Agenda packet — Monterey City Council, May 2, 2023

Council Chamber
580 Pacific Street
Monterey, California
City Council Agenda
Council Regular Meeting
Tuesday, May 2, 2023
4:00 PM – 5:30 PM
7:00 PM – 11:00 PM
City Council
Tyller Williamson, Mayor
Kim Barber, Councilmember,
District 1
Gino Garcia, Councilmember
Alan Haffa, Councilmember
Ed Smith, Councilmember,
District 2
City Manager
Hans Uslar
How to participate in this meeting:
 Written comment: Members of the public may submit comment(s) to [email protected] until ½ hour before the start of the meeting. These messages are not read aloud during the meeting but are made available to the meeting body and public at https://monterey.org/submitted-comments. All comments received become part of the record.
 In-Person: Please see the meeting location listed above. Wearing a mask is recommended and encouraged.
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 To “raise your hand,” dial *9. Once called upon, dial *6 to unmute o Need help using or updating Zoom? Read our Zoom Meeting Instructions (PDF)  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 (MATTERS NOT ON AGENDA)
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.

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. 5/2/2023 4:00:00 PM
2 Approval of Minutes

1. April 18, 2023 Regular Meeting (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 5 Section 15061)

2. April 26, 2023 Special Meeting (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 5 Section 15061)
Ordinances
ORDINANCES are legislative acts by the Council, are the most permanent and binding type of Council action as they modify the City Code, and may be replaced only by a subsequent ordinance. An ordinance requires legal advertisement when introduced, and two readings at separate Council meetings. An ordinance is considered "passed to print" when approved for a second reading, and is "passed and adopted" when given final approval by the Council.

3. 1st Reading by Title Only of an Ordinance Implementing Financial Hardship Fee Waivers for Appeals and Updating the Administrative Citation Advance Deposit Hardship Waiver Eligibility Criteria (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061)

4. 1st Reading by Title Only to Amend the Flavored Tobacco Ordinance (Chapter 19, Article 5 of the Monterey City Code) (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."

5. Authorize the City Manager to Enter into a Funding Agreement with the State Water Resources Control Board to Accept a State Budget Allocation in the Amount of $1,000,000, Authorize and Designate a Representative for the Lake El Estero Diversion to Sanitary Sewer Project, and Authorize an Increase of FY23 Revenue in the CIP-State Funding Source Fund and Appropriation to the Urban Stormwater Diversion Project (CIP2310) in the Capital Projects Fund ***CIP*** (Exempt from CEQA, Article 19, Section 15306, Class 6)
*** End of Consent Agenda ***
*** Adjourn to Closed Session (See additional agenda) *** Council will adjourn to closed session no later than 5:00 p.m.

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
5/2/2023 4:00:00 PM
3 CONTINUED PUBLIC COMMENTS (MATTERS NOT ON AGENDA)
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 HEARING (EVE)
PUBLIC HEARINGS are held to receive public comment on certain items pending Council action. You are welcome to offer your comments after being recognized by the Mayor. The Council may limit the time allocated to each speaker. NOTICE CONCERNING YOUR LEGAL RIGHTS: If you challenge the City Council’s zoning, planning, or land use decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing on the matter, or in written correspondence delivered to the City at the time of or prior to the close of the public hearing. (Government Code section 65009(b).)

6. Resolution Adopting Findings and Overruling the Monterey County Airport Land Use Commission’s Consistency Determination for the Draft Ordinance Amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and Amending Section 38-11 “Definitions” and 1st Reading by Title Only of an Ordinance Amending Monterey City Code Section 38- 112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and Amending Section 38-11 “Definitions” (Statutorily Exempt from CEQA pursuant to Public Resources Code Section 21080.17)

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.

7. Approve Project Description for Cannabis Businesses so that the Community Development Department can Start Environmental Review under the California Environmental Quality Act (Not a Project under CEQA per 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
5/2/2023 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, April 18, 2023
4:00 PM 7:00 PM
COUNCIL CHAMBER, 580 PACIFIC ST.

MONTEREY, CALIFORNIA
Councilmembers

Present: Barber, Garcia, Haffa, Smith, Williamson

Absent: None
City Staff

Present:

City Manager, Assistant City Manager, City Attorney, Community Development Director, Police Chief, Parks and Recreation Director, Finance Director, Fire Chief, Library & Museums Director, City Clerk, Property Manager, Senior Engineer, Police Lieutenant, Police Lieutenant, Police Lieutenant, Fire Captain, Firefighter
***Afternoon Session Agenda ***

CALL TO ORDER
Mayor Williamson called the meeting to order at 4:00 p.m. City Clerk Klein called the roll as highlighted above, and explained to the public how to participate in the meeting virtually.

PLEDGE OF ALLEGIANCE
Councilmember Barber led the Pledge.

PRESENTATIONS

1. Recognition of Defense Language Institute Quarterly Joint Service Awards (Not a Project Under CEQA per Article 20, Section 15378, and Under General Rule Article 5, Section 15061) Action: Presented proclamations to award recipients
The Mayor and Council honored Sergeant Mitchell Lacey (U.S. Marine Corps), Technical Sergeant Alec Richardson (U.S. Air Force), and Airman 1st Class Corey Case (U.S. Air Force), each of whom made brief remarks in their studied language, in thanks for the opportunity and recognition. Public comment was not received.

PUBLIC COMMENTS (MATTERS NOT ON AGENDA)
Public comment on non-agendized matters was received from Steve Lightfoot, Tina Wong, Lorna Moffat, Audrey Hillen, Ross Pounds, and Nick Errichetto.

CONSENT ITEMS
Item 3 was pulled from Consent at the request of the public. Public comment on the Consent Items was not received.

Date: 5/2/2023
Item No.: 1.

Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 1, Packet Page 5 City Council Minutes April 18, 2023
2 On a motion by Councilmember Smith, seconded by Councilmember Barber, and carried by the following roll-call vote, the City Council approved the CONSENT ITEMS, except Item 3:

2. April 4, 2023 Regular Meeting (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 5 Section 15061)
Action: Approved
Award of Construction Contracts

3. Award a Construction Contract in the Amount of $1,630,297.00 to P. Brannon Corporation for the Iris Canyon Sediment Removal Project (Mitigated Negative Declaration for the Iris Canyon Sediment Removal Project approved on May 26, 2020) ***CIP*** Action: Pulled from Consent; Adopted Resolution No. 23-043 C.S. as amended to add language to the project description for the contractor stating that where possible, mature trees be preserved so long as it doesn't create a change to the CEQA project description Acting City Engineer Harty gave the staff presentation and answered Councilmembers' questions.

Public comment was received from Nick Errichetto, who volunteered to assist with tree replanting, and Lorna Moffat, who requested to delay acting on the proposal and seek further expert opinions, citing environmental concerns.

The Council expressed the importance of restoring the creek bed and improving health and safety for users of the area.

A motion was introduced by Councilmember Haffa, and seconded by Councilmember Smith, to adopt Resolution No. 23-043 C.S. to Award a Construction Contract in the Amount of $1,630,297.00 to P. Brannon Corporation for the Iris Canyon Sediment Removal Project, as amended to add language to the project description for the contractor stating that where possible, mature trees be preserved so long as it doesn't create a change to the CEQA project description.

On question, Acting City Engineer Harty provided an example of how herbicides would be used and explained that such use was the the expressed least preferred option for removing invasive species.

The motion carried by the following roll-call vote:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 2, Packet Page 6 City Council Minutes April 18, 2023
3 Resolutions

4. Authorize Acceptance of the Board of State and Community Corrections (BSCC) 2022-2023 Officer Wellness and Mental Health Grant in the amount of $32,997.89 and Appropriate the Funds (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Adopted Resolution No. 23-044 C.S.

5. Accept and Appropriate $275,635.25 in Grant and Donated Funds to the 2022-2023 Library Trust Fund Budget and Authorize Increased Purchase Price for Bookmobile (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) Action: Adopted Resolution No. 23-045 C.S.
*** End of Consent Agenda ***
Adjourn to Successor Agency of the Redevelopment Agency Meeting: Consent Agenda The Council adjourned to the Successor Agency of the Redevelopment Agency meeting.

6. Adopt a Resolution Directing the Notification to the County Consolidated Oversight Board Regarding the Disposition of Assets in Connection with the Successor Agency’s Dissolution, Directing Dissolution Upon the County Consolidated Oversight Board's Adoption of the Final Resolution Pursuant to Health and Safety Code Section 34187(e) (Exempt from CEQA Section 15061(b)(3))
Action: Adopted SA/RDA Resolution No. 868
On a motion by Successor Agency Member Ed Smith, seconded by Successor Agency Member Kim Barber, and carried by the following roll-call vote, the Successor Agency to the Redevelopment Agency adopted Resolution No. 868 Directing the Notification to the County Consolidated Oversight Board Regarding the Disposition of Assets in Connection with the Successor Agency’s Dissolution, Directing Dissolution Upon the County Consolidated Oversight Board:

AYES: 5 AGENCY MEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 AGENCY MEMBERS: (None)
ABSENT: 0 AGENCY MEMBERS: (None)
ABSTAIN: 0 AGENCY MEMBERS: (None)
RECUSED: 0 AGENCY MEMBERS: (None)
Adjourn to City Council Meeting
The Successor Agency adjourned to the City Council meeting.

PUBLIC APPEARANCE

7. Receive Annual Report and Renew the Military Equipment Purchase and Use Ordinance - Monterey City Code, Chapter 27, Article 3, Section 27-10, and Authorize the Acquisition of Additional Military Equipment Including Five Unmanned Aircraft Systems and a Crisis Negotiating Team Command Vehicle (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061)
Action: Adopted Resolution No. 23-046 C.S.

Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 3, Packet Page 7 City Council Minutes April 18, 2023
4 Assistant Police Chief Bruno gave the staff presentation and answered Councilmembers' questions together with Police Chief Hober. On question, Police Chief Hober agreed that a drone policy would be brought before the Council within six months to a year.

Public comment was received from Lorna Moffat, who expressed concern about militarization of the police and asked whether the drones would be weaponized, and Pat McNeill, who asked that the Police Department make it very clear to the public that they are not running an aggressive military operation.

On question from the public, Assistant Police Chief Bruno clarified that the drones would not be armed.

The Council discussed the matter, requesting that the Police Department conduct greater outreach to publicize this annual discussion in future years.

On a motion by Councilmember Smith, seconded by Councilmember Haffa, and carried by the following roll-call vote, the City Council adopted Resolution No. 23-046 C.S. Receiving the Annual Report and Renewing the Military Equipment Purchase and Use Ordinance - Monterey City Code, Chapter 27, Article 3, Section 27-10, and Authorize the Acquisition of Additional Military Equipment Including Five Unmanned Aircraft Systems and a Crisis Negotiating Team Command Vehicle:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
*** Adjourn to Closed Session (See additional agenda) *** Public comment on the closed session was not received. The Council adjourned to closed session at 5:26 p.m.

RECESS
The Council recessed at 5:34 p.m.

RECONVENE
The Council reconvened at 7:00 p.m.
*** Evening Session Agenda ***

CONTINUED PUBLIC COMMENTS (MATTERS NOT ON AGENDA)
Public comment on non-agendized matters was received from Demetrius Kastros and Esther Malkin.

ANNOUNCEMENTS FROM CLOSED SESSION
City Clerk Klein announced:
cs1. Conference with Legal Counsel, Existing Litigation Pursuant to Government Code section 54956.9(d)(1):

Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 4, Packet Page 8 City Council Minutes April 18, 2023
5 1. Lynne Denley v. City of Monterey, et. al (Monterey County Superior Court Case No. 23CV000133)

2. Clara Gilliland v. City of Monterey (Monterey County Superior Court Case No. 22CV003170)

3. Francisca Moralez v. City of Monterey et al. (United States District Court Norther District of California Case No. 22-CV-07540)

4. Yessenia Garcia Reveles, et al. v. City of Monterey et al (Monterey County Superior Court Case Nos. 22CV003162 and 22CV000736)

5. Richard Rosendale v. City of Monterey (Monterey County Superior Court Case No. 23CV000879)

6. Pacific Western Bank v. City and Stronghold Engineering, Inc. (San Bernardino Superior Court Case No. CIVSB2212212)

7. Stronghold Engineering, Inc. v. City of Monterey (Santa Clara County Superior Court Case No. 18CV329015; Sixth District Court of Appeal Case No. H050157)

8. Stronghold Engineering, Inc. v City of Monterey (Riverside County Superior Court Case No.

CVR12103427; Fourth District Court of Appeal, Division 2, Case No. E080304)

9. Cynthia Wills v. City of Monterey (United States District Court, Northern District of California, San Francisco Division Case No. 21-CV-01998 EMC)

10. Sichel Young v. City of Monterey, et al (Monterey County Superior Court Case No. 22CV002243)
Action: On a unanimous roll call vote, the Council gave confidential direction to its legal counsel on the matter of Clara Gilliland v. City of Monterey. The remaining items were continued to the evening.

It was proposed by the Council to hear Item 9 as the first matter in the evening session. Public comment was not received on the proposal.

On a motion by Mayor Williamson, seconded by Councilmember Garcia, and carried by the following roll-call vote, the City Council determined they would hear Item 9 first, and then Item 8:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)

PUBLIC APPEARANCE (EVE)

9. Receive Reports and Provide Direction on the City’s Housing Program, Legal Framework for Tenant Protections, Vacancy Tax and Rental Registry (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) Action: Council directed staff to begin work on a rental registry and return to Council in the future with more information on rent stabilization options (4-1, Councilmember Smith voting no)
This item was heard first in the evening session pursuant to the Council's above vote.

Community Development Director Cole and Nazanin Salehi, outside counsel with Goldfarb & Lipman LLP, gave the staff presentation and answered Councilmembers' questions.

Public comment stressing that there was pent-up demand for housing supply and urging creativity in finding solutions was received from: Kevin Dayton, of Monterey Peninsula Chamber of Commerce; Logan Jensen; Adam Pinterets, of Monterey County Association of Realtors; Kathy Anderson; Demetrius Kastros; and Arleen Hardenstein.

Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 5, Packet Page 9 City Council Minutes April 18, 2023
6 Public comment providing insight into housing-related quality of life issues and urging the Council to protect renters was received from: an unidentified Middlebury Institute of International Studies student; Rona Alag; Maria; Sarah Blake; Kelly deWolfe, of United Way Monterey County, who shared statistics from the City of Monterey during the rental assistance program offered during the COVID-19 pandemic; and Kent Glenzer, of Gathering for Women, who shared that the number of precariously housed and unhoused women had surged in the prior few months.

Public comment focusing on the concept of a vacancy tax was received from: Lori Avey, who said that successful vacancy taxes help to increase housing supply and fund affordable housing programs, and that a vacancy tax should be based on the percentage of assessed property value; Golden Oak, who expressed concerns about rent control, spoke in favor of vacancy tax, and asked Council to find ways to incentivize owners either renting or letting go of their vacant properties; and Amanda Preece and Alora Daunt, who both spoke in favor of a vacancy tax.

Public comment focusing on the concept of a rental registry was received from: Lori Mazzuca, who spoke about the City of Alameda's rental registry and stated it reduced housing availability and increased rents; and Darius Mohsenin, who said a rental registry should also help landlords to submit documentation, and suggested an ombudsman for landlord-tenant disputes similar to the City of San Leandro's Rent Review Program.

Public comment voicing support for various protections (including a rental registry, rental assistance, regulating rental rates, strengthening just cause for eviction, limits on security deposits, requiring application fees to be refunded or applied to first-month rent, and a vacancy tax) was received from: Gabe, who suggested tying an emergency rental assistance program to accomplishing the City's unmet Regional Housing Needs Analysis ("RHNA") goals; Esther Malkin; Melissa; Elena Loomis; Kala Fossum, of Villa Del Monte Neighborhood Association; MaryAnn Boylan, who stated that housing needs are related to climate, citing that 86% of Monterey's workforce commutes into the City daily; and Jean Rasch.

