Agenda packet — Monterey City Council, October 18, 2022

Council Chamber, 580 Pacific
St., and Zoom Teleconference
Monterey, California
City Council Agenda
Council Regular Meeting
Tuesday, October 18, 2022
4:00 PM – 5:30 PM
7:00 PM – 11:00 PM
City Council
Clyde Roberson, Mayor
Dan Albert, Councilmember
Alan Haffa, Councilmember
Ed Smith, Councilmember
Tyller Williamson, Councilmember
City Manager
Hans Uslar
IMPORTANT NOTICE: Pursuant to California Government Code section 54953(e)(1)(A) and (C) and the Monterey City Council’s resolution authorizing virtual participation in public meetings given the COVID-19 pandemic, meetings of the Monterey City Council and its Boards, Commissions, and Committees are being conducted with a hybrid format providing both inperson and virtual (electronic) participation in order to promote social distancing and protect the health and safety of attendees.

Details for public participation in this City Council meeting:
 BEFORE THIS MEETING, members of the public may submit comment(s) to [email protected] until ½ hour before the start of the meeting. These messages will not be read aloud during the meeting but are made available to the Council and public at monterey.org/submitted-comments and in the City Manager’s Office at 580 Pacific St., Room 1, Monterey, CA 93940 during regular business hours. All comments received become part of the record.
 DURING THIS MEETING, members of the public may attend and participate:
o In-person (location listed above), with masks REQUIRED for all, regardless of vaccination status, except those who are younger than two years old or have a medical condition that prevents wearing a mask.
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o This meeting will also stream live for viewing only on youtube.com/cityofmonterey (10 second delay) and on Comcast Channel 25 (up to 90 second delay). ***Afternoon Session Agenda ***
4:00 - 5:30 p.m.

CALL TO ORDER

PUBLIC COMMENTS
PUBLIC COMMENTS allows you, the public, to speak for a maximum of three minutes on any subject which is within the jurisdiction of the Monterey City Council and which is not on the agenda. Any person or group desiring to bring an item to the attention of the 10/18/2022 4:00:00 PM
2 City Council may do so by addressing the Council during Public Comments or by addressing a letter of explanation to: City Clerk, City Hall, Monterey, CA 93940. The appropriate staff person will contact the sender concerning the details. NOTE: For regular meetings with an afternoon and evening session, Public Comments are taken during both sessions. Individuals may choose to speak once for up to three minutes at either session, but not both.

CONSENT ITEMS
CONSENT AGENDA consists of those items which are routine and for which a staff recommendation has been prepared. A member of the public or a Councilmember may request that an item be placed on the regular agenda for further discussion.

Approval of Minutes

1. October 4, 2022 (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
Resolutions
RESOLUTIONS are passed to express the policy of the Council on certain items or programs, or are passed to direct certain types of administrative action. A resolution may be changed by adoption of a subsequent resolution. Resolutions only require one reading and are approved when "passed and adopted."

2. Amending and Restating Resolution 21-107 to Extend the Pre-Commitment of .086 Acre Feet of Water to 704 Foam Street to January 17, 2024 (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)

3. Authorize the Appropriation of Funds in the Presidio of Monterey Public Works Fund for the Repair Bathroom in Building 629, Wing A Project Under the Presidio Municipal Services Agency Intergovernmental Support Agreement ***PMSA*** (NEPA Not a Project, CEQA Not a Project under (Pub. Resources Code, § 21080, subd. (a) and Pub. Resources Code, § 21080, subd. (b)(1))) *** End of Consent Agenda ***

PUBLIC APPEARANCE
PUBLIC APPEARANCE items are reports on non-routine issues that might stimulate public discussion, but that do not require formal noticing as public hearings. You are welcome to offer your comments after being recognized by the Mayor. The Council may limit the time each speaker is allocated.

4. Approve a Letter Requesting the California Coastal Commission Extend the Deadline for Fisherman’s Wharf Outdoor Seating Until December 31, 2023 (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)

5. Accessory Dwelling Unit Update (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
*** Adjourn to Closed Session (See additional agenda) *** Council will adjourn to closed session no later than 5:00 p.m. 10/18/2022 4:00:00 PM
3 RECESS 5:30 p.m.

RECONVENE
*** Evening Session Agenda ***
7:00 - 11:00 p.m.

No discussion of a new item will be started after 10:30 p.m.

PLEDGE OF ALLEGIANCE

CONTINUED PUBLIC COMMENTS
PUBLIC COMMENTS allows you, the public, to speak for a maximum of three minutes on any subject which is within the jurisdiction of the Monterey City Council and which is not on the agenda. Any person or group desiring to bring an item to the attention of the City Council may do so by addressing the Council during Public Comments or by addressing a letter of explanation to: City Clerk, City Hall, Monterey, CA 93940. The appropriate staff person will contact the sender concerning the details. NOTE: For regular meetings with an afternoon and evening session, Public Comments are taken during both sessions. Individuals may choose to speak once for up to three minutes at either session, but not both.

ANNOUNCEMENTS FROM CLOSED SESSION

PUBLIC APPEARANCE (EVE)
PUBLIC APPEARANCE items are reports on non-routine issues that might stimulate public discussion, but that do not require formal noticing as public hearings. You are welcome to offer your comments after being recognized by the Mayor. The Council may limit the time each speaker is allocated.

6. Receive an Update on Unfunded Liability/Pension Obligation Strategies and Approve a Pension/OPEB Liability Reserve Policy (Not a Project Under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)

7. Authorize the City Manager to Execute a Purchase Agreement with Golden State Fire Apparatus, Inc. for One (1) Pierce 107’ Enforcer Ascendant Tiller (Tractor Drawn Aerial Truck) at a Cost Not to Exceed $1,720,000 and Utilize Financing via the Bank of America Public Capital Corporation Master Equipment Lease Agreement for this Purchase (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)

COUNCIL COMMENTS
Councilmembers may ask a question for clarification or make a brief announcement or make a brief report on his or her activities. In addition, Council may provide a referral to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any City matter (G.C. 54954.2).

CITY MANAGER REPORTS
The City Manager may make a brief report on his activities or a brief announcement. He may also ask for clarification or direction regarding scheduling of Council meetings and study sessions.

ADJOURNMENT
10/18/2022 4:00:00 PM
4 Members of the public have the right to address the City Council on any item on the Agenda, before or during its consideration [G.C. §54954.3(a)]. The Mayor will formally open the floor for public comment on items such as "Public Appearance" and "Public Hearings." Writings distributed for discussion or consideration on these matters within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, are available at: monterey.org/submitted-comments and in the City Manager’s Office at 580 Pacific St., Room 1, Monterey, CA 93940 during regular business hours.

Information distributed to the Council at the Council meeting becomes part of the public record. A copy of written material, pictures, etc. should be provided for this purpose.

City Council Meetings are cable cast live and recorded for replay on Monterey's Government Access Channel 25 by Access Media Productions (AMP).

CITY OF MONTEREY'S 24-HOUR SUGGESTION HOTLINES:

Voicemail: (831) 646-3799
Fax: (831) 646-3793
Email: [email protected]
WebPage: http://www.monterey.org
INTERPRETATION: The Monterey City Council invites and encourages public participation at its meetings. Requests for language interpretation may be made by contacting the City Clerk at [email protected] or 831-646-3935. The City Clerk will make every effort to accommodate requests for interpreter assistance. Requests should be made as soon as possible in advance of any meeting of the City Council. The City is committed to addressing language interpretation requests swiftly in order to maximize public participation.

ACCESSIBILITY: The City of Monterey is committed to including the disabled in all of its services, programs and activities. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk’s Office at [email protected] or (831) 646-3935. Notification 30 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]. Later requests will be accommodated to the extent feasible. For communicationrelated assistance, dial 711 to use the California Relay Service (CRS) to speak to City offices. CRS offers free text-to-speech, speech-to-speech, and Spanish-language services 24 hours a day, 7 days a week. If you require a hearing amplification device to attend a meeting, dial 711 to use CRS to talk to the City Clerk's Office at (831) 646-3935 to coordinate use of a device.

Upcoming city meetings are listed at http://isearchmonterey.org More information is available by calling (831) 646-3935

MINUTES

CITY COUNCIL REGULAR MEETING

CITY OF MONTEREY
Tuesday, October 4, 2022
4:00 PM 7:00 PM
COUNCIL CHAMBER, 580 PACIFIC ST., AND ZOOM TELECONFERENCE

MONTEREY, CALIFORNIA
Councilmembers

Present: Albert, Haffa, Smith, Williamson, Roberson*

Absent: None
* Attended remotely by teleconference
City Staff

Present:

City Manager, Assistant City Manager, City Attorney, Community Development Director, Police Chief, Parks and Recreation Director, Finance Director, City Clerk, Property Manager, Library & Museums Director, Traffic Engineer, Senior Engineer, Deputy Human Resources Manager, Senior Engineer
***Afternoon Session Agenda ***
This meeting was held with a combination of in-person and teleconference attendance, pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C) and Resolution No. 22-114 C.S.

CALL TO ORDER
Mayor Roberson called the meeting to order at 4:01 p.m. City Clerk Klein explained to the public how to participate in the meeting virtually and the safety rules for in-person attendance.

She called the roll with the full Council present as highlighted above.

PRESENTATIONS

1. Recognize City Employees for Milestone Anniversaries and Retirements for 3rd Quarter 2022 (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Recognized for their service: Fire Captain Perkins (35 years); Police Sergeant Roohbakshsh (30 years); Fitness Supervisor Ataide, Accounting Specialist Courtney, and Facility Attendant Ierome (25 years); Senior Public Works Inspector Ray (20 years); and recently retired Police Sergeant Delgado (28.6 years) City department heads made remarks recognizing recent milestone anniversaries and retirements of City employees. Police Sergeant Roohbakshsh made brief remarks.

Public comment was received from Esther Malkin, who praised Sergeant Roohbakshsh and the Monterey Police Department.

PUBLIC COMMENTS
Public comment on non-agendized matters was received from Kent Glenzer, Jon Stackpole, Joanne Crist, a man (name unclear), Wendy Brickman, and Tanya Roos.

Date: 10/18/2022
Item No.: 1.

Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 1, Packet Page 5 City Council Minutes October 4, 2022
2 CONSENT ITEMS
Public comment on the Consent Items was not received.

On a motion by Mayor Roberson, seconded by Councilmember Haffa, and carried by the following vote, which was conducted by roll call, the City Council approved the CONSENT ITEMS:

2. September 20, 2022 (Not a Project under CEQA per Article 20, Section 15378 and General Rule Article 5 Section 15061)
Action: Approved
Award of Construction Contracts

3. Award a Construction Contract in the Amount of $254,705 to Southwest Pipeline and Trenchless Corp. for the OMC-Repair Stormdrain Pipe at General Jim Moore/Gigling Project (POM 21-039) ***PMSA*** (Categorically Excluded from NEPA 32 CFR, Part 651, Section II(e)(2) and II(g )(1))
Action: Resolution No. 22-133 C.S.

Resolutions

4. Authorize Remote Teleconference Meetings of the City Council and Boards, Commissions, and Committees for the Period October 7, 2022 through November 3, 2022 Pursuant to AB361 Ralph M. Brown Act Provisions (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 5 Section 15061)
Action: Resolution No. 22-134 C.S.

5. Adopt Recommended Capital Improvement Program (CIP) Projects for Fiscal Year 2022/23 (Exempt from CEQA per Article 19, Section 15301, 15302, 15306, Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061 or Initial Study Mitigated Negative Declaration Previously Prepared and Certified) Action: Resolution No. 22-135 C.S.

6. Amend Resolution 22-109 Approving the 4th Amendment to the Agreement with Community Human Services Increasing the Grant of Community Development Block Grant Funds by $155,000 for Building Rehabilitation and Repair of the Safe Place Youth Homeless Shelter (Exempt from NEPA per 24 CFR Part 58 and from CEQA per Article 19, Section 15301, Class1) Action: Resolution No. 22-136 C.S.

Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 2, Packet Page 6 City Council Minutes October 4, 2022
3 Other

7. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 601 Wave Street, Suite 400; Agency Negotiators:

Kimberly Cole and Janna Aldrete; Negotiating Parties: Mark Hastings (Monterey General Store/American Country Classics); Under Negotiation: Price and Terms of Payment for Lease Amendment (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Appointed agency negotiators Cole and Aldrete

8. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 30 Fisherman’s Wharf; Agency Negotiators:

Kimberly Cole and Janna Aldrete; Negotiating Parties: Mark Gilbert (Mark Gilbert Enterprises, Inc.) and Michael Ungaro (San Pedro Fish Market Company, LLC); Under Negotiation: Price and Terms of Payment for New Lease (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Appointed agency negotiators Cole and Aldrete
*** End of Consent Agenda ***
Adjourn to Ocean View Community Services District Meeting: Consent Agenda The City Council adjourned to the Ocean View Community Services District meeting.

9. Receive Ocean View Community Services District Quarterly Report (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) Action: Received report
City Attorney Davi stated there was nothing additional to report beyond what was presented in the agenda report. The District Boardmembers received the report.

Adjourn to City Council Meeting
The District Boardmembers adjourned to the City Council meeting.

PUBLIC APPEARANCE

10. Consider Union Request to Reclassify a Street Maintenance Worker Position as a Greenbelt Coordinator (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Denied reclassification request (4-1, Councilmember Williamson voting no) Assistant Human Resources Director Russo gave a verbal presentation to Council explaining the request for reclassification that was received pursuant to Section 29 of the General Employees of Monterey (GEM) memorandum of understanding (MOU). She answered Councilmembers' questions.

Richard Fisher, Attorney with Goyette, Ruano & Thompson, spoke on behalf of his client Eleazar Munoz. He explained that his client climbs and fells large trees and has an advanced skill set related to this type of work and has been required to do these highly skilled functions even though they do not fall within the classification of Street Maintenance Worker. He referred to affidavits signed under penalty of perjury by Shay Balesteri and Mike Gentry asserting that they know Mr. Munoz to perform tree trimming and bucket work for the City. He paused while Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 3, Packet Page 7 City Council Minutes October 4, 2022
4 the meeting participants were shown a video of Mr. Munoz cutting down a pine tree adjacent to a building on the Presidio of Monterey. He stated that the work done in the video was never documented in a work order, and stated that the City has not kept proper records to capture the nature of work done by Mr. Munoz. He said that Mr. Munoz deserves to be recognized as a Greenbelt Coordinator.

Public comment was solicited but not received.

On question, City Manager Uslar spoke about the video that was played, and said that it was unknown when the video was taken. He said that Mr. Munoz worked without safety precautions in the video and had been instructed in or around March 2021 to stop performing tree work. On question, Interim Public Works Director Renny stated that a few of the photos submitted were related to a Presidio work order, She stated that the Streets and Utilities Operations Manager, supervisors, and lead workers had attested that there were no assignments to the aerial bucket truck since at least April 2022. She broke down the use of the aerial bucket truck as follows:
usually not in use for more than two hours per week; not limited to electrical work; and used for zero tree work since the request for reclassification was submitted in October 2021.

Mr. Fisher was given the opportunity to rebut statements made by City staff. He stated that a Street Maintenance Worker has no business being asked to do the type of work that he stated that the record shows Mr. Munoz has been asked to do and that the signed affidavits declared he has done. He stressed the importance of reviewing the evidence submitted and stated that Mr. Munoz has an unblemished performance record. He stated that Mr. Munoz had worked in the stated capacities at the direction of the City's private contractor.

Public comment was reopened at the request of the Mayor. Shay Balesteri introduced Eleazar Munoz, who answered Councilmembers' questions. On question from City Attorney Davi, Mr.

Fisher agreed that his client was welcome to speak directly with the Council. Mr. Munoz stated he had never received verbal or written feedback directing him not to perform tree work. He stated that he had worked in the Forestry division prior to working in the Streets division. He clarified that he arrives at work at the Presidio and receives orders for the day's work. He said that he has been directed to cut trees by the City Leadworker who he said was two levels above him at the City's office at the Presidio. He said that the most recent time he used a chainsaw was about four months prior, to trim branches. He said that he last cut down a tree from the ground about six months prior to the meeting. He said it was not unusual for him to cut a tree larger than six inches. He said that the only notice he had received regarding cutting trees was that the chainsaws are now kept in an inaccessible location. With no further requests to speak, public comment was closed.

City Manager Uslar stated that on April 22, 2022, Mr. Munoz was advised in writing from the Human Resources Director not to use a chainsaw. He said that Mr. Munoz was advised verbally in around March of 2022 no longer to use chainsaws.

A motion was introduced by Mayor Roberson, and seconded by Councilmember Albert, to deny the Union Request to Reclassify a Street Maintenance Worker Position as a Greenbelt Coordinator.

Council discussed the matter. Discussion points were: the reclassification request at hand, the matter of proper supervision of City employees, and the matter of accurate accounting of City work orders. It was stated that there was not evidence that over fifty percent of Mr. Munoz's work was in forestry management. It was directed that City management look into the fact that Mr. Munoz was being asked to do out-of-class work, and investigate how work was assigned and supervised and how work orders were assigned. Mr. Munoz was praised for coming Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 4, Packet Page 8 City Council Minutes October 4, 2022
5 forward and encouraged to apply for the job of Greenbelt Coordinator, stating he seemed to be well-qualified.

It was stated by the Council that the position that over fifty percent of the work was not Forestry could not be backed up with evidence, and that without clarity on the percentage, the motion could not be supported.

The motion carried by the following roll-call vote:

AYES: 4 COUNCILMEMBERS: Albert, Haffa, Smith, Roberson
NOES: 1 COUNCILMEMBERS: Williamson
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)

11. Amend Resolution No. 18-179 to Authorize Amendment to City Attorney Employment Agreement (Not a Project under CEQA per Article 20, Section 15378 and Under General Rule Article 19, Section 15061). Continued from September 20, 2022.

Action: Resolution No. 22-137 C.S.

Che Johnson, outside counsel with Liebert Cassidy Whitmore, gave a brief verbal statement explaining that the proposed City Attorney contract would bring her in line with the other labor groups.

On a motion by Councilmember Haffa, seconded by Councilmember Williamson, and carried by the following vote, which was conducted by roll call, the City Council adopted Resolution 22-137 C.S. to Authorize Amendment to the City Attorney Employment Agreement:

AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
*** Adjourn to Closed Session (See additional agenda) *** On a motion by Councilmember Haffa, seconded by Councilmember Smith, and carried by the following vote, which was conducted by roll call, the City Council continued closed session items 1 and 2 to the evening:

RECONVENE
*** Evening Session Agenda ***
Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 5, Packet Page 9 City Council Minutes October 4, 2022
6 The Council reconvened at 7:02 p.m.

PLEDGE OF ALLEGIANCE
Mayor Roberson led the Pledge.

CONTINUED PUBLIC COMMENTS
Public comment on non-agendized matters was received from Luis Osorio, Nina Beety, and Jhonrico Carr.

ANNOUNCEMENTS FROM CLOSED SESSION
No announcement made, as closed session matters were not heard in the afternoon and instead were continued to the evening session.

PRESENTATIONS (EVE)

12. Receive Presentations from Mark Gilbert Enterprises and San Pedro Fish Market on Proposals Submitted to Lease the Property Located at 30 Fisherman's Wharf (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) Action: Received presentations
Property Manager Aldrete gave the staff presentation. Ken Turgen, Wald Ruhnke & Dost Architects, presented on behalf of Mark Gilbert Enterprises in favor of their proposal, and answered Councilmembers' questions. Mike Ungaro, San Pedro Fish Market, presented in favor of their proposal, and answered Councilmembers' questions.

Public comment on the proposals was not received.

COUNCIL COMMENTS
Councilmember Haffa said he believed the Council should appeal to the Coastal Commission regarding the outdoor seating at the Wharf, citing health reasons and related access issues.

Councilmember Albert reported on his recent attendance at a Monterey Vista neighborhood function. He addressed an election-related survey circulating in the community, stating that he and his campaign did not authorize the survey.

Councilmember Williamson reported that Monterey One Water took action at the September board meeting to approve entering into an agreement regarding microgrid renewable energy projects. He thanked Councilmember Albert for providing clarity about the political poll and asked whoever is behind it to come out from anonymity and stop pushing lies.

Councilmember Smith echoed that the Monterey Vista event was enjoyable. He thanked first responders for their coordinated effort fighting the Aguajito Fire. He reported on a recent Monterey Peninsula Chamber of Commerce leadership luncheon.

Mayor Roberson spoke about a recent event with the National Trust for Historic Preservation and the modern model that he said works to preserve special historic sites.

Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 6, Packet Page 10 City Council Minutes October 4, 2022
7 CITY MANAGER REPORTS
City Manager Uslar said staff would bring for consideration at the next Council meeting a draft letter to the Coastal Commission regarding the Wharf outdoor seating issue. He reported on the recent Aguajito Fire and stated that the coordinated effort was efficient and was activated quickly. He announced an upcoming City-hosted COVID-19 vaccine clinic. *** Adjourn to Closed Session (See additional agenda) *** Public comment on closed session was not received. The Council adjourned to closed session at 8:23 p.m.

REPORT FROM CLOSED SESSION
cs1. Conference with Labor Negotiators Pursuant to Government Code Section 54957.6 Agency Negotiators: Brette Neal, Gina Russo, Che Johnson; Monterey Fire Fighters' Association (MFFA) (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: No reportable action taken

2. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8
Property: 601 Wave Street, Suite 400
Agency Negotiators: Kimberly Cole and Janna Aldrete
Negotiating Parties: Mark Hastings (Monterey General Store/American Country Classics) Under Negotiation: Price and Terms of Payment for Lease Amendment (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061) Action: On a unanimous roll-call vote, the Council gave confidential direction to real property negotiators
cs3. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8
Property: 30 Fisherman's Wharf
Agency Negotiators: Kimberly Cole and Janna Aldrete
Negotiating Parties: Mark Gilbert (Mark Gilbert Enterprises, Inc.) and Michael Ungaro (San Pedro Fish Market Company, LLC)
Under Negotiation: Price and Terms of Payment for New Lease (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061) Action: On a unanimous roll-call vote, the Council gave confidential direction to real property negotiators

ADJOURNMENT
The Council adjourned at 9:46 p.m.

Respectfully Submitted, Approved,
Clementine Bonner Klein Clyde Roberson
City Clerk Mayor
Council Regular Meeting, 10/18/2022, Item No. 1., Item Page 7, Packet Page 11 Council
Agenda Report
№08/22
FROM: Kimberly Cole, AICP, Community Development Director SUBJECT: Amend and Restate Resolution 21-107 to Extend the Pre-Commitment of .086 Acre Feet of Water to 704 Foam Street to January 17, 2024 (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
RECOMMENDATION:

Staff recommends that the City Council adopt a Resolution amending and restating Resolution 21-107 to extend the pre-commitment of .086 acre feet of water to 704 Foam Street to January 17, 2024.

VALUE DRIVER:

Support efforts and policies that provide equitable access to affordable housing in Monterey and the region.

POLICY IMPLICATIONS:

General Plan Program g.1.3. The City will actively support the redevelopment of underutilized mixed-use sites to meet the City’s RHNA allocation and to provide additional affordable housing opportunities throughout the City near transit stops, jobs, and services.

FISCAL IMPLICATIONS:

None.

ENVIRONMENTAL DETERMINATION:

The City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

The City Council may decide not to extend the pre-commitment of .086 acre feet of water to 704 Foam Street to January 17, 2024.

Date: 10/18/2022
Item No.: 2.

Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 1, Packet Page 12 DISCUSSION:

Background
Since 2009, the Monterey Peninsula has been subject to Cease and Desist Order (CDO) 95-10 imposed by the State Water Resources Control Board on California American Water, known as Cal Am (the Peninsula’s privately-owned water purveyor and utility), requiring Cal Am to reduce withdrawals from the Carmel River. As a result, the City of Monterey has a limited amount of water available for new development. To mitigate this problem, the City has incorporated programs to address water capacity, including giving preference in the City’s water allocation process to projects meeting fair-share housing goals and to affordable housing projects.

In 2014, the City of Monterey issued a Request for Proposals (RFP), and several projects competed for a pre-commitment of the City’s remaining water allocation. The City Council ultimately pre-committed water to seven projects. One example project is 230 Lighthouse Avenue. This project increased housing supply in the City’s mixed-use districts (30 new housing units) and created new business opportunities, which contributed to the revitalization of the City’s mixed-use neighborhoods. This development is also located near transit lines. 230 Lighthouse – Graphic Depiction
Some of the projects awarded water in 2014 did not proceed, and 1.2 acre feet of water became available for re-allocation. On April 18, 2017, the City Council adopted Resolution No. 17-063 authorizing the release of an RFP to pre-commit and/or allocate 1.2 acre feet of water to one or more affordable housing projects. On September 19, 2017, the City Council adopted Resolution No. 17-166 pre-committing 0.485 acre-feet of water to 591 East Franklin Street. The 591 Franklin Street project included four, deed-restricted, affordable housing units. This project has not proceeded, and the water allocation has expired.

