 1) a building permit has been issued and construction has commenced, and has continued to maintain a valid building permit by making satisfactory progress as determined by the Building Official, 2) a certificate of occupancy has been issued, or 3) the use is established and a business license has been issued.

A time extension can be requested no less than 30 days or more than sixty (60) days before the expiration date of the permit and submitted with the appropriate fee for review to the Planning Division. The Director of Development Services may extend the time for an approved permit or approval to be exercised up to 180 days subject to specific findings listed in Title 13, Section 13-29 (k) (6). Only one request for an extension of 180 days may be approved by the Director. Any subsequent extension requests shall be considered by the original approval authority.

3. No person may engage in any cannabis business or in any cannabis activity within the City including the sale of cannabis or a cannabis product unless the person:
a. Has a valid Cannabis Business Permit from the City;
b. Has paid all Cannabis Business Permit and all application fees and deposits established by resolution of the City Council, including annual Community Improvement Division inspection deposits;
c. Has obtained all applicable planning, zoning, building, and other applicable permits from the relevant governmental agency which may be applicable to the zoning district in which such cannabis business intends to operate;
d. Has obtained a City business license pursuant to Chapter I of the Municipal Code;
e. Is in compliance with all requirements of the Community Improvement Division regarding the property;
f. Has obtained any and all licenses required by State law and/or regulations; and
g. Has satisfied all CUP conditions of approval.
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Resolution No. 2023-xx Page 7 of 15

4. Any change in the operational characteristics of the use shall be subject to Planning Division review and may require an amendment to the Conditional Use Permit, subject to either Zoning Administrator or Planning Commission approval, depending on the nature of the proposed change.

5. No cultivation of cannabis is allowed anywhere on the premises.

6. The uses authorized by this Conditional Use Permit must be conducted in accordance with all applicable State and local laws, including, but not limited to compliance with the most current versions of the provisions of the California Code of Regulations that regulate the uses permitted hereby.

Any violation thereof shall be a violation of the conditions of this permit and may be cause for revocation of this permit.

7. Except for operations allowed by this Conditional Use Permit (storefront only) and under an active Cannabis Business Permit and State Type 10 license (no delivery proposed nor approved), no permit holder or any of its employees shall sell, di stribute, furnish, and/or otherwise provide any cannabis or cannabis product to any person, firm, corporation, group or any other entity, unless that person or entity is a lawful, bona fide customer, or it possesses all currently valid permits and/or licenses required by both the State of California and applicable local governmental entity to lawfully receive such cannabis and to engage in a “cannabis activity” as defined by Costa Mesa Municipal Code sec. 9-485. The permit holder shall verify that the recipient, regardless of where it is located, of any cannabis or cannabis product sold, distributed, furnished, and/or otherwise provided by or on behalf of the permit holder, possesses all required permits and/or licenses therefor.

8. The applicant, the property owner and the operator (collectivley referred to as “indemnitors”) shall each jointly and severally defend, indemnify, and hold harmless the City, its elected and appointed officials, agents, officers and employees from any claim, legal action, or proceeding (collectively referred to as "proceeding") brought against the City, its elected and appointed officials, agents, officers or employees arising out of City's approval of the project, including but not limited to any proceeding under the California Environmental Quality Act. The indemnification shall include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorney's fees, and other costs, liabilities and expenses incurred in connection with s uch proceeding whether incurred by the applicant, the City and/or the parties initiating or bringing such proceeding. This indemnity provision shall include the indemnitors’ joint and several obligation to indemnify the City for all the City's costs, fees, and damages that the City incurs in enforcing the indemnification provisions set forth in this section.

9. If any section, division, sentence, clause, phrase or portion of this approval is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions.
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Resolution No. 2023-xx Page 8 of 15

10. The use shall operate in accordance with the approved Security Plan. Any changes to the Security Plan must be submitted to the Planning Division with a written explanation of the changes. If the Director determines that changes are substantial, a modification to the Cannabis Business Permit and/or amendment to the CUP may be required.

11. A parking management plan, including techniques described in Operational Condition of Approval No. 7, must be approved by the Director of Economic and Development Services or designee prior to any grand opening or other high volume event on the subject property.

Bldg. 12. If the plans are submitted in 202 2, development shall comply with the requirements of the following adopted codes: 2019 California Residential Code, 2019 California Building Code, 2019 California Electrical Code, 2019 California Mechanical Code, 2019 California Plumbing Code, 2019 California Green Building Standards Code and 2019 California Energy Code (or the applicable adopted, California Residential Code, California Building Code, California Electrical Code, California Mechanical Code, California Plumbing Code, California Green Buildi ng Standards and California Energy Code at the time of plan submittal or permit issuance) and California Code of Regulations also known as the California Building Standards Code, as amended by the City of Costa Mesa. Requirements for accessibility to site s, facilities, buildings and elements by individuals with disability shall comply with chapter 11B of the 2019 California Building Code. Costa Mesa shall begin using the 2022 California Building Code on January 1, 2023.

CBP 13. The operator shall maintain a valid Cannabis Business Permit and a valid Business License at all times. The Cannabis Business Permit application number associated with this address is MQ -22-01. Upon issuance, the Cannabis Business Permit will be valid for a two-year period and must be renewed with the City prior to its expiration date, including the payment of permit renewal fees. No more than one Cannabis Business Permit may be issued to this property.

14. The use shall operate in accordance with the approved Business Plan. Any changes to the Business Plan must be submitted to the Planning Division with a written explanation of the changes. If the Director determines that changes are substantial, a modification to the Cannabis Business Permit and/or amendment to the CUP may be required.

15. A Cannabis Business Permit may be revoked upon a hearing by the Director of Economic and Development Services or designee pursuant to Section 9 -120 of the CMMC for failing to comply with the terms of the permit, the applicable provisions of the CMMC, State law or regulation and/or any condition of any other permit issued pursuant to this code.