Public comment voicing concern on behalf of landlords was received from: Monica Lal, of Monterey Peninsula Chamber of Commerce, who said that tenant protections would be a burden to landlords; Nelson Vega, who asked Council to allow the marketplace to work, and expressed concerns about unintended consequences of rent control; and an unnamed man, who shared details of difficulties and financial challenges that landlords can experience.

Public comment was also received from: Barbara Meister, of Monterey Bay Aquarium, who said she looked forward to engaging with the Council on solutions; and John Tilley, of Monterey Commercial Property Owners Association, who focused on the water moratorium as the main hurdle to a housing solution.

The Council recessed from 9:55 p.m. to 10:06 p.m.

The Council discussed the matter. The students who spoke were praised for their participation.

It was stated that even if a water supply became available and the RHNA numbers were accomplished, there were decades worth of pent-up demand for housing supply. It was stated that capitalism works well when there is competition and free access to resources needed to compete, but that this was not the situation in Monterey due to the water issue. It was questioned whether there could ever be enough housing supply to satisfy the demand to live on the coast.

The Council noted that there had been a “constant drum beat of concerns” from renters and other stakeholders about housing issues. Interest was expressed in having staff come back with Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 6, Packet Page 10 City Council Minutes April 18, 2023
7 more details showing more specific information about how various protections would work for Monterey. Equity was discussed, with it noted that many individuals could not attend or call in to the meeting due to their busy schedules working multiple jobs to make ends meet. It was stated that no one individual tool could be the sole solution, and that moving forward and doing nothing shouldn't be an option.

Regarding the concept of a rental registry, it was stated that the cost was not insignificant, but that the evidence provided by the consultant made the Council believe it would be a good investment into finding ways to support tenants and landlords. It was stated that the data was needed that a rental registry could provide, and that the money to support the program could be found, including through enforcement (similar to the City’s newly created business license inspector position). It was stated that a task force may not be necessary. It was suggested to conduct periodic audits of a rental registry.

Regarding the potential to assist with mediation between tenants and landlords, it was stated by Council that ECHO may not be able to provide the needed service, and that their services may need to be augmented or mediation could be utilized in conjunction with a rental registry.

Regarding creating just cause eviction protections, it was stated that augmenting such protections would make sense.

Regarding rent stabilization, interest was expressed in a lower limit than the State’s 10% and the Council stated they were compelled to do make the limit more reasonable to the extent that would be feasible.

Regarding rental assistance, the Council expressed interest and stated that framing it as an emergency housing assistance program would also help homeowners who need assistance.

Regarding a vacancy tax, comments by the Council were made in favor, stating that it was a moral issue. Comments were also made with a more neutral stance stating that voters may not pass such a tax, and that perhaps the public could pursue a ballot measure. It was stated that such a tax could be complicated to enforce and that there was a lawsuit in progress in San Francisco. It was stated that the City could ask staff to set up a road map to look into how the City could disincentivize owners from keeping units vacant when there was a significant supply issue.

Regarding rental applications, it was suggested that the City could work with landlords to create one application fee and a common application, which would support equitability, and that the City could share sample lease agreements and other resources on its website.

On question, Community Development Director Cole provided Council with information on how ECHO Housing worked to assist in landlord-tenant disputes.

Concern was expressed about the risk of unintended consequences and the potential for tenant protections to increase rents. It was suggested to know more about Senate Bill (SB) 567 before tasking City staff with coming back with a model, increasing bureaucracy, and risking scaring the market.

A motion was introduced by Mayor Williamson, and seconded by Councilmember Haffa, to extend the meeting to end no later than 11:45 p.m.

Public comment on extending the meeting was received from MaryAnn Boylan and Kellie Morgantini, who both supported the extension.

Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 7, Packet Page 11 City Council Minutes April 18, 2023
8 The motion passed by the following roll-call vote:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
City Manager Uslar reflected that majority consensus of the Council was interested in a rental registry, rent stabilization, and a rental assistance program. He said he had heard less clear direction around the matter of a vacancy tax. He estimated it would take City staff 12-18 months to get a rental registry up and running.

A motion was introduced by Councilmember Barber, and seconded by Councilmember Haffa, to direct staff to begin work on a rental registry and return to Council in the future with more information on rent stabilization options.

Council discussed the motion. It was proposed to pay ECHO Housing to provide tenants more help.

The motion passed by the following roll-call vote:

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

PUBLIC HEARING (EVE)

8. Recommend that the City Council Adopt the 2023/2024 Annual Action Plan for Community Development Block Grant Funds and Authorize Submittal to the U.S. Department of Housing and Urban Development (Exempt from NEPA per 24 CFR Part 58 and from CEQA per Article 19, Section 15301, Class1, 15306, Class 6 and 15326, Class 26) Action: Adopted Resolution No. 23-047 C.S.

This item was heard after Item 9, pursuant to the Council's above vote. Community Development Director Cole gave a brief staff presentation.

Public comment was not received.

On a motion by Councilmember Haffa, seconded by Councilmember Smith, and carried by the following roll-call vote, the City Council adopted Resolution No. 23-047 C.S. to Adopt the 2023/2024 Annual Action Plan for Community Development Block Grant Funds and Authorize Submittal to the U.S. Department of Housing and Urban Development:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: (None)
ABSENT: 0 COUNCILMEMBERS: (None)
ABSTAIN: 0 COUNCILMEMBERS: (None)
RECUSED: 0 COUNCILMEMBERS: (None)
Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 8, Packet Page 12 City Council Minutes April 18, 2023
9 COUNCIL COMMENTS
None made due to the late hour.

CITY MANAGER REPORTS
None made due to the late hour.

CLOSED SESSION ANNOUNCEMENT
Remaining closed session matters continued from the afternoon were not heard due to the late hour.

ADJOURNMENT
The Council adjourned at 11:29 p.m.

Respectfully Submitted, Approved,
Clementine Bonner Klein Tyller Williamson
City Clerk Mayor
Council Regular Meeting, 5/2/2023, Item No. 1., Item Page 9, Packet Page 13

MINUTES

CITY COUNCIL SPECIAL MEETING

CITY OF MONTEREY
Wednesday, April 26, 2023
4:00 PM
COUNCIL CHAMBER, 580 PACIFIC STREET

MONTEREY, CALIFORNIA
Councilmembers

Present: Barber, Garcia, Haffa, Smith*, Williamson

Absent: None
* Attended remotely by teleconference pursuant to Gov. Code sec. 54953(f)(2)(A)
City Staff

Present:

City Manager, Assistant City Manager, City Attorney, Community Development Director, Police Chief, Finance Director, Library & Museums Director, Public Works Director, City Clerk, Property Manager, Recreation Manager, Sports Center Manager, Finance Analyst

CALL TO ORDER
This meeting was held with a combination of in-person and teleconference attendance, pursuant to the Ralph M. Brown Act.

Mayor Williamson called the meeting to order at 4:01 p.m. City Clerk Klein called the roll as highlighted above, and explained to the public how to participate in the meeting virtually.

TELECONFERENCE NOTICE
Councilmember Smith confirmed that he could hear the meeting proceedings, gave a brief description of the circumstances relating to his need to appear remotely pursuant to the “Just Cause” clause (official travel on behalf of the City of Livermore Police Department), and confirmed that no one over the age of 18 was present in the room with him during the meeting.

PLEDGE OF ALLEGIANCE
Councilmember Haffa led the Pledge.

STUDY SESSION

1. Fiscal Year 2023-24 Budget Primer Study Session (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) Action: Received presentation and provided input
City Manager Uslar and Finance Director King gave the staff presentation providing a broad overview of the budget, and answered Councilmembers' questions with additional input regarding the Capital Improvement Program from Public Works Director Renny.

Public comment was received from: Ellen McEwen, Parks and Recreation Commissioner, who spoke in support of increasing staffing at the Monterey Sports Center; Jean Rasch, Neighborhood and Community Improvement Program (NCIP) Vice Chair, who inquired about Date: 5/2/2023
Item No.: 2.

Council Regular Meeting, 5/2/2023, Item No. 2., Item Page 1, Packet Page 14 City Council Minutes April 26, 2023
2 the ability of the Parks and Recreation Department's budget to be spent on projects as opposed to being funded by the NCIP; Xiaojing Liu, who urged the Council to pass a living wage ordinance applying only to City employees, contractors, and subcontractors who do business with the City; and Esther Malkin, who asked the Council to consider increasing the pay received by Councilmembers, stating that it would increase representation in the City.

The Council discussed the budget. It was suggested to increase the amount set aside to the Tidelands Sea Level Rise reserve fund. On question, City Attorney Davi provided information on the legal parameters for how the NCIP Committee approves projects. Interest was expressed by the Council in continuing to discuss and investigate the NCIP/Parks and Recreation project funding question, living wage, Council salary increases, methods to increase community engagement in the budgeting process including the potential of a committee, ways to diversify the City's revenue, funding a housing assistance program, and transparently looking at what programs and positions have not been brought back since the pandemic. The public was encouraged to participate in upcoming community outreach regarding the question of reopening the Casanova Oak Knoll Park Center. The Council extolled staff for planning to put funds away in the numerous reserves and expressed interest in putting more into the economic uncertainty fund.

ADJOURNMENT
The Council adjourned at 6:00 p.m.

Respectfully Submitted, Approved,
Clementine Bonner Klein Tyller Williamson
City Clerk Mayor
Council Regular Meeting, 5/2/2023, Item No. 2., Item Page 2, Packet Page 15 Council
Agenda Report
FROM: Christine Davi, City Attorney
SUBJECT: 1
st Reading by Title Only of an Ordinance Implementing Financial Hardship Fee Waivers for Appeals and Updating the Administrative Citation Advance Deposit Hardship Waiver Eligibility Criteria (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) RECOMMENDATION:

That the City Council introduce by title only, waive full reading, and pass a first reading of an ordinance implementing fee waivers for appeals and amending the administrative citation advance deposit hardship waiver eligibility criteria based on appellant’s inability to pay.

VALUE DRIVER:

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.

POLICY IMPLICATIONS:

The recommended action maintains and expands the existing policy to encourage low-income people to fully exercise their rights under the law.

FISCAL IMPLICATIONS:

On April 4, 2023, the City Council authorized increasing cost recovery for appeal fees in the Community Development Department, Planning Division, from 10% to 100%. With the implementation of appeal fee waivers, there may be a reduction in the overall cost recovery achieved depending on the number of fee waivers that are approved.

There is no current year fiscal impact for the implementation of fee waivers for the Appeals Hearing Board, the Building and Housing Appeals Board, and the Disabled Access Appeals Board, which are administered by the City Attorney’s Office. This is because a fee to recover staff costs for administering these appeal hearings was not established until April 4, 2023, and is not effective until July 1, 2023. However, future years’ cost recovery will be reduced depending on the number of fee waivers approved.

Currently, there is an advanced deposit hardship waiver for administrative citation appeals. The proposed changes will likely have minimal fiscal impact.

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 Date: 5/2/2023
Item No.: 3.

Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 1, Packet Page 16 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 could: (1) choose different criteria for determining financial hardship waiver eligibility; (2) consider a different policy to refund fees to prevailing appellants regardless of financial status; or (3) consider a sliding fee scale or reduced cost recovery for appellants experiencing financial hardship rather than an entire waiver of the fee.

DISCUSSION:

Appeal Fees (City Code section 19-103):

The proposed ordinance would implement a new policy to waive fees for appeals in the Community Development Department, Planning Division, and for appeals before the Appeals Hearing Board, Building and Housing Appeals Board, and the Disabled Access Appeals Board, based on the appellant’s financial inability to pay the fee.

When City Code section 19-103 was first adopted in 1992, cost recovery for appeals administered by the Planning Division was set at 20%. (Ord 3100.) In 2017, the City Council adopted Ordinance 3561, and the amount of cost recovery for appeals was reduced to 10%. On April 4, 2023, the City Council adopted Ordinance 3661 to increase cost recovery for appeals administered by the Planning Division from 10% to 100%, and established fees for the first time for appeals brought before the Appeals Hearing Board, the Building and Housing Appeals Board, and the Disabled Access Appeals Board. The City Council also directed staff to return with a fee waiver policy for the foregoing appeal fees to be waived based on an appellant’s inability to pay.

Advance Deposit Requirement – Admin. Citation Appeal Hearings (City Code section 1-9.55):

In 1999, the City Council adopted the Administrative Remedies Ordinance for violations of the City Code. One of the purposes of this ordinance was to establish an administrative citation process for civil enforcement of city code violations. The ordinance requires any person wishing to appeal an administrative citation to first deposit the total fine amount with the city before an appeal hearing will be scheduled. If the appeal is granted and the citation overturned by the hearing officer, the deposited fine is returned to the appellant.

In 2001, the City Council amended the Administrative Remedies Ordinance to include a provision to waive the advance deposit requirement for those individuals who are financially unable to post the fine amount. This required a sworn statement by the applicant to demonstrate “…to the satisfaction of the City the person’s actual financial inability to deposit the full amount of the fine in advance of the hearing.” On March 17, 2020, the City Council considered that staff encountered situations where applicants for the advance deposit waiver held significant real Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 2, Packet Page 17 property assets or business interests, yet they claimed financial hardship. Therefore, the City Council adopted Ordinance No. 3612 to implement specific criteria to aid staff in objectively determining whether the waiver should be granted. The waiver criteria were borrowed from the formula used by California courts to waive court fees and costs due to a person’s financial condition, and from the California Vehicle Code, which authorizes indigent persons to request an administrative hearing to review parking violations without payment of the parking penalty. (Vehicle Code sections 40215, 40220(c)(1), Government Code section 68632.) Proposed Eligibility Criteria for Financial Hardship Appeal Fee/Deposit Waivers:

The proposed ordinance amendments have the same eligibility criteria for fee waivers for Planning, Appeals Hearing Board, Building and Housing Appeals Board, and Disabled Access Appeals Board appeals, and administrative citation appeals. The amendments again borrow from the criteria used by the California courts to waive court fees and costs due to a person’s financial condition. (Government Code section 68632.) This same criteria is specified in state law for indigent persons to request an administrative hearing to review parking violations without payment of the parking penalty. (Vehicle Code sections 40215, 40220(c)(1); Government Code section 68632.) Specifically, a waiver will be granted if the person is receiving public benefits under one or more of the following programs:
(1) Supplemental Security Income (SSI) and State Supplementary Payment (SSP). (2) California Work Opportunity and Responsibility to Kids Act (CalWORKs) or a federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program. (3) Supplemental Nutrition Assistance Program or the California Food Assistance Program. (4) County Relief, General Relief (GR), or General Assistance (GA). (5) Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI). (6) In-Home Supportive Services (IHSS).
(7) Medi-Cal.
(8) California Special Supplemental Nutrition Program for Women, Infants, and Children (WIC Program).
(9) Unemployment compensation.

Also, a waiver will be granted to an applicant whose monthly income is 200 percent or less of the current poverty guidelines updated periodically in the Federal Register by the United States Department of Health and Human Services, currently listed as follows:

If a person does not have enough income to pay for basic household needs, a waiver may be approved with additional documentation regarding the person’s income, household income, money, and monthly deductions and expenses.

Family Size Monthly Family
Income
1 $2,430.00
2 $3,286.67
3 $4,143.34
4 $5,000.00
5 $5,856.67
6 $6,713.34
Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 3, Packet Page 18 The draft ordinance does not allow for a fee waiver or a waiver of the advance deposit requirement to be approved if the appellant has an ownership interest in real property in Monterey County.

In conclusion, it is recommended that the City Council introduce by title only, waive full reading, and pass a first reading of an ordinance to implement a fee waiver for appeals based on an appellant’s financial hardship, and to update the eligibility criteria for waivers of the advance deposit requirement for appellants requesting review of administrative citations. The effective date of the ordinance would be July 1, 2023, consistent with the effective date of the Master Fee Scheduled adopted in Resolution 23-036.