In February 2018, the City Council provided direction for the City to release another RFP for water allocation. Ultimately, the City received three proposals requesting a water allocation in 2018 including:

Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 2, Packet Page 13 Figure 1: Site Address and Existing Site Photos
118 and 130 Encina Avenue 704 Foam Street 591 East Franklin Street On January 15, 2019, the City Council awarded water to 704 Foam Street (Attachment 2) and, in May 2019 awarded water to 591 East Franklin Street. The developer for 591 East Franklin indicated in July 2021 that they do not intend to proceed with the project. On December 1, 2020, the City Council extended the pre-commitment of 0.086 acre feet of water to 704 Foam Street as the COVID-19 pandemic has hindered the applicants’ ability to continue to move the project forward (Attachment 3). On October 19, 2021, the City Council extended the precommitment of 0.086 feet of water to 704 Foam Street due to continued delay by the COVID-19 pandemic and the need for additional time to complete archeological studies (Attachment 4).

The property owners of 704 Foam Street are now requesting a third extension.

Analysis
The Cannery Row Company, property owners at 704 Foam Street, have submitted a letter requesting a one-year extension (Attachment 5).
704 Foam Street
Pre-Application – Concept Plan
Submittal Date
August 27, 2019
Incomplete Letter 1 September 26, 2019
Preapplication – Revised Concept Plan
Response Received
November 12, 2019
Development Review Committee December 5, 2019
Incomplete Letter 2 January 15, 2020
Preliminary Plans – full architectural plans
and engineering plans
Response Received
June 23/29, 2020
Incomplete Letter 3 July 30, 2020
Application Currently Incomplete – TBD
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 3, Packet Page 14 Awaiting Resubmittal from Applicant1
Development Review Committee September 14, 2020
Environmental Review Permit Submittal October 14, 2020
Tree Permit Submittal October 30, 2020
Proposals for CEQA Review Received
from Two of the City’s On-Call
Environmental Consultants
November 13, 2020
Environmental Review Permit Deposit
Received
July 22, 2021
Detailed Scope of Work for Extended
Phase I Plan (XPI Archeological Testing)
Received/Approved
August 3, 2021
XPI Archeological Testing August 11 – August 12, 2021
Reviewed XPI Findings with the Applicant August 16, 2021 Received AB52 List from Native American
Heritage Commission
August 23, 2021
Received Scope/Cost for Phase II
Archeological Testing
August 27, 2021
Meeting with Applicant regarding need for
Phase II Archeological Testing
September 2, 2021
Sent AB52 Letters September 13, 2021
Additional Deposit to Conduct Phase II
Archeological Testing
Deposit received 3/22/2022;
Applicant requested the project be
placed on hold from March 2022 –
September 2022. The applicant
requested changes to the
approach with archaeological
resources during this timeframe.

The applicant also requested that
the Council approves the water
extension to January 2024.

Staff recommends the City Council adopt a Resolution extending the pre-commitment of water for 704 Foam Street to January 17, 2024.

KC/CAS
Attachments: 1. Draft Resolution
1 Applicant waiting for results of archaeological testing prior to resubmitting for completeness.

Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 4, Packet Page 15

2. Resolution 19-007 Pre-Committing .086 Acre Feet to 704 Foam Street

3. Resolution 20-184 Amending Resolution 19-007 to Extend the Pre- Commitment of .086 Acre Feet of Water to 704 Foam Street

4. Resolution 21-107 Amending Resolution 19-007 to Extend the Pre- Commitment of .086 Acre Feet of Water to 704 Foam Street

5. Letter from Baltinos, September 28, 2022
e: Mr. Balestreri
Mr. Silverie
All Business Associations
All Neighborhood Associations
Housing List
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 5, Packet Page 16 RESOLUTION NO. ____ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
1 AMENDING AND RESTATING RESOLUTION 21-107 T0 EXTEND THE PRE-COMMITMENT OF .086 ACRE FEET OF WATER TO 704 FOAM STREET TO JANUARY 17, 2024 WHEREAS, Bert Cutino Trust et al, the owner of the property at 704 Foam Street requested .086 acre feet of water;
WHEREAS, the City Council released a Request for Proposals (RFP) with the intent of pre-committing water;
WHEREAS, the RFP was distributed widely including posting on the City website, mailings
to property owners within the Downtown, Lighthouse, North Fremont, and Cannery Row areas, and affordable housing providers;
WHEREAS, the City of Monterey received three proposals; WHEREAS, the RFP required that the project include adequate water meters and the applicant has researched this topic and understands there are adequate water meters; WHEREAS, the RFP required that the projects must meet the following requirements to be eligible for a water pre-commitment:

1. The project must include adequate existing water meters. New meters or an increase in meter size is not allowed.

WHEREAS, the RFP required that the project meet one of the following project requirements to be eligible for a water pre-commitment:

1. The project provides some permanently restricted ‘very low’ or ‘low’ income affordable housing as defined by the City. The affordable housing will be required to be permanently deed restricted; or

2. The project provides offsite affordable housing as defined by the City. The affordable housing will be required to be permanently deed restricted.

WHEREAS, the RFP required that the following priorities be used to evaluate the projects and make recommendations to the City Council;
WHEREAS, the RFP required that the following priorities be used to evaluate the projects and make recommendations to the City Council:

1. Priority will be given to projects in one of the three specific plan areas North Fremont, Downtown, or Lighthouse Avenue.

Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 6, Packet Page 17

2. Priority will be given to projects that are principally permitted and, therefore, do not require discretionary permitting. The exceptions to these criteria are mixed-use projects.

3. Priority will be given to projects that include the highest number of permanent affordable housing and the lowest average affordability level.

4. Priority will be given to Proposers who have strong track records of building and managing affordable housing.

5. Does the proposal contain all the required information?

6. Does the proposal meet the Project requirements?

7. Is the project sufficiently consistent with the established priorities?

8. Has the proponent demonstrated the ability to successfully complete a project of similar complexity and nature?

9. Has the proponent provided sufficient assurance that projects will be started and completed in a timely manner?
WHEREAS, in fulfillment of the RFP, the property owner has represented that:
 Adequate water meters exist on the site
 Project provides one permanently restricted low-income unit;  The development team has experience in building housing projects, and one of their projects includes an affordable housing unit;
 The project has provided all the required information, meets the project requirements and is sufficiently consistent with the established priorities; and  The development teams can finish the project in a timely manner.

WHEREAS, on January 15, 2019, the City Council adopted Resolution 19-007 precommitting .086 acre feet of water to 704 Foam Street. This water commitment was extended by the City Council by adopting Resolutions 20-184 and 21-107; WHEREAS, on September 28, 2022 the project applicant requested an extension of the January 17, 2023 deadline as more time is needed to meet conditions of approval; WHEREAS, this resolution includes an indemnity provision and specifies that the lowincome housing unit is a rental unit; WHEREAS, the City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.

Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby amends and restates Resolution 19-007 and the City pre-commits .086 acre feet of water to 704 Foam Street with the following conditions:

Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 7, Packet Page 18

1. The project at 704 Foam Street shall provide one permanently deed restricted rental unit (one low income) as defined by the U.S. Department of Housing and Urban Development income limits and the State of California Department of Housing and Community Development (HCD) currently in effect at the time of the permit application and the property owner shall enter into an affordable housing agreement with the City of Monterey prior to building permit issuance;

2. The property owner shall enter into an agreement with the City for one, low income unit to be deed restricted in perpetuity;

3. The property owner shall agree to give up the pre-commitment if adequate water meters are not available or if additional regulations on water supply make it not possible to move forward;

4. The property owner shall execute an indemnification agreement agreeing to defend, indemnify and hold harmless the City of Monterey from any claim, action, or proceeding brought against the City to attack, set aside, void, or annul this allocation or environmental determination;

5. The property owner shall start construction (building permit issued and construction started) no later than January 17, 2024.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 18th day of October, 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 8, Packet Page 19 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 9, Packet Page 20 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 10, Packet Page 21 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 11, Packet Page 22 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 12, Packet Page 23 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 13, Packet Page 24 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 14, Packet Page 25 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 15, Packet Page 26 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 16, Packet Page 27 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 17, Packet Page 28 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 18, Packet Page 29 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 19, Packet Page 30 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 20, Packet Page 31 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 21, Packet Page 32 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 22, Packet Page 33 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 23, Packet Page 34 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 24, Packet Page 35 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 25, Packet Page 36 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 26, Packet Page 37 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 27, Packet Page 38 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 28, Packet Page 39 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 29, Packet Page 40 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 30, Packet Page 41 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 31, Packet Page 42 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 32, Packet Page 43 ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 33, Packet Page 44 RESOLUTION NO. 20-184 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
AMENDING RESOLUTION 19-007 T0 EXTEND THE PRE-COMMITMENT OF .086 ACRE FEET OF WATER TO 704 FOAM STREET TO DECEMBER 1, 2021
WHEREAS, on January 15, 2019, the City Council adopted Resolution 19-007 precommitting .086 acre feet of water to 704 Foam Street; WHEREAS, the pre-commitment will expire if construction is not started by January 15, 2021;
WHEREAS, project applicant has diligently pursued their permits; WHEREAS, the project applicant requested an extension of the January 2021 deadline as the COVID-19 pandemic has hindered their ability to continue to move the project forward; WHEREAS, the City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby amends Resolution 19-007, Section 4 on page three, to read as follows:

DocuSign Envelope ID: 7FBABF81-0D4B-48CF-B1DF-3056EFDB160C ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 34, Packet Page 45 2 4. The property owner shall start construction (building permit issued and construction started) no later than January 17, 2022.

All other terms and conditions set forth in Resolution 19-007 remain in full force and effect.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 1st day of December, 2020, by the following vote:

AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None
APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
DocuSign Envelope ID: 7FBABF81-0D4B-48CF-B1DF-3056EFDB160C ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 35, Packet Page 46 RESOLUTION NO. 21-107 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
AMEND AND RESTATE RESOLUTION 19-007 T0 EXTEND THE PRE-COMMITMENT OF .086 ACRE FEET OF WATER TO 704 FOAM STREET TO JANUARY 17, 2023 WHEREAS, Bert Cutino Trust et al, the owner of the property at 704 Foam Street requested .086 acre feet of water;
WHEREAS, the City Council released a Request for Proposals (RFP) with the intent of pre-committing water;
WHEREAS, the RFP was distributed widely including posting on the City web, mailings to property owners within the Downtown, Lighthouse, North Fremont and Cannery Row areas, and affordable housing providers;
WHEREAS, the City of Monterey received three proposals; WHEREAS, the RFP required that the project include adequate water meters and the applicant has researched this topic and understands there are adequate water meters; WHEREAS, the RFP required that the projects must meet the following requirements to be eligible for a water pre-committment:

1. The project must include adequate existing water meters. New meters or an increase in meter size is not allowed.

WHEREAS, the RFP required that the project meet one of the following project requirements to be eligible for a water pre-commitment:

1. housing as defined by the City. The affordable housing will be required to be permanently deed restricted; or

2. The project provides offsite affordable housing as defined by the City. The affordable housing will be required to be permanently deed restricted.

1. Priority will be given to projects in one of the three specific plan areas North Fremont, Downtown, or Lighthouse Avenue.

2. Priority will be given to projects that are principally permitted and, therefore, do not require discretionary permitting. The exceptions to these criteria are mixed-use projects.

ATTACHMENT 4
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 36, Packet Page 47 2 3. Priority will be given to projects that include the highest number of permanent affordable housing and the lowest average affordability level.

4. Priority will be given to Proposers who have strong track records of building and managing affordable housing.

5. Does the proposal contain all the required information?

6. Does the proposal meet the Project requirements?

7. Is the project sufficiently consistent with the established priorities?

8. Has the proponent demonstrated the ability to successfully complete a project of similar complexity and nature?

9. Has the proponent provided sufficient assurance that projects will be started and completed in a timely manner?
WHEREAS, in fulfilment of the RFP, the property owner has represented that:

Adequate water meters exist on the site
Project provides one permanently restricted low income unit; The development team has experience in building housing projects and one of their projects includes an affordable housing unit;
The project has provided all the required information, meets the project requirements and is sufficiently consistent with the established priorities; and The development teams can finish the project in a timely manner.

WHEREAS, the project applicant requested an extension of the January 2022 deadline due to COVID-19 and the need for more time for archeological studies; WHEREAS, this updated resolution includes an indemnity provision and clarifies that the low income housing unit is a rental unit;
WHEREAS, the City of Monterey determined that the proposed action is not a project as the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby amends and restates Resolutions 19-007and theCity pre-commits .086 acre feet of water to 704 Foam Street as generally described in Exhibit A with the following conditions:

ATTACHMENT 4
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 37, Packet Page 48 3 1. The project at 704 Foam Street shall provide one permanently deed restricted rental unit (one low income) as defined by the U.S. Department of Housing and Urban Development income limits and the state of California Department of Housing and Community Development (HCD) currently in effect at the time of the permit application and the property owner shall enter into an affordable housing agreement with the City of Monterey prior to building permit issuance;

2. The property owner shall enter into an agreement with the City for one, low income unit shall to be deed restricted in perpetuity;

3. The property owner shall agree to give up the pre-commitment if adequate water meters are not available or if additional regulations on water supply make it not possible to move forward;

4. The property owner shall execute an indemnification agreement agreeing to defend, indemnify and hold harmless the City of Monterey from any claim, action or proceeding brought against the City to attack, set aside, void or annual this allocation or environmental determination.

5. The property owner shall start construction (building permit issued and construction started) no later than January 17, 2023.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 19th day of October, 2021, by the following vote:

AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
ATTACHMENT 4
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 38, Packet Page 49 ATTACHMENT 5
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 39, Packet Page 50 ATTACHMENT 5
Council Regular Meeting, 10/18/2022, Item No. 2., Item Page 40, Packet Page 51 Council
Agenda Report
№mm/dd
FROM: Andrea Renny, Public Works Director
Prepared By: John Hansen, Senior Administrative Analyst SUBJECT: Authorize the Appropriation of Funds in the Presidio of Monterey Public Works Fund for the Repair Bathroom in Building 629, Wing A Project, Under the Presidio Municipal Services Agency Intergovernmental Support Agreement ***PMSA*** (NEPA Not a Project, CEQA Not a Project under (Pub. Resources Code, § 21080, subd. (a) and Pub. Resources Code, § 21080, subd. (b)(1))) RECOMMENDATION:

That the City Council adopt the attached resolution authorizing the Finance Director, or her designee, to make the following budget appropriations:

1. Appropriate $907,351.71 in the Presidio of Monterey Public Works Authority Fund to the Presidio of Monterey Unscheduled Maintenance Projects, Option Year 5 - POM account [650-310-3199-2001-5027].

2. Increase the Special Project Reimbursement Fees revenue account [650-310-3199- 3658] in the amount of $907,351.71.

VALUE DRIVERS:

Serve as stewards of the City’s financial resources through sound economic vitality efforts, streamlining operations, reasonable revenue enhancements, visionary long-term planning, fiscal transparency, and community partnerships.

In collaboration with our community partners, work to improve the quality of life of all of our community members by fostering diversity, equity, and inclusion; championing equitable access to affordable housing; and maintaining a safe environment.

POLICY IMPLICATIONS:

This action is consistent with the City’s policy to approve all budget adjustments and support the mission of providing project services to the Army through the Presidio Municipal Services Agency (PMSA) Intergovernmental Support Agreement (IGSA).

FISCAL IMPLICATIONS:

The City has received an Individual Job Order award and funding under the PMSA’s master IGSA for the purpose of providing bathroom repairs at building 629, Wing A, at the Presidio of Monterey.

The new project expenditure budget totals $907,351.71 and will be fully reimbursed by an increase in Special Project Reimbursement Fees collected by the City from the Army. This action has no cost impact to the General Fund.

Date: 10/18/2022
Item No.: 3.

Council Regular Meeting, 10/18/2022, Item No. 3., Item Page 1, Packet Page 52 ENVIRONMENTAL DETERMINATION:

All Army project services provided by PMSA require National Environmental Policy Act (NEPA) evaluation rather than California Environmental Quality Act (CEQA) evaluation. Under NEPA, the action to appropriate funds does not require a Record of Environmental Consideration (REC).

CEQA applies to discretionary projects (Pub. Resources Code, § 21080, subd. (a)). CEQA does not apply to ministerial projects (Pub. Resources Code, §21080, subd. (b)(1)). There is a recognized policy consideration underlying the distinction between ministerial and discretionary projects.

The purpose of CEQA is to minimize the adverse effects of new construction on the environment. To trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to mitigate environmental damage to some degree. Unless a public agency can shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.

Here, the City does not have the power to deny or condition the permit, or otherwise modify the project in ways which would mitigate environmental problems an environmental impact report might conceivably have identified. The City does not have the authority to dictate changes to the Army’s projects’ design or location in response to any impacts that an environmental review might reveal, the City’s authority under CEQA is essentially ministerial and therefore no further environmental review is required by the City.

In some cases, these subsequent discretionary projects may also require environmental determination in accordance with the National Environmental Policy Act.

ALTERNATIVES CONSIDERED:

The City Council could choose not to appropriate the funds. This alternative is not recommended because the City has a contractual agreement to provide project services to the Army at the Presidio of Monterey under the 2016 Intergovernmental Support Agreement. By approving performance of these project services, the success of the City’s partnership with the Army is strengthened.

DISCUSSION:

The City of Monterey provides project management and public works services to the U.S. Army on the Presidio of Monterey, Ord Military Community, and U.S. Army Signal Activity – Camp Roberts under an Intergovernmental Support Agreement (IGSA). These costs are fully reimbursed by the Army and support the City’s ongoing partnership with the Federal government. Throughout the year, the Army modifies its allocation of funding for the Intergovernmental Support Agreement depending on the availability of funds and needs analysis.

The Army has executed and awarded an Individual Job Order (IJO) under the IGSA. The barracks for B629, Wing A, have recently been re-used as barracks after an extended vacancy of the wing. As a result, the bathrooms have not been maintained or upgraded to accommodate the influx of new students, with damage to floors and walls occurring after the usage of facilities.

Council Regular Meeting, 10/18/2022, Item No. 3., Item Page 2, Packet Page 53 The primary objective of this IJO is to perform and complete work to ensure that the bathrooms of Building 629 Wing A are sufficient for frequent usage by residing soldiers. The work includes, but is not limited to, architectural design and specifications; demolition and reinstallation of floors, walls, shower stalls, bathroom fixtures, lighting, ventilation, and related electrical, plumbing, and mechanical equipment; and the installation of fiberglass, and LED lighting; construction inspection; and testing and certification.

The recommended appropriation of funds will be used for the execution and delivery of the Building 629A Bathroom Repair Project within the City’s Presidio of Monterey Public Works Fund. This new project expenditure budget total of $907,351.71 will be fully offset by an increase in Special Project Reimbursement Fees collected by the City from the Army. This action has no cost impact on the General Fund.

Therefore, staff recommends that the City Council adopt the attached resolution authorizing the Finance Director, or her designee, to make the following budget appropriations:

1. Appropriate $907,351.71 in the Presidio of Monterey Public Works Authority Fund to the Presidio of Monterey Unscheduled Maintenance Projects, Option Year 5 - POM account [650-310-3199-2001-5027].

2. Increase the Special Project Reimbursement Fees revenue account [650-310-3199- 3658] in the amount of $907,351.71.

JH/mb
Attachments: 1. Resolution
e: Billy Garcia, IGSA Manager
Christopher Dwight, General Services Superintendent
Richard Llantero, Senior Engineer
Wendy Davies, Senior Accountant
Alexandria Girometti, Accounting Assistant
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 3., Item Page 3, Packet Page 54 RESOLUTION NO. __- ___ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
№09/22

AUTHORIZE THE APPROPRIATION OF FUNDS IN THE PRESIDIO OF MONTEREY PUBLIC WORKS FUND FOR THE ARMY REPAIR BATHROOM IN BUILDING 629, Wing A PROJECT

UNDER THE PRESIDIO MUNICIPAL SERVICES AGENCY INTERGOVERNMENTAL SUPPORT AGREEMENT ***PMSA***
WHEREAS, a 2022-2023 budget adjustment of $907,351.71 is needed to authorize the payment of Army Repair Bathroom in Building 629, Wing A, project costs in the Presidio of Monterey Public Works Fund;
WHEREAS, the barracks for B629, Wing A, have recently been re-used as barracks after an extended vacancy of the wing. As a result, the bathrooms have not been maintained or upgraded to accommodate the influx of new students, with damage to floors and walls occurring after usage of facilities;
WHEREAS, the work includes, but is not limited to, architectural design and specifications; demolition and reinstallation of floors, walls, shower stalls, bathroom fixtures, lighting, ventilation, and related electrical, plumbing, and mechanical equipment; and the installation of fiberglass, and LED lighting; construction inspection; and testing and certification; WHEREAS, all expenditure appropriation adjustments will be off-set by an equal revenue increase in the Presidio of Monterey Public Works Fund; WHEREAS, this appropriation adjustment is fully funded by a Presidio Municipal Services Agency (PMSA) Individual Job Order (IJO) award issued by the Army; and, WHEREAS, all Army project services provided by PMSA require National Environmental Policy Act (NEPA) evaluation rather than California Environmental Quality Act (CEQA) evaluation. Under NEPA, the action to appropriate funds does not require a Record of Environmental Consideration (REC).

Here, the City does not have the power to deny or condition the permit, or otherwise modify the project in ways which would mitigate environmental problems an environmental impact report Council Regular Meeting, 10/18/2022, Item No. 3., Item Page 4, Packet Page 55 2 might conceivably have identified. The City does not have the authority to dictate changes to the Army’s projects’ design or location in response to any impacts that an environmental review might reveal, the City’s authority under CEQA is essentially ministerial and therefore no further environmental review is required by the City.

In some cases, these subsequent discretionary projects may also require environmental determination in accordance with the National Environmental Policy Act.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that the above recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby authorizes and directs the Finance Director, or their designee, to make the following budget adjustments:

1. Appropriate $907,351.71 in the Presidio of Monterey Public Works Fund to the Presidio of Monterey Unscheduled Maintenance Projects, Option Year 5 - POM account [650-310-3199-2001-5027].

2. Increase the Special Project Reimbursement Fees revenue account [650-310-3199- 3658] in the amount of $907,351.71.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this _____ day of _______, 202_, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 10/18/2022, Item No. 3., Item Page 5, Packet Page 56 Council
Agenda Report
№08/22
FROM: Kimberly Cole, AICP, Community Development Director SUBJECT: Approve a Letter Requesting the California Coastal Commission Extend the Deadline for Fisherman’s Wharf Outdoor Seating Until December 31, 2023 (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)
RECOMMENDATION:

That the City Council approve a letter requesting the California Coastal Commission extend the deadline for Fisherman’s Wharf outdoor seating until December 31, 2023.

VALUE DRIVERS:

Provide sufficient resources and support to develop, retain, and recruit a high-quality city workforce.

POLICY IMPLICATIONS:

General Plan Policy c.1. Support the downtown as the “Monterey Peninsula’s Downtown” and the core of the City. Coordinate planning for land use, traffic, pedestrian access, and parking facilities for the harbor, wharf, Catellus Site, Custom House Plaza, Conference Center, downtown, and east downtown areas so that they contribute to an economically sound and livable core for the City and Monterey Peninsula.

Waterfront Master Plan Objective O.2.5. The use of outdoor dining areas, displays, signs, chowder carts, and similar devices provides a high quality visual presentation.

FISCAL IMPLICATIONS:

None.

ENVIRONMENTAL DETERMINATION:

Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 1, Packet Page 57 cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

The City Council could choose to not approve a letter be sent to the California Coastal Commission requesting that the Fisherman’s Wharf Outdoor seating deadline be extended to December 31, 2023.

DISCUSSION:

At the height of the unprecedented worldwide COVID-19 pandemic, the California Department of Public Health issued an order closing indoor sectors in Monterey County, while allowing certain business activities to occur outdoors, including but not limited to outdoor dining. In response, the City Manager, in his capacity as the Director of Emergency Services, issued an order allowing businesses to establish or expand outdoor dining and retail areas with COVID-19 temporary encroachment permits issued through the Community Development Department (Ratified by City Council, Resolution No. 20-125 C.S.). Due to continued COVID-19 restrictions and dropping winter temperatures, on November 17, 2020, the City Council authorized businesses on the wharves to have outdoor heaters to maximize outdoor dining and keep guests warm (City Council Resolution 20-172).

On April 26, 2022, the City was contacted by the California Coastal Commission (CCC) regarding outdoor seating that was added or expanded on Fisherman’s Wharf during the COVID-19 pandemic. The CCC received a complaint from a member of the public who was concerned with the continuation of outdoor restaurant seating on Fisherman’s Wharf and its impacts on public access. The CCC conveyed to the City that compliance can occur in one of two ways: 1) restaurants close their outdoor seating areas and return them to the public walkways and spaces that they once were, or 2) apply for a coastal development permit (CDP) to retain those areas.