Revocation of the Cannabis Business Permit shall trigger the City’s proceedings to revoke the C onditional Use Permit and its amendments.

The Conditional Use Permit granted herein shall not be construed to allow any subsequent owner/operator to continue operating under PA-22-21 260
Resolution No. 2023-xx Page 9 of 15
until a valid new Cannabis Business Permit is r eceived from the City of Costa Mesa.

16. A change in ownership affecting an interest of 51 or more percent, or an incremental change in ownership that will result in a change of 51 or more percent over a three year period, shall require submittal and approval of a new Cannabis Business Permit. A change i n ownership that affects an interest of less than 51 percent shall require approval of a minor modification to the Cannabis Business Permit.

State 17. The business must obtain any and all licenses required by State law and/or regulation prior to engaging in any cannabis activity at the property.

18. The applicant shall obtain State License Type 10 prior to operating. The uses authorized by this Conditional Use Permit must be conducted in accordance with all applicable S tate and local laws, including, but not limited to compliance with the most current versions of the provisions of the California Code of Regulations that regulate the uses permitted hereby.

Any violation thereof shall be a violation of the conditions of this permit and may be cause for revocation of this permit.

19. Suspension of a license issued by the State of California, or by any of its departments or divisions, shall immediately suspend the ability of a cannabis business to operate within the City, until the State of California, or its respe ctive department or division, reinstates or reissues the State license. Should the State of California, or any of its departments or divisions, revoke or terminate the license of a cannabis business, such revocation or termination shall also revoke or ter minate the ability of a cannabis business to operate within the City. This Conditional Use Permit will expire and be of no further force and effect if any State issued license remains suspended for a period exceeding six (6) months. Documentation of three violations during routine inspections or investigations of complaints shall result in the Community Inprovement Division scheduling a hearing before the Director of Development Services to consider revocation of the Cannabis Business Permit.

20. Persons under the age of twenty -one (21) years shall not be allowed on the premises of this business, except as otherwise specifically provided for by state law and CMMC Section 9 -495(h)(6). It shall be unlawful and a violation of this CUP for the owner/operator to employ any person who is not at least twenty-one (21) years of age.

PD 21. Every manager, supervisor, employee or volunteer of the cannabis business must submit fingerprints and other information specified on the Cannabis Business Permit for a background check by the Costa Mesa Police Department to verify that person’s criminal history. No employee or volunteer may commence paid or unpaid work for the business until the background checks have been approved. No cannabis business or owner thereof may employ any person who has been convicted of a felony within the past 7 years, unless that felony has been dismissed, withdrawn, expunged or set aside pursuant to Penal Code sections 1203.4, 1000 or 261
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1385, or who is currently on probation or parole for the sale, di stribution, possession or manufacture of a controlled substance.

CID 22. Should any employee, volunteer or other person who possess es an identification badge be terminated or cease their employment with the business, the applicant shall return such identification badge to the City of Costa Mesa Community Improvement Division within 24 hours, not including weekends and holidays.

23. The property owner and applicant shall use “Crime Prevention Through Environmental Design” techniques to reduce opportunities for crime, loitering and encampments on the property as deemed appropriate by the Community Improvement Manager and Director of Ec onomic and Development Services.

Finance 24. This business operator shall pay all sales, use, business and other applicable taxes, and all license, registration, and other fees and permits required under State and local law. This business operator shall cooperate with the City with respect to any reasonable request to audit the cannabis business’ books and records for the purpose of verifying compliance with the CMMC and this CUP, including but not limited to a verification of the amount of taxes required to be paid during any period.

25. The following records and recordkeeping shall be maintained/conducted:
a. The owner/operator of this cannabis business shall maintain accurate books and records, detailing all of the revenues and expenses of the business, and all of its assets and liabilities. On no less than an annual basis, or at any time upon reasonable request of the City, the owner/operator shall file a sworn statement detailing the number of sales by the cannabis business during the previous twelve month period (or shorter period based upon the timing of the request), provided on a per-month basis. The statement shall also include gross sales for each month, and all applicable taxes paid or due to be paid. b. The owner/operator shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an interest in the cannabis business, and separately of all the officers, managers, employees, agents and volunteers currently employed or otherwise engaged by the cannabis business. The register required by this condition shall be provided to the City Manager upon a reasonable request. c. The owner/operator shall maintain an inventory control and reporting system that accurately docum ents the present location, amounts, and descriptions of all cannabis and cannabis products for all stages of the retail sale process . Subject to any restrictions under the Health Insurance Portability and Accountability Act (HIPPA), the owner/operator sh all allow City officials to have access to the business’s books, records, accounts, together with any other data or documents relevant to its permitted cannabis activities, for the purpose of conducting an audit or examination. Books, records, accounts, and any and all relevant data or documents will be produced no later than 262
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twenty-four (24) hours after receipt of the City’s request, unless otherwise stipulated by the City.
d. The owner/operator shall have in place a point-of-sale tracking system to track and report on all aspects of the cannabis business including, but not limited to, such matters as cannabis tracking, inventory data, and gross sales (by weight and by sale). The owner/operator shall ensure that such information is compatible with the City’s record- keeping systems. The system must have the capability to produce historical transactional data for review by the City Manager or designees.

Insp. 26. The City Manager or designees may enter this business at any time during the hours of operation without notice, and inspect all areas of this business as well as any recordings and records required to be maintained pursuant to Title 9, Chapter VI or under applicable provisions of State law. It is a violaiton of this use permit for any person having responsibility for the operation of a cannabis business, to impede, obstruct, interfere with, or otherwise not to allow, the City to conduct an inspection of the business or areas within and/or associated with the business. If business areas are located behind access controlled (locked) doors, these areas shall be opened/available immediatley for inspection upon request. If areas of the business are not available to the City Manager or designees for inspection upon immediate request, the Cannabis Business Permit (CBP) shall be subject to revocation pursuant to Costa Mesa Municipal Code section 9 - 120.