Attachments: 1. Draft Ordinance
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, 5/2/2023, Item No. 3., Item Page 4, Packet Page 19 ORDINANCE NO. ____ C.S.

AN ORDINANCE OF THE COUNCIL OF THE CITY OF MONTEREY
№08/22

IMPLEMENTING FINANCIAL HARDSHIP FEE WAIVERS FOR APPEALS AND UPDATING

THE ADMINISTRATIVE CITATION ADVANCE DEPOSIT HARDSHIP WAIVER ELIGIBILITY

CRITERIA
THE COUNCIL OF THE CITY OF MONTEREY DOES ORDAIN, as follows:

SECTION 1:

WHEREAS, on April 4, 2023, the City Council proposed a new policy to waive fees for appeals in the Community Development Department, Planning Division, and for appeals before the Appeals Hearing Board, Building and Housing Appeals Board, and the Disabled Access Appeals Board, based on the appellant’s financial inability to pay the fee; WHEREAS, in March 2020, the City Council adopted Ordinance No. 3612 to implement specific criteria to aid staff in objectively determining whether an advance deposit hardship waiver should be granted to a person requesting to challenge an administrative citation. The waiver criteria adopted was borrowed from the formula used by California courts to waive court fees and costs due to a person’s financial condition, and from the California Vehicle Code which authorizes indigent persons to request an administrative hearing to review parking violations without payment of the parking penalty. (Vehicle Code sections 40215, 40220(c)(1), Government Code section 68632.) The eligible public benefits have expanded, and the determination of poverty level income has changed since the adoption of the criteria in 2020 and it needs to be updated;
WHEREAS, the City does not intend to waive fees or advance deposit requirements for any person who owns or has an interest in real property in Monterey County; WHEREAS, the City Council intends to update and expand the existing waiver policy to encourage low-income people to fully exercise their rights under the law; 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, the Monterey City Council declares as follows:

Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 5, Packet Page 20 2 SECTION 2: 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.

SECTION 3: Monterey City Code, Chapter 19, Section 19-103(e) is hereby added to read as follows:
(e) Appeal Fee Waivers.
(1) Notwithstanding the percentage of costs reasonably borne set forth in Subsection (a), any person who intends to file an appeal, the cost for which is to be recovered under Subsection (a)(I)(11.) Development Services, Appeals; or Subsection (a)(VI)(27.) Administrative Services, Appeals staffed by City Attorney’s Office, and who is financially unable to pay the fee as required by the Master Fee Schedule, may file a request for a Fee Waiver which shall include an affidavit as described in subsection (e)(3) below.
(2) The request shall be filed with the Finance Department on a Fee Waiver Application form, available from the Finance Department, on or before the deadline to file the appeal. Submission of a fee waiver application does not extend the deadline to file an appeal under City Code section 38-207 for Community Development Department appeals or any applicable deadline to appeal to the Appeals Hearing Board, the Building and Housing Appeals Board, or the Disabled Access Appeals Board. Failure to submit either a Fee Waiver Application form or the appeal fee on or before the deadline to file the appeal shall mean that the appeal is untimely.
(3) The City may waive the appeal fee if, in advance of the deadline to file the appeal, the appellant submits to the City a Fee Waiver Application form, signed under penalty of perjury, together with any supporting documents or materials, demonstrating the person’s actual financial inability to pay the fee. (4) An application for the advance deposit hardship waiver shall be granted under any of the following criteria:
(i) The applicant is receiving public benefits under one or more of the following programs:
(1) Supplemental Security Income (SSI) and State
Supplementary Payment (SSP).
(2) California Work Opportunity and Responsibility to Kids Act (CalWORKs) or a federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program.
(3) Supplemental Nutrition Assistance Program or the
California Food Assistance Program.
(4) County Relief, General Relief (GR), or General Assistance (GA).

Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 6, Packet Page 21 (5) Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI).
(6) In-Home Supportive Services (IHSS).
(7) Medi-Cal.
(8) California Special Supplemental Nutrition Program for Women, Infants, and Children (WIC Program).
(9) Unemployment compensation.
(ii) The applicant’s monthly income is two hundred (200) percent or less of the current poverty guidelines updated periodically in the Federal Register by the United States Department of Health and Human Services. (iii) An applicant does not have enough income to pay for household basic needs and the advance deposit. This is verified through additional documentation regarding the person’s income, household income, money, and monthly deductions and expenses.
(5) An applicant that owns or has an interest in real property in Monterey County is ineligible for a waiver under this subsection. (6) If the City decides to deny the advance deposit hardship waiver application, a written determination listing the reasons for said denial shall be issued. The written determination to deny the waiver shall be final. (6) The written determination of the City’s denial of the advance deposit hardship waiver shall be served by mail upon the person who applied for the waiver.

SECTION 4: Monterey City Code, Chapter 1, Article 2, Section 1-9.55(C)(2)(a) is hereby amended to add after (7) Medi-Cal, the following:
(8) California Special Supplemental Nutrition Program for Women, Infants, and Children (WIC Program).
(9) Unemployment compensation.

SECTION 5: Monterey City Code, Chapter 1, Article 2, Section 1-9.55(C)(2)(b) is hereby amended to read as follows:
(b) The applicant’s monthly income is two hundred (200) percent or less of the current poverty guidelines updated periodically in the Federal Register by the United States Department of Health and Human Services.

SECTION 6: Monterey City Code, Chapter 1, Article 2, Section 1-9.55(F) is hereby recodified as Subsection (G) and a new subsection (F) is added to read as follows:

An applicant that owns or has an interest in real property in Monterey County is ineligible for a waiver under this subsection.

Council Regular Meeting, 5/2/2023, Item No. 3., Item Page 7, Packet Page 22 4 SECTION 7: All ordinances and parts of ordinances in conflict herewith are hereby repealed.

SECTION 8: This ordinance shall be in full force and effect on July 1, 2023, to be coterminous with the effective date of the Master Fee Schedule adopted by Resolution 23-036.

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, 5/2/2023, Item No. 3., Item Page 8, Packet Page 23 Council
Agenda Report
№10/13
FROM: Nat Rojanasathira, Assistant City Manager
Prepared By: Brianna Kennedy, Intern, City Manager’s Office SUBJECT: 1st Reading by Title Only to Amend the Flavored Tobacco Ordinance (Chapter 19, Article 5 of the Monterey City Code) (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) RECOMMENDATION:

That the City Council introduce by title only, waive full reading, and pass a first reading of an ordinance to ensure the City’s Flavored Tobacco Ordinance is consistent with California Health and Safety Code section 104559.5.

VALUE DRIVERS:

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.

Protect and preserve our natural environment by addressing climate change through ecologically responsible and pragmatic solutions.

POLICY IMPLICATIONS:

The modification of the Monterey City Code Chapter 19, Article 5 is necessary to prevent duplication and/or contradiction of California Health and Safety Code Section 104559.5.

FISCAL IMPLICATIONS:

There are no direct costs associated with this action.

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.

Date: 5/2/2023
Item No.: 4.

Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 1, Packet Page 24 ALTERNATIVES CONSIDERED:

The Council may choose not to make these changes to Chapter 19, Article 5 of the Monterey City Code. However, failure to adopt the new conditions for flavored tobacco associated with California Health and Safety Code Section 104559.5 would create inconsistencies between local and state codes and could cause confusion among tobacco retailers.

DISCUSSION:

On August 2, 2022, the City Council passed Ordinance 3654, amending Chapter 19, Article 5 of the Monterey City Code (MCC) to prohibit the sale of flavored tobacco products and single-use electronic smoking products. After its second reading to Council, the City elected to allow an exemption for flavored shisha tobacco products sold at 220 Olivier Street.

Later, the sale of flavored tobacco became prohibited under state law, too, under California Health and Safety Code (HSC) section 104559.5. HSC section 104559.5 contains exemptions for shisha tobacco products, premium cigars, and loose-leaf tobacco, subject to certain conditions. However, HSC section 104559.5 allows more restrictive regulations at the local level.

State law is now more restrictive in some instances and less restrictive in others than the MCC.

It is necessary to amend Chapter 19, Article 5 of the MCC to avoid inconsistencies with state law. The exemption for the sale of flavored shisha tobacco products under the MCC must be amended to meet the more restrictive conditions for exemption under HSC Section 104559.5.

Amendments are also necessary to avoid duplication with state law while maintaining MCC’s more restrictive prohibitions against the sale of single-use electronic smoking products, and flavored premium cigars, and loose-leaf tobacco products.

Proposed Change Justification Stricter
Code
Definitions:
 “Characterizing Flavor”
 “Electronic Smoking
Device”
 “E-liquid”
 “Flavored tobacco
product”
 “Hookah”
 “Shisha tobacco
product”
With the adoption of HSC section 104559.5,
these definitions will be removed from MCC
Chapter 19, Article 5. There is either no
substantive difference between the definition of
these terms used by MCC and HSC, or the term
was not used in any MCC subsections.

State
Code
Definition: “Single-use
electronic smoking product”
This definition will be maintained and amended
to include necessary elements from the
“electronic smoking device” definition, as it is not
included in the HSC. Therefore, in this instance
the MCC is more stringent.

City
Code
Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 2, Packet Page 25 Section 19-113. Violations.
additional subsection to
include:

The sale of flavored tobacco
products or tobacco product
flavor enhancers in violation of
the California Health and
Safety Code shall constitute a
violation of this article, and as
a greater restriction, such
prohibition in this Article does
not exempt, but instead
expressly applies to, premium
cigars and loose-leaf tobacco.

This subsection will be added to Section 19-113
Violations to integrate the California Health and
Safety Code standards into the MCC tobacco
retailer licensing regulations. The City’s original
ordinance did not provide an exemption for
premium cigars and loose-leaf tobacco to be
sold or consumed on-site. Therefore, this section
of MCC is more stringent than HSC and the new
subsection will expressly include those products
as part of the violation.

City
Code
Section 19-113. Violations.
current subsection (e) will be
removed and shisha tobacco
product exemption will be
posted under the new
subsection above.

This change will include language to clarify
additional conditions for a hookah tobacco
retailer to meet per HSC in order to be exempt
from the above regulation, but will maintain the
MCC condition that shisha tobacco will be
prohibited at 220 Olivier Street if the sale of
shisha tobacco is discontinued for 90
consecutive days or more.

State
Code
Section 19-113. Violations.

Subsection (f) will remain in
effect.

There will be only one correction changing the
last word “device” to “product” to match the
definition in Section 19-106. Section 19-113,
subsection (f) is more stringent in MCC than
HSC and will be maintained to preserve the
natural environment.

City
Code
As seen in the table above, only five (5) changes need to be made to the Monterey City Code in order to maintain its original intent to prohibit the sale of flavored tobacco products and singleuse electronic smoking products with minimal exemptions while honoring the new standards set forth in the California Health and Safety Code.

Summary of Staff Recommendation
Staff recommends that the City Council adopt the attached ordinance implementing new changes to Article 5 of Chapter 19 of the Monterey City Code.

Attachments 1. Ordinance
e: All Business Associations
All Neighborhood Associations
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, 5/2/2023, Item No. 4., Item Page 3, Packet Page 26 ORDINANCE NO. ____ C.S.

AN ORDINANCE OF THE COUNCIL OF THE CITY OF MONTEREY
№07/19
AMEND THE FLAVORED TOBACCO ORDINANCE (CHAPTER 19, ARTICLE 5 OF THE

MONTEREY CITY CODE)
THE COUNCIL OF THE CITY OF MONTEREY DOES ORDAIN, as follows:

SECTION 1:

WHEREAS, state law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code § 308);
WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail permitting ordinances and allows for the suspension or revocation of a local permit for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); WHEREAS, in 2014 the Monterey City Council enacted Monterey City Code section 19- 105 et seq. to establish a permitting system for tobacco retailers to ensure that retailers comply with tobacco control laws and business standards of the City to protect the public health, safety, and welfare of the residents of the City;
WHEREAS, in 2022 the Monterey City Council prohibited the sale of all flavored tobacco products and single use electronic smoking products, exempting flavored shisha tobacco products sold at 220 Olivier Street, Monterey, for onsite use;
WHEREAS, Senate Bill 793, approved by the Governor in August 2020, prohibits a tobacco retailer from selling flavored tobacco products. Proposition 31, the Flavored Tobacco Products Referendum, was on the November 8, 2022 ballot. The ballot measure was approved by the voters, thus upholding the legislation. Therefore, SB 793 became effective in December 2022 pursuant to California Constitution, article 2, section 10; WHEREAS, Health & Safety Code section 104559.5(g) provides that the state law does not preempt or otherwise prohibit the adoption of local standards that impose greater restrictions on the access to tobacco products than the restrictions imposed by the state. To the extent that there is an inconsistency between the state law and local standards, the greater restriction on the access to tobacco products in the local standard shall prevail; WHEREAS, in a ruling issued on March 18, 2022, the Ninth Circuit Court of Appeals in R.J. Reynolds Tobacco Company et al v. County of Los Angeles, et al (9th Cir. 2022) 29 F.4th 542 held that the Family Smoking Prevention and Tobacco Control Act, codified at 21 USC §387 et seq., did not preempt a city from banning the sale of some or all tobacco products; WHEREAS, it is the intent of this ordinance to continue to exempt from its application the use of real property located at 220 Olivier Street, Monterey, as a location where flavored shisha tobacco products may be purchased and used on-site, so long as the retailer complies with Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 4, Packet Page 27 2 conditions for the sale of flavored shisha tobacco products by a hookah tobacco retailer set out under subsection (c) of California Health and Safety Code 104559.5, and this ordinance. This location has sold flavored shisha tobacco products for use at its on-site hookah lounge continuously since approximately 2007. Should this use discontinue for 90 days, it is the intent of this ordinance that the sale of flavored shisha tobacco products will be prohibited throughout the city;
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, the Monterey City Council declares as follows:

SECTION 2. Monterey City Code, Chapter 19, Section 106 is amended to read as follows:
“For purposes of this article, the terms and definitions in Section 104559.5 of the California Health and Safety Code are incorporated herein, to the extent they are not inconsistent with the belowlisted definitions:
a. “Department” refers to any City department designated by the City Manager to administer and/or enforce the provisions of this article or, if so designated by the City Manager, the Monterey County Department of Health or other County department. b. “Drug paraphernalia” shall have the definitions set forth in California Health and Safety Code section 11014.5 as that section may be amended from time to time. c. “License” means a tobacco retailer license issued by the City pursuant to this Article. d. “Licensee” means any proprietor holding a license issued by the City pursuant to this Article
e. “License fee” means the charge established by resolution of the City Council, calculated to recover the reasonable regulatory costs of issuing and administering licenses, retailer education, performing investigations, inspections, and the administrative enforcement and adjudication thereof.
f. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. g. “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten (10) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business. h. “Single-use electronic smoking product” means an electronic smoking device that is not refillable or rechargeable and is typically discarded once its contents have been used. It Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 5, Packet Page 28 includes without limitation:

1.Any electronic device or delivery system that can be used to deliver an inhaled dose of nicotine, flavorings, chemicals, or other substances in aerosolized or vaporized form for human consumption, including but not limited to an electronic cigarette, cigar, pipe, vape pen, or hookah.

2.Any component, part, or accessory of such a device or delivery system that is used during its operation.