In response to the CCC’s direction, the city wrote a letter to all Fisherman’s Wharf tenants on May 2, 2022 (Attachment 4). In this letter, private businesses were asked to restore their business footprints to pre-COVID conditions given that the pandemic was subsiding at the time and indoor seating restrictions and mask mandates were eliminated. In addition, as identified by the CCC, some outdoor seating areas pre-dating the pandemic may not have received a CDP.

Private businesses without CDPs were asked to remove outdoor seating by May 16, 2022.

Subsequently, city staff initiated communication with the CCC asking for the outdoor seating deadline to be extended. The city was able to get this deadline extended to January 1, 2023. A follow up letter was sent on May 10, 2022 informing private businesses of this new deadline and reinforcing that various permits are required for outdoor seating (Attachment 5).

On August 15, 2022, businesses were sent a third letter emphasizing the importance of submitting the relevant permits to the city and CCC (Attachment 6). An Outdoor Seating Checklist was attached to this letter to help each applicant understand the various applicable city regulations and permits pertaining to outdoor seating; the various stages of these reviews; and information regarding coordinating/permits that will be needed with other agencies (i.e., CCC and Monterey Peninsula Water Management District).

Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 2, Packet Page 58 In response to a meeting city staff initiated with the CCC to understand the application process and regulations that wharf tenants would need to comply with, the CCC sent a letter to City staff and wharf tenants clarifying their position on outdoor seating. Following this meeting, on July 21, 2022, the CCC sent a letter to the City with a cc to restaurant tenants clarifying their position on outdoor seating on Fisherman’s Wharf. The letter states:
”as part of any CDP application to authorize new/expanded outdoor dining, we would need to start with a complete review of each lease site to evaluate the proposed projects against the permitted baseline and any extant CDP terms and conditions. We also noted that any expansion would need to be accompanied by evidence of adequate services, including both water supply and parking to support such outdoor dining, and that any development that further limits general public wharf access would likely not be approvable under the Coastal Act (Attachment 7)”
To date, one tenant has submitted an Architectural Review Permit application, but the application was incomplete and a resubmittal was not received. Other tenants contacted the City by phone asking about permit requirements and others let the City know they would not be applying for permits due the July 21, 2022 CCC letter sent to all wharf tenants.

Due to the continued economic impacts of COVID-19 on the Fisherman’s Wharf restaurant businesses and additional time needed to obtain the proper permits, staff is recommending that the City Council approve the attached letter requesting the California Coastal Commission extend the deadline for Fisherman’s Wharf outdoor seating until December 31, 2023.

The City holds its tidelands in trust for uses and purposes of “…commerce, navigation, fisheries, and recreation, which are of general statewide interest and benefit…” In 1903, the tidelands trust deed was amended to require, for any wharf erected or built in the tidelands, that any and all vessels have a right to dock, land and discharge passengers of merchandise upon payment to such lessee or lessees of reasonable dockage and wharfage.” Therefore, commerce (the wharf businesses) and the requirement to dock and unload passengers, furthers the purposes of the tidelands trust by allowing this public access.

KC/CAS
Attachments: 1. Draft Letter

2. City Council Resolution No. 20-125

3. City Council Resolution No. 20-172

4. May 2, 2022 Letter to Business Owners

5. May 10, 2022 Letter to Business Owners

6. August 15, 2022 Letter to Business Owners

7. July 21, 2022 Letter from the California Coastal Commission

8. October 6, 2022 Letter from the Fisherman’s Wharf Association

9. October 13, 2022 Letter from Café Fina
e: Fisherman’s Wharf Business Association
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 3, Packet Page 59 Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 4, Packet Page 60 ATTACHMENT 1
October 19, 2022
California Coastal Commission
Central Coast District
725 Front St. #300
Santa Cruz, CA 95060
RE: Outdoor Seating Wharf II
Dear Coastal Commission,
The City of Monterey City Council requests that the outdoor seating continue to be allowed on Wharf II through December 2023. The outdoor seating is critical to businesses continuing to try to provide seating options as Covid continues to threaten the health of our citizens. Some residents indicate that they only want to eat outside due to their health circumstances.

We understand that wharf tenants are reluctant to spend more money in light of the Coastal Commission staff letter. It is simply overwhelming and daunting for our small businesses to tackle the issues outlined. The City has large public parking lots (1,100 spaces) adjacent to the wharf that have been recently improved. It is not possible to increase parking supply as these parking lots are fully built out. Furthermore, neither the businesses nor City have the money to pursue new public access projects such as a new wharf walk. The City is focusing on repairing the existing wharves as it has taken years to just obtain these permits.

The goal is to allow some outdoor seating while our region continues to recover from the COVID-19 pandemic. In making this decision, please ask yourself, how comfortable would you be personally sitting indoors or outdoors when the COVID-19 spikes? Furthermore, consider living with immuno-compromised or being immune-compromised, shouldn’t these visitors have the options to dine outdoors during these daunting times? We understand that other businesses in similar situations obtained coastal permits for the temporary seating, and their permits were renewed. While the City obtained many temporary permits for City beach closures and other regulations during this timeframe, the businesses on Wharf I didn’t obtain coastal permits for the temporary outdoor seating. Many businesses were struggling day to day with staying open and trying to operate at all.

On behalf of the City Council, the City of Monterey requests that the Wharf II businesses continue to be allowed to have outdoor seating until December 2023. We are unsure how this request will be considered or if it needs to be placed on a Coastal Commission agenda, but we are requesting that your agency help us help our local businesses and visitors.

Sincerely,
Clyde Roberson
Mayor
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 5, Packet Page 61 RESOLUTION NO. 20-125 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY

RATIFYING THE ORDER OF THE DIRECTOR OF EMERGENCY SERVICES (MONTEREY CITY MANAGER) ALLOWING COVID-19 TEMPORARY OUTDOOR BUSINESS PERMITS AND DELEGATING DESIGN APPROVAL AUTHORITY TO THE CITY’S CHIEF BUILDING

OFFICIAL
WHEREAS, the City Manager, in his capacity as the Director of Emergency Services, issued an order allowing Covid-19 temporary encroachment permits for businesses to establish or expand outdoor dining and retail areas on June 26, 2020. This Order was superseded by the City Manager’s Order on July 23, 2020 to address temporary outdoor business permits. (Exhibit A.) This Resolution will provide City Council confirmation of, and agreement with, the orders made by the City Manager;
WHEREAS, Monterey City Code section 11-4(b)(9)(a) requires the City Council to ratify the City Manager’s emergency orders “at the earliest practical time”; and WHEREAS, the City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act Guidelines (Article 18, Section 15269.c) because the City is modifying its municipal code to prevent or mitigate the spread of COVID-19, a public health emergency. The proposed municipal code modifications would allow business to take place outdoors to maintain social distancing. The actions proposed are immediate actions and are necessary to protect the health and safety of the City’s citizens.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY, pursuant to City Code section 11-4(b)(9)(a), hereby ratifies, confirms, and is in agreement with, and incorporates herein, the July 23, 2020 Order of the Director of Emergency Services (Monterey City Manager), which superseded the June 26, 2020 order, allowing ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 6, Packet Page 62 2 Covid-19 temporary outdoor business permits for businesses to establish or expand outdoor dining and retail areas.

BE IT FURTHER RESOLVED that the City of Monterey Chief Building Official, or their designee provided that such designee holds a valid registration as a Professional Engineer in the State of California, is delegated authority to and shall review and approve the working details, drawings, plans, and specifications prepared for every COVID-19 Temporary Outdoor Business Permit that may affect the design or operation of public works and public improvements.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 4th day of August, 2020, by the following vote:

AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None
APPROVED:

ATTEST: ___________________________
Mayor of Said City
__________________________
City Clerk thereof
ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 7, Packet Page 63

EXHIBIT A
ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 8, Packet Page 64

EXHIBIT A
ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 9, Packet Page 65

EXHIBIT A
ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 10, Packet Page 66

EXHIBIT A
ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 11, Packet Page 67 RESOLUTION NO. 20-172 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
AMEND RESOLUTION 20-125 TO ALLOW COVID-19 TEMPORARY OUTDOOR PARKLET PERMITS THROUGH OCTOBER 31, 2022 AND AUTHORIZE OUTDOOR HEATERS ON WHARF 1 AND WHARF 2
WHEREAS, the City Manager, in his capacity as the Director of Emergency Services, issued an order allowing COVID-19 temporary outdoor encroachment permits for businesses to establish or expand outdoor dining and retail areas on June 26, 2020. This Order was on July 23, 2020 to address temporary outdoor
business permits, and ratified by the City Council on August 4, 2020 with the adoption of Resolution 20-125;
WHEREAS, over 40 businesses in Monterey have chosen to operate outdoors, utilizing sidewalk areas, private patios, and private parking lots for outdoor dining and retail sales, as a means to increase customer services during the COVID-19 pandemic; WHEREAS, parklets are defined as one or more roadside parking spaces on the frontage of a business for retail or dining use;
WHEREAS, authorization to have a parklet ends when the City Manager or City Council terminates the authorization, terminates the local emergency, or adopts an alternative policy; WHEREAS, the City of Monterey finalized and published its Parklet Standard Specifications on August 11, 2020, which outlines how converted public parking spaces on the frontage of a business can be safely operated, configured, and managed for retail or dining use; WHEREAS, businesses in the City of Monterey may need to invest as much as $20,000 to design, build, and install parklets for business retail or restaurant use, and have requested that parklets, once approved, be allowed to operate for 18 to 24-month period of time; WHEREAS, it is economically feasible and appropriate for approved parklets to remain in place through October 31, 2022, despite the length of the pandemic; WHEREAS, temporary outdoor encroachment permits for sidewalk areas, private patios, and private parking lots are less costly to construct, more temporary in nature, and may not be required to continue beyond the length of the COVID-19 pandemic; WHEREAS, restaurants are limited to outdoor dining due to current COVID-19 restrictions;
WHEREAS, as temperatures drop and the pandemic continues, allowing businesses on the wharves to have outdoor heaters will allow them to maximize outdoor dining and keep guests warm; and
WHEREAS, the City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act Guidelines (Article 18, Section 15269.c) because the City is modifying its municipal code to prevent or mitigate the spread of COVID-19, a public health emergency. The proposed municipal code modifications would allow business to take place outdoors to maintain social distancing. The actions proposed are immediate actions and ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 12, Packet Page 68 2 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby amends Section 2 of Exhibit A to Resolution No. 20-125 to read as follows:

Section 2.
(a) Businesses that obtain a COVID-19 Temporary Outdoor Business Permit to conduct business on sidewalks or parking lots must either remove the improvement and restore the property to its original condition, or submit to the Community Development Department the appropriate applications, including architectural plans, to maintain the improvement, within 30 days of the City Manager or the City Council terminating this order, the City Council terminating the local emergency proclaimed by the City Council in Resolution 20-033 on March 17, 2020, or when the City Council adopts an alternative policy.
(b) Businesses that obtain a COVID-19 Temporary Outdoor Business Permit for a parklet, which is the use of one or more roadside parking spaces on the frontage of a business for retail or dining use, must remove the improvement and restore the property to its original condition by October 31, 2022.

BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby adds Section 6 to Exhibit A to Resolution No. 20-125 to read as follows:

Section 6. The amendment to Section 305 of the 2019 Fire Code as set forth in 13-0.2 is hereby suspended to allow outdoor heaters on the wharves as long as those heaters are compliant with any conditions set b This authorization for outdoor heaters on the wharves shall remain in effect until the City Manager or the City Council terminates it, when the local emergency is terminated, or when the City Council adopts a permanent or alternative policy.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 17th day of November, 2020, by the following vote:

AYES: 5 COUNCILMEMBERS: Albert, Haffa, Smith, Williamson, Roberson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None
APPROVED:

ATTEST: ___________________________
Mayor of Said City
__________________________
City Clerk thereof
ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 13, Packet Page 69

CITY OF MONTEREY

COMMUNITY DEVELOPMENT DEPARTMENT
Via USPS 1st class mail and hand-delivered
OLD FISHERMAN’S WHARF GROTTO FISH MARKET May 2, 2022
39 WHARF #1
MONTEREY, CA 93940
Re: Outdoor Seating
Dear Business Owner,
On April 26, 2022, the city of Monterey was contacted by the Coastal Commission regarding outdoor seating that has been added or constructed, on Fisherman’s Wharf #1. As the pandemic has subsided and the restrictions on indoor seating and masks have been eliminated, previous private business footprints need to be restored. In addition, some outdoor seating areas pre-dating the pandemic may not have received a coastal permit.

All outdoor seating without Coastal Development Permits will need to be removed no later than Monday, May 16, 2022, to comply with the Coastal Commission direction.

After the removal of the seating, if you would like to permanently install outdoor seating, a planner will be assigned to help you through the process. Various permits are required including architectural review, coastal development permit, lease amendments, and building permits.

If you have any questions, please contact Kimberly Cole at [email protected] or 646-3759.

Sincerely,
Kimberly Cole, AICP
Community Development Department
re: Wharf Association
Janna Aldrete, Property Manager
Application: https://files.monterey.org/Document%20Center/CommDev/Building%20&%20Saf ety/Permit%20Procedures/Planning%20Permits/Planning-Project-Application.pdf ARC
Handout: https://files.monterey.org/Document%20Center/CommDev/Building%20&%20Safety/ Permit%20Procedures/Planning%20Permits/Architectural-Review.pdf Coastal Development Permit Application: https://www.coastal.ca.gov/cdp/cdp-forms.html ATTACHMENT 4
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 14, Packet Page 70 ATTACHMENT 5
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 15, Packet Page 71 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 16, Packet Page 72 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 17, Packet Page 73 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 18, Packet Page 74 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 19, Packet Page 75 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 20, Packet Page 76 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 21, Packet Page 77 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 22, Packet Page 78 ATTACHMENT 6
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 23, Packet Page 79 STATE OF CALIFORNIA — NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR

CALIFORNIA COASTAL COMMISSION

CENTRAL COAST DISTRICT
725 FRONT STREET, SUITE 300
SANTA CRUZ, CA 95060
PHONE: (831) 427-4863
FAX: (831) 427-4877
WEB: WWW.COASTAL.CA.GOV
July 21, 2022
Kimberly Cole, Director
City of Monterey Community Development Department
570 Pacific Street
Monterey, CA 93940
[email protected]
Subject: Old Fisherman’s Wharf Outdoor Dining
Dear Ms. Cole:

Thank you for reaching out regarding the above-referenced topic. As you know, a number of restaurants on the wharf have installed outdoor dining areas without the benefit of a coastal development permit (CDP), some of which are quite large, and all of which appear to be impeding general public access on the wharf. Accordingly, we appreciate the City’s efforts to address the unpermitted outdoor dining operations. We would also like to acknowledge that we are cognizant of the many challenges that businesses – including those along the wharf – have had to endure throughout the COVID-19 pandemic, and, as you note in your letter, we are aware that temporary outdoor dining areas has, in some cases, contributed to the economic viability of those businesses. While many such operations were authorized up and down the state temporarily at the onset of the pandemic by the Coastal Commission’s Executive Director (pursuant to his authority to do so under Section 30611 of the Coastal Act), none of those on the wharf were so authorized, and thus constitute unpermitted development. While normally we would require immediate removal of such unpermitted development, we have, for now, not prioritized such enforcement provided it can avoid untoward coastal resource impacts. Instead, for now we are focusing our limited staff time on coordinating with local governments to begin the process to obtain appropriate CDP authorization in situations where some limited outdoor dining can be found Coastal Act and/or LCP consistent, and to plan for eventual removal in situations where outdoor dining cannot be found Coastal Act and/or LCP consistent.

In the case of Old Fisherman’s Wharf, the Commission’s Enforcement unit received a complaint noting the unpermitted nature of the outdoor dining along the wharf and its impacts on public access, prompting Enforcement staff to begin communications with City staff to address the violation and the ongoing impacts. We apologize for any confusion at the onset of those communications related to the extent/scale with which outdoor dining could be permitted along the wharf. Since that time, we have tried to make it clear that there are significant challenges with permitting outdoor dining on the wharf including via email on May 26th and via meeting on June 15th. In those communications, we noted that as part of any CDP application to authorize new/expanded outdoor dining, we would need to start with a complete review of each ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 24, Packet Page 80 Old Fisherman’s Wharf Outdoor Dining

Page 2 ends

lease site to evaluate the proposed projects against the permitted baseline and any extant CDP terms and conditions. We also noted that any expansion would need to be accompanied by evidence of adequate services, including both water supply and parking to support such outdoor dining, and that any development that further limits general public wharf access would likely not be approvable under the Coastal Act.

We also shared the most recent staff report for an application for new/expanded outdoor seating (CDP Amendment No. 3-92-063-A2 for Abalonetti Bar & Grill; see attached) to help clarify that outdoor dining along Old Fisherman’s Wharf raises significant Coastal Act and LCP Land Use Plan (LUP) consistency issues. Notably, the staff report for CDP Amendment No. 3-92-063-A2 outlined that the proposed outdoor dining expansion in that case raised Coastal Act and LUP consistency issues given the project’s location over public trust lands granted to the City of Monterey, including because the relevant Coastal Act and LUP policies protect and reserve these areas for public access, visitorserving recreational facilities, coastal dependent uses, and commercial fishing/recreational boating facilities (in other words, not commercial/private restaurant use). Some excerpts from that staff report are included below for ease of reference and to help better frame the Coastal Act/LUP issues related to public recreational access, public views, and water supply. Please note that all of these same issues remain applicable today, and would be applicable to any outdoor dining application on the wharf. The report states:
…the proposed amendment would result in conversion of existing required free public access areas…to restaurant uses, and would further expand restaurant use over other wharf areas. The project thus reduces instead of maximizes public recreational access opportunities, including, significantly, free and low-cost opportunities, and cannot be found consistent with the Coastal Act.

In terms of public views, the project would place additional structures and development within a significant viewshed, including an LUP-identified public view corridor, and degrade public views from the main stem of the public wharf and from the existing public access area adjacent to the restaurant. The proposed amendment would also result in a narrowing of the view cone as seen from the center of the wharf, and a reduction in the amount of wharf that is currently accessible to the public for enjoying shoreline views… Finally, the proposed project would lead to an intensification of use…including an increased amount of restaurant seating and corresponding demand for water… Restaurant expansion will require additional water in an area (the Monterey peninsula) where there are inadequate water supplies currently. The availability of adequate services has not been clearly demonstrated, and thus the proposed project is not consistent with the public service requirements of the Coastal Act.

In our meeting on June 15th, we also explained to City staff that in the event adequate public services could be demonstrated, both in terms of water and parking (which both appear to be rather significant hurdles to overcome), it is possible that some limited outdoor dining may be permittable. However, in our view it would need to be accompanied by other sorts of public access and viewshed improvements (including but ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 25, Packet Page 81 Old Fisherman’s Wharf Outdoor Dining

Page 3 ends

not necessarily limited to the creation of a public walkway along the exterior of the wharf (similar to the ‘Harborwalk’ in Morro Bay, or the proposed walkway designed to extend around the complete exterior of the Santa Cruz Wharf)) to be approvable. City staff noted that those sorts of public access and viewshed improvements could present significant financial and logistical challenges, and may deter businesses from continuing to pursue permits for outdoor dining. We suggested that it may make the most sense for the City to undertake a broader planning process for the wharf that might be able to identify the types of wharf public access and viewshed improvements that could be undertaken overall, where individual businesses and their projects could then draw on that effort and contribute to it in the area of their lease holds as part of a CDP process, thereby avoiding a strict case-by-case evaluation that might be more disjointed. City staff also raised concerns regarding the challenges that an effort like that that might place on the City. In light of these types of concerns, Commission and City staff agreed that it would be important that these type of CDP challenges were clear to any business interested in pursuing permits for outdoor dining, including so that they could appropriately gauge whether or not to continue such efforts (i.e., Design Permit applications to the City and CDP applications to the Commission). This letter is meant to do just that, and it is copied to wharf businesses.

Thus, with this letter we aim to clearly articulate to all parties that while we are willing to review and process CDP applications, there are some rather significant Coastal Act and LUP consistency issues with any restaurant expansion along Old Fisherman’s Wharf, and all parties need to be keenly aware of those issues. We are open to options that might help facilitate such efforts, such as the broader wharf planning efforts alluded to above, and stand ready to help in such efforts, if that proves a more desirable path. We are also available if there are any questions, or you would like to discuss this matter further.

Sincerely,
Rainey Graeven
Central Coast District Supervisor
California Coastal Commission
Attachment: CDP Amendment No. 3-92-063-A2 for Abalonetti Bar & Grill cc (sent via mail, electronically, and fax):

Crabby Jim’s
Old Fisherman’s Grotto
The Grotto Fish Market/Kokomo’s
Paluca Trattoria
Dock Side Fish Market
Monterey Bay Creamery
Café Fina
Crab Louie’s Bistro
Domenico’s on the Wharf
Abalonetti Bar and Grill
Fish and Chips Café
ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 26, Packet Page 82 Old Fisherman’s Wharf Outdoor Dining

Page 4 ends

Crab House
Water and Leaves
Rockfish Harbor Grill
ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 27, Packet Page 83

STATE OF CALIFORNIA- THE RESOURCES AGENCY
CALIFORNIA COASTAL COMMISSION ·~NTRAL COAST DISTRICT OFFICE -~5 FRONT STREET, SUITE 300
SANTA CRUZ, CA 95060
PHONE: (831) 427-4863
FAX: (831) 427-4877
WEB: WWW.COASTAL.CA.GOV
VJ \ ~ ht\_.r lvv\) J\, VDV1'i ~ 1
Q[ { (\_:~lilt
W12a
Filed
180'h day (extended):
270h day (current deadline):

Stall" report prepared:

Staff Report prepared by:

Staff Report approved by:

Hearing date:

ARNOLD SCHWARZENEGGER, GOVERNOR
02/26/2009
08/25/2009
11/23/2009
09/16/2009
M. Watson
D.Carl
I 0/07/2009

COASTAL DEVELOPMENT PERMIT AMENDMENT APPLICATION
Application number ....... 3-92-063-A2, Abalonetti's Restaurant Expansion Applicant ......................... Monterey Wharf Concession No. 9, LLC (James Gilbert) Project location .............. Abalonetti's Restaurant, #57 Fisherman's Wharf #1, City of Monterey, Monterey County.

Project description ......... Eliminate prior permit conditions related to seating restrictions, expand outdoor seating area and install fifty additional outdoor seats, expand windscreen perimeter, modify public access area, and partition of hoist area at Abalonetti's Restaurant.

Local Approvals ............. Architectural Review Committee approval (ARC 07-478, January 30, 2008); City Council approval of Major Project and Lease Amendment (Resolution 08-171 C.S., November 4, 2008).

File documents ................ Coastal development permit file 3-92-063; City of Monterey certified Land Use Plan (LUP).

Staff Recommendation .. Approval with Conditions
A.Staff Recommendation

1. Summary of Staff Recommendation
The Applicant proposes to amend a previously-approved coastal development permit (COP) for outdoor seating at Abalonetti's Restaurant on Fisherman's Wharf in the City ofMonterey. Although that permit recognizes a total of 150 restaurant seats (94 indoor seats and 56 outdoor seats), it also limits overall restaurant seating to a maximum of 94 seats at any one time in recognition of water and parking limitations. Specifically, the existing permit requires 56 seats to be closed off (i.e., no service) when the 56-seat outdoor seating area is in use.

The proposed amendment would eliminate the restriction on outdoor versus indoor use, and would add an additional 50 outdoor seats and make other interior and exterior modifications. Thus, all told, the proposed amendment would result in a 200-seat restaurant, with 94 interior seats and I 06 exterior seats.

California Coastal Commission
3-92-063-A2 (Abalonetti's Restaurant Expansion) stfrpt 10.7.2009 hrg ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 28, Packet Page 84 CDP Amendment Application 3-92-063-A2
Abalonetti's Restaurant Expansion

Page 2 ends

The expanded outdoor seating area would also include a more than 9-foot tall perimeter windscreen, modification ofthe area reserved for public access, and expanded commercial use of a public wharfarea historically used as a boat hoist.

The amendment raises inconsistencies with Coastal Act and LUP pnonty land use standards. The project site is located over public trust lands granted to the City of Monterey. Both Coastal Act and LUP policies protect and reserve these areas for public access, visitor-serving recreational facilities, coastaldependent uses, and commercial fishing/recreational boating facilities. The proposed expansion of a restaurant use is not consistent with the Coastal Act land use priorities as they apply to public trust areas, including limiting the allowed uses over the water to certain high priority uses.

In terms of public access areas specifically, the proposed amendment would result a conversion of existing required free public access areas (per the base COP) to restaurant uses, and would further expand restaurant use over other wharf areas. The project thus reduces as opposed to maximizing public recreational access opportunities, including, significantly, free and low-cost opportunities, and cannot be found consistent with the Coastal Act.

The proposed amendment would also result in a narrowing of the view cone as seen from the center of the wharf, and a reduction in the amount of wharf that is currently accessible to the public for enjoying shoreline views. The proposed project thus blocks and otherwise degrades public views inconsistent with the Coastal Act.