27. Inspections of this cannabis business by the City will be con ducted, at a minimum, on a quarterly basis. The applicant will pay for the inspection s according to the adopted Fee Schedule.

28. Quarterly Fire & Life Safety Inspections will be conducted by the Community Risk Reduction Division to verify compliance with the approved operation. The applicant will pay for the inspection according to the Additional Required Inspections as adopted in the Fee Schedule.

29. Annual Fire & Life Safety Inspections will be conducted by the Fire Station Crew for emergency response pre-planning and site access familiarization.

The applicant will pay for the inspection according to the adopted Fee Schedule.

30. Pursuant to Title 9, Chapter VI , it is unlawful for any person having responsibility for the operation of a cannabis business, to impede, obstruct, interfere with, or otherwise not to allow, the City to conduct an inspection, review or copy records, recordings or other documents required to be maintained by a cannabis business under this chapter or under State or local law. It is also unlawful for a person to conceal, destroy, deface, damage, or falsify any records, recordings or other documents required to be maintained by a cannabis business under this chapter or under State or local law.

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Prior to Issuance of Building Permits

1. Plans shall be prepared , stamped and signed by a California licensed Architect or Engineer.

2. The conditions of approval and ordinance or code provisions of Planning Application 22-21 shall be blueprinted on the face of the site plan as part of the plan check submittal package.

3. Prior to the Building Division issuing a demolition permit, the applicant shall contact the South Coast Air Quality Management District (AQMD) located at:
21865 Copley Dr.

Diamond Bar, CA 91765-4178
Tel: 909- 396-2000
Or visit its website:
http://www.costamesaca.gov/modules/showdocument.aspx?documentid =23381. The Building Division will not issue a demolition permit until an Identification Number is provided by AQMD.

4. Odor control devices and techniques shall be incorporated to ensure that odors from cannabis are not detected outside the property, anywhere on adjacent property or public right-of-way. Building and mechanical permits must be obtained from the Building Division prior to work commencing on any part of the odor control system.

5. Plan check submittal shall include air quality/odor control device specification sheets. Plan check submittal shall also include a bicycle rack, parking lot resealing and restriping, and a landscape plan that complies with CMMC requirements (and replaces the lawns along Harbor Boulevard and tree well ground cover with low water use p lants). The minimum container size for proposed plants is 5 gallons and the minimum container size for any new trees is a 24-inch box.

6. No signage shall be installed until the owner/operator or its designated contractor has obtained permit s required from the City. Business identification signage shall be limited to that needed for identification only.

Business identification signage shall not include any references to cannabis, whether in words or symbols. All signs shall comply with the CMMC.

7. The plans and business operator shall comply with the requirements of the 2019 California Fire Code, including the 2019 Intervening Update and referenced standards as amended by the City of Costa Mesa.

8. The Traffic Impact Fee as calculated by the Transpo rtation Services Division shall be paid in full.

9. The applicant shall submit a lighting plan to the Planning Division for review and approval. The lighting plan shall show locatio ns of all security lighting. As determined by the Director of Economic and Development Services or their designee, a photometric study may be required to demonstrate compliance with the following: (a) lighting levels on the property including the parking lot shall be adequate for safety and security 264
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purposes (generally, at least 1.0 foot candle), (b) lighting design and layout shall minimize light spill at the adjacent residential property line and at other light-sensitive uses (generally, no more than 0.5 -footcandle at the property line), and (c) glare shields may be required to prevent light spill.

10. Two (2) sets of detailed landscape and irrigation plans, which meet the requirements set forth in Costa Mesa Municipal Code Sections 13 -101 through 13-108, shall be required as part of the project plan check review and approval process. Plans shall be forwarded to the Planning Division for final approval prior to issuance of building permits.

Prior to Issuance of a Certificate of Use/Occupancy

1. The operator, contractors, and subcontractors must have valid business licenses to do business in the City of Costa Mesa. Final occupancy and utility releases will not be granted until all such licenses have been obtained.

Prior to Issuance of Cannabis Business Permit

1. The applicant shall contact the Planning Division for a facility inspection and provide a matrix (table) of conditions of approval explaining how each was met prior to issuance of a Cannabis Business Permit.

2. The applicant shall pay the public notice fee ($1 per notice post card) and the newspaper ad publishing cost.

3. The final Security Plan shall be consistent with the approved building plans.

4. Each entrance to the business shall be visibly posted with a clear and legible notice stating the following:
a. That smoking, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the cannabis business is prohibited; b. That no person under the age of twenty -one (21) years of age is permitted to enter upon the premises;
c. That loitering by persons outside the facility both on the premises and within fifty (50) feet of the premises is prohibited; and d. The premise is a licensed cannabis operation approved by the City of Costa Mesa. The City may also issue a window/door sticker, which shall be visibly posted.

5. The applicant, property owner and/or the operator shall obtain and maintain at all times during the term of the permit comprehensive general liability insurance protecting the permittee in an amount of not less than two million dollars ($2,000,000.00) per occurrence, combined single limit, including bodily injury and property damage and not less than two million dollars ($2,000,000.00) aggregate for each personal injury liability, products - completed operations and each accident, issued by an insurance provider admitted and authorized to do business in Cali fornia and shall be rated at least A-:viii in A.M. Best & Company’s Insurance Guide. Such policies of insurance shall be endorsed to the name the City of Costa Mesa as an 265
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additional insured. Proof of said insurance must be provided to the Planning Division before the business commences operations. Any changes to the insurance policy must be submitted to the Planning Division within 10 days of the date the change is effective.