3.Any flavored or unflavored liquid or substance, whether sold separately or sold in combination with any such device or delivery system that could be used to deliver tobacco products, nicotine, or other substances in aerosolized or vaporized form. g. 4.Any product for use in such an electronic device or delivery system whether it contains nicotine or tobacco or is derived from nicotine or tobacco.” “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed or used for the smoking or ingestion of tobacco products.
h. “Tobacco retailer” means any person who engages in tobacco retailing. i. “Tobacco retailing” means selling, offering for sale, exchanging, or offering to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia without regard to the quantity sold, offered for sale, exchanged, or offered for exchange.” SECTION 3. Monterey City Code, Chapter 19, Section 19-113 is hereby amended to read as follows:
“Sec. 19-113. Violations.
a. It shall be a violation of this Article for a tobacco retailer, or its agents or employees, to violate any federal, state, or local tobacco law or regulation. b. It shall be a violation of this Article to sell flavored tobacco products or tobacco product flavor enhancers in violation of the California Health and Safety Code and, as a greater restriction, such prohibition in this Article does not exempt, but instead expressly applies to premium cigars, shisha tobacco products, or loose-leaf tobacco. i. This subsection does not apply to flavored shisha tobacco products sold at 220 Olivier Street, Monterey for on-site use, so long as the retailer complies with conditions for the sale of flavored shisha tobacco products by a hookah tobacco retailer set out under subsection (c) of California Health and Safety Code Section 104559.5, and so long as the retail sale for on-site use of flavored shisha tobacco at this location is not discontinued for a period of 90 consecutive days or more.
c. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Article shall constitute a violation.
d. Failure to prominently display the Tobacco Retail License in a publicly visible location at the licensed premises shall constitute a violation.
e. The failure of the tobacco retailer, or its agents or employees, to allow any peace officer, or other authorized government official to conduct unscheduled inspections of the premises of the business for the purpose of ensuring compliance with any federal, state, or local tobacco law or regulations, including any provision of this Article, at any time the business is open for business shall constitute a violation. f. It shall be a violation of this Article for a tobacco retailer, or its agents or employees, to sell, or offer for sale, or possess with the intent to sell or offer for sale, any single-use electronic smoking product.

Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 6, Packet Page 29 4 g. A tobacco retailer’s possession of four or more flavored tobacco products creates a rebuttable presumption the retailer possesses such flavored tobacco products with intent to sell or offer for sale.
h. The following actions of a tobacco retailer, its employees or agents, creates a rebuttable presumption that a tobacco product is flavored:
(1) public statements or claims that the tobacco product imparts a characterizing flavor;
(2) text and/or images on the product’s labeling or packaging to explicitly or implicitly indicate the tobacco product imparts a characterizing flavor; or (3) other actions directed to consumers that would reasonably cause consumers to believe the tobacco or electronic cigarette product imparts a characterizing flavor. “ SECTION 4: All ordinances and parts of ordinances in conflict herewith are hereby repealed.

SECTION 5: This ordinance shall be in full force and effect thirty (30) days from and after its final passage and adoption.

SECTION 6. Nothing in this Article shall be interpreted or applied to create any power or duty in conflict with any federal or state law. If any provision of this Article or the application thereof to any person or circumstance is held invalid, the remainder of this Article or the application of such provision to other persons or circumstances shall not be affected thereby.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this ___ day of ____ 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 5/2/2023, Item No. 4., Item Page 7, Packet Page 30 Council
Agenda Report
FROM: Andrea Renny, PE, PTOE, Public Works Director
Prepared By: Tricia Wotan, CFM, Environmental Regulations Manager SUBJECT: Authorize the City Manager to Enter into a Funding Agreement with the State Water Resources Control Board to Accept a State Budget Allocation in the Amount of $1,000,000, Authorize and Designate a Representative for the Lake El Estero Diversion to Sanitary Sewer Project, and Authorize an Increase of FY23 Revenue in the CIP-State Funding Source Fund and Appropriation to the Urban Stormwater Diversion Project (CIP2310) in the Capital Projects Fund ***CIP*** (Exempt from CEQA, Article 19, Section 15306, Class 6)
RECOMMENDATION:

That the City Council adopt the attached resolution:

1. Authorizing the City Manager to enter into a funding agreement with the State Water Resources Control Board (“SWRCB”) to accept a $1,000,000 State budget allocation for the Lake El Estero Diversion to Sanitary Sewer Project (“Project”);

2. Authorizing and Designating the City Manager or designee to represent the City of Monterey in carrying out the City’s responsibilities under the funding agreement, including certifying invoices and disbursement requests for Project costs on behalf of the City and compliance with applicable state and federal laws;

3. Authorizing the Finance Director, or their designee, to increase FY23 revenue in the CIP-State Funding Source Fund and appropriate $1,000,000 to the Capital Projects Fund, Urban Stormwater Diversion Project (CIP2310) (“Project”). This appropriation is fully funded by the State Budget allocation.

VALUE DRIVERS:

Protect and preserve our natural environment by addressing climate change through ecologically responsible and pragmatic solutions.

Champion regional and local efforts to secure adequate, affordable, and sustainable water sources for the city, now and into the future.

POLICY IMPLICATIONS:

This action is consistent with City Council policy to approve agreements with outside agencies and to approve budget appropriations.

This action is also consistent with the City Council’s strategic priorities to protect our environment and secure water sources.

Date: 5/2/2023
Item No.: 5.

Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 1, Packet Page 31 FISCAL IMPLICATIONS:

With the help of Assemblymember Mark Stone in 2022, the City of Monterey and Monterey One Water submitted a State Budget request through the Legislative process to implement a $1 million, 3-year Lake El Estero Stormwater Diversion-To-Sanitary Sewer project. The project funding was ultimately approved through the Budget Act of 2022 (Assembly Bill 178, Chapter 45). The proposed action is to appropriate $1,000,000 in CIP-State Funding Source Funds to the Urban Stormwater Diversion Project (CIP2310) in the Capital Improvement Program.

ENVIRONMENTAL DETERMINATION:

The City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act (CEQA) Guidelines (Article 19, Section 15306, Class 6) because the project would involve data collection and research, which would not result in a serious or major disturbance to an environmental resource. Specifically, the scope of work would involve the retention of a surveyor to develop a survey plan and report identifying property and utility details, easements, and ownership potential (new) stormwater diversion pipe(s) connecting a City storm drain utility manhole to a City sanitary sewer manhole or pipe. This research would help determine potential new storm drain and sanitary sewer infrastructure locations.

Furthermore, the project does not qualify for any of the exceptions to the categorical exemptions founds at CEQA Guidelines Section 15300.2. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception a - Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located -a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply in all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. The project would involve data collection, research, and resource evaluation activities that would not result in serious or major disturbance to an environmental resource.

Exception b - Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. There would be no cumulative impact because the project involves data collection, research, and resource evaluation activities.

Exception c - Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. No unusual circumstances are anticipated as the project would involve data collection, research, and resource evaluation activities that would not result in serious or major disturbance to an environmental resource.

Exception d - Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified Environmental Impact Report (EIR). The project would involve Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 2, Packet Page 32 data collection, research, and resource evaluation activities; therefore, the project would not impact scenic resources.

Exception e - Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code. The project would involve data collection, research, and resource evaluation activities; therefore, no impact to sites included on any list compiled pursuant to Section 65962.5 of the Government code would occur.

Exception f - Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource. The project involves data collection, research, and resource evaluation activities; therefore, there would be no impacts to historical resources.

ALTERNATIVES CONSIDERED:

Council could decide not to appropriate the funds; however, without the appropriation of funds, the City will be unable to access the budget allocation funds needed to fund this portion of the Project.

DISCUSSION:

On June 30, 2022, the California State Legislature and Governor Newsom approved the Budget Act of 2022 (Assembly Bill 178, Chapter 45), which included a $1,000,000 budget allocation for an urban diversion and water supply project within the Lake El Estero watershed. The Legislature designated the State Water Resources Control Board as the managing agency for allocating this funding.

Diverting Urban Drainage for Treatment and Water Recycling The Project will divert urban drainage from Lake El Estero, currently discharging untreated to the Monterey Bay National Marine Sanctuary, to an existing City sanitary sewer utility for treatment at the Monterey One Water Regional Treatment Plant. Current estimates identify that this diversion project has the potential to capture an average of approximately 100-173 acre-feet of source water in any given year (depending on hydrologic conditions) for water recycling when demand exists and will also reduce point source discharges into the Monterey Bay.

Consequently, the Project will benefit the region’s water supply alternatives and additionally provide water quality benefits by treating a portion of urban runoff otherwise discharged untreated to the Bay.

Project Concept Design
At present, the project is at 10% concept design. It currently proposes augmenting existing City storm water and sanitary sewer infrastructure at two locations - the Lake El Estero Pump Station and in the vicinity of the Pearl and Figueroa Streets’ intersection – to accomplish the water diversion. This project would involve the reconnection of a box culvert at Pearl and Figueroa Street (west of the lake) to divert runoff from Hartnell Gulch watershed to Lake El Estero; and the diversion of lake water on the north side of Lake El Estero to the sanitary sewer system.

Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 3, Packet Page 33 The locations of the proposed box culvert connection to divert Hartnell Gulch drainage to the lake and the lake sanitary sewer diversion site. The Project would utilize the existing storage capacity of Lake El Estero to detain both wet and dry weather runoff for diversion when demand for recycled water is greatest. Stored lake water would be diverted to the sanitary sewer from April to October for recycling at the Monterey One Water Regional Treatment Plant (RTP) to augment water supply. A pump is proposed to be installed within the existing pump house on the north side of Lake El Estero to pump lake water to a sanitary sewer manhole, located between Del Monte Avenue and Lake El Estero, which connects to the 21-inch diameter gravity sewer main on Del Monte Ave.

The greatest water supply benefit using current infrastructure at the RTP is to treat and recycle runoff from the Project drainage area during the dry season, April to October, adding to the current lake water recovery mechanisms. Water is currently recovered from Lake El Estero via capture and use because park space and a cemetery surrounding the lake are irrigated with the lake water. If stormwater runoff could be recovered during the wet season, with prior authorization of M1W, then approximately three times the volume of runoff could potentially be recovered through this project. The proposed pump could be designed to accommodate either dry season or wet and dry season pumping. The net water volume potentially recovered for this project ranges from 110 acre-feet per year to 140 acre-feet per year.

More engineering design is necessary to move the project forward for environmental review and public input in the next year.

One of the three primary creek channels in the Lake El Estero watershed flows into Laguna Mirada and the other two primary creek channels flow into Washerwoman’s Pond. Laguna Mirada and Washerwoman’s Pond flow into Lake El Estero through the City of Monterey’s underground storm drain network.

State Budget Allocation
The State budget allocation will supplement Stormwater Utility Funds allocated for the Urban Stormwater Diversion Project as part of the FY23 Capital Improvement Program (Reso 22-135).

This CIP was created to jumpstart community efforts (and local matching funds) to pursue multiple City water projects prioritized regionally for implementation and in support of the Council’s water supply value driver. Accordingly, this CIP will partially fund various tasks to energize these efforts, but necessitates other funding streams, such as grants to support each water project through to fruition. To this end, staff have been working with other agencies and legislative partners to align these projects with other local and state funding opportunities now and into the future to support drought resilience and new water sources.

Staff Recommendation in Summary
Therefore, staff recommends that the City Council adopt the attached resolution:

2. Authorizing and Designating the City Manager or designee to represent the City of Monterey in carrying out the City’s responsibilities under the funding agreement, Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 4, Packet Page 34 including certifying invoices and disbursement requests for Project costs on behalf of the City and compliance with applicable state and federal laws;

TW/mb
Attachments: 1. Resolution
e: State Water Resources Control Board
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, 5/2/2023, Item No. 5., Item Page 5, Packet Page 35 RESOLUTION NO. __- ___ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY

AUTHORIZING THE CITY MANAGER TO ENTER INTO A FUNDING AGREEMENT WITH

THE STATE WATER RESOURCES CONTROL BOARD TO RECEIVE A STATE BUDGET ALLOCATION IN THE AMOUNT OF $1,000,000, AUTHORIZE AND DESIGNATE A

REPRESENTATIVE FOR THE LAKE EL ESTERO DIVERSION TO SANITARY SEWER PROJECT, AND AUTHORIZE AN INCREASE OF FY23 REVENUE IN THE CIP-STATE

FUNDING SOURCE FUND AND APPROPRIATION TO THE URBAN STORMWATER DIVERSION PROJECT (CIP2310) IN THE CAPITAL PROJECTS FUND ***CIP*** WHEREAS, on June 30, 2022, the California State Legislature and Governor Newsom approved the Budget Act of 2022 (Assembly Bill 178, Chapter 45), which included a $1,000,000 budget allocation for an urban diversion and water supply project within the Lake El Estero watershed;
WHEREAS, the Legislature designated the State Water Resources Control Board as the managing agency for allocating this funding;
WHEREAS, the Project will divert urban drainage from Lake El Estero, currently discharging untreated to the Monterey Bay National Marine Sanctuary, to an existing City sanitary sewer utility for treatment at the Monterey One Water Regional Treatment Plant, providing 100-173 acre-feet of source water of source water in any given year (depending on hydrologic conditions) for water recycling when demand exists and will also reduce point source discharges into the Monterey Bay;
WHEREAS, the City of Monterey Planning Office determined the project is exempt from the California Environmental Quality Act (CEQA) Guidelines (Article 19, Section 15306, Class 6) because the project would involve data collection and research, which would not result in a serious or major disturbance to an environmental resource. Specifically, the scope of work would involve the retention of a surveyor to develop a survey plan and report identifying property and utility details, easements, and ownership potential (new) stormwater diversion pipe(s) connecting a City storm drain utility manhole to a City sanitary sewer manhole or pipe.

This research would help determine potential new storm drain and sanitary sewer infrastructure locations. Furthermore, the project does not qualify for any of the exceptions to the categorical exemptions found at CEQA Guidelines Section 15300.2. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

Exception a - Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located -a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply in all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. The project would involve data Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 6, Packet Page 36 2 collection, research, and resource evaluation activities that would not result in serious or major disturbance to an environmental resource.

Exception d - Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified Environmental Impact Report (EIR). The project would involve data collection, research, and resource evaluation activities; therefore, the project would not impact scenic resources.

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

1. Authorizes the City Manager to enter into a funding agreement with the State Water Resources Control Board (“SWRCB”) to accept a $1,000,000 State budget allocation for the Lake El Estero Diversion to Sanitary Sewer Project (“Project”);

2. Authorizes and Designates the City Manager or designee to represent the City of Monterey in carrying out the City’s responsibilities under the funding agreement, including certifying invoices and disbursement requests for Project costs on behalf of the City and compliance with applicable state and federal laws;

3. Authorizes the Finance Director, or their designee, to increase FY23 revenue in the CIPState Funding Source Fund and appropriate $1,000,000 to the Capital Projects Fund, Council Regular Meeting, 5/2/2023, Item No. 5., Item Page 7, Packet Page 37 3 Urban Stormwater Diversion Project (CIP2310) (“Project”). This appropriation is fully funded by the State Budget allocation.

NOW, THEREFORE, BE IT FURTHER 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.

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, 5/2/2023, Item No. 5., Item Page 8, Packet Page 38 Council
Agenda Report
№08/22
FROM: Kimberly Cole, AICP, Community Development Director Prepared By: Fernanda Roveri, AICP, Principal Planner
SUBJECT: Resolution Adopting Findings and Overruling the Monterey County Airport Land Use Commission’s Consistency Determination for the Draft Ordinance Amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and Amending Section 38-11 “Definitions” and 1st Reading by Title Only of an Ordinance Amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and Amending Section 38-11 “Definitions” (Statutorily Exempt from CEQA pursuant to Public Resources Code Section 21080.17)
RECOMMENDATION:

That the City Council:

1. Adopt a resolution adopting findings and overruling the Monterey County Airport Land Use Commission’s (ALUC’s) consistency determination for the draft ordinance amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and amending Section 38-11 “Definitions”, and

2. Conduct 1st reading by title only of an ordinance amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and amending Section 38-11 “Definitions”
VALUE DRIVERS:

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

POLICY IMPLICATIONS:

Section 65852.2 of the Government Code does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an ADU.

The Council embraces efforts that provide equitable access to affordable housing, including balanced approaches to increase housing supply, rental resources and assistance, and housing rehabilitation grants to homeless, low-income, senior and disabled individuals.