Finally, the proposed project will also lead to an intensification of use at Abalonetti's Restaurant, including an increased amount of restaurant seating and corresponding demand for water. Though there is a w·ater allocation for the existing restaurant, it appears that the restaurant expansion will require additional water in an area (the Monterey peninsula) where there are inadequate water supplies currently. The availability of adequate services has not been clearly demonstrated, and thus the proposed project is not consistent with the public service requirements of the Coastal Act.

Staff believes that an alternative project can be developed that accommodates much of the expansion requested at the same time as enhancing public recreational access and respecting public views. Such a project allows for the indoor versus outdoor limitation to be removed, allows for a smaller new exterior expansion area, and provides for an expanded designated public recreational access use area. Adequate water availability must be demonstrated. Such a revised project significantly expands the restaurant as compared to the existing permitted use, and provides public recreational access and visual access enhancements on the wharf to offset impacts associated with such an expansion. In other words, the adjusted project better accounts for the unique circumstances associated with commercial development atop a public trust wharf area consistent with the objectives and requirements of the Coastal Act, and allows for both restaurant expansion and enhancement and public recreational access enhancement in a way that better respects both objectives consistent with the Coastal Act.

California Coastal Commission
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Thus, staff recommends that the Commission conditionally approve a revised project. The motion and resolution is found directly below.

2. Staff Recommendation on CDP Amendment
Staff recommends that the Commission, after public hearing, approve the proposed project subject to the standard and special conditions below.

Motion: I move that the Commission approve the proposed amendment to coastal development permit number 3-92-063 pursuant to the staff recommendation.

Staff Recommendation of Approval: Staff recommends a YES vote. Passage of this motion will result in approval ofthe amendment as conditioned and adoption ofthe following resolution and findings. The motion passes only by affirmative vote of a majority of the Commissioners present.

Resolution to Approve the Permit Amendment: The Commission hereby approves the coastal development permit amendment on the ground that the development as amended and subject to conditions, will be in conformity with the policies of Chapter 3 of the Coastal Act. Approval of the permit amendment complies with the California Environmental Quality Act because either I) feasible mitigation measures and/or alternatives have been incorporated to substantially lessen any significant adverse effects of the amended development on the environment, or 2) there are no feasible mitigation measures or alternatives that would substantially lessen any significant adverse impacts of the amended development on the environment..

Staff Report Contents
A. StaffRecotnmendation ........................................................................................................................... l I. Summary of Staff Recommendation ................................................................................................ I

2. Staff Recommendation on COP Amendment .................................................................................. 3 B. Findings and Declarations .................................................................................................................... .4 I. Project Location, Background, and Description ............................................................................. .4 A. Project Location ...................... : .................................................................................................. 4 B. Background ................................................................................................................................ 5 C. Project Description .................................................................................................................... 7

2. Standard of Review .......................................................................................................................... 8

3. Coastal Development Permit Determination ................................................................................... 8 A. Relevant Policies ........................................................................................................................ 8 B. Analysis ................................................................................................................................... 14 C. Conclusion ............................................................................................................................... 20

4. Conditions of Approval ................................................................................................................. 20 A. Standard Conditions ................................................................................................................. 20 California Coastal Commission
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B. Special Conditions ................................................................................................................... 21 C. California Environmental Quality Act (CEQA) .................................................................................. 24 D. Exhibits
Exhibit A: Location Map
Exhibit B: Existing Access and Seating Plan
Exhibit C: Proposed Access and Seating Plan
Exhibit D: Proposed Project Modifications
Exhibit E: Waterfront Master Plan Policies
Exhibit F: Site Photos
&.Findings and Declarations
The Commission finds and declares as follows:

1. Project Location, Background, and Description
A. Project Location
The Applicant proposes to amend a previously-approved coastal development permit (COP) for outdoor seating for Abalonetti's Restaurant on Fisherman's Wharf in the Harbor segment LUP area ofthe City e of Monterey. The Harbor segment comprises 115 acres of shoreline property along Monterey Bay between Cannery Row to the west (downcoast) and Del Monte Beach to the east (upcoast). This area is both a prime visitor destination, with an estimated 20,000 peak daily visits to the wharf, as well as the heart of Monterey's sport and commercial fishing industry and other related marine-oriented uses and activities. Fisherman's Wharf is owned by the City of Monterey and leased to private concessionaires who operate a series of commercial establishments, including restaurants and gift shops. This area is entirely within public trust lands granted to the City by the State of California. 1 Abalonetti's Restaurant is located on Wharf Concession #9 (see Exhibit A). The Concession #9 leasehold area is 6, 724 square feet in size. The restaurant building occupies 3,362 square feet of wharf, and the restaurant uses another 1,188 square feet of wharf area for outdoor restaurant seating. Just seaward of the building and outdoor seating area is approximately 1,824 square feet of open decking, a portion of which was historically used as a boat hoist and repair facility? This area is the site of the proposed development.
2 The tidelands at Fisherman's Wharf#! are held by the City subject to the public trust for commerce, navigation, and fisheries (the State Lands Commission has granted use of these tidelands to the City; the City in tum leases the tidelands to various entities).

The existing restaurant building and outdoor seating area is sited such that there is another 350 square feet of wharf decking at the front of the lease site, which when combined with other portions of the lease site totals 6,724 square feet.

California Coastal Commission
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CDP History
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The Applicant's concession leasehold area has historically contained a number of uses including the restaurant and a boat hoist and repair facility. The boat repair facility was abandoned in 1985 and the structures removed when construction of a new boat hoist and marine repair facility was opened adjacent to the Coast Guard Pier.

In September 1992 the Coastal Commission approved coastal development permit 3-92-063 authorizing the use of approximately 575 square feet of open deck area to accommodate 36 outdoor restaurant seats, another 400 square feet of decking for 5 artists booths, and a movable four and one-half ( 4.5) foot tall windscreen around the outdoor seating area. The Commission's approval included a requirement for new public access amenities at this location, including two view benches. Additionally, restaurant seating was restricted to a maximum of 94 seats. When the outdoor seating area was in use, an equal number of indoor tables containing 36 seats were required to be closed off (i.e., not served). The seating restrictions were imposed to address water supply constraints and to limit impacts on public access.

In May 2000, the Commission amended its prior approval to allow an expansion of the outdoor seating area, remove the artists booths, and reconfigure the public access and view area. Similar conditions to those required on the base permit limiting the maximum number of seats and regulating the number of indoor and outdoor seats were retained. Under coastal permit amendment 3-92-063-A 1, the restaurant was permitted to have a maximum of 94 seats, 56 of which could be used outdoors. The outdoor seating area was approved over approximately 1,188 square feet of wharf. Special Condition 1 of 3-92-063 was amended to allow up to 56 outdoor seats, and to require that 56 interior restaurant seats be closed off from use (i.e., no service) whenever the expanded outdoor seating area was open to the public. Permit conditions also authorized the removal of the artists booths and reconfiguration of public access into a l 0-foot wide, L-shaped public access and view area. The movable windscreen was likewise reconfigured to the expanded outdoor seating area and the height increased to 6 feet. See existing site layout in Exhibit B.

Currently, the restaurant is configured generally as allowed by COP 3-92-063. 3 However, there are a series of project components that are inconsistent with the base COP. Specifically, the two required public access benches along the wharfs edge are missing; the movable windscreen was four and onehalf feet in height and permanently founded with concrete into the wharf decking; there is a gate at the entrance to the public access area from the main wharf walkway that includes an integral bench on one side and that partially blocks the public access area when open and would block it completely when closed; there is a trash enclosure immediately adjacent to the wharf edge in the public access area; and there are a series of restaurant tables adjacent to the wharfs edge in the public access area proposedbut not permitted-for expanded outdoor seating. The Commission has been unable to locate any additional permits or permit amendments authorizing these project elements, including use of the public 3 Observations based on Commission staff site visit on September I. 2009.

California Coastal Commission
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access area for expanded restaurant use.
4 Please see Exhibit F for site photographs.

Water Supply
The Carmel River is a primary water supply source for the Monterey Peninsula, and Carmel River flows are significantly reduced due to withdrawals by the California-American Water Company (Cal-Am), the water supplier for the peninsula area. It has been long established that current Cal-Am water withdrawals are having significant adverse impacts on the Carmel River. The river, which lies within the approximate 250 square mile Carmel River watershed, flows 35 miles northwest from the Ventana wilderness in Big Sur to the Ocean. Surface diversions and withdrawals from the river's alluvial aquifer have had significant impacts on riparian habitat and associated species, particularly in the lower reaches. 5 This includes adverse impacts to two federally-listed threatened species, the California redlegged frog (Rana aurora draytonii), listed in 1996, and steelhead (Oncorhynchus mykiss irideus), listed in 1997. In particular, water diversions and withdrawals reduce the stream flows that support steelhead habitat and the production of juvenile fish, especially during dry seasons.

In 1995, the SWRCB issued Water Rights Order 95-10 ("Order 95-1 0") in response to complaints alleging that Cal-Am did not have a legal right to divert water from the Carmel River and that the diversions were having an adverse affect on the public trust resources of the river. SWRCB found that Cal-Am was diverting 14,106 acre-feet per year (afy), yet only had a legal right to withdraw about 3,376 afy from the river, and that the Cal-Am diversions were having an adverse effect on the lower riparian corridor of the river, the wildlife that depends on this habitat, and the steelhead and other fish inhabiting e the river. SWRCB thus ordered Cal-Am to implement measures to terminate its unlawful diversions.

SWRCB Order 95-10 also reduced the amount of water Cal-Am could take from the Carmel River and its alluvial aquifer by 20 percent in the near-term and up to 75 percent in the long-term. SWRCB further required that any new water that is developed/obtained by Cal-Am must first completely offset CalAm's unlawful diversions from the Carmel River before it can be used for new construction or expansions in use. Since that time, the ·jurisdictions along the Monterey peninsula have been implementing conservation measures, and have focused their efforts on improving water conservation programs, while also working on other potential water supply augmentation proposals.6 In the time since Order 95-10 in 1995, however, Cal-Am has made no significant reductions in its diversions above its legal right from the Carmel River. As a result, SWRCB issued a draft cease and desist order in 2008 that would compel Cal-Am to reduce its pumping of the Carmel River by 15% by 4 6
Commission enforcement staff are researching the case, and will pursue appropriate response following the outcome of this CDP amendment hearing.

See, for example, lnstream Flow Needs for Steelhead in the Carmel River: Bypass flow recommendations for water supply projects using Carmel River Waters, National Marine Fisheries Service, June 3, 2002.

For example, along with other regional stakeholders, and largely to address Order 95-10 issues, Cal-Am has been pursuing development of a large-scale desalination facility (known as the "Coastal Water Project") in north Monterey County (in Marina or Moss Landing) capable of producing 10-13 MGD (11,210-14,573 afy) of potable water. The project, however, is in the preliminary environmental assessment stage, and it is unknown when or if such a facility may come online. The California Public Utilities Commission recently distributed a draft EIR for the Coastal Water Project in February 2009, and is currently preparing a response to comments on it.

California Coastal Commission
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October 2009, increasing to a 50% reduction by 2016. 7 The draft order states that Cal-Am's unauthorized diversions are continuing to have adverse effects on the public trust resources of the Carmel River and should be reduced. Further, notwithstanding Order 95-10, Cal-Am water withdrawals have not been reduced beyond the initial 20% reduction in 1995, even while the Monterey peninsula urban population has increased from approximately l 00,000 in 1995 to 112,000 today. Thus, the draft order observes:

Order 95-10 condition 2 intended that Cal-Am would make one-for-one reductions in the unlawful diversions from the Carmel River for water obtained from other sources, such as conservation. The current water management strategy used by Cal-Am!MPWMD, however, has not resulted in any significant reduction of unlawful diversions from the Carmel River since 1998. Instead, it appears that water savings resulting from conservation efforts have been redirected to support marginal increases in development.

The cease and desist order hearings have been completed and a decision is pending from the SWRCB.

The cease and desist order could potentially further limit Cal-Am extractions. In the meantime, it is clear that the public water supply currently drawn from the Carmel River is having a significant adverse impact on the coastal resources of the Carmel River system.

Parking
The LUP's Harbor planning area is an urban waterfront area that is dominated by visitor-serving and recreational uses. Existing parking facilities serving the harbor planning area have the capacity for approximately I ,330 vehicles and are heavily used during the peak summer months and on weekends during the rest of the year. Parking in the Marina Lot directly around the marina area has space for 4 79 vehicles. Demand for the parking facilities around the marina area is primarily generated by visitors to Fisherman's Wharf, the recreational trial winding through the City that passes by the foot ofthe Wharf, and related attractions nearby.

C. Project Description
The proposed amendment would modify permit conditions to eliminate the maximum seating limitation and allow use of all restaurant seating concurrently (i.e., indoor and outdoor). Additionally, the amended project would expand commercial uses on the leasehold by expanding the outdoor seating area to accommodate 50 additional outdoor seats. As a result, the amendment would increase overall restaurant seating from the condition-imposed 94 seat maximum at any one time, to an unrestricted 200 seats (94 existing indoor seats plus 56 existing outdoor seats plus another 50 proposed outdoor seats equals 200 seats total). The outdoor seating expansion would occur over portions of the wharf previously used as a boat hoist and repair facility, as well as over a portion of the existing required public access area (at the location of the required public access view benches). Thus, under the current proposal, the Applicant would convert 960 square feet of open wharf area to commercial restaurant use (i.e., outdoor restaurant seating). See Exhibit C for the proposed site layout.
7 State of California, State Water Resources Control Board, Division of Water Rights, Draft Cease and Desist Order WR 2008-00XXDWR (January 15, 2008).

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The existing L-shaped public access area, which extends from the center of the wharf to the outer edge and around a portion of the backside of the outdoor seating area, would also be reconfigured into a 15- foot wide vertical access that extends from the center of the wharf to the outer edge and railing. The dog-leg would be eliminated, thereby reducing the amount of publicly accessible wharf frontage from the currently approved 45 linear feet to 15 linear feet. The existing windscreen would be removed and a 9-foot, 3-inch tall windscreen (5-foot tall glass window panels atop a 3-foot tall solid wall with a 15 inch header) would be installed along the entire perimeter of the expanded outside seating area. No new piers, footings, or other support structures will be placed in the intertidal area below the restaurant for any of the proposed development. See Exhibit C for proposed project plans.

2. Standard of Review
Fisherman's Wharf is located over State tidelands and thus is located within the Commission's retained COP jurisdiction where the Coastal Act is the standard of review. The City's Harbor Land Use Plan (LUP), which was certified in October 2003,8 also addresses this area through its Wharf Master Plan element and can provide non-binding guidance.

3. Coastal Development Permit Determination
A. Relevant Policies
Relevant Coastal Act Policies
Coastal Act Section 30604(c) requires that every coastal development permit issued for any development between the nearest public road and the sea "shall include a specific finding that the development is in conformity with the public access and public recreation policies of [Coastal Act] Chapter 3." The proposed project is located seaward of the first through public road and extends over public tidelands. Coastal Act Sections 30210 through 30213 specifically protect and promote public access to the shoreline. In particular:

Section 30210: In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.

Section 30211: Development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation.

The City's LCP is not fully certified, including for the Harbor area segment, because an Implementation Plan (IP) and one land use segment have not yet been certified.

California Coastal Commission
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Section 30212(a): Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects ...

Additionally, Coastal Act Recreation policies protect coastal areas for water oriented recreational activities (30220), protect lower cost visitor serving uses and prefer development providing public recreational opportunities (30213), protect ocean front land suitable for recreational use (30221 ), establishes priority for visitor-serving commercial recreational facilities over general commercial development (30222), protect ocean front land suitable for coastal dependent aquaculture (30222.5), reserve upland areas for coastal recreation (30223), to encourage recreation boating, limit non-water dependent land uses that congest access corridors (30224).

Section 30220: Coastal areas suited for water-oriented recreational activities that cannot readily be provided at inland water areas shall be protected for such uses.

Section 30213: Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred.

Section 30221: Oceanfront land suitable for recreational use shall be protected for recreational use and development unless present and foreseeable future demand for public or commercial recreational activities that could be accommodated on the property is already adequately provided for in the area.

Section 30222: The use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry.

Section 30222.5: Oceanfront land that is suitable for coastal dependent aquaculture shall be protected for that use, and proposals for aquaculture facilities located on those sites shall be given priority, except over other coastal dependent developments or uses.

Section 30223: Upland areas necessary to support coastal recreational uses shall be reserved for such uses, where feasible.

Section 30224: Increased recreational boating use of coastal waters shall be encouraged, in accordance with this division, by developing dry storage areas, increasing public launching facilities, providing additional berthing space in existing harbors, limiting non-water-dependent land uses that congest access corridors and preclude boating support facilities, providing harbors of refuge, and by providing for new boating facilities in natural harbors, new protected water areas, and in areas dredged jrom dry land.

Coastal Act marine resource policies promote and protect facilities serving the commercial fishing, public recreational, and coastal-dependent, industries. For example, Section 30233 states in part:

California Coastal Commission
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Section 30233: a) The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes shall be permitted in accordance with other applicable provisions of this division, where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects, and shall be limited to the following:
(1) New or expanded port, energy, and coastal-dependent industrial facilities, including commercial fishing facilities.
(3) In open coastal waters, other than wetlands, including streams, estuaries, and lakes, new or expanded boating facilities and the placement of structural pilings for public recreational piers that provide public access and recreational opportunities.

Section 30234: Facilities serving the commercial fishing and recreational boating industries shall be protected and, where feasible, upgraded. Existing commercial fishing and recreational boating harbor space shall not be reduced unless the demand for those facilities no longer exists or adequate substitute space has been provided. Proposed recreational boating facilities shall, where feasible, be designed and located in such a fashion as not to interfere with the needs of the commercial fishing industry.

Coastal Act Section 30250 requires provision of adequate public services:

Section 30250: New residential, commercial, or industrial development, except as otherwise provided in this division, shall be located within, contiguous with, or in close proximity to, existing developed areas able to accommodate it or, where such areas are not able to accommodate it, in other areas with adequate public services and where it will not have significant adverse effects, either individually or cumulatively, on coastal resources.

Coastal Act Section 30251 protects public visual access and states:

Section 30251: The scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. New development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting.

Coastal Act Section 30252 requires provision of adequate parking facilities and states:

Section 30252: The location and amount of new development should maintain and enhance public access to the coast by (1) facilitating the provision or extension of transit service, (2) California Coastal Commission
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providing commercial facilities within or adjoining residential development or in other areas that will minimize the use of coastal access roads, (3) providing nonautomobile circulation within the development, (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation, (5) assuring the potential for public transit for high intensity uses such as high-rise office buildings, and by (6) assuring that the recreational needs of new residents will not overload nearby coastal recreation areas by correlating the amount of development with local park acquisition and development plans with the provision of onsite recreational facilities to serve the new development.

Relevant LUP Policies
The Harbor LUP was certified by the Commission in October 2003 and includes the Wharf Master Plan element. In general the LUP restricts the expansion of restaurants and commercial uses and encourages marine related uses, consistent with Coastal Act access and recreation policies which give priority to coastal dependent and marine related uses, and with Coastal Act Section 30234 which protects commercial fishing and recreational boating facilities. The following sections of the LUP and Wharf Master Plan outline LUP's approach to development on the wharf:

Policy 3a (p. 22): In the Harbor area, where existing or planned public services (i.e., water, sewer, road,<,) can accommodate only a limited amount of new development, priority uses, including coastal dependent uses, essential public services, and basic industries vital to the economic health of the City, region, state, or nation, public recreation, commercial recreation, and visitor-serving land uses, shall not be precluded by other development.

Policy 3/ (p. 62): Continue to require that all new development, or intensified existing development in or adjacent to the Harbor LCP area, provides adequate parking. Intensified uses include, but are not limited to, an increase in number of seats in restaurants, and an increase in passenger capacity for boats.

Policy 3i (p. 62): For new or intensified development where on-site parking is not feasible, off-site parking in the vicinity of the development may be provided. The initial review of all development projects shall include an analysis of parking needs, provision for parking, and evidence that parking can be provided without di,<,placing other users.

Policy 3f (p. 83): Use development standards and procedures permitted on Fisherman's Wharf shall be those permitted in the Fisherman's Wharf Master Plan (see Appendix C) adopted by the City in July 1986, and as consistent with LUP policies.

Wharf Master Plan Permitted Use Policies

1. No more new restaurants, cocktail lounges, or gift shops will be allowed on the wharf

2. Marine oriented uses should be e,<,pecially encouraged and shall receive special consideration by the city.

California Coastal Commission
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3. To especially encourage retail and wholesale fish markets, these markets may be allowed:
• Additional building height not to exceed two stories in height. The building area created by any additional height shall be used for equipment and storage purposes only for onsite businesses, but in no case shall provide for an increase in seating capacity for restaurants.
• Sale of food related to projects sold in fish markets, as !>pecifically defined in Resolution 9000, should be allowed for customer take-out and consumption on the premises. Seating shall be for a maximum of ten persons. This sale of food shall be incidental to the sale of retail and wholesale fish products, and shall not alter the character and function of the fish markets.

4. The sale of products by concessionaires on Fisherman's Wharf shall be limited to those specified in Resolution 9000.

5. Lessees should not be permitted to sublease or assign their leases for uses different than those set forth in the lease unless such use is specifically set forth in the Wharf Master Plan or approved by the City as meeting the general purposes and objectives of the Wharf Master Plan.

6. The use and location of vender carts, and any change in the use and/or location of existing vender carts, shall be subject to review and approval of the City Council.

7. At the time an existing use is terminated and a different use is proposed, this different use shall be of the following nature:
a. Primary
• Wholesale and retail fish businesses
• Ship 's chandlers
• Sales of marine equipment and supplies
• Marine equipment repair services
• Aquariums
• Boat rentals
• Sales of fishing equipment and supplies
• Other marine-oriented service or retail establishments, which, in the opinion of the City of Monterey, will be an appropriate and harmonious part of a wharf, oriented towards waterfront activities including the above uses.

Wharf Master Plan Public Access/Open Space/Architectural Control Policies California Coastal Commission
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1. The present open space and view areas, shown in Figure 5, shall be maintained.

3. The provision of a panoramic viewpoint accessible to the general public should be a condition of any lease area expansion, as provided for in Architectural Control Policy 1. * This panoramic viewpoint should be linked to other viewpoints so as to provide lateral access at the backs of structures, where feasible, and subject to the approval of all adjacent concessionaires.
*Architectural Control Policies ...

1. The existing lease areas, with the exception of lease areas for retail and wholesale jishmarkets, as addressed in Permitted Use Policy 3, shall only be extended for building purposes; and the present building outlines shall be essentially maintained and only added to where such extensions and additions accomplish all of the following:
• The extensions and additions enhance public access and view opportunities, as defined by Public Access/Open Space Policy 3, without infringing upon the views and operations of neighbors.
• The extensions and additions maintain the overall design character of the Wharf Other Relevant Policies
The tidelands along the Harbor planning area are held by the City subject to the public trust for commerce, navigation, and fisheries (the State Lands Commission has granted use ofthese tidelands to the City; the City in turn leases the tidelands to various entities). Regarding public tidelands, Article X, Section 4 ofthe State Constitution provides:

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this ,)'tate, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction ro this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof
Policy Conclusion
The Coastal Act assigns pnonty to developments that promote and protect facilities serving the commercial fishing, public recreation, and coastal-dependent industries for the project site, and this requirement is further reinforced by the certified LUP. Thus, the advisory LUP gives clear priority to marine-related uses over other general commercial uses such as restaurants, gift shops, and cocktail lounges, and requires that when an existing use is terminated, the new use must be limited to a coastal California Coastal Commission
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dependent/marine related use. The LUP further requires evidence of the availability of public services including water and parking, and provides that lease/building expansion may only be approved if it enhances public access and view opportunities.

B. Analysis
Priority Uses
As summarized above, the Coastal Act establishes a priority for public recreational, recreational boating, and commercial fishing uses over general commercial development. Consistent with this intent, Section 30233 only permits a limited range of development and uses within coastal waters, including facilities that promote commercial fishing and public recreational piers that provide public access and recreational opportunities. Commercial uses such as private restaurants are not identified as one of the seven allowed uses for the placement of fill within coastal waters, and likewise are not a high priority use under the Coastal Act. Although no new fill of coastal waters is proposed here, the proposed expansion of a general commercial use is not consistent with the intent of the Coastal Act to limit the uses over the water to certain high priority uses.

This Coastal Act intent is also apparent in the certified advisory Harbor segment LUP. No more new restaurants, cocktail lounges, or gift shops are allowed on the wharf. The LUP also states that the present building outlines on the wharf shall be essentially maintained and only added to where such extensions and additions "enhance public access and view opportunities ... without infringing upon the views and A operations of neighbors." Notably, the Wharf plan in the LUP identifies a variety of coastal dependent • or marine and fishing related uses that are appropriate for the Wharf.