6. The applicant shall submit an executed Retail Cannabis Business Permit Defense and Indemnity Agreement on a form to be provided by the City.

7. The applicant shall post signs within the parking lot directing customers, employees and vendors to use consideration when entering their vehicles and leaving the parking lot. The language of the parking lot signs shall be reviewed and approved by the Planning Division prior to installation.

Operational Conditions

1. No product deliveries to the facility shall occur after 10:00 PM and before 7:00 AM.

2. Onsite sales shall be limited to the hours between 7:00 AM and 10:00 PM.

3. At least one security guard shall be onsite at all times.

4. The operator shall maintain free of litter all areas of the property under which applicant has control.

5. The use shall be conducted, at all times, in a manner that will allow the quiet enjoyment of the surrounding neighborhood. The operator shall institute appropriate security and operational measures as necessary to comply with this requirement.

6. If parkin g shortages or other parking -related problems develop, the business owner or operator will be required to institute appropriate operational measures necessary to minimize or eliminate the problem in a manner deemed appropriate by the Director of Economic a nd Development Services or designee. Temporary or permanent parking management strategies include, but are not limited to, employee shuttle service from an approved location with excess parking, reducing operating hours of the business, hiring an employee trained in traffic control to monitor parking lot use and assist with customer parking lot circulation, encouraging customers to take advantage of online ordering for a faster pick-up, limiting the number of employees that park onsite, incentivizing employee carpooling/cycling/walking and obtaining approval of offsite parking.

7. During their work shift, employees shall not park on residential streets or within residential neighborhoods.

8. The vehicle gate adjacent to Charle Street shall remain closed and locked between the hours of 6:00 PM and 8:00 AM. KnoxBox access shall be provided to the Costa Mesa Fire Department and Costa Mesa Police Department.

9. All employees must wear an identification badge while on the premises of the business and/or perfor ming deliveries, in a format pr escribed by the City Manager or designee. When on the premises, badges must be clearly 266
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visible and worn on outermost clothing and above the waist in a visible location.

10. Vendor supply vehicle loading and unloading shall only take place within direct unobstructed view of surveillance cameras, located in close proximity to the limited access door, as generally described in the staff report and as shown on an exhibit approved by the Director of Economic and Development Services or designee. No loading and unloading of cannabis products into or from the vehicles shall take place outside of camera view. The security guard shall monitor all on-site vendor unloading. Video surveillance cameras shall be installed on the exterior of the building with direct views of doors. Any modifications or additional vehicle unloading areas shall be submitted to the Director of Economic and Development Services or designee for approval.

11. The sale, dispensing, or consumption of alcoholic beverages on or about the premises is prohibited.

12. No outdoor storage or display of cannabis or cannabis products is permitted at any time.

13. Cannabis shall not be consumed on the property at any time, in any form.

14. The owner/operator shall prohibit loitering on and within fifty (50) feet of the property.

15. No cannabis or cannabis products, or graphics depicting cannabis or cannabis products, shall be visible from the exterior of the property, or on any of the vehicles owned or used as part of the cannabis business.

16. The owner or operator shall maintain air quality/odor control devices by replacing filters on a regular basis, as specified in the manufacturer specifications.

17. If cannabis odor is detected outside the building, the business owner or operator shall institute corrective measures necessary to minimize or eliminate the problem in a manner deemed appropriate by the Director of Economic and Development Services.

18. Cannabis liquid or solid waste must be made unusable and unrecognizable prior to leaving a secured storage area and shall be disposed of at facility approved to receive such waste.

19. Each transaction involving the exchange of cannabis goods between the business and consumer shall include the following information: (1) Date and time of transaction; (2) Name and employee number/identification of the employee who processed the sale; (3) List of all cannabis goods purchased including quantity; and (4) Total transaction amount paid.

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Applicant Supplemental
Information
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A. Patrick Muñoz
Direct Dial: (714) 662-4628
E-mail: [email protected]

February 6, 2023

VIA E-MAIL

Mayor John Stephens and
Members of the City Council
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Re: Meeting on February 21, 2023
Denial of Planning Application 22-21 for a Conditional Use Permit (CUP) Appeal Hearing for Access Costa Mesa dba South Coast Safe Access Dear Honorable Mayor and Councilmembers:

This office represents the applicant, Access Costa Mesa dba South Coast Safe Access (“Safe Access ” or “Applicant”), who applied for a Conditional Use Permit (“CUP”) for the establishment of a retail cannabis storefront business located at 2001 Harbor Boulevard, Suites 101-103, in the C-2 (General Business District) zone. The property is owned by Vaccher Family Trust (“Property Owner”). This letter is being submitted in support of Safe Access’s appeal of the Costa Mesa Planning Commission’s denial of Application 22-21 (“PA-22-21”) for a CUP, which we believe (however, have yet to confirm) will be on the City Council’s February 21, 2023, agenda.

In sum, as demonstrated below, the Planning Commission’s denial stems from an incorrect application of the Costa Mesa Municipal Code ( “CMMC”), is not supported by substantial evidence, is arbitrary and capricious, and finally, is in violation of a settlement agreement between the City, the Property Owner, and Safe Access . For those reasons, Safe Access respectfully requests that the City Council overturn the Planning Commission ’s denial of Safe Access’s CUP Application 22-21 – before it is forced to waste tens of thousands of dollars defending a needless lawsuit that will no doubt result in the exact same outcome – reversal of the Planning Commission’s decision to deny the CUP application.

I. BACKGROUND
By way of brief background, the Applicant worked extensively with City Staff prior to filing its Conditional Use Permit (“CUP”) application, in order to ensure all CMMC requirements were met, including but not limited to the Pre-Application Determination. For the reasons detailed in the November 28, 2022 , Planning Commission Agenda Report for Item Number PH-3, City Staff recommended approval of PA -22-21. (Agenda Report, pg. 1.) That recommendation was supported by substantial evidence and consistent with other approvals of the Planning Commission -8-
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for similar cannabis-related applications, including cannabis retail storefronts which are located in the immediate vicinity of counseling uses, and/or adjacent to sober living homes.