One of the City’s strategic priorities is to “support affordable housing through modern zoning policies/ordinances, ADU policies, housing grants, review of density requirements, and consideration of City-owned sites for affordable housing.” FISCAL IMPLICATIONS:

Construction of ADUs may affect property taxes by increasing the net value of certain properties.

Date: 5/2/2023
Item No.: 6.

Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 1, Packet Page 39 ENVIRONMENTAL DETERMINATION:

The City of Monterey has determined that the adoption of the resolution and later potential adoption of these provisions of the Zoning Code are statutorily exempt from the California Environmental Quality Act (CEQA) as provided by Public Resources Code Section 21080.17 and by CEQA Guidelines Article 18, Section 15282.h, because it is the adoption of an ordinance by a city to implement the provisions of Section 65852.2 of the Government Code.

ALTERNATIVES CONSIDERED:

The attached draft ordinance proposes amendments to existing regulations for ADUs and JADUs, consistent with State law. Not adopting the attached draft ordinance would render existing regulations invalid. Not overruling the Monterey County ALUC’s consistency determination would limit the size and number of ADUs that can be built in certain airport safety and noise contour zones.

DISCUSSION:

California is experiencing a housing crisis, with housing demand outstripping supply. Since 2016, the California State Legislature has brought forward several bills (Government Code sections 65852.2 and 65852.22) relating to the planning and permitting of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) to address the housing supply crisis. Over the years, State ADU and JADU law has been revised to improve its effectiveness at creating more housing units.

On September 27, 2016, the Governor signed into law SB 1069 and AB 2299, the first bills requiring local jurisdictions to amend their zoning ordinances to allow ADUs consistent with this new State law, which took effect on January 1, 2017.

On January 17, 2017, the City Council adopted Ordinance No. 3560 to amend its Zoning Ordinance to designate areas where ADUs may be located and place other restrictions, consistent with State law.

On October 9, 2019, the Governor signed into law AB 68, AB 881, and SB 13 to further streamline ADUs and relax development standards, which took effect on January 1, 2020.

On October 20, 2020, the City Council adopted Urgency Ordinance No. 3626 to prevent ADUs over 16 feet in height until the Planning Commission had an opportunity to provide policy recommendations. Ordinance No. 3626 also repealed the City’s ADU regulations, which were almost entirely inconsistent with the State law that took effect on January 1, 2020. On December 1, 2020, the City Council adopted Ordinance No. 3633, which extended Ordinance No. 3626 until October 19, 2021.

On November 2, 2021, the City Council adopted Ordinance No. 3641 to amend the City Code to include ADU zoning regulations to further reduce barriers, better streamline approval processes, and expand the capacity to accommodate the development of ADUs and JADUs, consistent with State law.

On May 3, 2022, the City Council adopted Ordinance No. 3650 to amend the City Code to be more flexible than State law by waiving lot coverage, floor area ratio, open space, and size regulations to allow a second story ADU above a garage or carport up to 25 feet in height and to Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 2, Packet Page 40 allow such ADU to have roof pitch and form that is different than the associated single-family dwelling or multifamily dwelling, subject to architectural review.

Government Code sections 65852.2 and 65852.22 require cities to adopt ADU zoning regulations consistent with the new State law. In the absence of a valid local ordinance, the new State law provides a set of default standards governing local agencies’ regulation and approval of ADUs and JADUs.

On September 6, 2022, pursuant to the provisions of Section 21670 et seq. of the California Public Utilities Code ("Section 21670"), City staff referred Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” for a determination of consistency with the 2019 Monterey Regional Airport Land Use Compatibility Plan (ALUCP).

Monterey County Airport Land Use Commission (ALUC) staff entered this referral as ALUC File No. REF220059 and began reviewing it.

On September 28, 2022, the Governor signed into law AB 2221 and SB 897 to increase the allowed height of attached and detached ADUs and waive front yard setback limits if they prevent construction of certain ADUs, which took effect on January 1, 2023.

On November 1, 2022, City staff submitted to ALUC staff draft amendments of Sections 38- 112.6 and 38-11 that incorporate the new State law requirements. The goal of the amendments is to make the City’s ADU and JADU Ordinance consistent with AB 2221 and SB 897. AB 2221 adds front setbacks to the list of local development standards that local governments cannot impose if they would preclude construction of an ADU, further streamlines the approval process, and clarifies the definition of ADUs and JADUs. Amongst other changes pertaining to parking standards and application processing, SB 897 increases the maximum height limitation that may be imposed by a local agency to up to 20 feet (currently 16 feet) if the ADU is detached, within ½ mile walking distance of a major transit stop or a high-quality transit corridor, and has a roof pitch that is aligned with the roof pitch of the single-family or multifamily dwelling. Additionally, SB 897 allows an ADU to be constructed to a height of 25 feet if the ADU is attached to a primary residence.

ALUC staff reviewed City staff’s amendments and scheduled them for ALUC review on November 14, 2022. That day, the ALUC adopted Resolution No. 22-005 finding the proposed amendments consistent with the ALUCP if Section 38-112.6(1)(g), “An accessory dwelling unit or junior accessory dwelling shall not be permitted within the airport safety zone pursuant to the Airport Land Use Plan”, as proposed by the City is changed to:
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 3, Packet Page 41 (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.”
On March 7, 2023, the City Council adopted Resolution No. 23-027 (Attachment 3), which adopted the following proposed draft findings to overrule the ALUC’s consistency determination:

1. Restricting ADU size to 850 square feet or less in Airport Safety Zones 2, 3, 4, and 5 would not protect public health, safety, and welfare more than if the ADU size was restricted to 1,000 square feet or less, as proposed by the draft ordinance. An ADU of 850 square feet could be designed and permitted to be occupied by just as many people as an ADU of 1,000 square feet. In addition, pursuant to Government Code section 65852.2(c)(2), a local agency shall not establish by ordinance a maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than 1,000 square feet for an accessory dwelling unit that provides more than one bedroom.

2. The draft ordinance limits JADU size to 500 square feet or less. Adding that “JADUs shall not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5” would be repetitive and would not protect public health, safety, and welfare further.

3. Adding that “Any ADU or JADU is required to be constructed to meet allowable interior noise levels as established by the California Building Standards Code” is redundant and would not protect public health, safety, and welfare further because the City has adopted and only issues building permits that comply with the California Building Standards Code.

4. The California Building Standards Code requires minimum noise insulation performance standards that buffer exterior noise. ADUs/JADUs in the 65-69 CNEL noise contour zone would be constructed to achieve the required noise performance standards. This would minimize human exposure to excessive noise.

With the adoption of Resolution No. 23-027, the City Council also expressed its intention to adopt the findings and overrule the ALUC’s determination on the proposed ordinance, and, pursuant to Public Utilities Code (PUC) 21676(a), directed City staff to provide the ALUC and the Caltrans Division of Aeronautics notice at least 45 days prior to the City’s decision to overrule the ALUC.

On March 13, 2023, City staff mailed and emailed a notice, which included a copy of Resolution No. 23-027, to the ALUC and Division of Aeronautics. This action provided 50 days’ notice. Both the ALUC and Division of Aeronautics provided formal comment letters within 17 days of notice (Attachment 2 – Draft Resolution Exhibit A).

The ALUC Attorney notes that, where, as here, the airport is publicly owned but not operated by the City, under PUC 21675.1(f) a legal effect of overruling the ALUC on the ordinance inconsistency would be to protect the operator of the airport from liability for “damages to property or personal injury resulting from the city’s . . . decision to proceed with the action [the portion of the ordinance it overruled].”
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 4, Packet Page 42 Staff now recommends that the City Council overrule on a two-thirds vote the ALUC’s determination and make the specific findings in the resolution that the draft ordinance is consistent with the purposes set forth in PUC 21670 et. seq., and specifically 21676(a), which states, the local agency may propose to overrule the ALUC if it makes specific findings that the proposed action is consistent with the purposes of PUC 21670 – 21679.5 as stated in Section 21670.

PUC section 21670 states, “It is the purpose of this article to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.” In summary, staff recommends that the City Council adopt a resolution adopting findings and overruling the ALUC’s consistency determination for the draft ordinance amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and amending Section 38-11 “Definitions”. The City has satisfied procedural requirements and now recommends that the City Council conduct 1st reading by title only of the attached ordinance amending Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” and amending Section 38-11 “Definitions”.

KC/fr
Attachments: 1. Draft Ordinance

2. Draft Resolution with Comment Letters as Exhibit A

3. Resolution No. 23-027
e: All Neighborhood and Business Associations
Architectural Review Committee
Fionna Jensen, ALUC Staff, [email protected]
Jonathan Huff, Caltrans Division of Aeronautics, [email protected] Chris Morello, Monterey Peninsula Airport District, [email protected] ADU Interested Parties
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, 5/2/2023, Item No. 6., Item Page 5, Packet Page 43 ORDINANCE NO. ____ C.S.

AN ORDINANCE OF THE COUNCIL OF THE CITY OF MONTEREY
AMENDING MONTEREY CITY CODE SECTION 38-112.6 “ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY DWELLING UNITS” AND AMENDING SECTION 38-11 “DEFINITIONS”
WHEREAS, California is experiencing a housing crisis, with housing demand outstripping supply. Since 2016, the California State Legislature has brought forward several bills (Government Code sections 65852.2 and 65852.22) relating to the planning and permitting of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) to address the housing supply crisis. Over the years, State ADU and JADU law has been revised to improve its effectiveness at creating more housing units;
WHEREAS, on September 27, 2016, the Governor signed into law SB 1069 and AB 2299, the first bills requiring local jurisdictions to amend their zoning ordinances to allow ADUs consistent with this new State law, which took effect on January 1, 2017; WHEREAS, on January 17, 2017, the City Council adopted Ordinance No. 3560 to amend its Zoning Ordinance to designate areas where ADUs may be located and place other restrictions, consistent with State law;
WHEREAS, on October 9, 2019, the Governor signed into law AB 68, AB 881, and SB 13 to further streamline ADUs and relax development standards, which took effect on January 1, 2020.

WHEREAS, on October 20, 2020, the City Council adopted Urgency Ordinance No. 3626 to prevent ADUs over 16 feet in height until the Planning Commission had an opportunity to provide policy recommendations. Ordinance No. 3626 also repealed the City’s ADU regulations, which were almost entirely inconsistent with the State law that took effect on January 1, 2020. On December 1, 2020, the City Council adopted Ordinance No. 3633, which extended Ordinance No. 3626 until October 19, 2021;
WHEREAS, on November 2, 2021, the City Council adopted Ordinance No. 3641 to amend the City Code to include ADU zoning regulations to further reduce barriers, better streamline approval processes, and expand the capacity to accommodate the development of ADUs and JADUs, consistent with State law;
WHEREAS, on May 3, 2022, the City Council adopted Ordinance No. 3650 to amend the City Code to be more flexible than State law by waiving lot coverage, floor area ratio, open space, and size regulations to allow a second story ADU above a garage or carport up to 25 feet in height and to allow such ADU to have roof pitch and form that is different than the associated singlefamily dwelling or multifamily dwelling, subject to architectural review; WHEREAS, on September 28, 2022, the Governor signed into law AB 2221 and SB 897 to increase the allowed height of attached and detached ADUs and waive front yard setback limits if they prevent construction of certain ADUs, which took effect on January 1, 2023; Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 6, Packet Page 44 2 WHEREAS, Government Code sections 65852.2 and 65852.22 require cities to adopt ADU zoning regulations consistent with the new State law. In the absence of a valid local ordinance, the new State law provides a set of default standards governing local agencies’ regulation and approval of ADUs and JADUs;
WHEREAS, 2015-2023 Housing Element Goal b is to broaden the choice of rental housing types available to residents of Monterey in all price ranges and for all family sizes while maintaining neighborhood compatibility and, where possible, using second units to encourage owner opportunities;
WHEREAS, the amendments are consistent with the purposes of the General Plan, the purposes of the Municipal Code, and other applicable City ordinances; WHEREAS, on December 13, 2022, the Planning Commission held a duly noticed public hearing, took public testimony, and recommended that the City Council adopt the ordinance amendments;
WHEREAS, the City Council held a duly noticed public hearing on May 2, 2023, took public testimony, and considered the ordinance amendments; and WHEREAS, the City of Monterey has determined that the adoption of an ordinance approving Zoning Ordinance amendments related to accessory dwelling units implements the provisions of Government Code sections 65852.1 and 65852.2 and is therefore statutorily exempt from CEQA pursuant to Public Resources Code Section 21080.17.

NOW, THEREFORE, the Monterey City Council does ordain as follows:

SECTION 1. 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.

SECTION 2. Monterey City Code Section 38-11 “Definitions” “Accessory Dwelling Unit” is hereby amended to read as follows:

Accessory Dwelling Unit: An attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation, which is located on the same parcel as a proposed or existing single-family dwelling or multifamily dwelling. An attached accessory dwelling unit is physically attached to the single-family dwelling or multifamily dwelling, including attached garages. A detached accessory dwelling unit is physically separated from the singlefamily dwelling or multifamily dwelling. An accessory dwelling unit may consist of an efficiency unit, as defined in Section 17958.1 of the Health and Safety Code; or a manufactured home, as defined in Section 18007 of the Health and Safety Code.

SECTION 3. Monterey City Code Section 38-112.6 is hereby replaced in its entirety as follows:

1. General Requirements. All accessory dwelling units shall conform with the following:
a. The parcel must be zoned to allow single-family or multifamily use. b. The parcel may contain the following number of accessory dwelling units:

Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 7, Packet Page 45 3 i. Single-Family Dwelling. A parcel with an existing or proposed single-family dwelling may contain one of the following:
(1) A new construction accessory dwelling unit may be developed as attached to or detached from the single-family dwelling.
(2) An accessory dwelling unit within the walls of a proposed or existing single-family dwelling or within an existing accessory structure, including detached garages, may be developed if the unit has exterior access separate from the proposed or existing single-family dwelling; the side and rear setbacks are sufficient for fire and safety; and an expansion of the accessory structure for ingress and egress is not more than 150 square feet.
(3) Both one accessory dwelling unit and one junior accessory dwelling unit may be developed on the same parcel with a proposed or existing single-family dwelling if the accessory dwelling unit is developed as either of the following:
a. A new construction, detached accessory dwelling unit up to 800 square feet in size, up to the allowed height in subsection (2)(d) of this section, and with minimum four-foot side and rear setbacks; or
b. The accessory dwelling unit meets the standards of subsection (1)(b)(i)(2) of this section.
ii. Multifamily Dwelling. A parcel with a multifamily dwelling may contain one of the following:
(1) A parcel with a proposed or existing multifamily dwelling may construct one of the following:
a. One attached accessory dwelling unit meeting the standards of subsection (2); or
b. Up to two detached accessory dwelling units if the accessory dwelling unit does not exceed the allowed height in subsection (2)(d) of this section, and has at least four-foot side and rear setbacks.
(2) A parcel with an existing multifamily dwelling may contain accessory dwelling units converted from portions of the building that are not used as livable space. The number of accessory dwelling units permitted is equivalent to up to 25 percent of the number of existing, legally permitted multifamily dwelling units, or one, whichever is greater.
c. Prior to issuance of a building permit for an accessory dwelling unit, the property owner shall record a covenant in a form prescribed by the city attorney, which shall run with the land and provide for the following:
i. The accessory dwelling unit(s) may not be sold separately from the existing or proposed single-family dwelling or multifamily dwelling; and
ii. Neither the accessory dwelling unit(s) nor the junior accessory dwelling unit may be used for short-term residential rentals of less than 30 consecutive days.

Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 8, Packet Page 46 4 A copy of the recorded covenant shall be filed with the Building Division prior to issuance of a building permit.
d. Prior to issuance of a building permit for an accessory dwelling unit on those certain parcels identified as Monterey County Assessors Parcels: 013-231-027-000, 013-231-017- 000, 013-231-018-000 and 013-231-028-000, the property owner shall provide the City with an avigation easement granted to the Monterey Regional Airport District or evidence that the parcel is no longer within the Monterey Regional Airport Land use Compatibility Plan 65-, 70-, and 75 Community Noise Equivalent Level boundaries.
e. Exemptions.
i. Notwithstanding the development and design standards of this section, accessory dwelling units that meet the standards in subsection (1)(b)(i)(2), (1)(b)(i)(3)(a), (1)(b)(ii)(1)(b), or (1)(b)(ii)(2) of this section are permitted. ii. Notwithstanding subsection (1)(c), a single-family dwelling and accessory dwelling unit that were developed by a qualified nonprofit, as that term is defined in and pursuant to Government Code section 65852.26, may be conveyed pursuant to a tenancy in common agreement that allocates an undivided, unequal interest in the property based on the size of the dwelling that each buyer occupies if the development and the transaction meet the requirements of Government Code Section 65852.26.
f. Fire sprinklers shall not be required in the accessory dwelling unit unless fire sprinklers are required for the single-family dwelling or multifamily dwelling. Fire sprinklers shall not be required for an existing single-family dwelling or multifamily dwelling as a condition of the construction of an accessory dwelling unit.
g. An accessory dwelling unit or junior accessory dwelling unit conforming to the requirements of this section shall not be considered to exceed the allowable density for the parcel upon which the unit is located and shall be deemed to be a residential use consistent with the existing general plan and zoning designations for the parcel. h. Accessory dwelling units and junior accessory dwelling units are prohibited in Airport Safety Zones 1 and 6, pursuant to the 2019 Monterey Airport Land Use Compatibility Plan. i. An accessory dwelling unit or junior accessory dwelling unit conforming to the provisions of this subsection shall be approved ministerially as provided in Section 38-153(B).

2. Accessory Dwelling Unit Development Standards. Except as otherwise provided in this Section 38-112.6, all accessory dwelling units shall comply with the following development standards:
a. The accessory dwelling unit shall conform to all requirements of the underlying residential zoning district, any applicable overlay district, and all other applicable provisions of this chapter. Notwithstanding this requirement:
i. the accessory dwelling unit is contained in a structure that is unpermitted and/or nonconforming with zoning and/or State and local building code requirements and all of the following apply:
(1) the creation of an accessory dwelling unit does not expand or affect the nonconformity or the building code violations, and
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 9, Packet Page 47 5 (2) the nonconformity does not pose a threat to public health and safety. ii. the unpermitted accessory dwelling unit was constructed prior to January 1, 2018, even if the accessory dwelling unit is nonconforming with local zoning, California Government Code section 65852.2, and/or State and local building code requirements. However, the city can deny the application for an unpermitted accessory dwelling unit as described in this subsection (a)(ii) if the building is deemed substandard under Section 17920.3 of the Health & Safety Code or if the Building Official makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure.
iii. the applicable provisions of this Chapter 38 are inconsistent with the provisions of this Section 38-112.6, in which case the standards of this section shall apply. b. Floor Area.
i. No accessory dwelling unit shall be smaller than the size required to allow an efficiency unit pursuant to Health and Safety Code section 17958.1. ii. The floor area of an attached or detached accessory dwelling unit shall not exceed 850 square feet for a studio or one bedroom and 1,000 square feet for a unit that contains more than one bedroom.
c. Setbacks. Except as specified below, an accessory dwelling unit shall be required to comply with the setback requirements of the zone in which the unit is to be located. i. No setback is required for an existing living area or an existing accessory structure converted to an accessory dwelling unit, or for a new accessory dwelling unit constructed in the same location and built to the same dimensions as an existing structure, except that:
(1) An expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure is allowed solely for the purpose of accommodating ingress and egress.
(2) Setbacks shall be sufficient for fire safety.
ii. For all other accessory dwelling units, a setback of four feet is required from the rear and side property lines.
d. Height.
i. Attached Accessory Dwelling Unit. The height of an attached accessory dwelling unit shall not exceed 25 feet or the height limitation that applies to the single-family dwelling or multifamily dwelling, whichever is lower. However, the accessory dwelling unit may not exceed two stories.
ii. Detached Accessory Dwelling Unit. The height of a detached accessory dwelling unit shall not exceed the following:
(1) 16 feet on a lot with an existing or proposed single-family dwelling or multifamily dwelling;
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 10, Packet Page 48 6 (2) 18 feet on a lot with an existing or proposed single-family dwelling or multifamily dwelling if the lot is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Public Resources Code Section 21155. The accessory dwelling unit may be up to 20 feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the single-family dwelling or multifamily dwelling (3) 18 feet on a lot with an existing or proposed multifamily, multistory dwelling. iii. Second Story Accessory Dwelling Unit Above Garage or Carport. If an accessory dwelling unit is attached to a detached garage or carport, then the accessory dwelling unit is a detached accessory dwelling unit. If a detached accessory dwelling unit exceeds the maximum permitted height set forth in subsection (2)(d)(ii) of this section, the applicant may apply for an exception through the discretionary architectural review process pursuant to Article 25 of this Chapter if:
(1) The total building height is 25 feet or less;
(2) The parcel is within the R-3 zone;
(3) The garage or carport is detached from the single-family dwelling and is at the ground level of the accessory dwelling unit;
(4) No windows or openings are permitted for that portion of the accessory dwelling unit that is closer than four feet to a property line; and (5) Any window parallel to an adjoining property line and closer than 10 feet shall be either:
a. Opaque and inoperable; or
b. Clerestory windows with a minimum height no less than six feet above floor level. (Ord. 3650 § 2, 2022)
e. Limits on lot coverage, floor area ratio, open space, front setbacks, and size cannot prevent the construction of a detached or attached accessory dwelling unit, with a maximum floor area of 800 square feet and minimum four-foot side and rear yard setbacks, if the proposed accessory dwelling unit is in compliance with all other development standards. (Ord. 3650 § 3, 2022)
f. Access. An accessory dwelling unit shall have a separate entrance from other dwelling units.
g. Parking.
i. One additional parking space shall be provided per unit or per bedroom, whichever is less, which may be provided as tandem parking on an existing driveway, or in setback areas unless the Community Development Director makes specific findings that tandem parking and parking in setback areas is not feasible because of specific topographical conditions.
ii. No parking may extend into a public sidewalk or public right-of-way.

Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 11, Packet Page 49 7 iii. Notwithstanding this provision, no additional parking may be required for an accessory dwelling unit, including an accessory dwelling unit that is being proposed along with a proposed single-family dwelling or multifamily dwelling, that is:
(1) Located within one-half mile walking distance of a public transit stop; (2) Located within one block of a car share vehicle pickup location; (3) Located entirely within the proposed or existing single-family dwelling or multifamily dwelling or within an existing accessory structure; (4) Located within an architecturally and historically significant historic district; or (5) Located on a parcel where on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
iv. If an existing garage, carport, or covered parking structure is demolished in conjunction with the construction of or replaced by an accessory dwelling unit, the parking spaces do not need to be replaced.
h. Properties with Historic Overlay Zoning or Historic Zoning. Attached or detached accessory dwelling units on a parcel with an H-1 or H-2 designation shall:
i. Be located behind the historic structure, unless these requirements prevent creation of the accessory dwelling unit. If attached, the accessory dwelling unit shall be located at the rear of the main historic structure. If detached, new construction, the accessory dwelling unit shall be located 10 feet behind the rear of the main historic structure; ii. Notwithstanding the design standards below, not match the exterior finish of the historic building; and
iii. Be designed so that any new exterior door for the accessory dwelling unit is not facing the front yard, unless this requirement prevents creation of the accessory dwelling unit. (Ord. 3650 § 4, 2022)i. Water and Sewer. Accessory dwelling units shall not be permitted on a parcel where water or sewer services are inadequate. Water restrictions imposed by the State Water Resources Control Board’s Cease and Desist Order demonstrate existing water sources are insufficient to meet any expansion of water demand and do not satisfy criteria for the adequacy of water and sewer services. Water credits or water entitlements may be available to offset additional demand for an accessory dwelling unit. The adequacy of water is determined by the Monterey Peninsula Water Management District (MPWMD). Verification of water credits from MPWMD is to be submitted at the time of building permit application.

3. Accessory Dwelling Unit Design Standards. Except as otherwise provided in this chapter, all accessory dwelling units shall comply with the following design standards:
a. Colors and Materials. The accessory dwelling unit shall be constructed with facade materials identical in color, and identical in texture and appearance to the single-family dwelling or multifamily dwelling, including but not limited to roofing, siding, and windows and doors; and
b. Roof Pitch and Form. The accessory dwelling unit shall match the roof pitch and roof form of the single-family dwelling or multifamily dwelling in order to blend with the architecture of Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 12, Packet Page 50 8 the single-family dwelling or multifamily dwelling. The applicant may apply for an exception through the discretionary architectural review process pursuant to Article 25 of this Chapter.

The Architectural Review Committee may grant such an exception if it finds that an alternative roof pitch and form design are compatible with the single-family or multifamily structure and neighborhood. (Ord. 3650 § 5, 2022)
c. State and Local Building Code Requirements. The accessory dwelling unit shall conform to all applicable State and local building code requirements. The new construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the 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 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 or the accessory dwelling unit is converted from unhabitable or nonresidential space.

4. Junior Accessory Dwelling Unit Development Standards. Junior accessory dwelling units shall conform with the following:
a. A junior accessory dwelling unit shall not exceed 500 square feet in size and shall contain at least an efficiency kitchen, which includes cooking appliances, a food preparation counter, and storage cabinets that are of reasonable size in relation to the junior accessory dwelling unit.
b. A junior accessory dwelling unit shall have a separate entrance from the entrance of the single-family dwelling.
c. The junior accessory dwelling unit may, but is not required to, include separate sanitation facilities. If separate sanitation facilities are not provided, the junior accessory dwelling unit shall share sanitation facilities with the single-family dwelling. If provided as part of the singlefamily dwelling, the junior accessory dwelling unit shall have direct access to the single-family dwelling so as to not need to go outside to access the bathroom. d. Unless the property is owned by a governmental agency, land trust, or housing organization, one of the dwellings on the parcel must be the bona fide principal residence of at least one legal owner of the parcel, as evidenced at the time of approval of the junior accessory dwelling unit by appropriate documents of title and residency. e. Prior to issuance of a building permit for a junior accessory dwelling unit, the owner shall record a covenant in a form prescribed by the city attorney, which shall run with the land and provide for the following:
i. A prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family dwelling;
ii. A restriction on the size and attributes of the junior accessory dwelling unit consistent with this section;
iii. A prohibition against renting the property for fewer than 30 consecutive calendar days; and
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 13, Packet Page 51 9 iv. A requirement that either the single-family dwelling or the junior accessory dwelling unit be the owner’s bona fide principal residence, unless the owner is a governmental agency, land trust, or housing organization.

A copy of the recorded covenant shall be filed with the Building Division prior to issuance of a building permit.
f. Parking is not required for junior accessory dwelling units. However, if an existing attached garage is replaced by a junior accessory dwelling unit, each removed parking space must be replaced with an off-street parking space that does not extend into the public right-of-way. If the proposed replacement parking is uncovered parking located in the driveway, the dimensions of the off-street parking space should at least be nine feet by 18 feet and the space may occupy any part of the driveway so long as it does not extend into the public rightof-way and is not located in the front yard setback. g. Junior accessory dwelling units shall not be permitted on a parcel where water or sewer services are inadequate. Water restrictions imposed by the State Water Resources Control Board’s Cease and Desist Order demonstrate existing water sources are insufficient to meet any expansion of water demand and do not satisfy criteria for the adequacy of water and sewer services. Water credits or water entitlements may be available to offset additional demand for a junior accessory dwelling unit. The adequacy of water is determined by the Monterey Peninsula Water Management District (MPWMD). Verification of water credits from MPWMD is to be submitted at the time of building permit application.

5. Utilities and Impact Fees.
a. Except as provided in subsection (5)(b) of this section, an accessory dwelling unit shall provide a new or separate utility connection, including a separate sewer lateral, between the accessory dwelling unit and the utility, unless the applicant has obtained a sewer lateral inspection performed by a licensed plumber which demonstrating that the sewer lateral meets the City’s standards and specifications. Proof that the sewer lateral meets the City’s requirements shall be submitted on a sewer lateral inspection form provided by the City and completed by the professional who completed the inspection. A connection fee or capacity charge may be charged that is proportionate to the size in square feet of the accessory dwelling unit or its drainage fixture unit (DFU) values. Separate electric and water submeters shall be required for the accessory dwelling unit, except that separate water meters shall be required for accessory dwelling units if and when California American Water is allowed to connect new water meters. (Ord. 3650 § 6, 2022)
b. Junior accessory dwelling units and accessory dwelling units converted from the existing space of a single-family dwelling or accessory structure are exempt from any requirement to install a new or separate utility connection and to pay any associated connection or capacity fees or charges, unless the accessory dwelling unit is constructed within a new single-family dwelling.
c. All utility extensions shall be placed underground.
d. No impact fees may be imposed on an accessory dwelling unit that is less than 750 square feet in size. For purposes of this section, "impact fees" include the fees specified in Sections 66000 and 66477 of the Government Code, but do not include utility connection fees or capacity charges. For accessory dwelling units that have a floor area of 750 square feet or Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 14, Packet Page 52 10 more, impact fees shall be charged proportionately in relation to the square footage of the single-family dwelling or multifamily dwelling.

6. Process and Timing.
a. Permit Review. The City requires a building permit and, as applicable, any additional services permits, to create and serve an accessory dwelling unit or junior accessory dwelling unit.
i. The City must approve or deny an application for a permit to create or serve an accessory dwelling unit or junior accessory dwelling unit within 60 days from the date that the City receives the completed application without discretionary review or a hearing, unless either:
(1) The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay; or
(2) When an accessory dwelling unit or a junior accessory dwelling unit is submitted along with a permit application to create a new single-family dwelling or multifamily dwelling on the parcel, the City may delay approving or denying the permit application until the City approves or denies the permit application to create the single-family dwelling or multifamily dwelling; or
(3) The applicant requests discretionary architectural review for a second story accessory dwelling unit above a detached garage or carport that exceeds the height limit pursuant to subsection (2)(d)(ii) of this section and/or for alternative roof pitch/form, as provided in subsection (2)(d)(iii) or (3)(b) of this section. (Ord. 3650 § 7, 2022)
ii. If the City denies the permit application, the City will provide to the applicant within the 60 day review period a complete list of the application's deficiencies and describe how the applicant can remedy the application.
iii. If the applicant applies for a demolition permit to demolish a detached garage or carport and a building permit to construct a detached accessory dwelling unit, the demolition permit and building permit for the detached accessory dwelling unit will be issued at the same time. b. Mills Act. An accessory dwelling unit or junior accessory dwelling unit proposed on a property subject to a Mills Act contract pursuant to Government Code section 50280 et seq. must comply with the provisions of the contract, including conformance to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation, the United States Secretary of the Interior’s Standard for Rehabilitation, and the California Historical Building Code. (Ord. 3641 § 20, 2021) SECTION 4. All ordinances and parts of ordinances in conflict herewith are hereby repealed.

SECTION 5. Severability. If any section, sub-section, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. The City Council hereby declares that it would have adopted the Ordinance and each section, sub-section, sentence, clause, phrase or portion thereof, irrespective of the fact that Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 15, Packet Page 53 11 any one or more sections, sub-sections, sentences, clauses, phrases or portions to be declared invalid or unconstitutional.

SECTION 6. This ordinance shall be in full force and effect thirty (30) days from and after its final passage and adoption.

SECTION 7. Publication. Pursuant to Charter section 4.4, this ordinance shall be published in the Monterey County Herald, a newspaper printed and published in the County of Monterey, at least three days before its adoption.