Fisherman's Wharf is a public pier facility, located within public tidelands. As discussed below the proposed project involves the intensification of an existing general commercial restaurant use located above a portion of these public tidelands. As further described below, the project will extend the restaurant footprint into both a previously required public access area and into other areas of the public wharf. This expanded use is not a priority use of a public pier, nor is it coastal dependent or related.

Though restaurants can be visitor serving in nature, they are primarily commercial uses which are not dependent upon coastal resources to function (i.e., they can be located in many commercially zoned sites within the City, including those far removed from the shoreline). However, if the project is modified to enhance public access and view opportunities, as described below, the Commission can find the restaurant expansion consistent with the Coastal Act requirements and LUP advice to prioritize public recreational uses.

New Development
The Coastal Act requires that new development be located in areas able to accommodate it, and with adequate public services. The restaurant expansion and related development represent a significant intensification of use in terms of the numbers of seats and demand for public services, particularly water. Water supplies on the Monterey peninsula are extremely limited. Because of this, the Commission previously restricted the intensity of use of the site when prior expansions were approved (see above). Coastal Act and LUP policies acknowledge and address this issue by requiring adequate California Coastal Commission
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water be available to serve new development and ensuring that water for priority uses is not precluded by other development. The proposed amendment represents a significant increase in the intensity of commercial use of the site. The proposal would eliminate the maximum restaurant seating limitation and provide for concurrent use of indoor and outdoor seating, more than doubling Abalonetti's Restaurant seating capacity from 94 seats at any one time currently to 200 seats as proposed. Weather permitting, all or most of these seats could potentially be in service at any one time, increasing demand for water use at the restaurant.

The Applicant has indicated that the intensification of use of the restaurant seating will not necessitate an additional water allocation. One reason given for this conclusion is the statement that outdoor restaurant seating has not traditionally been included in the Monterey Peninsula Water Management District's (MPWMD) calculations of water demand. That is, the calculation of water use for a restaurant is based on the ''enclosed seating" multiplied by the District's current water use factor, and the factor is not applied to "outdoor seating." This is counter-intuitive to what one would expect. Outdoor restaurant seating is just as likely as indoor seating to generate demand for water to drink. Meals prepared for outdoor patrons require no less water. Outdoor restaurant patrons have a need for restrooms facilities just as indoor customers do, and water for dishwashing and cleaning will be the same for indoor and outdoor seats. Thus, there does not appear to be any difference in indoor versus outdoor restaurant seating when it comes to water use.

Another reason given for why additional water is not needed is that outdoor seating is driven by the weather, such that when the weather is nice, people sit outside. During the evenings and when the weather is not nice, indoor restaurant seats are preferred. Though there may be some truth to this principle, it may not always be entirely accurate. As noted, the number of permitted outdoor seats would almost double (56 existing versus I 06 proposed), as would the entire restaurant seating (i.e., indoor/outdoor, 94 existing versus 200 proposed). Central California weather is mild and temperate, with little or no rain, for approximately six months out of the year. The Applicant has proposed to install an over 9-foot tall wood and glass windscreen around the entire perimeter of the outdoor seating area, thus further extending the number of days and evenings that outdoor seating could comfortably be accommodated.

Therefore, the proposed amended project will lead to an intensification of use at Abalonetti's Restaurant, including an increased amount of restaurant seating and corresponding demand for water.

The Applicant has not provided any evidence that there is adequate water to serve the expanded use consistent with Coastal Act Section 30250. Accordingly, Special Condition 3 is attached requiring evidence of a water permit for the expanded seating or verification from the MPWMD that an additional water allocation is not necessary.

Public Access
Article X, Section 4 of the State Constitution protects the fundamental public right to access state tidelands. This Constitutional provision is implemented by the Coastal Act, including through the Coastal Act Section 30210 requirement to provide maximum access and recreational opportunities for ''all the people, consistent with public safety needs and the need to protect public rights, rights of private California Coastal Commission
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property owners, and natural resource areas from overuse." As previously described, the project is proposed over state tidelands held by the City of Monterey for the people of California. Thus, public trust must be fulfilled in a manner consistent with Coastal Act access and recreation policies requiring that maximum public recreational access opportunities be provided.

In addition to the basic obligation to provide maximum public recreational access on the wharf, the project must mitigate the resulting impacts to existing public access. The proposed project involves the intensification of an existing commercial restaurant use within public tidelands, including by expanding outdoor restaurant seating into the existing public access and view area, and into open wharf area reserved for visitor-serving recreational facilities, coastal-dependent uses, and commercial fishing/recreational boating facilities. The elimination of existing restaurant seating limitations, and the proposed 50 additional outdoor seats, would more than double the overall restaurant seating (i.e., indoor plus outdoor) from 94 to 200 seats, and more than double the allowed number of seats that could be occupied at any one time. This, in turn, can be expected to increase demand for public services such as water and parking, but also for additional public recreational access opportunities.

Public access on the west (downcoast) edge of the wharf is limited, particularly nearest to shore, and the existing access adjacent to Abalonetti's Restaurant provides one of the few public recreational access opportunities in this respect. As currently proposed, the amendment would reduce the amount of public recreational access space required by the base COP on the western edge of the wharf by about 30 linear feet (currently there is approximately 45 linear feet of wharf required to be available to the public by the base COP), and replace it with additional outdoor restaurant seating that is available only to restaurant patrons. The only new or offsetting public recreational access proposed would be to expand the required vertical access area by five feet (to a 15-foot width).9 The amendment would also convert an additional 72 linear feet (875 square feet) of open wharf deck, formerly used for marine related services, to outdoor restaurant seating. Once again, none of this area would be available for general public access and use.

Cumulatively, the proposed amendment converts over 100 linear feet and 960 square feet of wharf along the western edge of the wharf area to commercial uses.

The Applicant's representative has indicated that the Applicant would be willing to reconfigure the expanded outdoor seating area in a manner that would not disrupt the current public access configuration. 10 Although this would avoid some direct impacts to the existing public access and view area, it does not address impacts ofthe project on public recreational access to the wharf, including with respect to those portions of the wharf between the existing restaurant building and the wharf edge, and in particular given the public trust and Coastal Act use and development priorities that apply in this location.

Accordingly, as currently proposed, the amendment does not maximize public access and recreation opportunities consistent with Section 30210 of the Coastal Act. The amendment is also inconsistent with Coastal Act access and recreation policies which protect coastal areas for water oriented recreational 9 This area is currently 18-20 feet wide, so this would actually be a reduction compared to the existing configuration of the access way. 1 ° Communication between Commission coastal planner Mike Watson and Applicant's representative, Mark Blum.

California Coastal Commission
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• CDP Amendment Application 3-92-063-A2
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act1v1t1es (30220), protect lower cost VISitor serving uses and favor development providing public recreational opportunities (30213), and establish priority for visitor-serving commercial recreational facilities that enhance opportunities for coastal recreation over general commercial development (30222). Therefore, the proposed amendment is not consistent with the access and recreation policies of the Coastal Act.

The expanded outdoor restaurant seating on the wharf area generally west of Abalonetti' s Restaurant cannot be supported as proposed. However, some additional outdoor seating in combination with more significant public access enhancements is feasible and, if provided, could support a finding of consistency with the public access and recreation requirements of the Coastal Act, as well as the advisory LUP. As such, this approval is conditioned to require that the outdoor restaurant seating expansion be limited to the area immediately west of Dining Room #I and north of Dining Room #2, as generally shown on Exhibit D. The remaining portion of public wharf area generally west of the seating expansion area and Abalonetti's Restaurant shall be reserved for general public access and passive recreational use (see Special Condition 1 (c)). In the future, this public access wharf area should be linked to other wharf areas and viewpoints north and south of the lease site so as to provide lateral access along the wharf edge at the backs of structures in the future, and such modified project ensures that this project can mesh with any future projects adjacent to this lease site in the future in that respect.

With these conditions, the Applicant will still be able to expand restaurant seating from the current limit of 94 to approximately 172, depending on how the tables are arranged.

Additional conditions are attached that require typical access amenities be provided such as benches 11 and interpretive signing, and that these facilities be maintained over the life ofthe development (Special Condition 2), ensure that it is constructed and opened concurrent with the approved commercial use on site (Special Condition 4), open and available for general public use during daylight hours or during wharf or business hours in the evening, whichever is later, 365 days per year (Special Condition 2(e)), and appropriately signed (Special Condition 2(c)). A requirement for a lease restriction is also attached as Special Condition 5 to secure these provisions for the life of the project.

As discussed below, an 8-foot high windscreen may be installed around the perimeter of the outdoor seating. The windscreen must include adequate measures to prevent bird strikes (e.g., etched with a single 6" x 6" emblem, symbol, or similar per glass panel). See Special Condition 1 (b).

These conditions are necessary to fulfill Coastal Act requirements for maximizing public access and recreation.

Public Access Parking
Coastal Act Section 30211 prohibits new development from interfering with the public's ability to reach the shoreline including by ensuring that there is adequate parking for public access and recreation.

Section 30252 requires that new development maintain and enhance public access to the coast by providing adequate parking or other means of serving the development with public transportation.

II . . . . Sundar to as previously reqmred but not present.

California Coastal Commission
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Though only guidance in this instance, LUP parking policies require that new or intensified uses provide adequate parking and requires all development be evaluated to identify parking needs, provision for parking, and evidence that parking can be provided without displacing other users.

The proposed amendment represents an intensification of commercial use of the property, which could have an adverse impact on public access parking and the public's ability to access the shoreline.

Consistent with LUP requirements, the City analyzed the Harbor area parking facilities to determine whether there were adequate parking facilities to serve the expanded development. The existing Waterfront Attendant Parking Lot at the foot of Fisherman's Wharf has a capacity of 479 vehicles.

Surveys of parking lot occupancy were taken over a year-long period between July 2007 and June 2008 and document a peak occupancy of 65% (311 spaces) in July 2007 with reduced occupancy peaks in all subsequent months through June 2008. Based on these figures, there appears to be adequate available parking spaces during peak periods to satisfy the increase in parking requirement necessitated by the increase in the number of restaurant seats at Abalonetti's Restaurant without adversely impacting parking for general public access.

Accordingly, the proposed amendment is consistent with Coastal Act access and recreation policy requirements as they apply to public parking.

Public Views
The project site is currently developed with a commercial restaurant, storage, and office space e occupying 3,362 square feet of the roughly 6,724 square foot lease site. The currently approved outdoor seating area and windscreen partition occupies another 1,188 square feet of the lease site area. Though much of the project site is occupied with development, there are significant open areas that provide view corridors to Monterey Bay and the City of Monterey shoreline, and that provide visual relief for wharf users otherwise. See photos in Exhibit F.

The Coastal Act requires new development to protect views to and along the shoreline, be visually compatible with the character of the area, protect the character of this popular visitor destination, and, where feasible, restore and enhance visual quality in visually degraded areas. The LUP implements Coastal Act provisions by requiring that the present open space and view areas be preserved, and by limiting building expansion to projects that enhance public access and view opportunities, and which also maintain the overall design character of the wharf. Modification of the permit conditions, reconfiguring. public access, and constructing the proposed over 9-foot tall windscreen around the perimeter of the expanded outdoor seating area, will place additional structures and development within an LOP-identified public view corridor, blocking and degrading public views from the main stem of the public wharf and from the existing public access area adjacent to the restaurant (see Exhibit F). The proposed amendment would also result in a narrowing of the view cone as seen from the center of the wharf, and, as discussed in the access finding above, a reduction in the amount of wharf (a minimum 30 linear feet and 300 square feet) that is currently required to be accessible to the public for enjoying shoreline views. In discussions with Commission staff, the Applicant has indicated that the project could be modified to retain the existing access configuration, thereby reducing some of the impacts to public California Coastal Commission
: ATTACHMENT 7
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views. 12 However, this is not the proposal that is being evaluated at this time, and the project revisions would still fail to carry out Coastal Act and LUP visual resource policies because the development that would remain would have the same impacts, albeit somewhat reduced.

Thus, as proposed, the permit amendment is not consistent with Coastal Act visual resource requirements. There are, however, project modifications that can bring the proposed amendment into conformance with the LUP and Coastal Act, including by requiring that the outdoor restaurant seating expansion be restricted to that area immediately adjacent to the restaurant, that the wind screen be limited in height to 8 feet, and that the west edge of the wharf be preserved for expanded public access and view opportunities. With respect to the wind screen specifically, only a wind screen that is not perceived as a wall and/or major structure can meet the LCP and LUP visual resource requirements identified here. In other words, it needs to be primarily a see through screen without significant base or top elements that appear as more major structures, particularly in relation to excessive top elements (such as headers, mini-roofs, etc.). Special Condition 1 defines the expanded outdoor restaurant seating area and the expanded area of public access. Only development that facilitates public access and public recreational viewing may be permitted within the public access area (i.e., benches, viewing binoculars, interpretive signing, etc.). Special Condition 2 requires that general public access associated with the approved project is provided and managed with the objective of maximizing public access to the public access areas of the site and all related areas and public access amenities (Special Condition 2). That and other conditions ensure that all required amenities are available and in-place concurrent with the approved expanded commercial use on site (Special Condition 4), are open and available for general public use during daylight hours, 365 days per year (Special Condition 2(e)), and are appropriately signed (Special Condition 2(c)). In addition, the windscreen has the potential to injure or harm migratory and shore birds. Accordingly, the recommended conditions of approval require that the windscreen panels be treated in such a way as to protect through views and prevent creation of a bird strike hazard (see Special Condition 1 (b)).

C. Conclusion
As conditioned by this permit, the project will provide enhanced public recreational access opportunities on Monterey's Fisherman's Wharf including by providing for additional public access along the rear of Abalonetti's Restaurant sufficient to offset impacts associated with the permitted intensification of restaurant use at this location. Public access amenities such as benches and table seating will be provided in locations overlooking Monterey Bay. Permit conditions refine and secure these public access elements. Through conditions, an alternative project can be developed that accommodates much of the expansion requested at the same time as enhancing public recreational access and respecting public views. Such a project allows for the indoor versus outdoor limitation to be removed, allows for a smaller new exterior expansion area, and provides for an expanded designated public recreational access use area. Adequate water availability must be demonstrated. Such a revised project significantly expands the restaurant as compared to the existing permitted use, and provides public recreational access and visual access enhancements on the wharf to offset impacts associated with such an 12 Id.

California Coastal Commission
ATTACHMENT 7
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expansion. In other words, the adjusted project better accounts for the unique circumstances associated with commercial development atop a public trust wharf area consistent with the objectives and requirements of the Coastal Act, and allows for both restaurant expansion and enhancement and public recreational access enhancement in_ a way that better respects both objectives consistent with the Coastal Act. In sum, and only as conditioned, the project will be sited and designed in such a way as to allow for a restaurant expansion that also provides maximum public recreational access at this important public site along Fisherman's Wharf #I. As such, the proposed amendment can be found consistent with the Coastal Act policies discussed in this finding.

4. Conditions of Approval
A. Standard Conditions

1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office.

2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date.

3. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission.

4. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions ofthe permit.

5. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions.

B. Special Conditions

1. Revised Final Plans. PRIOR TO ISSUANCE OF THE AMENDED COASTAL DEVELOPMENT PERMIT, the Permittee shall submit two full size sets of Revised Final Plans to the Executive Director for review and approval. The Revised Final Plans shall be in substantial conformance with the plans submitted to the Coastal Commission January 27, 2009, and titled Exterior Seating for Abalonetti's Restaurant prepared by Wayne E. Iverson, Architect) except that they shall be revised and supplemented to comply with the following requirements:
a. Outdoor Seating. The location of the expanded outdoor seating area shall be limited to the rectangular area immediately adjacent to the restaurant and existing outdoor seating area as California Coastal Commission
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generally shown in Exhibit D. The plans shall clearly identify all structural elements and all other project elements to be located in this area (e.g., walkways, tables, chairs, lighting, signs, etc.).
b. Outdoor Seating Wind Screen. The wind screen surrounding the outdoor seating shall be limited to a maximum of 8 feet in height, shall be limited to the perimeter of the outdoor seating area (see Exhibit D), and shall include adequate measures to prevent bird strikes as much as possible while maintaining through views (e.g., etched with a single 6" x 6" emblem, symbol, or similar per glass panel). The windscreen shall include a base no taller than 3 feet, panels roughly S'to 8' wide, and shall not include a solid element at the top (i.e., faux roof, beams, or similar are prohibited).
c. Public Access. The plans shall clearly identify in site plan view, all wharf areas available for public access and passive recreational use, and all access related amenities (e.g., benches, tables, access and interpretive signing, etc.) to be installed in the location labeled Public Access Area and generally shown in Exhibit D, which shall be a minimum of 15' in width from the main wharf area to the wharf edge, and a minimum of 10' in width along the wharf edge. All required public access amenities and elements described in Special Condition 2(b) below shall be identified.
d. Access Obstructions Removed. The plan shall provide for the removal of the existing trash enclosure structure located in the public access area and the gate and bench at the entrance to the public access area and any other obstructions to access in this area. e. Restaurant Seating Plan. A seating plan for the restaurant reflecting its maximum capacity shall be included.

The Permittee shall undertake development in accordance with the approved Revised Final Plans.

2. Public Access Management Plan. PRIOR TO ISSUANCE OF THE AMENDED COASTAL DEVELOPMENT PERMIT, the Permittee shall submit two copies of a public access management plan (Public Access Plan) to the Executive Director for review and approval. The Public Access Plan shall clearly describe the manner in which general public access associated with the approved project is to be provided and managed, with the objective of maximizing public access to the public access areas of the site (i.e., the area along the edge ofthe restaurant as generally depicted in Exhibit D, and all related areas and public access amenities (i.e., benches, signs, etc.) described in this special condition). The Public Access Plan shall be substantially in conformance with the plans submitted to the Coastal Commission (and referenced in Special Condition 1 above), and shall at a minimum include the following:
a. Clear Depiction of Public Access Areas and Amenities. All public access areas and amenities, including all ofthe areas and amenities described above, shall be clearly identified as such on the Public Access Plan (including with hatching and closed polygons so that it is clear what areas are available for public access use).

California Coastal Commission
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b. Amenities. Public access amenities (such as benches, trash and recycling receptacles, etc.) shall be provided within the public access area, including at a minimum four benches where noted on Exhibit D, and at least one trash and one recycling receptacle. The existing telescope shall be maintained in an operable condition available to the public. c. Public Access Signs/Materials. The Public Access Plan shall identify all signs and any other project elements that will be used to facilitate, manage, and provide public access to the approved project, including identification of all public education/interpretation features that will be provided on the site (educational displays, interpretive signage, etc.). Sign details showing the location, materials, design, and text of all public access signs shall be provided. All signs shall be designed to blend into the wharf aesthetic as much as possible. The signs shall be designed so as to provide clear information without impacting public views and site character. At a minimum, public access directional signs shall be placed near the entry point from the main wharf to the public access area and at appropriate intervals along the public access area, including at a minimum where users entering the public access area first come to the wharf edge.

Three large scale (approximately 5' x 5') interpretive panels with information and photos appropriate to local issues, information, and history (e.g., black and white historic photos with descriptive text) shall be placed along the back edge of the wharftheatre building on each side of the existing windows. The entry from the main wharf walkway to the public access area shall include adequate demarcation to identify the entrance into an interpretive overlook area (e.g., low key pillars with lights and identifying text, etc.). Public access signage shall acknowledge e the participants in the design and provision of the public access components, including the City of Monterey and the California Coastal Commission.
d. No Public Access Disruption. Development and uses within the public access areas that disrupt and/or degrade public access (including areas set aside for private uses, barriers to public access (furniture, planters, temporary structures, trash receptacles, private use signs, fences, gates, etc.)) shall be prohibited. The public use areas shall be maintained consistent with the approved Public Access Plan and in a manner that maximizes public use and enjoyment. e. Public Access Use Hours. All public access areas and amenities shall be available to the general public free of charge during at least daylight hours (i.e., one hour before sunrise to one hour after sunset), and during at least all non-daylight hours when the retail components of the approved project are open or general public access to the wharf is available. f. Public Access Areas and Amenities Maintained. The public access components of the project shall be maintained in their approved state in perpetuity.

The Permittee shall undertake development in accordance with the approved Public Access Plan, which shall govern all general public access to the site pursuant to this coastal development permit.

3. Other Agency Approval. PRIOR TO ISSUANCE OF THE AMENDED COASTAL DEVELOPMENT PERMIT, the Permittee shall submit to the Executive Director written evidence that all necessary permits, permissions, approvals, and/or authorizations for the approved project California Coastal Commission
ATTACHMENT 7
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Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 49, Packet Page 105 • COP Amendment Application 3-92-063-A2
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have been granted by the City of Monterey and the Monterey Peninsula Water Management District.

All such evidence shall explicitly reference the approved Revised Final Plans pursuant to Special Condition 1. No changes to the approved project as a result of other agency permits, permissions, approvals, and/or authorizations shall occur without a Commission amendment to this coastal development permit unless the Executive Director determines that no amendment is legally necessary.

4. Timing of Development. All public access areas and amenities associated with the project shall be installed and open for public use no later than the time when the remodeled restaurant is open and available for service.

5. Lease Restriction. PRIOR TO ISSUANCE OF THE AMENDED COASTAL DEVELOPMENT PERMIT, the Permittee shall submit to the Executive Director for review and approval documentation demonstrating that the Permittee has executed and recorded against the lease sites and parcel(s) governed by this permit a lease restriction, in a form and content acceptable to the Executive Director: (1) indicating that, pursuant to this permit, the California Coastal Commission has authorized development on the subject property, subject to terms and conditions that restrict the use and enjoyment of that property; and (2) imposing the special conditions of this permit as covenants, conditions and restrictions on the use and enjoyment of the Property. The lease restriction shall include legal descriptions of the lease sites and parcels governed by this permit. The lease restriction shall also indicate that, in the event of an extinguishment or termination of the lease restriction for any reason, the terms and conditions of this permit shall continue to restrict the use and enjoyment of the subject property so long as either this permit or the development it authorizes, or any part, modification, or amendment thereof, remains in existence on or with respect to the subject property.

C.California Environmental Quality Act (CEQA)
Section 13096 of the California Code of Regulations requires that a specific finding be made in conjunction with coastal development permit applications showing the application to be consistent with any applicable requirements of CEQA. Section 21 080.5( d)(2)(A) of CEQA prohibits a proposed development from being approved if there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse effect which the activity may have on the environment.

The City of Monterey, acting as the lead CEQA agency, conducted an environmental review for the proposed project as required by CEQA and determined that the project was exempt from CEQA.

The Coastal Commission's review and analysis of land use proposals has been certified by the Secretary of Resources as being the functional equivalent of environmental review under CEQA. The Commission has reviewed the relevant coastal resource issues with the proposed project, and has identified California Coastal Commission
ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 50, Packet Page 106 CDP Amendment Application 3-92-063-A2
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appropriate and necessary modifications to address adverse impacts to such coastal resources. All public comments received to date have been addressed in the findings above. All above findings are incorporated herein in their entirety by reference.

The Commission finds that only as modified and conditioned by this permit will the proposed project avoid significant adverse effects on the environment within the meaning of CEQA. As such, there are no additional feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse environmental effects that approval of the proposed project, as modified, would have on the environment within the meaning of CEQA. If so modified, the proposed project will not result in any significant environmental effects for which feasible mitigation measures have not been employed consistent with CEQA Section 21 080.5( d)(2)(A).

California Coastal Commission
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ATTACHMENT 7
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Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 56, Packet Page 112 •
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ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 57, Packet Page 113 •
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APPENDIX A

WHARF MASTER PLAN PUBLIC ACCESS/OPEN SPACE/ARCHITECTURAL CONTROL POLICIES

AS ADOPTED IN THE WHARF MASTER PLAN

FOR FISHERMAN'S WHARF

BY THE MONTEREY CITY COUNCIL

1. The present open space and view areas, shown in Figure 5, shall be maintained.

2. To provide additional public access and view area, Concession 34 should be allowed to replace its structure over the water under the condition that access be placed across the back of the structure. This access should be prov1ded in a way that will not preclude the linking of this access with the existing public access on adjoining Concessions 35 and 33, as shown in Figure 5. The required public access for Concession 34 shall not be required to be linked to Concessions 35 and 33 without the consent of Concession 35 and 33. The existing public access on Concessions 35 and 33 should be considered separate and should be required to be linked to public access improvements on Concession 35 as a condition of development when improvements are proposed for either Concession 35 or 33.

4. Should any concession cease operation and not desire to renew its lease, the City should study the structure to see if the structure should be removed and the area should become permanent open space. * Architectural Control Policies in the Wharf Master Plan reads as followi:

1. The existing lease areas, with the exception of lease areas for retail and wholesale fishmarkets, as addressed in Permitted Use Policy 3, shall only be extended for building purposes; and the present building outlines shall be essentially maintained and only added to where such extensions and additions accomplish all of the-following:
• The extensions and additions enhance public access and view opportunities, as defined by Public Access/Open Space Policy 3, without infringing upon the views and operations of neighbors. • The extensions and additions maintain the overall design character of the Wharf.