As detailed in the Agenda Report, the requested entitlement (PA-22-21) is in conformance with City standards and regulations established and/or implemented by the Planning Division, Building Division, Public Works Department (including Transportation and Engineering Divisions), Fire Department, and Police Departmen t. (Agenda Report, pg. 6.) Significantly, the proposed operation contemplated by PA-22-21 also meets the separation requirements set forth in Measure Q, which are codified in CMMC section 13 -200.93(e), in that it is located more than 1,000 feet from a K-12 school, playground, licensed child daycare, and homeless shelter, and more than 600 feet from a youth center. (Agenda Report, pg. 7.) Based on this factual background, City Staff made a recommendation of approval of PA- 22-21 to the Planning Commission. Despite these pre-application efforts, and against the recommendation of City Staff, the Planning Commission , in a split 4 -2 vote, denied PA-22-21, without any written findings in support of the denial.1 The only apparent basis for the denial was the existence of a counseling business known as “Yellowstone” in the same building as Safe Access’s proposed store. The Planning Commission relied on this “fact” to support various arguments which all violate the law. Even more important, Yellowstone’s lease was set to expire, and in fact did expire, on December 31, 2022.

II. COMMISSIONER’S STATEMENTS ON DENIAL
In denying PA-22-21, three Planning Commissioners stated that they could not make the findings required by CMMC 13-29(g). Importantly, however, in attempting to express the factual basis for denial, three Planning Commissioners made conclusory statements that were unsupported by the facts, substituted their personal opinions for the objective requirements of the CMMC (and Measure Q), and arbitrarily and capriciously added requirements to the application process.

Specifically, Planning Commissioner Vivar provided three grounds upon which to support his vote to deny the application: (1) the Applicant allegedly did not engage in adequate public

1 We note several failures to follow the requirements of its own Municipal Code have occurred by the City in connection with the denial and appeal, raising serious procedural due process concerns which our Client will be forced to address should the Planning Commission’s denial not be overturned. (Woody’s Group Inc., v. City of Newport Beach (2015) 233 Cal.App.4 th 1012, 1028; citing, Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 532 [noting, in context of prospectivity issue, that the unfairness of chan ging “ ‘the rules of the game’ in the middle of a contest” is a commonsense notion]; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1194 [same]; Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 648 [refusing to apply law to ‘conduct preceding its effective date ’ because that would be ‘tantamount to an unfair change in “the rules of the game” ’ in the midst of a contest]”.) -9-
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outreach because the Applicant did not personally approach staff at Yellowstone to discuss the proposed project (even though Yellowstone’s staff was notified via mail, and did not attend the open house held by the Applicant); (2) the Applicant’s open house was also allegedly inadequate public outreach because it was held on Monday night (yet no requirements exist that were not followed); and finally, (3) the public outreach was insufficient because mailers were not provided in both the English and Spanish languages (again, despite the fact this violates no City requirements.)
Similarly, Planning Commissioner Erath stated only that he believed the proposed operation was not substantially compatible with the surrounding uses and could potentially be materially detrimental to the surrounding businesses and neighborhood. Commissioner Erath failed to cite or otherwise provi de any specific factual basis to support his conclusion, and it appears as though no such facts exist in the record (and indeed, contrary facts supporting compatibility are detailed in the Agenda Report).

Finally, Planning Commission Chair de Arakal focuse d on substantial compatibility and material detriment. He noted that the Planning Commission made a finding of substantial compatibility for another cannabis retail storefront that was similarly situated in terms of nearby residential properties. He also acknowledged that separation requirements for sensitive uses do not include any type of counseling (including substance abuse counseling) even though he personally believed that counseling services should be considered a sensitive receptor. The Chair stated his “hope” was that this instant appeal would lead the City Council to revisit the regulations for the relevant ordinance (ignoring it is the result of a voter measure) because he thinks they are “totally inadequate.”
III. THE PLANNING COMMISSION ’S DENIAL O F THE CONDITIONAL USE

PERMIT IS NOT SUPPORTED BY THE EVIDENCE
Under the CMMC , the Planning Commission is tasked with reviewing, and ultimately approving or denying applications for conditional use permits ( CMMC § 13-10(i)(2)(c)). The findings required by CMMC section 13-29(g)(2) for Planning Commission approval of a conditional use permit are as follows:
a. The proposed development or use is substantially compatible with developments in the same general area and would not be materially detrimental to other properties within the area.
b. Granting the conditional use permit or minor conditional use permit will not be materially detrimental to the health, safety and general welfare of the public or otherwise injurious to property or improvements within the immediate neighborhood.
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c. Granting the conditional use permit or minor conditional use permit will not allow a use, density or intensity which is not in accordance with the general plan designation and any applicable specific plan for the property.

Furthermore, when the Planning Commission decides to deny an application, the CMMC requires that the applicant be notified of the circumstances of denial. 2 (CMMC § 13-29(h)(1)).

Notice of the Planning Commission ’s decision shall be given within five (5) days to the City Council and to any affected party requesting the notice. (CMMC § 13-29(i)(2).) Under well -established California law, when purporting to deny a discretionary entitlement, such as a CUP in this case, the City must make findings that are supported by “substantial evidence” in the record before the City. ( Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1244; SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal. App. 4th 459, 469.) Evidence is considered “substantial” where it is of “ponderable legal significance,” and “reasonable in nature, credible, and of solid value.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631; Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. ” (Roddenberry v.