SECTION 8. The City Clerk shall send a copy of this Ordinance to the Department of Housing and Community Development within 60 days after adoption, as required by State law.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this __ day of __________, 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor
City Clerk
5349212.1
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 16, Packet Page 54 RESOLUTION NO. __- ___ C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
№08/22

ADOPTING FINDINGS AND OVERRULING THE MONTEREY COUNTY AIRPORT LAND USE COMMISSION’S (ALUC’S) CONSISTENCY DETERMINATION FOR THE DRAFT ORDINANCE AMENDING MONTEREY CITY CODE SECTION 38-112.6 “ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY DWELLING UNITS” AND AMENDING SECTION 38-11 “DEFINITIONS”
WHEREAS, on September 6, 2022, pursuant to the provisions of Section 21670 et seq. of the California Public Utilities Code ("Section 21670"), City staff referred Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” (ALUC File No. REF220059) for a determination of consistency with the 2019 Monterey Regional Airport Land Use Compatibility Plan (ALUCP);
WHEREAS, on November 1, 2022, City staff submitted to ALUC staff draft amendments of Sections 38-112.6 and 38-11 that incorporated the new ADU/JADU requirements signed into law on September 28, 2022;
WHEREAS, on November 14, 2022, the ALUC, acting pursuant to its authority under Section 21670, determined that the proposed amendments are consistent with the 2019 Airport Land Use Compatibility Plan for Monterey Regional Airport, provided that the City modifies Section 38-112.6.1.g of the proposed ordinance to include the following language:
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.”; WHEREAS, the City may overrule a determination of the ALUC if it makes findings that the proposed ordinance is consistent with the purposes of Section 21670 regarding the protection of public health, safety and welfare in areas surrounding airports and provides the ALUC and the California Department of Transportation Division of Aeronautics (“Division”) with Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 17, Packet Page 55 2 a copy of the proposed decision and findings at least 45 days prior to the City's action to overrule the ALUC, pursuant to Public Utilities Code section 21676(a); WHEREAS, Section 21676(a) provides that the ALUC and the Division shall respond to the referral of the findings of override within 30 days of receiving the proposed decision and findings. However, in the event that the ALUC or Division's comments are not available within this time limit, the City may act without them;
WHEREAS, the City has reviewed and considered the ALUC’s comments dated March 27, 2023 in response to the City referral;
WHEREAS, the comments by the ALUC or Division are advisory to the City under State law;
WHEREAS, the City Council has included comments from the ALUC and the Division, attached herein as Exhibit A, in the final record of any final decision to overrule the ALUC, which may only be adopted by a two-thirds vote of the Council; WHEREAS, the City has also considered all the comments and public testimony it has received, including, without limitation a letter from the California Department of Transportation dated March 29, 2023; and
WHEREAS, the City of Monterey has determined that the adoption of an ordinance approving Zoning Ordinance amendments related to accessory dwelling units implements the provisions of Government Code sections 65852.1 and 65852.2 and is therefore statutorily exempt from CEQA pursuant to Public Resources Code Section 21080.17.

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 adopts the following findings overruling the ALUC’s consistency determination for the draft ordinance, as follows:

1. Restricting ADU size to 850 square feet or less in Airport Safety Zones 2, 3, 4, and 5 would not protect public health, safety, and welfare more than if the ADU size was restricted to 1,000 square feet or less, as proposed by the draft ordinance. Based on the City’s experience processing building permit applications, building permits for ADUs in the City of Monterey would not generally include more bedrooms if they were allowed to be 1,000 square feet than if they were limited to 850 square feet. Further, the City does not experience housing overcrowding issues, and based on its experience enforcing its building and building maintenance codes set forth in Monterey Municipal Code 9-0-1, the City finds that there would be no or minimal difference in occupancy as a result of allowing 1,000 square foot ADUs rather than 850 square foot ADUs. .

3. Adding that “Any ADU or JADU is required to be constructed to meet allowable interior noise levels as established by the California Building Standards Code” is redundant and Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 18, Packet Page 56 3 would not protect public health, safety, and welfare further because the City has adopted and only issues building permits that comply with the California Building Standards Code.

5. The City will require an avigation easement be granted to the Monterey Regional Airport District as a condition of approval of new residential development (ADU or JADU) on four parcels in the 65-, 70-, and 75 Community Noise Equivalent Level boundaries, APNs: 013-231-027-000, 013-231-017-000, 013-231-018-000 and 013-231-028-000.

NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that: if any section, subsection, sentence, clause, phrase, or word of this resolution is for any reason held by a court of competent jurisdiction to be unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of the resolution. The City of Monterey hereby declares that it would have passed this resolution and each section, subsection, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more section(s), subsection(s), sentence(s), clause(s), phrase(s), or word(s) be declared invalid.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 2nd day of May, 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
5349061.1
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 19, Packet Page 57

MONTEREY COUNTY

AIRPORT LAND USE COMMISSION
Monterey County ALUC Staff Phone: (831) 755-5025
C/O HCD – Planning Department FAX: (831) 757-9516
1441 Schilling Place, 2nd Floor Fionna Jensen
Salinas, CA 93901 Direct: (831) 796-6407
March 27, 2023 SENT VIA E-MAIL
[email protected]
ATTN:

Fernanda Roveri, Principal Planner
City of Monterey Community Development Department
580 Pacific Street
Monterey, Ca 93940
Subject: Notice of Intent to Overrule the Monterey County Airport Land Use Commission Resolution No. 22-005 – Draft “Accessory Dwelling Units and Junior Accessory Dwelling Units” Ordinance
Dear City Council of the City of Monterey,
The purpose of the State Aeronautics Act is to protect the public health, safety and welfare “by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas surrounding public airports to the extent that these areas are not already devoted to incompatible uses.” (Pub. Util.

Code §21670(a)(2).) The Monterey Regional Airport Land Use Compatibility Plan (ALUCP) implements these purposes. Specifically, the ALUCP seeks to protect the public from the adverse effects of airport noise, to ensure that people and facilities are not concentrated in areas susceptible to high risk of aircraft accidents, and to ensure that no structures or activities encroach upon or adversely affect the use of navigable airspace.

On February 25, 2019, the Monterey County Airport Land Use Commission (ALUC) adopted a new Airport Land Use Compatibility Plan (ALUCP) for the Monterey Regional Airport. On March 8, 2019, ALUC staff informed your office (letter attached) of the adoption of the ALUP for the Monterey Regional Airport. Pursuant to state law (Government Code Section 65302.3), local jurisdictions and districts had 180 calendar days to amend their general plans, specific plans, community plans, and zoning ordinances, as necessary, to be consistent with the ALUCP or take the steps necessary to overrule the ALUC. Until ALUC staff receives the requested documentation, and pursuant to Public Utilities Code Section 21676.5, local agencies shall submit all proposed land use regulations and permit applications within the Airport Influence Area to the ALUC for determination of consistency with the ALUCP. In 2021, the City of Monterey amended its Accessory Dwelling Units and Junior Accessory Dwelling Units DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 20, Packet Page 58 Ordinance (Section 38-112.6) (Ordinance No. 3641). Contrary to Public Utilities Code Section 21676.5, the City of Monterey failed to refer that ordinance to the ALUC for review for consistency with the ALUCP.

In 2022, the City of Monterey referred its existing ordinance (Section 38-112.6) to the ALUC, and subsequently, in response to another change in state law governing ADUs, the City proposed an amendment to Section 38-112.6 of the City’s Zoning Ordinance and referred that amendment to ALUC staff for review (REF220059). On November 14, 2022, the Monterey County Airport Land Use Commission (ALUC) considered the City of Monterey’s existing ADU ordinance and proposed amendment to the City’s Section 38-112.6, Accessory Dwelling Units and Junior Accessory Dwelling Units. The ALUC adopted Resolution No. 22-005, finding the City’s existing ordinance and proposed amendment consistent with the ALUCP provided the following changes were made (“ALUC recommened revisions” or “recommended language”). (See attached Resolution No. 22-005.) The language was drafted in coordination with City of Monterey staff.
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.”
The City’s March 13, 2023 letter informed ALUC staff and the state Department of Transportation Division of Aeronautics of the City’s intent to overrule ALUC Resolution No. 22-005. The letter states that the above language “would not protect public health, safety, and welfare” and is “repetitive” and “redundant”. The ALUC disagrees with these statements, as more fully explained below.

The current language of Section 38-112.6.1.g of the City’s Zoning Ordinance states “An accessory dwelling unit or junior accessory dwelling shall not be permitted within the airport safety zone pursuant to the Airport Land Use Plan of the City.” This language is not clear, as it fails to distinguish between the different airport safety zones delineated by the ALUCP. ADUs DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 21, Packet Page 59 and JADUs are allowed within the Airport Influence Area of the Monterey Regional Airport in some but not all of the safety zones, as delineated by the ALUCP. Secondary units, such as ADUs and JADUs are allowed in specific airport safety zones (Zones 2, 3, 4, 5, and 7). The ALUC’s recommended revisions are geared towards clarifying ADU and JADU allowances in safety zones that apply specific site development standards, such as density. Zones 2, 3, and 5 restrict residential development to low residential and infill in developed areas with a density requirement of 1 dwelling unit per 2 acres; Zone 4 restricts residential development to 1 dwelling unit per 2 acres. Zones 1 and 6 prohibit residential development. Zone 7 allows all residential development with no density restriction. Therefore, criteria (i) and (ii) of the ALUC’s recommended language clarify that specific ADU and JADU sizes are allowed in Zones 2, 3, 4, and 5. The ALUC disagrees that this language is repetitive and finds that it adds necessary clarification. Further, the ALUC encourages that this language remain in an effort to provide the needed specifics and clarity to the public would who may be doing due diligence before submitting an ADU or JADU application and to City of Monterey staff who will be processing ADU and JADU applications.

Regarding the size limitation, Government Code section 65852.2(c)(2) “prohibits a local agency from establishing a maximum size of an ADU of less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom…” Accordingly, the existing and draft ordinance (Section 38-112.6.1.g) limits one-bedroom ADUs to 850 square feet, two-bedroom ADUs to 1,000 square feet, and all JADUs to 500 square feet. The California Health & Safety Code, Federal Uniform Housing Code, and International Property Maintenance Code contain provisions that restrict the number of persons residing within a unit by utilizing formulas based on the square footage of bedroom sizes. California Health & Safety Code Section R304.1 (Minimum dimensions) requires that a bedroom be no less than 70 square feet. Similarly, International Property Maintenance Code Section 404.4.1 also requires that a bedroom be no less than 70 square feet, but specifies that “every bedroom occupied by more than one person shall contain not less than 50 square feet (4.6 m2 ) of floor area for each occupant thereof.” Therefore, a 120 square foot bedroom, which is a typical bedroom size, can be occupied by two individuals, while a 270 square foot bedroom can be occupied by five individuals. As such, a one-bedroom ADU could be constructed to have the same occupancy as a two-bedroom ADU. However, a two bedroom ADU could also be designed to have a much higher occupancy than a one-bedroom design. Without project specifics, the City’s statement that “An ADU of 850 square feet could be designed and permitted to be occupied by just as many people as an ADU of 1,000 square feet” is hypothetical and not accurate. Occupancy loads are not typically factored into the review of residential construction, unless there is a limiting factor, such as septic capacity. To ALUC staff’s knowledge, all residential lots in the City of Monterey are on public sewer and therefore occupancy limits would not be established when reviewing residential development. Once constructed, if occupancy were to exceed the allowable occupancy standards, then the property would be in violation of local code.

Occupancy loads are factored into the ALUC’s review of both commercial and residential developments to ensure that projects are minimizing the number of individuals that may be at DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 22, Packet Page 60 risk of potential aircraft accidents. ALUCP Safety Zones 2, 3, 4, and 5 for the Monterey Regional Airport have the following respective accident risk levels: high, moderate to high, moderate, and low to moderate. Therefore, to minimize the risk associated with potential aircraft accidents, the ALUC’s recommended revisions limit ADUs to one bedroom and 850 square feet and JADUs to 500 square feet, thus limiting total occupancy. In comparison to an 850 square foot ADU, a 1,000 square foot ADU would be allowed 150 square feet of additional space. This area could be utilized as an additional bedroom for two individuals or additional living room/kitchen space. Therefore, a 1,000 square foot ADU has the potential to allow a higher occupancy load than an 850 square foot ADU. The ALUC’s requirement of an 850 square foot one-bedroom ADU is intended to minimize the ability to increase the number of occupants which may be subject to airport-related accidents. Further, by allowing an 850 square foot onebedroom ADU, the ALUC’s recommended revisions do not conflict which Government Code section 65852.2(c)(2).

The City’s existing ordinance and proposed amendment (REF220059) was reviewed by the Monterey Regional Airport District staff. Per correspondence dated September 30, 2022, District staff stated its determination that the project is consistent with the ALUCP, provided: 1) insulation shall be installed in all habitable rooms of future ADU and JADU developments to ensure interior noise levels do not exceed CNEL 45 dB, and 2) avigation easements shall be recorded prior to the construction of all future ADU or JADU developments if one has not already been recorded for the applicable property. Although the District’s first recommendation is repetitive of the California Health & Safety Code, which has been incorporated into the City of Monterey’s Building Code, the ALUC encourages criteria (iii) of the ALUC’s recommended language to remain so that the public is clearly informed of this requirement.

Pursuant to Table 4A of the ALUCP and Exhibit 2E, Noise Compatibility Criteria and Long Range Noise Exposure Contours, residential development is an incompatible use within the 65-, 70-, or 75- Community Noise Equivalent Levels (CNELs). During review of the City’s referral (REF220059), ALUC staff discovered four residential properties (APNs: 013-231-027-000, 013- 231-017-000, 013-231-018-000, and 013-231-028-000) within the City of Monterey boundaries that are located within a 65-, 70-, or 75- CNELs. Therefore, from a noise compatibility standpoint, ADUs and JADUs are not compatible uses on the four above-referenced parcels. If ADUs or JADUs were proposed within these four residential properties, the ALUC would find the applications inconsistent with the ALUCP because the development may result in occupants being exposed to excessive noise generated from the airport. Hence, the ALUC’s recommended revisions prohibit ADUs on those parcels. If the City were to overrule the ALUC’s recommended revisions, then for consistency with ALUCP Policy 4.2.1.6, the City’s ordinance must require that an avigation easement be granted to the Monterey Regional Airport District as condition of approval of any new residential development (e.g. ADUs or JADUs) on these four parcels.

For all these reasons, the ALUC strongly urges the City Council to adopt the ALUC’s proposed revisions to the City’s existing and proposed ordinance and not to overrule the ALUC. If you DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 23, Packet Page 61 have any questions, please contact ALUC staff, Fionna Jensen, at (831) 796-6407 or [email protected]. Please provide ALUC staff with public notice regarding this item.

Respectfully,
Mary Ann Carbone
ALUC Chair
Attachments:

A- City of Monterey Notice of Intent to overrule, dated March 13, 2023 B- ALUC Resolution No. 22-005
cc: ALUC file No. REF220059
DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 24, Packet Page 62 March 13, 2023
ATTN: Fionna Jensen ATTN: Division of Aeronautics
Airport Land Use Commission Staff California Department of Transportation Monterey County HCD Planning Department P.O. Box 942873 1441 Schilling Place, South, 2nd Floor Sacramento, CA 94273-0001 Salinas, CA 93901 [email protected]
[email protected]

SENT VIA ELECTRONIC MAIL AND CERTIFIED MAIL TO THE ABOVE ADDRESSES Subject: Draft “Accessory Dwelling Units and Junior Accessory Dwelling Units” Ordinance Proposed Amendments to City of Monterey Zoning Code Section 38-112.6 and Section 38-11 “Definitions” – Notice of Intent to Overrule the Monterey County Airport Land Use Commission
Dear Ms. Jensen and Division of Aeronautics:

On March 7, 2023, the City Council of the City of Monterey adopted Resolution No. 23-027 (attached) to notify the Monterey County Airport Land Use Commission (ALUC) and Caltrans Division of Aeronautics of the City’s intent to overrule the Monterey County ALUC’s determination (ALUC Resolution No. 22-005, adopted November 14, 2022) that the City’s draft “Accessory Dwelling Units and Junior Accessory Dwelling Units” Ordinance proposed amendments to City of Monterey Zoning Code Section 38-112.6 and Section 38-11 “Definitions” is consistent with the 2019 Airport Land Use Compatibility Plan for Monterey Regional Airport, provided that the City modifies Section 38-112.6.1.g of the proposed ordinance to include the following language:
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.”
DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37 Attachment A

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 25, Packet Page 63 Resolution No. 23-027 includes specific findings, which will be considered during the public hearing to consider overruling the ALUC’s determination (tentatively scheduled for May 2, 2023), that the project is consistent with the purposes of the State Aeronautics Act.