2. New two-story structures shall not be permitted on the Wharf except where:
• Such structures encourage marine-related uses in line with Permitted Use Policy 3.
• Such structures do not significantly affect the overall design Exhibit E: Wharf Master Plan Policies
86 CDP Amendment 3-92-063-A2

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APPENDIX C

WHARF MASTER PLAN PERMITTED USE POLICIES

AS ADOPTED IN THE WHARF MASTER PLAN

FOR FISHERMAN'S WHARF

BY THE MONTEREY CITY COUNCIL

1. No more new restaurants, cocktail lounges, or gift shops will be allowed on the wharf.

2. Marine-oriented uses should be especially encouraged and shall receive special consideration by the City.

3. To especially encourage retail and wholesale fishmarkets, these markets may be allowed:
• additional building height not to exceed two stories in height.

The building area created by any additional height shall be used for equipment and storage purposes only for on-site businesses, but in no case shall provide for an increase in seating capacity for restaurants.
• sale of food related to projects sold in fishmarkets, as specifically defined in Resolution 9000, should be allowed for customer take-out and consumption on the premises. Seating shall be for a maximum of ten (10) persons. This sale of food shall be incidental to the sale of retail and wholesale fish products, and shall not alter the character and function of the fishmarket.

4. The sale of products by concessionaires on Fisherman's Wharf shall be limited to those specified in Resolution 9000.

5. Lessees should not be permitted to sublease or assign their leases for uses different than those set forth in the lease unless such use is specifically set forth in the Wharf Plan or approved by the City as meeting the general purposes and objectives of the Wharf Plan.

6. The use and location of vendor carts, and any change in the use and/or location of existing vendor carts, shall be subject to review and approval of the city Council.

7. At the time an existing use is terminated and a different use is proposed, this different use shall be of the following nature:
a. Primary
• wholesale and retail fish businesses
• ship's chandlers
• sales of marine equipment and supplies
• marine equipment repair services
• aquariums
• boat rentals
• sales of fishing equipment and supplies
Exhibit E: Wharf Master Plan Policies
91 CDP Amendment 3-92-063-A2

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ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 60, Packet Page 116 • other marine-oriented service or retail establishments, which, in • the opinion of the City of Monterey, will be an appropriate and harmonious part of a wharf, oriented toward waterfront activities including the above uses
92 Exhibit E: Wharf Master Plan Policies
COP Amendment 3-92-063-A2

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ATTACHMENT 7
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Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 64, Packet Page 120 ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 65, Packet Page 121 ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 66, Packet Page 122 •
ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 67, Packet Page 123 •
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Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 68, Packet Page 124 •
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ATTACHMENT 7
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 69, Packet Page 125 October 6, 2022
Mariana Filip
California Coastal Commission
Coastal Planner | Central Coast District
725 Front St. #300
Santa Cruz, CA 95060
Dear Mariana,
On behalf of Fisherman’s Wharf Association, we are writing to request an extension and a modification of your requirements from the restaurants that have outdoor dining on Monterey’s Old Fisherman’s Wharf. We would like to avoid the removal of all outdoor seating on Old Fisherman’s Wharf by December 31, 2022 that the California Coastal Commission has requested.

The removal of the outdoor seating will negatively impact the Wharf restaurants, our locals and visitors (an estimated 4 million people annually), and the City of Monterey.

There are so many people in our country who continue to feel strongly that dining outside is safer due to the Pandemic, which may have future surges with new variants. Dining al fresco allows some of our visitors to bring their beloved dogs on a leash. It enables our visitors to relax and people watch and enjoy the fresh air of the Monterey Bay.

Restaurants are facing current inflation, a looming recession and high gas prices. Restaurants have also, in recent years. dramatically experienced the impact of increased costs for their food, supplies and employees.

They need those extra outdoor seating to make ends meet.

Eliminating outdoor dining will also cause a 30% to 40% layoff of Wharf restaurant employees and a reduction of sales of about 30%.

As one restauranteur said, “We have had to reinvent ourselves all the time after COVID to keep our doors open!”
ATTACHMENT 8
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 70, Packet Page 126 We also do not believe that our outdoor seating limits public access or a view of the Monterey Harbor. There is a walkway around much of the Wharf, including the Finger Pier area. To ask the restaurant owners to build a walkway that completely encircles the Wharf is cost-prohibitive.

We understand that there is a process for permitting outdoor dining by the Coastal Commission and the City of Monterey and we would ask, in this case, that in addition to delaying the removal of the outdoor seating, that this process be streamlined with a smaller cost burden for the restaurants.

We would like to see a compromise so that our restaurants can survive and retain their outdoor seating beyond 2022 and for years to come.

Thank you for your time and consideration.

Sincerely,
Wendy Brickman
Wendy Brickman, President
Fisherman’s Wharf Association
P.O. Box 465
Monterey, CA 93942
[email protected]
(831) 594-1500 cell
ATTACHMENT 8
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 71, Packet Page 127 47 Fisherman's Wharf, Monterey, CA 93940 (831)372-5200
www.cafefina.com, e-mail [email protected]
13 October 2022
Dear Coastal Commission,
I am the owner of Café Fina on Old Fisherman’s Wharf writing in support of the City of Monterey’s request for an extension for the outdoor seating permits at our restaurants on Old Fisherman’s Wharf until 12/31/2023.

Outdoor seating at Café Fina began in 2007 and has proven to be appealing to pet lovers, healthconscious customers, and customers who like to people watch and enjoy the year-round temperate weather of Monterey.

Our restaurant went through the official channels to get everything approved by the City, including, but not limited to, encroachment permits, alcoholic beverage control, water authorities, the architectural review committee, planning commission. The process was done by the book and is an integral part of our restaurant business.

The removal of the outdoor seating will negatively impact the Wharf restaurants, our locals and visitors (an estimated 4 million people annually), and the City of Monterey.

Restaurant owners are facing current inflation, supply chain problems, a looming recession and high gas prices. Restaurants have also, in recent years, dramatically experienced the impact of increased costs for their food, supplies and employees. We need those extra outdoor seating to make ends meet.

Eliminating outdoor dining will also cause a 30% to 40% layoff of Wharf restaurant employees and a reduction of sales of about 30%.

There is a risk and high cost associated with applying for outdoor seating with the California Coastal Commission. We understand that there is a process for permitting outdoor dining by the Coastal Commission and the City of Monterey and we would ask, in this case, that in addition to delaying the removal of the outdoor seating, that this process be streamlined with a smaller cost burden for the restaurants.

Current outdoor seating does not limit public access or a view of the Monterey Harbor. There is a walkway around much of the Wharf, including the Finger Pier area. To ask the restaurant owners to build a walkway that completely encircles the Wharf is cost prohibitive, if not impossible considering the historic and non-conventional structure of the wharf.

We would like to see a compromise so that our restaurants can survive and retain their outdoor seating through December 31, 2023 and for years to come.

Thank you for your time and consideration.

Sincerely,
Dominic Mercurio
Café Fina
47 Fisherman’s Wharf #1,
Monterey, CA 93940
ATTACHMENT 9
Council Regular Meeting, 10/18/2022, Item No. 4., Item Page 72, Packet Page 128 Council
Agenda Report
№08/22
FROM: Kimberly Cole, AICP, Community Development Director SUBJECT: Accessory Dwelling Unit Update (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) RECOMMENDATION:

That the City Council accept the presentation. No further action is required.

VALUE DRIVERS:

Support efforts and policies that provide equitable access to affordable housing in Monterey and the region.

POLICY IMPLICATIONS:

The City of Monterey General Plan includes development of housing. Accessory dwelling units are consistent with this vision.

FISCAL IMPLICATIONS:

None.

ENVIRONMENTAL DETERMINATION:

ALTERNATIVES CONSIDERED:

No alternatives are recommended. Staff will be returning to the City Council with amendments to the ordinance to reflect changes in state law that are effective January 1, 2023 and other considerations outlined below.

Date: 10/18/2022
Item No.: 5.

Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 1, Packet Page 129 DISCUSSION:

On October 19, 2021, the City Council passed a first reading of an ordinance amending Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (JADU) regulations. The City Council directed staff to return in a year to address: (1) exploring incentives linked to affordability; (2) indefinitely removing an extension of owner occupancy requirements; (3) removing exceptions for the replacement of garage covered parking/carports; (4) removing or loosening floor area ratio requirements; and (5) allowing ADUs to be constructed within existing commercial or mixed-use buildings.

Staff will be presenting amendments to the ADU and JADU ordinance that are necessitated by state laws that go into effect on January 1, 2023. At that time, staff will also discuss the forgoing policy considerations with the Planning Commission. Staff anticipates bringing forward the proposed ADU and JADU amendments to the City Council in early 2023. Meanwhile, this report provides an update on the number of units permitted in the city and it describes how the program is operating thus far.

Chart 1 shows how many property owners have applied for building permits in the City since the change in State law. As the Council is well aware, the State ADU law requires a ministerial permit process for ADUs (i.e., building permit only) subject to objective design standards.

Chart 1
Accessory Dwelling Units
Year Accessory Dwelling Units
2018 1
2019 16
2020 25
2021 – October 2022 20
Total Units 62
Overall, the permit process has been going well as the City’s housing stock has increased.

ADUs will be considered dwelling units satisfying a city’s share of the regional housing need if included on required reports to the California Department of Finance.

The City has received comments from two property owners that do not want to record a deed restriction against their property. A recorded deed restriction prohibits the use of the ADU or the JADU as a short-term rental (it keeps the ADU in the City’s rental unit inventory) and limits the separate sale of accessory dwellings from the primary unit.

City zoning regulations contain a list of permitted uses in each zone and other uses that are not permitted as a matter of right, but for which a discretionary conditional use permit must be obtained. (City Attorneys’ Dept., League of Cal. Cities, The Municipal Law Handbook (Cont.Ed.Bar 2022 ed.) §10.105, p. 1176.) Use permits run with the land, and violations of conditions attached to its grant may lead to revocation or modification. (Id. at §10.109, p. 1177.) ADUs must be ministerially approved (i.e., no conditional use permit may be considered or issued) if they meet certain minimum standards. (Government Code §65852.2(a)(3).) Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 2, Packet Page 130 Therefore, recorded deed restrictions provide notice to property owners, and any future owners, that the use or resale of the property in a manner consistent with the city’s regulations.

Public (ordinances) and private (deed) land-use restrictions provide a dual system of use controls and usually are held to operate independently. Therefore, the interpretation and enforcement of privately created restrictions are not affected by zoning laws even if they are inconsistent. In other words, the city’s ordinances may change over time, but the recorded restriction ensures that the rules in effect today remain in effect with respect to the particular parcel with the ADU.

In connection with its review of the new ADU and JADU laws going into effect in January 2023, Staff will review with the Planning Commission whether it recommends any changes to the city’s policy requiring a deed restriction for ADUs.

KC
Attachments: 1. SB-897 (Wieckowski) Accessory Dwelling Units: Junior Accessory Dwelling Units

2. Senate Bill 987 (highlight/strikeout version), September 29, 2022

3. Letter from Nelson Vega

4. Letter from Richard Aiello
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 3, Packet Page 131 10/3/22, 1:51 PM SB-897 (Wieckowski) Accessory dwelling units: junior accessory dwelling units. | FindHOALaw https://findhoalaw.com/sb-897-accessory-dwelling-units/ 1/3 Would make it easier for owners to build accessory dwelling units and junior accessory dwelling units within multifamily dwellings.

Current Status: Chaptered
FindHOALaw Quick Summary:

The Planning and Zoning Law authorizes a local agency, by ordinance or ministerial approval, to provide for the creation of accessory dwelling units (“ADU”) in areas zoned for residential use, as specified.

Existing law provides that an ADU may either be an attached or detached residential dwelling unit, and prescribes the minimum and maximum unit size requirements, height limitations, and setback requirements that a local agency may establish, including a 16-foot height limitation and a 4-foot side and rear setback requirement.

SB-897 (WIECKOWSKI) ACCESSORY DWELLING
UNITS: JUNIOR ACCESSORY DWELLING UNITS.

ATTACHMENT 1
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 4, Packet Page 132 10/3/22, 1:51 PM SB-897 (Wieckowski) Accessory dwelling units: junior accessory dwelling units. | FindHOALaw https://findhoalaw.com/sb-897-accessory-dwelling-units/ 2/3 This bill would amend Government Code Section 65852.2 to increase the maximum height limitation that may be imposed by a local agency on an ADU to 25 feet.

Existing law requires an ordinance that provides for the creation of an ADU to require ADUs to comply with local building code requirements that apply to detached dwellings, as appropriate. Existing law also prohibits an ordinance from requiring an ADU to provide fire sprinklers if they are not required for the primary residence.

This bill would amend Government Code 65852.2 to provide that the construction of an ADU does not constitute an occupancy change under the local building code. The bill would also prohibit the construction of an ADU from triggering a requirement that fire sprinklers be installed in the proposed or existing primary dwelling.

Existing law provides that a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create not more than 2 ADUs that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limitation of 16 feet and a 4-foot side and rear setback requirement.

This bill would amend Government Code 65852.2 to change the height limitation applicable to an ADU subject to ministerial approval to 25 feet. If the existing multifamily dwelling exceeds a height of 25 feet or has a rear or side setback of less than 4 feet, this bill would prohibit a local agency from requiring any modification to the existing multifamily dwelling to satisfy these requirements. The bill would prohibit a local agency from rejecting an application for an ADU because the existing multifamily dwelling exceeds a height of 25 feet or has a rear or side setback of less than 4 feet.

Existing law, until January 1, 2025, prohibits a local agency from imposing an owner-occupant requirement on a proposed ADU on a lot that includes a proposed or existing single-family dwelling.

This bill would amend Government Code 65852.2 to delete the expiration date of this provision. (2) Existing law also provides for the creation of junior accessory dwelling units (“JADU”) by local ordinance, or, if a local agency has not adopted an ordinance, by ministerial approval, in accordance with specified standards and conditions. Existing law requires an ordinance that provides for the creation of a JADU to require the unit to be constructed within the walls of the proposed or existing single-family residence, require that the unit to include a separate entrance from the main entrance to the proposed or existing single-family residence, and require owner-occupancy in the single-family residence in which the junior accessory dwelling unit is permitted.

This bill would amend Government Code 65852.22 to specify that enclosed uses within the proposed or existing single-family residence, such as attached garages, are considered a part of the proposed or existing single-family residence. The bill would require a JADU that does not include separate sanitation facilities to include a separate entrance from the main entrance to the structure, with an interior entry to the main living area.
(3) Existing law requires a local agency, in enforcing building standards applicable to ADUs, to delay enforcement for up to 5 years upon the owner submitting an application requesting the delay on the basis that correcting the violation is not necessary to protect health and safety.

This bill would add Government Code 65852.23 to prohibit a local agency from denying a permit for a constructed, but unpermitted, ADU because the unit is in violation of building standards or state or local ATTACHMENT 1
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 5, Packet Page 133 10/3/22, 1:51 PM SB-897 (Wieckowski) Accessory dwelling units: junior accessory dwelling units. | FindHOALaw https://findhoalaw.com/sb-897-accessory-dwelling-units/ 3/3 standards applicable to ADUs, unless the local agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure (4) Existing law requires the Department of Housing and Community Development to administer various programs intended to promote the development of housing, including the Multifamily Housing Program, pursuant to which the department provides financial assistance in the form of deferred payment loans to pay for the eligible costs of development for specified activities.

This bill would add Government Code 50678 to require the department to establish and administer a grant program for the purpose of funding the construction and maintenance of ADUs and JADUs. The bill would create the California Accessory Dwelling Unit Fund and, upon appropriation by the Legislature, require the department to distribute moneys in the fund to eligible recipients. **SB 897 was signed in to law September 28, 2022 and takes effect January 1, 2023.

Related Topics
Related Statutes
Related Links
Related Topics
AB-2221 Accessory dwelling units.

Accessory Dwelling Units
Limitations on Rental Prohibitions
Related Statutes
Related Links
To read more, click here.

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View more info on SB 897 Share:
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ATTACHMENT 1
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 6, Packet Page 134 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 1/23 As Amends the Law Today
SB-897 Accessory dwelling units: junior accessory dwelling units. (2021-2022) SECTION 1. It is the intent of the Legislature to ensure that grant programs that fund the construction and maintenance of accessory dwelling units undertake both of the following:
(a) Provide funding for predevelopment costs, such as development of plans and permitting of accessory dwelling units.
(b) Facilitate accountability and oversight, including annual reporting on outcomes to the Legislature.

SEC. 2. Section 65852.2 of the Government Code, as amended by Section 1 of Chapter 343 of the Statutes of 2021, is amended to read:
65852.2. (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.

Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 7, Packet Page 135 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 2/23 (vi) No passageway shall be required in conjunction with the construction of an accessory dwelling unit. (vii) No setback shall be required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. (viii) Local building code requirements that apply to detached dwellings, as appropriate. except that the construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency makes a written finding based on substantial evidence in the record that the construction of the accessory dwelling unit could have a specific, adverse impact on public health and safety. Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section. (ix) Approval by the local health officer where a private sewage disposal system is being used, if required. (x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.
(II) Offstreet parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions. (III) This clause shall not apply to an accessory dwelling unit that is described in subdivision (d). (xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the local agency shall not require that those offstreet parking spaces be replaced.
(xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. (2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. The permitting agency shall act on either approve or deny the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing singlefamily or multifamily dwelling on the lot. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the permitting agency may delay acting on approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts approves or denies on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon approved or denied the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit.
(4) The ordinance shall require that a demolition permit for a detached garage that is to be replaced with an accessory dwelling unit be reviewed with the application for the accessory dwelling unit and issued at the same time.
(5) The ordinance shall not require, and the applicant shall not be otherwise required, to provide written notice or post a placard for the demolition of a detached garage that is to be replaced with an accessory dwelling unit, ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 8, Packet Page 136 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 3/23 unless the property is located within an architecturally and historically significant historic district. (4) (6) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. 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 that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) (7) No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.
(6) (8) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, including any owner-occupant requirement, except that except that, subject to subparagraphs (B) and (C), a local agency may require that the property be used for rentals of terms longer than 30 days. an applicant for a permit issued pursuant to this subdivision to be an owner-occupant.
(B) (i) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit before January 1, 2025.
(ii) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025. (C) Notwithstanding subparagraphs (A) and (B), a local agency may require that an accessory dwelling unit be used for rentals of terms longer than 30 days.
(7) (9) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) (10) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (b) (1) When a local agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create or serve an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a). The permitting agency shall act on either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local permitting agency receives a completed application if there is an existing singlefamily or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create or serve a new single-family or multifamily dwelling on the lot, the permitting agency may delay acting on approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on approves or denies the permit application to create or serve the new single-family dwelling or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon approved or denied the completed application within 60 days, the application shall be deemed approved. (2) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to paragraph (1), the permitting agency shall, within the time period described in paragraph (1), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 9, Packet Page 137 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 4/23 (2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
(D) Any height limitation that does not allow at least the following, as applicable:
(i) A height of 16 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit.
(ii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a highquality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit. (iii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling.
(iv) A height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling. This clause shall not require a local agency to allow an accessory dwelling unit to exceed two stories. (d) Notwithstanding any other law, a local agency, and whether or not it the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any all of the following instances: shall apply:
(1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances:
(1) (A) The Where the accessory dwelling unit is located within one-half mile walking distance of public transit. (2) (B) The Where the accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) (C) The Where the accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) (D) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) (E) When there is a car share vehicle located within one block of the accessory dwelling unit. (F) When a permit application for an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling or a new multifamily dwelling on the same lot, provided that the accessory dwelling unit or the parcel satisfies any other criteria listed in this paragraph. (2) The local agency shall not deny an application for a permit to create an accessory dwelling unit due to the correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 10, Packet Page 138 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 5/23 (e) (1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing singlefamily dwelling if all of the following apply:
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22. (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit:
(i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation of 16 feet. as provided in clause (i), (ii), or (iii) as applicable, of subparagraph (D) of paragraph (2) of subdivision (c).
(C) (i) Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (ii) A local agency shall allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) (i) Not more than two accessory dwelling units that are located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four-foot the applicable height limitation in clause (i), (ii), or (iii), as applicable, of subparagraph (D) of paragraph (2) of subdivision (c) and rear yard and side setbacks. setbacks of no more than four feet. (ii) If the existing multifamily dwelling has a rear or side setback of less than four feet, the local agency shall not require any modification of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit that satisfies the requirements of this subparagraph. (2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions.
(3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing multifamily dwelling. (4) A local agency may require owner-occupancy for either the primary dwelling or the accessory dwelling unit on a single-family lot, subject to the requirements of paragraph (8) of subdivision (a). (4) (5) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
(5) (6) A local agency may require, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (6) (7) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 11, Packet Page 139 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 6/23 (1), and may impose objective standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size. (f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation.
(4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family home. dwelling. (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(h) (1) A local agency shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section.
(2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following:
(i) Amend the ordinance to comply with this section.
(ii) Adopt the ordinance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law.
(B) Before notifying the Attorney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 12, Packet Page 140 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 7/23 (i) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(j) As used in this section, the following terms mean:
(1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(7) “Objective standards” means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. (7) (8) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(9) “Permitting agency” means any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts. (8) (10) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(9) (11) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(10) (12) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(k) A local agency shall not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (l) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
(m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division.
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part

1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2) below, (2), a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 13, Packet Page 141 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 8/23 shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwelling unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(o) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.

SEC. 2.5. Section 65852.2 of the Government Code, as amended by Section 1 of Chapter 343 of the Statutes of 2021, is amended to read:
65852.2. (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.

The designation of areas may be based on the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety. A local agency that does not provide water or sewer services shall consult with the local water or sewer service provider regarding the adequacy of water and sewer services before designating an area where accessory dwelling units may be permitted. (B) (i) Impose objective standards on accessory dwelling units that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historical Resources. These standards shall not include requirements on minimum lot size.
(ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.
(C) Provide that accessory dwelling units do not exceed the allowable density for the lot upon which the accessory dwelling unit is located, and that accessory dwelling units are a residential use that is consistent with the existing general plan and zoning designation for the lot. (D) Require the accessory dwelling units to comply with all of the following:
(i) Except as provided in Section 65852.26, the accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence. (ii) The lot is zoned to allow single-family or multifamily dwelling residential use and includes a proposed or existing dwelling.
(iii) The accessory dwelling unit is either attached to, or located within, the proposed or existing primary dwelling, including attached garages, storage areas or similar uses, or an accessory structure or detached from the proposed or existing primary dwelling and located on the same lot as the proposed or existing primary dwelling. dwelling, including detached garages.
(iv) If there is an existing primary dwelling, the total floor area of an attached accessory dwelling unit shall not exceed 50 percent of the existing primary dwelling.
(v) The total floor area for a detached accessory dwelling unit shall not exceed 1,200 square feet. (vi) No passageway shall be required in conjunction with the construction of an accessory dwelling unit. (vii) No setback shall be required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. (viii) Local building code requirements that apply to detached dwellings, as appropriate. except that the construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency makes a written finding ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 14, Packet Page 142 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 9/23 based on substantial evidence in the record that the construction of the accessory dwelling unit could have a specific, adverse impact on public health and safety. Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section. (ix) Approval by the local health officer where a private sewage disposal system is being used, if required. (x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.
(II) Offstreet parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions. (III) This clause shall not apply to an accessory dwelling unit that is described in subdivision (d). (xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the local agency shall not require that those offstreet parking spaces be replaced.
(xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. (2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) (A) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. The permitting agency shall act on either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local permitting agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the permitting agency may delay acting on approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on approves or denies the permit application to create the new single-family or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon approved or denied the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit. (B) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to subparagraph (A), the permitting agency shall, within the time period described in subparagraph (A), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (4) The ordinance shall require that a demolition permit for a detached garage that is to be replaced with an accessory dwelling unit be reviewed with the application for the accessory dwelling unit and issued at the same time.
(5) The ordinance shall not require, and the applicant shall not be otherwise required, to provide written notice or post a placard for the demolition of a detached garage that is to be replaced with an accessory dwelling unit, unless the property is located within an architecturally and historically significant historic district. (4) (6) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. If a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 15, Packet Page 143 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 10/23 that ordinance shall be null and void and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) (7) No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.
(6) (8) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, including any owner-occupant requirement, except that except that, subject to subparagraphs (B) and (C), a local agency may require that the property be used for rentals of terms longer than 30 days. an applicant for a permit issued pursuant to this subdivision to be an owner-occupant.
(B) (i) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit before January 1, 2025.
(ii) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025. (C) Notwithstanding subparagraphs (A) and (B), a local agency may require that an accessory dwelling unit be used for rentals of terms longer than 30 days.
(7) (9) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) (10) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (b) (1) When a local agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create or serve an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a). The permitting agency shall act on either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local permitting agency receives a completed application if there is an existing singlefamily or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create or serve a new single-family or multifamily dwelling on the lot, the permitting agency may delay acting on approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on approves or denies the permit application to create or serve the new single-family or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon approved or denied the completed application within 60 days, the application shall be deemed approved. (2) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to paragraph (1), the permitting agency shall, within the time period described in paragraph (1), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units. (2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 16, Packet Page 144 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 11/23 (i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
(D) Any height limitation that does not allow at least the following, as applicable:
(i) A height of 16 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit.
(ii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a highquality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit. (iii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling.
(iv) A height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling. This clause shall not require a local agency to allow an accessory dwelling unit to exceed two stories. (d) Notwithstanding any other law, a local agency, and whether or not it the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any all of the following instances: shall apply:
(1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances:
(1) (A) The Where the accessory dwelling unit is located within one-half mile walking distance of public transit. (2) (B) The Where the accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) (C) The Where the accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) (D) When on-street onstreet parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) (E) When there is a car share vehicle located within one block of the accessory dwelling unit. (F) When a permit application for an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling or a new multifamily dwelling on the same lot, provided that the accessory dwelling unit or the parcel satisfies any other criteria listed in this paragraph. (2) The local agency shall not deny an application for a permit to create an accessory dwelling unit due to the correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.
(e) (1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing singlefamily dwelling if all of the following apply:
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 17, Packet Page 145 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 12/23 more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22. (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit:
(i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation of 16 feet. as provided in clause (i), (ii), or (iii) as applicable, of subparagraph (D) of paragraph (2) of subdivision (c).
(C) (i) Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (ii) A local agency shall allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) (i) Not more than two accessory dwelling units that are located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four-foot limitation in clause (i), (ii), or (iii), as applicable, of subparagraph (D) of paragraph (2) of subdivision (c) and rear yard and side setbacks. setbacks of no more than four feet. (ii) If the existing multifamily dwelling has a rear or side setback of less than four feet, the local agency shall not require any modification of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit that satisfies the requirements of this subparagraph. (2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions.
(3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing multifamily dwelling. (4) A local agency may require owner-occupancy for either the primary dwelling or the accessory dwelling unit on a single-family lot, subject to the requirements of paragraph (8) of subdivision (a). (4) (5) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
(5) (6) A local agency may require, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (6) (7) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph (1), and may impose objective standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size. (f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 18, Packet Page 146 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 13/23 water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation.
(4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family home. dwelling. (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section shall supersede a conflicting local ordinance. This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit. (h) (1) A local agency shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section.
(2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following:
(i) Amend the ordinance to comply with this section.
(ii) Adopt the ordinance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law.
(B) Before notifying the Attorney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020.
(i) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(j) As used in this section, the following terms mean:

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 19, Packet Page 147 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 14/23 (1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(7) “Objective standards” means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. (7) (8) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(9) “Permitting agency” means any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts. (8) (10) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(9) (11) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(10) (12) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(k) A local agency shall not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (l) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
(m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division.
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part

1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2) below, (2), a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwelling unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 20, Packet Page 148 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 15/23 compliant at the time the request is made.
(o) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.