Roddenberry (1996) 44 Cal.App.4th 634, 651.) Lastly, where the court determines that an agency’s decision is not supported by substantial evidence, the court may rever se the agency ’s determination. (Breakzone Billiards, supra, 81 Cal.App.4th at 1244 .) In this case, the Planning Commission denied the PA-22-21 for a CUP without any written findings. Without written findings or any notification as to the circumstances o f the denial (as required by the CMMC), the Applicant – as well as the City Council on appeal, and the court if and when litigation is commenced – is left to only infer the bases of the denial. The only possible (albeit, speculative) bases for denial are the individual comments by the three Planning Commissioners, each of which consisted of: (a) conclusory statements that were unsupported by the facts; (b) personal opinions rather than an application of the objective requirements of the CMMC (and Measure Q) ; and (c) the arbitrary and capricious add ition of requirements to the application process, as detailed above.

While all of the observations of the aforementioned Commissioners might present options for the City Coun cil to consider in adopting future cannabis regulations (and/or amendments), none of the items the Commissioners based their decision to deny upon are currently codified in, or otherwise required by Measure Q, the CMMC, or any of the City ’s implementing regulations.

More specifically, there is no requirement for personal notice to the counseling center, or any other neighboring property. Similarly, there is no requirement to hold an open house, or that the open house be held on a certain day or certain time o f the week. There is also no requirement that the

2 The City’s failure to comply with this requirement is yet another example of a procedural due process violation impacting our client’s rights.
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written notices be provided to neighboring properties in both the English and Spanish languages.

And, finally, there is no requirement that a dispensary must be located a certain distance away from counse ling services. Indeed, the cannabis subcommittee created by the City Council considered some similar regulations and specifically rejected them (for instance, adding similar uses, such as sober living homes, to the list of sensitive receptors). For the Planning Commission to attempt to impose new personal notice, open house, translation, and/or sensitive receptor requirements at the end of what has been a lengthy, costly application process and after the conclusion of the public hearing is the definition of arbitrary and capricious, and represents nothing more than the Planning Commission improperly substituting its own personal opinions for the desires of the voters and the lawfully established requirements of the CMMC. “Needless to say, changing the rules in the middle of the game does not accord with fundamentally fair process. ” (Woody’s Group Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012 , 1028; citing, Buttram v. Owens -Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 532 [noting, in context of prospectively issue, that the unfairness of changing “ ‘the rules of the game ’ in the middle of a contest” is a commonsense notion].) As such, these surmised bases for denial fail.

Importantly, Planning Commissioner Toler correctly attempted to “re-direct” the Planning Commission’s discussion by pointing out that it must identify specific facts supporting a denial.

He further noted that there is nothing about the Applicant’s proposed operation that differentiates it from all the other cannabis retail storefronts that the Planning Commission already approved, and that many of the statements by his fellow Planning Commissioners were based on oft-repeated misconceptions, rather than “real problems.” Commissioner Toler’s efforts unfortunately fell on deaf ears.

In sum, the Planning Commission ’s denial of the CUP was not based on the rules and regulations that currently exist in the City ’s Municipal Code – it was based on what the Commissioners hoped those regulations might say at some unknown future date. In so doing, the Commissioners improperly inserted their own personal opinions and desires for the rules that had been lawfully vetted and approved by the Council, and the voters who, n otably, approved Measure Q without the expansive public notice requirements “established” by Commissioner Vivar, or the additional sensitive receptor “established” by Commissioners Ereth and de Arakal.

And finally, the basis for all of the ill-conceived concerns, the Yellowstone counseling business, is factually insupportable, in as much as its lease has expired.

IV. A SETTLEMENT AGREEMENT REQUIRES GOOD FAITH EFFORTS TO

EXPEDITIOUSLY PROCESS THE CUP APPLICATION
On or about December 8, 2021, the City, the Prope rty Owner, and the Applicant entered into a Settlement Agreement and Release (“Agreement”). As relevant to PA-22-21, the Agreement provides that the City agrees to “make good faith efforts to expeditiously process the CUP application and schedule a hearin g thereon in a manner consistent with the other Phase 1 CUP -12-
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storefront retail applications whose pre-applications were deemed complete on or about September 10, 2021.”
As detailed above, and as explicitly stated by Commissioner Toler, PA -22-21 was not processed in good faith in a manner consistent with other Phase 1 CUP storefront retail applications. Instead, the Planning Commission denied PA -22-21 based solely on personal opinion, biases, and flagrant disregard of the standards set forth in Measure Q and the CMMC. As even Chair de Arakal expressly acknowledged, substantial compatibility findings have routinely been made by the Planning Commission for similarly situated storefront retail applications.

However, rather than treat this application like the others that had come before him, the Chair decided to deny the application in the hope that an appeal would persuade the City Council to revisit the requirements for application approval. This is subversion of the CUP application process, and flagrant disregard for the rules set forth in Measure Q and the CMCC is a violation of the terms of the Agreement because the action of the Planning Commission was not a good faith effort to expeditiously process the CUP application.

As a result of the Agreement, the unlawful denial of the PA -22-21 by the Planning Commission, if not rectified by the City Council, not only subjects the City to a writ action to overturn the decision, but also subjects it to an action for breach of contract, and all remedies (including damages and attorneys’ fees) associated therewith.

V. THE CITY’S FAILURE TO FOLLOWS ITS MUNICIPAL CODE VIOLATES THE APPLICANT’S DUE PROCESS RIGHTS
Safe Access’s Application for Appeal, along with the associated appeal fees, were timely filed on Dece mber 5, 2022. The CMMC which governs appeals of Planning Commission determinations on CUP applications, provides in no uncertain terms that such appeals “. . . shall be considered at the first regular meeting which follows receipt of the application by te n (10) or more days, and which allows sufficient time for the giving of notice as required by section 2-308.” (CMMC § 2-303(2); see also, § 2-311 [“The procedures set forth in this chapter are the exclusive methods by which appeals and reviews may be pursued and none of the steps set forth herein may be waived or omitted.”]; CMMC § 13-29(j) [appeal procedures in Title 2, Chapter IX govern CUP appeals]; Woody’s Group Inc., supra, 233 Cal.App.4th at 1025 [interpreting the term “shall” in the appeal procedures in the City’s Municipal Code to mean “suggesting [the reviewing body] has no choice in the matter.”].)
Despite the clear language set forth in the CMMC regarding the timing of an appeal hearing (i.e., the next regular meeting agenda more than 10 days after the appeal is filed), the appeal of Safe Access has yet to be formally scheduled, let alone heard by the City Council. Indeed, pursuant to this provision, Safe Access ’s appeal should have been hea rd by the City Council on the December 20, 2022 agenda. Yet, it was not. It likewise could have been heard on January 17, 2023. Yet, again, it was not. It likewise was not noticed timely so as to enable it to be placed on -13-
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the February 7, 2022, City Council meeting agenda. Most recently, after a strongly worded letter from our firm, City Staff has advised our Client that Safe Access’s appeal will be heard by the City Council on its February 21st agenda. While we and our Client appreciate this, we cannot help but note that nothing “official” has yet to occur to confirm the appeal will in fact be heard that date.

The City ’s failure to follow its own Municipal Code is, and continues to, amount to a violation of Safe Access’s procedural due process rights. Indeed, when combined with the legally indefensible basis for denial of its CUP by the Planning Commission, it may already be too late for the City to avoid a determination by a court that Safe Access’s CUP is deemed approved. * * *
In light of the foregoin g, it is clear that the Planning Commission did not, and the City cannot, make the requisite factual findings to deny PA-22-21. Likewise, it is clear that there is no substantial evidence that supports the statements made by three Planning Commissioners that form the bases of their vote to deny PA -22-21. Instead, the evidence provided by City Staff clearly shows that the PA-22-21 for a CUP should be approved.

Accordingly, the Applicant respectfully requests that the City Council overturn the Planning Commission’s denial of the PA-22-21, and approve the CUP.

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A. Patrick Muñoz
Direct Dial: (714) 662-4628
E-mail: [email protected]

February 16, 2023

VIA E-MAIL

Re: Meeting on February 21, 2023
Denial of Planning Application 22-21 for a Conditional Use Permit (CUP) Appeal Hearing for Access Costa Mesa dba South Coast Safe Access Follow-Up to February 6, 2023 Correspondence
Dear Honorable Mayor and Councilmembers:

Our office previously sent correspondence to you on February 6, 2023. Among other items, that correspondence noted multiple instances where our client’s procedural due process rights were violated by the City . This correspondence is to bring your attention to even more due process violations.

As you will recall, on November 28, 2022, the Costa Mesa Planning Commission, in a split 4-2 vote, denied Application 22 -21 (“PA-22-21” or “Project” ) for a CUP without any written findings in support of the denial . Because staff has recommended approval of the project, there was no draft resolution of denial as part of the agenda packet, and as such, there was no resolution of denial considered or adopted at that meeting. Moreover, s ince that meeting, the Planning Commission has not considered or adopted any resolution of denial related to this Project at any agendized meeting.

Most recently, t he February 13, 2023 , agenda for the Planning Commission states the following as the title for Consent Calendar Item 1: “November 28, 2022.” The title of the item contains no indication as to why that date is on the agenda. More specifically, the agenda title -20-
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does not refer to “minutes” or “transcr ipt” or otherwise refer to PA -22-21, our client’s proposed Project, or its property.

Despite the lack of an adequate description of the item, d uring its February 13, 2023 , meeting, the Planning Commission voted to approve the minutes of its November 28, 20 22, meeting -- solely as to Public Hearing Item No. 3 , which was the Planning Commission’s consideration of PA-22-21. The description of the item would not notify a reasonable person, and did not notify our client of the action the Planning Commission was considering. As such, it constitutes a violation of the Brown Act. (See, Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 , 200 [holding that an agenda title of “Continuation School site change” was “entirely misleading and inadequate” and thus insufficient to allow for board’s discussion and vote to discontinue school services and transfer students to a new school because it “show the whole scope of the board's intended plans” and “[i]t would have taken relatively little effort to add to the agenda that this “school site change” also included the discontinuance of [school services] and the transfer of [students].”].)
In addition to the inadequate description of “November 28, 2022,” the Planning Commission also committed a Brown Act violation when it adopted “Resolution PC-2022-33 – A Resolution of the Planning Commission of the City of Costa Mesa, Cali fornia Denying Planning Application 22-21 for a Retail Cannabis Storefront Business Located at 2001 Harbor Boulevard, Suites 101-103 (South Coast Safe Access).” Notably, Resolution PC 2022 -33 was not listed on the February 13, 2023 , Planning Commission age nda (and likewise was not contained as an attachment to a staff report) – and it was not listed (or otherwise provided) at the November 28, 2022, Planning Commission meeting, at which Staff only provided the Commission with a draft resolution to approve the Project. Indeed, after reviewing each and every Planning Commission agenda between November 28, 2022 , to today’s date, it is apparent that neither Planning Commission (nor the public) has ever been provided a copy of Resolution 2022-33.

Despite this obv ious fact, in the minutes, the “Action” for Public Hearing Item No. 3 is listed as “Planning Commission adopted a Resolution to deny Planning Application 22 -21.” Further, after recording the motion to deny the Project (not adopt a resolution), the minutes refer to “Resolution PC-2022-33 – A Resolution of the Planning Commission of the City of Costa Mesa, California Denying Planning Application 22-21 for a Retail Cannabis Storefront Business Located at 2001 Harbor Boulevard, Suites 101-103 (South Coast Safe Access).” Again -- the only resolution included as part of the agenda packet for the November 28, 2022, Planning Commission wa s a draft resolution approving the Project. As a result, the only resolution the Planning Commission could consider at that meeting was one to approve the Project.