SEC. 3. Section 65852.2 of the Government Code, as amended by Section 2 of Chapter 343 of the Statutes of 2021, is repealed.
65852.2. (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 21, Packet Page 149 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 16/23 (III) This clause shall not apply to an accessory dwelling unit that is described in subdivision (d). (xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the local agency shall not require that those offstreet parking spaces be replaced.
(xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit.
(4) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. 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 that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.
(6) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed except that, subject to subparagraph (B), a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant or that the property be used for rentals of terms longer than 30 days. (B) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit permitted between January 1, 2020, to January 1, 2025, during which time the local agency was prohibited from imposing an owner-occupant requirement. (7) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (b) When a local agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 22, Packet Page 150 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 17/23 review pursuant to subdivision (a). The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon the completed application within 60 days, the application shall be deemed approved.
(c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units. (2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
(d) Notwithstanding any other law, a local agency, whether or not it has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any of the following instances:
(1) The accessory dwelling unit is located within one-half mile walking distance of public transit. (2) The accessory dwelling unit is located within an architecturally and historically significant historic district. (3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure. (4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit. (5) When there is a car share vehicle located within one block of the accessory dwelling unit. (e) (1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing singlefamily dwelling if all of the following apply:
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 23, Packet Page 151 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 18/23 (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit:
(i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation of 16 feet.
(C) (i) Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (ii) A local agency shall allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and fourfoot rear yard and side setbacks. (2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions.
(3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence.
(4) A local agency may require owner occupancy for either the primary dwelling or the accessory dwelling unit on a single-family lot, subject to the requirements of paragraph (6) of subdivision (a). (5) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
(6) A local agency may require, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (7) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph (1), and may impose standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size. (f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation.
(4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family dwelling.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 24, Packet Page 152 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 19/23 (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(h) (1) A local agency shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section.
(2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following:
(i) Amend the ordinance to comply with this section.
(ii) Adopt the ordinance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law.
(B) Before notifying the Attorney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020.
(i) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(j) As used in this section, the following terms mean:
(1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(5) “Local agency” means a city, county, or city and county, whether general law or chartered.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 25, Packet Page 153 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 20/23 (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(7) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(8) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(9) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(10) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(k) A local agency shall not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (l) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
(m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division.
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part

1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2) below, a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwelling unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(o) This section shall become operative on January 1, 2025.

SEC. 4. Section 65852.22 of the Government Code is amended to read:
65852.22. (a) Notwithstanding Section 65852.2, a local agency may, by ordinance, provide for the creation of junior accessory dwelling units in single-family residential zones. The ordinance may require a permit to be obtained for the creation of a junior accessory dwelling unit, and shall do all of the following:
(1) Limit the number of junior accessory dwelling units to one per residential lot zoned for single-family residences with a single-family residence built, or proposed to be built, on the lot. (2) Require owner-occupancy in the single-family single family residence in which the junior accessory dwelling unit will be permitted. The owner may reside in either the remaining portion of the structure or the newly created junior accessory dwelling unit. Owner-occupancy shall not be required if the owner is another governmental agency, land trust, or housing organization. (3) Require the recordation of a deed restriction, which shall run with the land, shall be filed with the permitting agency, and shall include both of the following:
(A) A prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers. (B) A restriction on the size and attributes of the junior accessory dwelling unit that conforms with this section.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 26, Packet Page 154 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 21/23 (4) Require a permitted junior accessory dwelling unit to be constructed within the walls of the proposed or existing single-family residence. For purposes of this paragraph, enclosed uses within the residence, such as attached garages, are considered a part of the proposed or existing single-family residence. (5) (A) Require a permitted junior accessory dwelling unit to include a separate entrance from the main entrance to the proposed or existing single-family residence. (B) If a permitted junior accessory dwelling unit does not include a separate bathroom, the permitted junior accessory dwelling unit shall include a separate entrance from the main entrance to the structure, with an interior entry to the main living area.
(6) Require the permitted junior accessory dwelling unit to include an efficiency kitchen, which shall include all of the following:
(A) A cooking facility with appliances.
(B) A food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit.
(b) (1) An ordinance shall not require additional parking as a condition to grant a permit. (2) This subdivision shall not be interpreted to prohibit the requirement of an inspection, including the imposition of a fee for that inspection, to determine if the junior accessory dwelling unit complies with applicable building standards.
(c) (1) An application for a permit pursuant to this section shall, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits, be considered ministerially, without discretionary review or a hearing. The permitting agency shall act on either approve or deny the application to create or serve a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family dwelling on the lot. If the permit application to create or serve a junior accessory dwelling unit is submitted with a permit application to create or serve a new singlefamily dwelling on the lot, the permitting agency may delay acting on approving or denying the permit application for the junior accessory dwelling unit until the permitting agency acts on approves or denies the permit application to create or serve the new single-family dwelling, but the application to create or serve the junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. A local agency may charge a fee to reimburse the local agency for costs incurred in connection with the issuance of a permit pursuant to this section.
(2) If a permitting agency denies an application for a junior accessory dwelling unit pursuant to paragraph (1), the permitting agency shall, within the time period described in paragraph (1), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.
(d) A local agency shall not deny an application for a permit to create a junior accessory dwelling unit pursuant to this section due to the correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and that are not affected by the construction of the junior accessory dwelling unit.
(d) (e) For purposes of any fire or life protection ordinance or regulation, a junior accessory dwelling unit shall not be considered a separate or new dwelling unit. This section shall not be construed to prohibit a city, county, city and county, or other local public entity from adopting an ordinance or regulation relating to fire and life protection requirements within a single-family residence that contains a junior accessory dwelling unit so long as the ordinance or regulation applies uniformly to all single-family residences within the zone regardless of whether the single-family residence includes a junior accessory dwelling unit or not. (e) (f) For purposes of providing service for water, sewer, or power, including a connection fee, a junior accessory dwelling unit shall not be considered a separate or new dwelling unit. (f) (g) This section shall not be construed to prohibit a local agency from adopting an ordinance or regulation, regulation related to parking or a service or a connection fee for water, sewer, or power, that applies to a single-family residence that contains a junior accessory dwelling unit, so long as that ordinance or regulation applies uniformly to all single-family residences regardless of whether the single-family residence includes a junior accessory dwelling unit.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 27, Packet Page 155 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 22/23 (g) (h) If a local agency has not adopted a local ordinance pursuant to this section, the local agency shall ministerially approve a permit to construct a junior accessory dwelling unit that satisfies the requirements set forth in subparagraph (A) of paragraph (1) of subdivision (e) of Section 65852.2 and the requirements of this section.
(h) (i) For purposes of this section, the following terms have the following meanings:
(1) “Junior accessory dwelling unit” means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A junior accessory dwelling unit may include separate sanitation facilities, or may share sanitation facilities with the existing structure. (2) “Local agency” means a city, county, or city and county, whether general law or chartered. (3) “Permitting agency” means any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts.

SEC. 5. Section 65852.23 is added to the Government Code, to read:
65852.23. (a) Notwithstanding any other law, and except as otherwise provided in subdivision (b), a local agency shall not deny a permit for an unpermitted accessory dwelling unit that was constructed before January 1, 2018, due to either of the following:
(1) The accessory dwelling unit is in violation of building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code. (2) The accessory dwelling unit does not comply with Section 65852.2 or any local ordinance regulating accessory dwelling units.
(b) Notwithstanding subdivision (a), a local agency may deny a permit for an accessory dwelling unit subject to subdivision (a) if the local agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure. (c) The section shall not apply to a building that is deemed substandard pursuant to Section 17920.3 of the Health and Safety Code.

SEC. 6. Section 17980.12 of the Health and Safety Code is amended to read:
17980.12. (a) (1) An enforcement agency, until January 1, 2030, that issues to an owner of an accessory dwelling unit described in subparagraph (A) or (B) below, a notice to correct a violation of any provision of any building standard pursuant to this part shall include in that notice a statement that the owner of the unit has a right to request a delay in enforcement pursuant to this subdivision:
(A) The accessory dwelling unit was built before January 1, 2020. (B) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(2) The owner of an accessory dwelling unit that receives a notice to correct violations or abate nuisances as described in paragraph (1) may, in the form and manner prescribed by the enforcement agency, submit an application to the enforcement agency requesting that enforcement of the violation be delayed for five years on the basis that correcting the violation is not necessary to protect health and safety. (3) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of a violation on the primary dwelling unit, provided that correcting the violation is not necessary to protect health and safety. (3) (4) The enforcement agency shall grant an application described in paragraph (2) if the enforcement agency determines that correcting the violation is not necessary to protect health and safety. In making this determination, the enforcement agency shall consult with the entity responsible for enforcement of building standards and other regulations of the State Fire Marshal pursuant to Section 13146. (4) (5) The enforcement agency shall not approve any applications pursuant to this section on or after January 1, 2030. However, any delay that was approved by the enforcement agency before January 1, 2030, shall be ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 28, Packet Page 156 10/3/22, 2:28 PM Today's Law As Amended - SB-897 Accessory dwelling units: junior accessory dwelling units. https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB897&showamends=false 23/23 valid for the full term of the delay that was approved at the time of the initial approval of the application pursuant to paragraph (3). (4).
(b) For purposes of this section, “accessory dwelling unit” has the same meaning as defined in Section 65852.2. (c) This section shall remain in effect only until January 1, 2035, and as of that date is repealed.

SEC. 7. Section 2.5 of this bill incorporates amendments to Section 65852.2 of the Government Code proposed by both this bill and Assembly Bill 2221. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 65852.2 of the Government Code, and (3) this bill is enacted after Assembly Bill 2221, in which case Section 2 of this bill shall not become operative.

SEC. 8. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

ATTACHMENT 2
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 29, Packet Page 157 October 7, 2022
Monterey City Council
City Hall
580 Pacific Street
Monterey CA 93940
Re: Deed Restriction - 414 Larkin Street ADU
Dear Honorable Mayor and City Council of Monterey,
I am writing to the City Council in an appeal to your reasonableness and that you reconsider the City’s current policy regarding deed restrictions on Accessory Dwelling Units (ADUs) not to be confused with the legislative requirement for deed restrictions on any Junior Accessory Dwelling Unit (JADU). My specific project is situated within an existing 17-unit apartment complex located at 414 Larkin Street. The planned project is only to convert an existing interior space (a large storage area) into an additional ADA-compliant one bedroom apartment unit with its own bathroom and full kitchen. In other words, we are not talking about a single-family residence with an attached JADU or unattached ADU. The conflict I am writing to you about pertains to City requiring a deed restriction for this ADU project.

According to California Code, Government Code § 65852.2 (a)(5), “No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.” Additionally, Government Code § 65852.2 (a)(6) establishes the [maximum standards] for an ADU, and further states that a local agency, “shall not include any discretionary processes, provisions, or requirements” for an ADU or JADU except as provided in Government Code § 65852.2. Specifically, there is no provision for a deed restriction requirement regarding an Accessory Dwelling Unit (ADU) application in Government Code § 65852.2, and the same code prohibits that which it has not specifically provided for. The City’s requirement for a deed restriction for any ADU is not in compliance with the above stated law as passed by the legislature.

My position on this matter is simple. I only agreed to do this project because of the statewide changes and new law(s) on ADUs, as well as initial assurances by the City that this was a straightforward permitting process. At no point before fees were paid and work was Cal DRE #: 02091319
ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 30, Packet Page 158 commenced did the City ever disclose that it would require a deed restriction for ADU projects.

As a result, I have incurred to date substantial fees and costs for completed work and development that are now in jeopardy of loss. The issue regarding this Deed Restriction has only very recently been brought to my attention by the Building and Planning Departments long after my fees and costs were expended.

Notwithstanding my above stated position that the City’s requirement for a deed restriction on any ADU violates the new law (Government Code § 65852.2) by exceeding what is authorized under the new state law, I also believe that a deed restriction in this present instance is an abuse and overreach of municipal authority. The Takings Clause of the Fifth Amendment provides that property [shall] not “be taken for public use, without just compensation.” Two subsequent Supreme Court decisions that provide guidance on application of this principal are Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978), and Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). As a result of the first case, the court adopted the Penn Central test which looks at (1) the economic impact of the regulation; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. A deed restriction is a physical or regulatory “taking” or damaging of a property right or rights.

It is well understood that like zoning ordinances and municipal codes, deed restrictions are a type of regulatory taking which municipalities have the right to do within the confines of the federal and state laws that govern them. However, as a regulatory tool a deed restriction not only has the ability and often the likely ability to affect a given property’s value, but can also affect a property’s marketability, the property’s ability to secure lending as well as other unforeseen negative impacts. Therefore, I applied only for an ADU permit rather than a JADU permit because I did not want a deed restriction on my property, and because my project was clearly an ADU by design as described under the new state law. I understand that the City has clear authority through its municipal powers to create ordinances, policies, and programs.

Despite this, it is my strong belief that the City has no authority under Government Code § 65852.2 to require a deed restriction on an ADU as it is specifically prohibited by the language in this subdivision from doing so. My request is that the City simply abide by the law as written and eliminate its current policy requirement for a deed restriction on an Accessory Dwelling Unit (ADU).

Sincerely,

NELSON VEGA – C.E.O. & President
Real Estate Salesperson
[DRE #: 00878399]
ATTACHMENT 3
Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 31, Packet Page 159 ATTACHMENT 4 Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 32, Packet Page 160 ATTACHMENT 4 Council Regular Meeting, 10/18/2022, Item No. 5., Item Page 33, Packet Page 161 Council
Agenda Report
№08/22
FROM: Rafaela T. King, MBA
SUBJECT: Receive an Update on Unfunded Liability/Pension Obligation Strategies and Approve a Pension/OPEB Liability Reserve Policy (Not a Project Under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) RECOMMENDATION:

That the City Council receive an update on unfunded liability / pension obligation strategies and, approve a Pension/OPEB Liability Reserve Policy.

VALUE DRIVER:

POLICY IMPLICATIONS:

The City Council is ultimately responsible for the City’s fiscal health, which continues to be a priority for the community. Establishing a Pension/OPEB Liability Reserve Policy is within the City Council’s purview. Following a Request for Proposals (RFP) and staff recommendation to be brought back to the Council for review at a future date, the City Council may authorize the City Manager to establish and fund a Section 115 Plan.

FISCAL IMPLICATIONS:

The City desires to start funding the unfunded liability and pension obligations. In FY 2021-22, the council approved the first step at the mid-year budget and set aside $1M in a reserve fund specifically for that purpose. With the adoption of the FY 2022-23 budget, the council again approved an additional $1M to be allocated into that reserve fund. In spring 2022, the City Council received a report from actuarial services consultant Bartel Associates highlighting that the City of Monterey’s Unfunded Actuarial Accrued Liability (UAAL) exceeds $170 million. For the City’s fiscal health, it would be prudent for the City to set-aside revenues to strategically address the City’s unfunded pension liability immediately, and in future years as funds become available.

ENVIRONMENTAL DETERMINATION:

Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 1, Packet Page 162 the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

The Council could choose not to establish a formal pension reserve policy or fund it at a different amount. The council could also choose not to establish a Section 115 Trust plan to aide in addressing the unfunded pension and OPEB liabilities.

Neither of these options are recommended as the City’s unfunded pension obligations continue to grow each year.

The City’s Fiscal Health Response Plan, launched in 2018, calls for the City to, among many initiatives, address the City’s pension obligations. It is not sustainable, nor equitable for future generations of Monterey taxpayers, to ignore the over $170 million in unfunded pension liability and take no action. While the City has operational needs, the fiscally responsible action is for the City Council to address the City’s unfunded pension and OPEB liabilities through the Section 115 Trust.

DISCUSSION:

Addressing Pension Obligations: A Component of the City’s Fiscal Health Response Plan The City’s Fiscal Health Response Plan, launched in 2018, emphasized the need for the City of Monterey to implement strategies to balance the City’s checkbook and solve long-term funding needs. In addition to revenue enhancements and streamlining the way the City does business, one of the strategies includes addressing the City’s unfunded pension liability in a meaningful way. The City cannot afford to continue to “kick the can down the road” and ignore the over $141 million in unfunded pension liability.

For Fiscal Year 2020/21, the California State Auditor’s “Local Government High Risk Dashboard” released on October 11, 2022 ranked the City of Monterey, out of 431 cities, tied as #1 worst in future pension costs, the 14th worst in pension costs, 26th worst in pension obligations, and 39th worst in pension funding.

While the City can be commended on its creation and funding of a Pension Reserve totaling $2 million into the fund in 2021/22 and 2022/23, significantly more funds must be set aside and allocated to address this pension liability funding shortfall. The City must also continue to exercise fiscal restraint in the years to come by following the guiding principles of the Fiscal Health Response Plan.

Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 2, Packet Page 163 Unfunded Pension Liabilities At-A-Glance
During the 2021/2022 fiscal year Mid-Year budget, the Council voted to approve establishing a Pension Reserve Fund to address the unfunded Pension Liabilities and Other Post Employment Benefit (OPEB) Liability. Each year, the city is required to pay contributions into the CalPERS retirement system. The contribution amount to be remitted is an actuarial-based calculation provided by CalPERS annually. The contributions to fund the pension is comprised of two components:
(1) the normal cost, and
(2) amortization of the Unfunded Accrued Liability (UAL).

The Normal cost is a percentage of the total active payroll. The percentage in recent years ranging from 10% - 12%. The UAL is the present value of future employer contributions for service that has already been earned. The contribution for the 2022-23 fiscal year is $14,987,092 and is projected to be $14,777,487 for the 2023-24 fiscal year.

As illustrated in the chart below, the Pension Liability for the Miscellaneous group is $303,606,336, reduced by the Net Position (market value of assets) in the Fiduciary Plan of $229,721,115, leaving an unfunded balance of $73,885,221. The Miscellaneous Plan is funded at 75.7%. The Safety plan is funded at 73.7%. The combined Pension Liability for the Safety, PEPRA Safety Fire and PEPRA Safety Police groups is $230,270,974 reduced by the Net Position in the Fiduciary Plans of $171,326,151, leaving a net unfunded balance of $58,944.823. Both the PEPRA Safety Fire and the PEPRA Safety Police plans are fully funded.

HThe City’s total Pension Liability is at $132,830,044 as of the last actuarial date of June 30, 2021.

Plan’s Funded Status
as of June 30, 2021
Miscellaneous Safety PEPRA
Safety Fire
PEPRA
Safety
Police
1 Present Value of
Projected Benefits
$334,273,421 $253,090,157 $13,891,136 $11,237,214
2 Entry Age Accrued
Liability
$303,606,336 $224,766,841 $3,330,965 $2,173,168
3 Market Value of Assets
(MVA)
$229,721,115 $165,654,869 $3,416,050 $2,255,232
4 Unfunded Accrued
Liability (UAL) (2) - (3)
$73,885,221 $59,111,972 ($85,085) ($82,064)
5 Funded Ratio [(3) / (2)] 75.7% 73.7% 102.6% 103.8%
Other Post-Employment Benefits (OPEB) are benefits other than pensions that the City provides to its retired employees. These benefits principally involve retiree health care benefits. As illustrated in the chart below, the OPEB Liability is $13,520,043 reduced by the Net Position in the Fiduciary Plan of $5,034,811, leaving an unfunded balance of $8,485,232 as of the last actuarial date of June 30, 2020. The City’s total Pension and OPEB Liability is at $141,315,276 as of the last actuarial date of June 30, 2021. The prior year, the City’s total Pension and OPEB liability exceeded $170 million. Given the drastic reductions in CalPERS earnings and the instability of the stock markets, it is likely that the City’s current Pension and OPEB Liability is Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 3, Packet Page 164 much higher than $141 million. Actuarial reports always lag at least one year behind current market data.

Other Post Employment Benefits June 30, 2018 June 30, 2019 June 30, 2020 1 Total OPEB Liability $12,235,577 $13,065,532 $13,520,043 2 Plan Fiduciary Net Position $ 2,885,555 $ 4,012,849 $ 5,034,811 3 Unfunded OPEB Liability (1) – (2) $ 9,350,022 $ 9,052,683 $ 8,485,232 4 Fund Ratio [(3) / (2)] 23.6% 30.7% 37.2%
The Pension Reserve Fund
One of the strategic work plans staff committed to this fiscal year was to work in accordance with the value driver to serve as stewards of the City’s financial resources including restoring and establishing City reserves at levels that provide fiscal resiliency and the ability to address various economic and natural disasters. To begin to address the growing pension liability Council approved the establishment of the Pension Reserve Fund with an initial contribution of $1M at the FY 2021-22 Mid-Year budget adjustment. An additional $1M allocation was included in the adopted 2022-23 budget. A total of $2 million remains in this fund and for the first time in the history of the City, we now have modest pension reserves. Our work has just begun.

To maintain the City’s fiscal health, a significant portion of revenues above projections should be set aside to pay down the City’s pension reserve, as well as the City’s underfunded capital needs.

At the time of the establishment and funding of the initial contribution, staff committed to bring back a proposal on how to utilize this funding, including the possibility of creating an irrevocable Section 115 trust fund. A Section 115 Trust is a tax-exempt investment vehicle authorized by the Internal Revenue Code (IRC) used to prefund essential government expenses (e.g., retiree medical, and retirement plan benefits. These tools allow municipalities to set aside extra resources for pension and OPEB funds at reduced investment risk and can be used to smooth the volatility from year-to-year fluctuations in annual required contributions to CalPERS.

Staff engaged the professional actuarial firm, Bartel Associates, LLC to complete a comprehensive review of the City’s CalPERS program as well as analyze the City’s options with regard to the unfunded liability and present strategies to address the growing obligation. Bartel Associates, LLC presented their analysis to City Council at a study session on March 15, 2022.