The Planning Commission was not provided with – and thus, could not vote upon – a resolution denying the Project.
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Complicating matters further, since this Resolution PC 2022 -33 was revealed on Monday, our office has attempted on three different occasions to obtain a copy of it from at least four different staff members – and to date, those staff members have either been unable or unwilling to provide us with a cop y. If Resolution PC-2022-33 exists, and was in fact adopted, that adoption was in violation of the Brown Act because Resolution PC-2022-33 was never listed – yet alone considered – by the Planning Commission at an agendized meeting. (G.I. Industries v. City of Thousand Oaks (2022) 84 Cal. App. 5th 814 , 823 [ “The Brown Act clearly and unambiguously states that an agenda shall describe ‘ each item of business to be transacted or discussed’ at the meeting.’”], citing § 54954.2, subd. (a)(1).) Moreover, if in fact the Resolution exists, our client should have been promptly provided with a copy of it in line with the requirements set forth CMCC Sections 13-29(h)(i), and 13-29(i)(2). The failure to provide our cl ient with a copy of the Resolution is particularly problematic given his upcoming appeal (now, less than 5 days away) and the obvious prejudice that results – that is, the deprivation of his ability to meaningfully prepare for his upcoming hearing.

If Resolution PC-2022-33 does not exist, the question arises as to what exactly the Planning Commission believes it approved as part of its November 28, 2022 , minutes. Did the Planning Commission (who acts as a whole body, not individual commissioners) agree o n any of the findings to deny the Project? Or did the four “no” votes each have their own reasons for which a finding could or could not be made? Perhaps more troubling, how could the Planning Commission approve minutes (that were discussed at length), kno wing that they had never been provided, let alone considered the non-existent Resolution? This so-called “approval” calls into question the validity of the entire administrative record related to PA-22-21 and is, therefore, yet another reason our client’s due process rights have been violated by the City.

It is fundamental to due process that our client have knowledge of factual findings leading to the denial of its CUP application. As we noted in our February 6, 2023, correspondence, without written findings or notification as to the circumstances of denial, our client has been left to infer the bases for denial. Now, our client’s due process rights have been dealt another blow regarding the cloud of uncertainty regarding the existence and approval of Resolution PC-2022-33.

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For the reasons set forth in our February 6, 2023, correspondence and herein, the Applicant respectfully requests that the City Council overturn the Planning Commission’s denial of the PA- 22-21, and approve the CUP.

RUTAN & TUCKER, LLP
A. Patrick Muñoz
APM:mrs
cc: Brenda Green, City Clerk ([email protected]) Lori Ann Farrell Harrison, City Manager ([email protected]) Kimberly Hall Barlow, Esq. ([email protected])
Jennifer Le, Director of Economic and
Development Services ([email protected])
Client
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ATTACHMENT 6
Site Photos
View of the proposed storefront from Harbor Boulevard
View of the parking lot and proposed storefront from the middle of the property (facing Harbor Boulevard) -1-
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ATTACHMENT 7
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December 2, 2022
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Dear City of Costa Mesa,
On behalf of more than 21,000 members of the United Food and Commercial Workers (UFCW) Local 324, we wish to express our strong support for Access Costa Mesa planning application for a cannabis retail storefront business at, 2001 Harbor Blvd, Costa Mesa. The ownership of Access Costa Mesa currently operates a storefront dispensary in Santa Ana under the name South Coast Safe Access which has been a long partner with UFCW local 324.

The owners of the proposed Access Costa Mesa location have had a collective bargaining agreement with UFCW Local 324 since 2016 for their Santa Ana location. Their contract has helped set a standard for cannabis industry with Union Healthcare for employees as well as holidays, vacation, and paid sick time above the California requirements.

UFCW’s partnership with the ownership of Access Costa Mesa raises standards for cannabis workers across California and we are proud to represent the workers at the forefront of the legal cannabis industry. The ownership of Access Costa Mesa has a proven track record of operating in Orange County and partnering with UFCW to ensure the welfare of their employees. We strongly encourage the City of Costa Mesa to approve Access Costa Mesa planning for a retail cannabis storefront business at 2001 Harbor Blvd, Costa Mesa, CA.

Thank you for your time and consideration.

Regards,

Matthew Bell
Secretary Treasurer
UFCW Local 324
ATTACHMENT 8
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February
14, 2023
Honorable
Mayor Stevens and Members of the Costa Mesa City Council 92 Fair Drive
Costa Mesa, CA 92626
Dear Ma
yor Stevens and Honorable Members of the Costa Mesa City Council:

I am w
riting in support of South Coast Safe Access’ (SCSA) appeal regarding its proposed dispensary.

SCSA h
as an unparalleled record in its support of the labor community and working families. I had the privilege to assist UFCW organize SCSA. The owners of SCSA were not only supportive of the union, they encouraged their employees to join the union. To this day all union members are provided discounts for store purchases.

Additio
nally, SCSA has been a longtime supporter of the Veteran Community. Interestingly enough the owners weighed through the rebar and cement forms during the construction of Heroes Hall Veteran Museum with me. The dispensary has been sensitive to veterans’ needs since its opening by offering discounts and support.

I have b
een assured by SCSA that if licensed in Costa Mesa it will continue to serve the Veteran Community; including a program to host a veteran outreach volunteer one day a month to assist veterans navigating through the VA system and other important issues.

Thank
you for considering my input and thank you for everything you do for the entire community; including your unyielding support for our Veteran Community.

Sincere
ly,

VETERAN

S ALLIANCE OF ORANGE COUNTY
Nick Berard
ino
President Veterans Alliance of Orange County (VALOR)
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Costa Mesa City CouncilFebruary 21, 2023

Costa Mesa City Council
February 21, 2023