In addition to confirming the City’s Unfunded Actuarial Liability (UAL) at $170M, some options were highlighted on how to address the looming debt. Some of the strategies included:
 Using one-time payments. Establish by direction of a Governing body resolution to use a portion of one time money in the following manner: 1/3 to one time projects, 1/3 to replenish reserves and 1/3 to pay down unfunded liability.  Making direct payments to CalPERS. Must be considered an irrevocable decision. Two options discussed. Option one is to request a shorter amortization period. Option two is to use Additional Discretionary Payment (ADP).
 Establishing Irrevocable Supplemental Section 115 Trust. Contributions can only be used for pension and OPEB liabilities. Investments are less restrictive than City Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 4, Packet Page 165 investment funds. Provides a benefit in financial statement reporting, as these accounts are considered employer assets. Provides more flexibility than paying CalPERS directly.  Finally with the multiple options available albeit direct deposit to CalPERS or to a Section 115 Trust, it is clear the key is to start with a strategy that includes consideration of (1) how much can you put in? Initial seed money and additional amounts in future years, (2) when do you take money out? What is target budget rate? And (3) knowing the flexibility level desired along with the risk tolerance.

At the end of this presentation, Council members asked for a strategy, next steps, and recommendations. The next steps will include:
 Creation of a formal pension reserve policy to include the annual allocation of a minimum of $1M during the budget cycle to for the Pension Reserve Fund to begin to address both the unfunded pension and OPEB liabilities.  Agree the use of a Section 115 Trust is beneficial to address the pension and OPEB liabilities and authorize the City manager to establish the trust  Compare the merits of using the CalPERS Irrevocable trust – California Employers’ Pension Prefunding Trust (CEPPT) and California Employers’ Retiree Benefit Trust (CERBT)
 Compare the merits of using the PARS Combined Section 115 Trust  Include flexibility with the funding contributions vs. security Pension Reserve Policy
Adoption of a Pension Reserve Funding Policy. This policy would require an annual allocation of a minimum of $1M during the budget cycle to the Pension Reserve Fund to be used to fund employee pension and OPEB liabilities (either through an IRS Section 115 Trust or through direct payment to CalPERS).

Section 115 Trust
City staff has assessed various options to help address future cost increases and has determined that it would be beneficial to establish a Section 115 Trust for both the pension and OPEB liabilities. A Section 115 Trust is a tax-exempt investment vehicle authorized by the Internal Revenue Code (IRC) used to prefund essential government expenses (i.e., retiree medical, and retirement plan benefits). In order to remain tax exempt, assets held in a Section 115 Trust are designated as irrevocable, meaning they must be used to fund the City’s retirement plan obligations or retiree medical costs. Additionally, monies held in such trusts can be invested in accordance with the rules governing those trusts, which are different than the investment rules for the City’s pooled investments. Setting aside funds in ta Sections 115 Trust, can potentially earn a higher rate of return than if funds were invested with the City.

Funds placed in a Section 115 Trust can remain in the trust until a point in time when the City chooses to draw on its assets to pay annual benefit obligations or reimburse the City for its OPEB or pension expense. The City may withdraw funds by adopting policies and procedures that include requiring action be taken by the City Council. The City would set its own restrictions on how and when the funds can be used and withdrawn.

Funds held in a Section 115 Trust for OPEB assets can only be used for OPEB expenses and funds held for pension assets can only be used for pension expenses. Funds cannot be Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 5, Packet Page 166 transferred between the two. The City must supply supporting documentation to withdraw funds and may reimburse two years’ worth of expenses maximum.

Establishing a Section 115 Trust to prefund pension and OPEB obligations is a best practice recommended by the Government Finance Officers Association (GFOA). Some of the other benefits that a Section 115 Trust program can provide are summarized below.

The benefits of prefunding OPEB obligations:
 Greater expected rate of return (discount rate), which lowers liabilities  Contributions into trust are considered assets, which offset liabilities on the financial statements, therefore lowering its net OPEB liabilities  Government Accounting Standards Board (GASB) Statement, GASB No.75 requires that cities recognize OPEB liabilities on their balance sheet. Establishing a trust will allow the City to recognize the assets set aside to reduce its UAL. GASB 75 – OPEB liabilities are listed as a line item on Balance Sheet in 2018.
 GFOA recommends prefunding OPEB and considers it a best practice.  Credit rating companies look more favorably on agencies who adopt an Irrevocable Trust and prefund.
 OPEB assets are accessible for OPEB expenses at any time.  Prefunding has no downside other than market fluctuation (similar to pension).

The benefits of prefunding pension obligations:
 The City will have complete local control over assets, including contributions, disbursements and the timing, amount and risk tolerance level of investments.  Assets can be transferred to the retirement system at the City’s discretion, potentially reducing/eliminating large fluctuations in employer contributions amounts.  Can be used as an emergency source of funds when employer revenues are strained in difficult budgetary or economic times by reimbursing the General Fund for pension related obligations for current and prior year.
 The PARS Trust allows for investment flexibility and offers the potential for assets to earn greater returns that the General Fund.

CalPERS vs. PARS
Option 1 – PARS
The Public Agency Retirement Services (PARS) Pension 115 Trust includes five (5) risk tolerance levels with choice of active or passive investing for a total of 10 risk tolerance options and can customize a portfolio valued at least $5 million. (Passive investing means to hold at a representative benchmark whereas active involves constant attention to beat the benchmark).

The trust is managed by PARS (administrator), HighMark Capital Management (investment advisor) and US Bank (trustee). HighMark Capital Management is a subsidiary of Union Bank; however, Union Bank is currently in the process of being acquired by US Bank. The total management fees are 60 basis points (0.60 percent) of assets under management with a blended fee of 39.9 basis points (0.3999 percent) based on current $30 million plus asset level.

As of September 30, 2021, PARS reported a one-year return of 5.4 percent – 23.25 percent within their five active portfolio options. Termination requires 30 days advance notice.

Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 6, Packet Page 167 Option 2 – CalPERS
The CalPERS Pension 115 Trust, the California Employers’ Pension Prefunding Trust (CEPPT), is a self-funded, not-for-profit program where participating employers pay for the total costs of the trust option. The Cal PERS program is managed by CalPERS (administrator), State Street Global Advisors (investment manager), and State Street Bank (trustee). The CEPPT has an allinclusive fee rate of 25 basis points (0.25%) of employer account assets under management.

There are no other fees. All employers pay the same fee rate, which may be higher or lower in the future per CalPERS. As of September 30, 2021, strategy 1 reported a one-year return of

13.43 percent while strategy 2 reported a one-year return of 5.82 percent. Termination requires 150 days advance notice and CalPERS board approval. They only have two investment options and no choice of active or passive options. Also, they do not have IRS approval for CEPPT.

Comparison
Staff has attached presentation materials from CalPERS and PARS to this report. A short comparison of the two companies and what they offer is displayed below. A Basis point equals one hundredth of a percent (1 basis point = 0.01%).

CalPERS PARS
Trust Structure 2 trusts (Pension & OPEB) One combined trust Fees 10 basis points OPEB
25 basis points Pensions
60 basis points to start
Fees decline as assets grow
Investment Choices 3 portfolios for OPEB
2 portfolios for Pension
6 portfolios
Investment Returns Range of expected returns is

4.0% to 7.5%
Range of 10-year actual
returns is 3.8% to 9.2%
Who controls the investment
selection
CalPERS board control PARS, and U.S. Bank
(trustee)
Conclusion/Recommendation
Establishing an IRS Section 115 Pension Trust is a valuable step towards responsible long-term pension funding. In order to ensure that the City responsibly funds pension liabilities, the City Council is requested to add language to the City’s existing reserve policy to include a section dedicated as a Pension Reserve Funding Policy.

The language shall read:
“The City will annually set aside and allocate resources of a minimum of $1M to $2.5M during the budget cycle to the Pension Reserve Fund to be used to fund employee pension and Other Post-Employment Benefits (OPEB) liabilities. These funds will be invested in the City’s designated pre-funding investment vehicle to reduce investment risk and to smooth the volatility from year-to-year fluctuations in annual required contributions to CalPERS. The dollar amount of the annual contribution will be reviewed by the City Council on a bi-annual basis for adjustments and additional funding.”
City staff plans to conduct a Request for Proposals (RFP) and return to the City Council with a competitive award to one of the Section 115 Trust operators. At that time, staff will recommend Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 7, Packet Page 168 funding the approved trust account provider with the $2M currently set aside in Pension Reserve Fund. Staff will also recommend adopting policies and procedures on how the City may withdraw funds that include requiring action be taken by the City Council, and potentially allocating additional dollars into the fund.

Attachment: 1. Resolution
RTK
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 8, Packet Page 169 RESOLUTION NO. __- ___ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
№12/12

APPROVING A PENSION / OTHER POST-EMPLOYMENT BENEFITS (OPEB)

LIABILITY RESERVE POLICY
WHEREAS, the City Council is ultimately responsible for the City’s fiscal health, which continues to be a priority for the community;
WHEREAS, establishing a Pension/OPEB Liability Reserve Policy is within the City Council’s purview;
WHEREAS, the City’s total Unfunded Accrued Liability (UAL) for pension obligations on June 30, 2021 is valued at $132,830,44;
WHEREAS, the City’s total Unfunded Accrued Liability (UAL) for Other Post-Employment Benefits obligations on June 30, 2021 is valued at $8,485,232; WHEREAS, the City’s total Unfunded Accrued Liability (UAL) for pension obligations and OPEB liabilities on June 30, 2021 is valued at $141,315,276 and is expected to increase at the time of the 2022 actuarial date;
WHEREAS, for the City’s fiscal health, it would be prudent for the City to set-aside revenues to strategically address the City’s unfunded pension liability immediately, and in future years as funds become available; and
WHEREAS, the City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby adopts and approves the Pension Reserve Fund Policy as follows:

The City will annually set aside and allocate resources of a minimum of $1M to $2.5M during the budget cycle to the Pension Reserve Fund to be used to fund employee pension and Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 9, Packet Page 170 2 Other Post-Employment Benefits (OPEB) liabilities. These funds will be invested in the City’s designated pre-funding investment vehicle to reduce investment risk and to smooth the volatility from year-to-year fluctuations in annual required contributions to CalPERS. The dollar amount of the annual contribution will be reviewed by the City Council on a bi-annual basis for adjustments and additional funding.”
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this _____ day of _______, 202_, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 10/18/2022, Item No. 6., Item Page 10, Packet Page 171 Council
Agenda Report
№07/19
FROM: Gaudenz Panholzer, Fire Chief
SUBJECT: Authorize the City Manager to Execute a Purchase Agreement with Golden State Fire Apparatus, Inc. for One (1) Pierce 107’ Enforcer Ascendant Tiller (Tractor Drawn Aerial Truck) at a Cost Not to Exceed $1,720,000 and Utilize Financing via the Bank of America Public Capital Corporation Master Equipment Lease Agreement for this Purchase (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
RECOMMENDATION:

That the City Council authorizes the City Manager to execute a purchase agreement with Golden State Fire Apparatus to purchase one (1) Pierce 107’ Enforcer Ascendant Tiller (tractordrawn aerial truck) at a cost not to exceed $1,720,000 and utilize financing via the Bank of America Public Capital Corporation Master Equipment Lease Agreement for this purchase.

VALUE DRIVERS:

Provide sufficient resources and support to develop, retain, and recruit a high-quality city workforce.

POLICY IMPLICATIONS:

It is consistent with City policy for the City Council to review and approve purchases at this threshold, including fire apparatus with a cost of $1.7 million.

FISCAL IMPLICATIONS:

Pricing for a Pierce Manufacturing, Inc. 107’ Enforcer Ascendant Tiller (based on a quote from Golden State Fire Apparatus) is as follows:

Base price $ 1,700,506.61
HGAC contract discount (36,947.00)
100% Prepayment discount (89,777.23)
Subtotal 1,573,782.38

9.25% Sales Tax 145,574.87
California tire fee 14.00
TOTAL $ 1,719,371.25
Date: 10/18/2022
Item No.: 7.

Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 1, Packet Page 172 On March 17, 2020, the Council approved the execution of a Master Equipment Lease Agreement with Bank of America Public Capital Corporation via Resolution 20-035. The general terms and conditions of the agreement are summarized below:

Agreement Effective Period 5 years
Credit / Amount Limit $5,000,000
Call Feature 5 years at 100%
Interest Rate Bloomberg average weighted swap index.

Interest rate is established upon issuance of
each new lease debt and it remains fixed
during the duration of that transaction debt
service period (i.e., $710k debt with a rate of

1.53% will remain the same for the 10-year
debt period)
New future leases will be charged a rate that
adjusts based upon the market.

Lease Periods (Term) Not to exceed 10 years
(options available include: 5-year, 7-year or
10-year)
The City utilized $710K of the available credit limit and paid the one time finance charge of $70,000 to execute the Agreement and has ample available funding remaining to finance the purchase of the fire apparatus.

To take advantage of the pre-payment price discounts, it is recommended that the City draw from the credit line from Bank of America to fund the purchase for a term of not less than seven years. The annual debt service payment will be budgeted in each fiscal year according to the payment schedule upon execution of the new lease
ENVIRONMENTAL DETERMINATION:

The City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 2, Packet Page 173 the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability]
ALTERNATIVES CONSIDERED:

The City Council could choose not to authorize the City Manager to execute this purchase agreement. This alternative is not recommended as the fire fleet is aging and in need of replacement (see discussion section).

DISCUSSION:

Background
The Monterey Fire Department deploys its personnel in companies of (typically) three personnel assigned to a vehicle to respond together and perform designated functions. In all of the stations, an engine company is deployed. Engine companies are the primary resource sent to medical calls and are responsible for fire extinguishment of fires (they carry water and hoses and are outfitted with a pump). One truck company is in service at Station 11 (Downtown Monterey). The truck is used for all rescues, service calls, searching for victims at fires, providing access to elevated areas, ventilation at structure fires, and a myriad of technical skills.

They also respond as the second available company to medical and other incidents in their station’s response area. While many of those skills are not frequently needed, they are all integral to providing the full scope of emergency response services that the Monterey Fire Department is tasked with.

Advantages of an Aerial Truck
Specific advantages of a fully functioning aerial truck are as follows:

1. The 100’ aerial ladder is a quick, safe, secure means to access any elevated position. A common misconception is that the length of the ladder is only for tall buildings like the Monterey Marriott; the ladder would likely not be used for an incident at a high-rise.

Often the set back from the street or the slope of a property (i.e., homes on an uphill side of a street) uses up the length of the ladder. Firefighters will regularly use all 100' on twostory buildings. Access to the roof for ventilation purposes is a critical task in a structure fire to make the building safe for any viable victims as well as firefighters and to prevent continuing property damage from the fire.

2. The ladder provides a high point anchor. A rope system can be quickly deployed for rescue off a building or over the side of a slope of cliff, like many of the coastal areas in our jurisdiction.

3. With a ladder, multiple rescues from upper floor windows and balconies can be made quickly and safely. Using ground ladders, this operation would require significantly more time and personnel due to having to move and reposition the ladder to each rescue point.

Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 3, Packet Page 174

4. An elevated fire stream allows large volumes of water to be applied to the deep portions of a fire where the building has become unsafe to enter and allows adjacent buildings to be easily protected from the fire.

5. The larger vehicle has ample storage capacity to store all of the tools needed for the variety of the tasks assigned to a truck company, (a large portion of these tools are items not carried on the engines). Using a smaller vehicle would mean either not carrying some tools or having to use multiple vehicles which would increase maintenance costs for those additional vehicles and could result in response delays.

6. Even when an aerial ladder is not suitable for the situation, the truck carries a large complement of ground ladders, including ladders longer than those carried on engines, that allow for a great deal of flexibility to adapt to most situations.

7. Due to its larger size and aerial ladder, the truck is able to provide increased scene safety when working on the streets and highways by being able to block multiple lanes of traffic and provide aerial lighting during nighttime operations.

Regional Need and Availability
Prior to 2009, the Fire Department had only one aerial truck in its fleet. It relied on Pacific Grove and Seaside to provide a backup aerial. Once Monterey began providing fire services under contract to Pacific Grove, the truck owned by Pacific Grove was part of the fleet available to Monterey and served as the reserve truck. The front-line truck, a 2008 KME, was experiencing frequent downtime and the City of Monterey used the City of Pacific Grove truck in front-line status frequently. Pacific Grove’s truck was both unreliable and inadequate and a different reserve truck needed to be found.

On August 7, 2012, the City Council authorized the Fire Department to purchase a used aerial ladder truck to serve as a reserve truck for times when the front-line truck is out of service. The 1998 American LaFrance truck was purchased from the City of Santa Clara. After the purchase, for an unknown reason, the vehicle was not added to the fleet to be depreciated for replacement.

Relying on mutual aid partners (City of Seaside and CAL FIRE) does not guarantee the availability of a backup aerial as their availability can change based on factors beyond our control such as incidents in their jurisdictions and staffing levels. Additionally, if they send their truck, it may be in place of the engine that they already send on Automatic Aid, which could result in a delay for a resource coming from further away.

Operations and Maintenance Costs for Existing Trucks
Both trucks in the fleet are equipped with a pump and water tank so that they can provide immediate fire extinguishing capacity should they arrive first at the scene of a fire. This significantly increases the weight of the vehicle. This is generally not a concern when the truck is in service in a relatively flat area. The KME truck was purchased using the specifications from Los Angeles City Fire (which uses those trucks predominantly in the flatter downtown area), and the American LaFrance was originally purchased by Santa Clara which is predominantly a flat Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 4, Packet Page 175 area. Monterey has significant hills in the city. Because of that topography, both trucks are too heavy to function well in this area, and as a result, have had significant stress put on them. This has led to a higher wear and maintenance cost to keep the vehicles in service. The following chart shows the cost incurred for the operation, repair, and maintenance of each truck for the past three fiscal years. For comparison’s sake, typical O&M costs for an engine are less than $30,000 per year.

In a review completed in 2021, the following operation and maintenance costs were identified for the two trucks in our fleet:

O&M Cost
Truck FY 18 FY 19 FY 20 3-year
Average
2008 KME $ 41,047 $ 83,838 $ 55,595 $ 60,160
1998 American
LaFrance
$ 32,977 $ 64,677 $ 55,183 $ 53,103
The chart below shows the number of days in the same three fiscal years that each of the two trucks were out of service. On average each truck was out of service for 1/3 of the year. Despite this, by having two trucks, we only occasionally experienced days when no truck was available at all.

Days Out of Service
Truck FY 18 FY 19 FY 20 3-year
Average
2008 KME 75 158 130 121
1998 American
LaFrance
148 124 96 123
Based on the identified factors such as age, accumulated miles, and ongoing maintenance costs, the City’s front-line fire truck is recommended for replacement and placement into reserve status. The City’s reserve truck is recommended to be sold as surplus. Standard industry practices recommend keeping a truck in frontline service for 15 years and in reserve status for an additional 5-10 years. Manufacturers are experiencing significant lead time in building new trucks, and we are told to expect delivery of a new truck will occur 24-27 months after placing the order. An order placed today will not arrive until sometime in late 2024 or early 2025. At that time, our frontline truck will be 17 years old, and the reserve will be 27 years old.

In January 2019 the Fire Department formed an Apparatus Committee to determine the best options for replacement of fire apparatus that was aging and reaching the end of its service life.

The committee included fire personnel of all ranks as well as representation from the Fleet Division. Committee members conducted research and met with several manufacturers and vendors as well as several recent clients of each manufacturer. Upon completing this research, the committee determined that the Pierce Tiller was the best suited for the City’s needs. This was based on competitive pricing as well as consistency with the rest of the fleet. The City has recently purchased two engines built on the same Enforcer base chassis style. Keeping the fleet uniform to the extent possible saves costs on maintenance and parts as well as simplifies the training and skills that our fleet mechanics need.

Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 5, Packet Page 176 Piloting Alternate Response Vehicles to Reduce Wear on Trucks and Engines In reviewing the high maintenance costs of the trucks, staff has evaluated causes and options for reducing these costs. One concern that was identified is that the current trucks both are equipped with a water tank and pump which add considerable weight to the vehicles. This extra weight has led to several wear and maintenance issues. The proposal for the new truck excludes these features. This serves to not only reduce potential future mechanical issues but also reduces the initial purchase price considerably.

Fire Department staff has further begun evaluating deployment and response policies and procedures to find alternatives that will reduce the wear on these vehicles. While the truck is an essential tool in the Fire Department’s toolbox, it is currently used in situations that do not require its capabilities to ensure the availability of the truck when it may be needed.

Over 50% of incidents responded by the Monterey Fire Department are Emergency Medical Services (EMS) calls or medical assists (excluding vehicle accidents with injuries). Some considerations for alternate deployment options include response to some incident types (EMS, public assist, etc.) using a smaller vehicle that can be staffed by the crew assigned to the truck, changing response assignments to reduce the number of responses of the truck, and other similar options. One or more of these will be piloted in the next few months with the final operational implementation of the most effective wear reduction methods by the end of this fiscal year.

Options on Type of Aerial Ladder Truck
The Fire Department has used a tractor drawn aerial ladder truck (tiller) since 2008 when it purchased the KME truck based on a Council decision on October 17, 2006. Prior to then, the department used a ladder truck mounted on a non-articulating chassis (straight). Staff research at that time determined the tiller was better suited for the operational needs of the Fire Department. In the current process to develop specifications for a new truck, the options for which type of truck to purchase was reviewed again.

While a straight truck would cost about $150,000 less, it is operationally better and could come with higher operational costs. A straight truck that is configured similarly to the proposed tiller would require a tandem rear axle (two rear axles). On a heavy vehicle like the fire truck, tandem axles add significant wear to the tires and roads. This would result in increased costs from having to replace tires more frequently.

The specific operational benefits of the tiller truck over a straight truck are as follows:
 Better maneuverability in navigating narrow streets and traffic congestion comparable or better than our smaller engines
 Increased tool storage capacity with better access
 Tiller operator sits higher up and has an excellent overview which increases safety  Ability to “jackknife” the tractor and trailer to position the ladder closer to a building to overcome setbacks and get under power and communications wires Based on the above considerations, staff believes that the tiller is still the best truck to meet operational needs in Monterey.

Recommended Action
Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 6, Packet Page 177 Supply-chain issues as well as significantly increased costs of raw materials have caused the cost of fire apparatus to increase dramatically over the recent past. In addition to regular cost increases of about 2%, aerial trucks have seen additional price increases of over 10% in the last two years. This is consistent across all manufacturers. Pierce has told us to expect a 6.5% price increase effective November 1, 2022. This equates to an increase of around $150,000. The price quote we have is valid until October 31, 2022. Staff recommends Council take action to authorize a purchase prior to this significant price increase.

This purchase would be on a cooperative purchase agreement “piggyback” on the HGAC (contract FS12-19, Product Code FS19VA11) which is compliant with all City purchasing regulations.

Staff recommends that the City Council authorize the City Manager to execute a purchase agreement with Golden State Fire Apparatus to purchase one (1) Pierce 107’ Enforcer Ascendant Tiller (tractor-drawn aerial truck) at a cost not to exceed $1,720,000 and utilize financing via the Bank of America Public Capital Corporation Master Equipment Lease Agreement as approved in Reso 20-035 for this purchase.

GP/gp
Attachments: 1. Resolution
c: Finance Director
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 7, Packet Page 178 RESOLUTION NO. __- ___ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
№07/19

AUTHORIZE THE CITY MANAGER TO EXECUTE A PURCHASE AGREEMENT WITH GOLDEN STATE FIRE APPARATUS, INC. FOR ONE (1) PIERCE 107’ ENFORCER

ASCENDANT TILLER (TRACTOR DRAWN AERIAL TRUCK) AT A COST NOT TO EXCEED $1,720,000 AND UTILIZE FINANCING VIA THE BANK OF AMERICA PUBLIC CAPITAL

CORPORATION MASTER EQUIPMENT LEASE AGREEMENT FOR THIS PURCHASE WHEREAS, the City of Monterey desires to provide its employees with the appropriate resources to provide excellent service to the public, and WHEREAS, the frontline tiller truck in the Fire Department fleet is in need of replacement, and
WHEREAS, Golden State Fire Apparatus has provided a quote for a Pierce 107’ Enforcer Ascendant Tiller that meets the needs of the City; and WHEREAS, the purchase will be on a cooperative purchase agreement “piggy back” on the HGAC (contract FS12-19, Product Code FS19VA11) which is compliant with all City purchasing regulations and has been approved by the Finance Director / designee on October 12, 2022, and
WHEREAS, on March 17, 2020, the Council approved the execution of a Master Equipment Lease Agreement with Bank of America Public Capital Corporation via Resolution 20-35 which can be used for this purchase, and
WHEREAS, the City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA)(CCR, Title 14, Chapter 3 (“CEQA Guidelines), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby

1. Authorizes the City Manager to execute a purchase agreement with Golden State Fire Apparatus, Inc. to purchase one (1) Pierce 107’ Enforcer Ascendant Tiller (tractor drawn aerial truck) at a cost not to exceed $1,720,000; and Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 8, Packet Page 179 2 2. Authorizes the City Manager to utilize financing via the Bank of America Public Capital Corporation Master Equipment Lease Agreement and to execute any documents to obtain/implement the financing.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 18th day of October, 2022, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 10/18/2022, Item No. 7., Item Page 9, Packet Page 180

Monterey City CouncilOctober 18, 2022

Monterey City Council
October 18, 2022