Pursuant to Section 21676(b) of Public Utilities Code, the Monterey County ALUC and Caltrans Division of Aeronautics may provide comments to the City within 30 days of receiving the proposed decision and findings. Comments should be sent to:

Fernanda Roveri, AICP, Principal Planner
City of Monterey Community Development Department
580 Pacific Street
Monterey, CA 93940
[email protected]

If you have any questions regarding this matter, or require any additional information, please feel free to contact me at (831) 242-8788 or [email protected].

Sincerely,
Fernanda Roveri, AICP
Principal Planner
Attachment: Resolution No. 23-027
e: Clementine Bonner Klein, City Clerk, City of Monterey DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 26, Packet Page 64 RESOLUTION NO. 23-027 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY

ADOPTING PROPOSED DRAFT FINDINGS AND DECLARING AN INTENT TO CONSIDER

OVERRULING THE

CONSISTENCY DETERMINATION FOR THE DRAFT ACCESSORY DWELLING UNITS

AND JUNIOR ACCESSORY DWELLING UNITS ORDINANCE PROPOSED AMENDMENTS TO CITY OF MONTEREY ZONING CODE SECTION 38-112.6 AND AMENDING SECTION 38-

AND DIRECTING THAT NOTICE OF THE PROPOSED DECISION AND

FINDINGS BE PROVIDED TO THE AIRPORT LAND USE COMMISSION AND THE

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 27, Packet Page 65 2 protection of public health, safety and welfare in areas surrounding airports and provides the a copy of the proposed decision and findings at least 45 days prior to the City's action to overrule the ALUC, pursuant to Public Utilities Code section 21676(a); WHEREAS, the Section 21676(a) provides that the ALUC and the Division shall respond to the referral of the findings of override within 30 days of receiving the proposed decision and findings. However, in the event that the ALUC or Division's comments are not available within this time limit, the City may act without them;
WHEREAS, the comments by the ALUC or Division are advisory to the City under State law;
WHEREAS, the City Council shall include comments from the ALUC and the Division in the final record of any final decision to overrule the ALUC, which may only be adopted by a twothirds vote of the Council; and WHEREAS, the City of Monterey has determined that the adoption of an ordinance approving Zoning Ordinance amendments related to accessory dwelling units implements the provisions of Government Code sections 65852.1 and 65852.2 and is therefore statutorily exempt from CEQA pursuant to Public Resources Code Section 21080.17.

NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby adopts the following proposed draft findings overruling the

2. The draft ordinance limits JADU size to 500 square feet shall not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5 repetitive and would not protect public health, safety, and welfare further.

3. noise levels as established by
would not protect public health, safety, and welfare further because the City has adopted and only issues building permits that comply with the California Building Standards Code.

DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 28, Packet Page 66 3 NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that: based on the above findings, it does hereby express its intention to adopt findings and overrule the ALUC determination on the proposed ordinance, and provides and directs City staff to provide the ALUC and the Division decision to overrule the ALUC.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 7th day of March, 2023, by the following vote:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof

DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 29, Packet Page 67 Before the Monterey County Airport Land Use Commission, State of California
Resolution No. 22-005
Finding the existing ordinance and proposed
amendment to Section 38-112.6 of the City
Monterey’s Zoning Ordinance pertaining to
ADUs and JADUs, with proposed
modifications, consistent with the 2019
Airport Land Use Compatibility Plan
(ALUCP) for Monterey Regional Airport.

REF220059, City of Monterey
WHEREAS, on September 6, 2022, the City of Monterey submitted an application (ALUC File No. REF220059) to ALUC staff requesting a consistency determination of Section 38-112.6 of the City of Monterey’s Zoning Ordinance, pertaining to Accessory Dwelling Units (ADU) and Junior Accessory Dwelling Units (JADU). Section 38-112.6 applies City-wide; and
WHEREAS, the ALUC is responsible for the review of local land use regulations affecting land uses within the Airport Influence Area for Monterey Regional Airport, as identified in the Monterey Regional Airport Land Use Compatibility Plan (ALUCP), incorporated herein by reference, for consistency with the ALUCP; and WHEREAS, in October 2019, the Governor of California signed into law Assembly Bill (AB) 68, AB 881, and Senate Bill (SB) 13 to address the state of California’s housing supply crisis. AB 68 and 881, and SB 13 aim to reduce barriers, establish better streamline approval processes and expand the capacity to accommodate the development of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs). Additionally, AB 68 amended standards for JADUs and SB 13 made additions to the State Health and Safety Code (added Section 17980.12). The new laws took effect on January 1, 2020; and
WHEREAS, in accordance with Government Code Sections 65852.2 and 65852.22, on November 2, 2021 the City of Monterey amended Chapter 38 of its Zoning Ordinance, through adoption of Ordinance No. 3641, to reflect the new ADU and JADU state law. Ordinance No. 3641 was not referred to the ALUC for review prior to adoption; and
WHEREAS, in September 2022, the Governor of California signed into law AB 2221 and SB 897 to further restrict local regulation of ADUs and JADUs. AB 2221 prohibits a local agency from establishing limits on front setbacks, further streamlines the approval process, and clarifies the definition of ADUs and JADUs. Amongst other changes pertaining to parking standards and application processing, SB 897 increases the maximum height limitation that may be imposed by a local agency to 18 feet (currently 16 feet) if the ADU is within ½ mile walking distance of a major transit stop or a highquality transit corridor. Additionally, SB 897 would allow an ADU to be constructed to a Attachment B
DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 30, Packet Page 68 height of 25 feet if the ADU is attached to a primary residence. These new laws go into effect on January 1, 2023; and
WHEREAS, the City of Monterey proposes amendments to Section 38-112.6 of the City’s Zoning Ordinance to reflect AB 2221 and SB 897, and on or about October 31, 2022, the City submitted its proposed amendment to ALUC staff for review; and WHEREAS, Section 38-112.6.1.g of the City’s existing and draft Zoning Ordinance states “An accessory dwelling unit or junior accessory dwelling shall not be permitted within the airport safety zone pursuant to the Airport Land Use Plan of the City,” and;
WHEREAS, Section 38-112.6.1.g of the City’s Zoning Ordinance is not clear and needs further specificity and clarification in order for the City’s ordinance to be consistent with the ALUCP, for the reasons described below; and WHEREAS, to protect public safety, the ALUCP provides the following limitations on residential development in the Airport Influence Area per Table 4B (Safety Criteria Matrix) of the ALUCP:
• Safety Zones 1 and 6: residential development, inclusive of ADUs and JADUs, is prohibited;
• Safety Zones 2, 3, and 5: residential development is restricted to low residential and infill in developed areas with a density requirement of 1 dwelling unit per 2 acres;
• Safety Zone 4: residential development is an allowed use but is restricted to 1 dwelling unit per 2 acres;
• Safety Zone 7: residential development is an allowed use with no density restriction; and
WHEREAS, footnote 1 of Table 4B states “residential development must not contain more than the indicated number of dwelling units (excluding secondary units) per gross acre (d.u./ac)”; and
WHEREAS, the ALUCP uses the terms “secondary units” (Table 4B, fn. 1, pg. 4-29) , “secondary dwellings” (pg. 4-16), and “Accessory dwelling units” (Table 4A, fn 3, pg. 4-21) without defining the terms; and
WHEREAS, the ALUC finds that a reasonable interpretation in light of the context in which the terms are used is that these terms are interchangeable and refer to a detached or attached secondary residential dwelling unit, which is subordinate and independent from a main dwelling unit located on the same property; and WHEREAS, accordingly, these terms can be understood to include “accessory dwelling units (ADU)” and “junior accessory dwelling units (JADU)”, which tend to be limited by size and other requirements under state law and local ordinance, but would not include non-habitable structures or second single family dwellings; and DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 31, Packet Page 69 WHEREAS, the ALUC interprets the term “secondary units” in footnote 1 of Table 4B to include accessory dwelling units and junior accessory dwelling units, meaning that ADUs and JADUs are excluded from the density restrictions of Safety Zones 2-5, are allowable in Safety Zone 7 which has no residential development restriction, and are prohibited in Safety Zones 1 and 6, and accordingly the City’s ordinance needs clarification; and
WHEREAS, pursuant to Table 4A of the ALUCP and Exhibit 2E, Noise Compatibility Criteria and Long Range Noise Exposure Contours, residential development is an incompatible use within the 65-, 70-, or 75- Community Noise Equivalent Levels (CNELs); and
WHEREAS, four residential properties (APNs: 013-231-027-000, 013-231-017- 000, 013-231-018-000 and 013-231-028-000) within the City of Monterey boundaries are located within a 65-, 70-, or 75- CNELs, and therefore, from a noise compatibility standpoint, ADUs and JADUs are considered compatible uses within the residential properties of the City of Monterey except for the four above-referenced properties; and WHEREAS, per the proposed amendment to Section 38-112.6.2.d of the City’s Zoning Ordinance, ADUs are limited to 16 feet in height if detached from the main residence, 18 feet in height if detached from the main residence and within a ½ mile of major transit stop or a high-quality transit corridor or on a lot with an existing multifamily dwelling, and 25 feet in height if attached to a main residence. JADUs must be within the footprint of an existing or proposed single-family dwelling. Pursuant to Table 4B of the ALUCP, development of objects over 35 feet in height requires airspace review in Safety Zones 2 through 5. Within Safety Zones 2 through 5, the maximum allowed height for a single-family dwelling in the City of Monterey is 25 or 35 feet, depending on the underlying land use zoning district. Therefore, future ADU and JADU development will not encroach Part 77 Surfaces and will not require ALUC review with respect to airspace protection criteria (ALUCP Policy 4.2.3.2); and WHEREAS, Section 38-112.6.1.g of the City’s existing and drafted Zoning Ordinance requires clarification in order to be consistent with the ALUCP safety and noise standards, and therefore, the following language is proposed to achieve consistency with the ALUCP:
“Section 38-112.6.1.g. Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 32, Packet Page 70 (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.” WHEREAS, the above language should be incorporated into the City’s draft ordinance in order for the ordinance to be consistent with the ALUCP. If the City were not to proceed with its draft ordinance, then this change should be made to the existing City ordinance in order for the existing City ordinance to be consistent with the ALUCP; and
WHEREAS, Safety Zones 2, 3, 4, and 5 have the following respective accident risk levels: high, moderate to high, moderate, and low to moderate. The existing and draft ordinance limit one-bedroom ADUs to 850 square feet, two-bedroom ADUs to 1,200 square feet, and all JADUs to 500 square feet. Therefore, to minimize the risk associated with potential aircraft accidents, the proposed modified Zoning Ordinance language limits ADUs to one bedroom and 850 square feet and JADUs to 500 square feet, thus limiting total occupancy; and
WHEREAS, per correspondence dated September 30, 2022, the Monterey Regional Airport District staff stated its determination that the project is consistent with the ALUCP, provided 1) insulation shall be installed in all habitable rooms of future ADU and JADU developments to ensure interior noise levels do not exceed of CNEL 45 dB, and 2) avigation easements shall be recorded prior to the construction of all future ADU or JADU developments, if one has not already been recorded for the applicable property; and
WHEREAS, the proposed modified Zoning Ordinance language requires all ADUs and JADUs be constructed to meet the Allowable Interior Noise Levels as established by the California Building Standards Code, which addresses the Airport District’s first recommendation; and
WHEREAS, the proposed revision of Section 38-112.6.1.g of the City’s Zoning Ordinance to prohibit ADUs and JADUs in noise contour zones where airport noise may equal or exceed 65 CNEL addresses the Airport District’s second recommendation because Section 4.2.1.6 of the ALUCP requires an avigation easement only for an action that would either permit or result in the development or construction of a land use considered to be conditionally compatible with aircraft noise of CNEL 65 dB or greater; and
WHEREAS, on September 12, 2022, the City of Monterey agreed an extension of the mandated 60-day ALUC review period for its existing ordinance (Policy 4.1.11.2), and the ALUC hearing for the proposed ordinance amendment is within the 60 day review period; and
DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 33, Packet Page 71 WHEREAS, on November 14, 2022, the ALUC conducted a duly noticed public meeting to consider Section 38-112.6 of the City of Monterey’s Zoning Ordinance, both in its existing form and as proposed to be amended by the City.

NOW, THEREFORE, BE IT RESOLVED, the Monterey County Airport Land Use Commission does hereby find the City’s existing ordinance and its proposed amendment (update) to Section 38-112.6 of the City of Monterey’s Zoning Ordinance consistent with the 2019 Airport Land Use Compatibility Plan for Monterey Regional Airport, provided that the City modifies Section 38-112.6.1.g of the proposed ordinance (or existing ordinance) to include the following language:
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.” //
PASSED AND ADOPTED on this 14th day of November 2022, upon motion of Commissioner Delgado and seconded by Commissioner Cleveland by the following vote, to-wit:

AYES: Commissioners Carbone, Cleveland, Scherer, and Delgado NOES: Commissioner Sabo
ABSENT:

ABSTAIN:

ATTEST
Erik Lundquist, AICP, Secretary to the ALUC
By: _________________________________________
Fionna Jensen, Designee of Secretary to the ALUC
November 14, 2022
DocuSign Envelope ID: C9B0A46E-3FEC-45F1-BC1B-4950BA2B7A37

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 34, Packet Page 72 “Provide a safe and reliable transportation network that serves all people and respects the environment” Electronically Sent
[email protected]

DIVISION OF AERONAUTICS
P.O. BOX 942874, MS–40 | SACRAMENTO, CA 94274
(916) 654-4959 | FAX (916) 653-9531 TTY 711
www.dot.ca.gov
March 29, 2023
Fernanda Roveri
City of Monterey
580 Pacific Street
Monterey, CA 93940
Dear Ms. Roveri,
Thank you for notifying the California Department of Transportation, Division of Aeronautics (Division), of the proposed overrule by the City of Monterey (City). The Division has reviewed the proposed findings provided by the City and the response letter from the Monterey County Airport Land Use Commission (ALUC) dated March 27, 2023. The Division supports the ALUC’s concerns and notes that safety regulations often include repetition to ensure clarity.

The Division recognizes that the City is facing affordable housing supply shortages and is looking for new areas to accommodate residential developments. However, environmental justice and equity concerns should also be reviewed for consistency with goals identified in the California Transportation Plan of 2050 and the California Aviation System Plan of 2020. The Division notes that new laws regarding the provision of housing do not supersede existing laws, including Section 21670 of the California Public Utilities Code, which requires counties to establish ALUCs and compatibility plans to protect public health, safety, and welfare.

Section 21675.1(f) provides: If a city or county overrules the commission pursuant to subdivision(d) with respect to a publicly owned airport that the city or county does not operate, the operator of the airport is not liable for damages to property or personal injury resulting from the city’s or county’s decision to proceed with the action, regulation, or permit.

Please note: The Division comments are to be included in the public record of any decision to overrule the ALUC. If you have questions or if we may be of further assistance, please contact me by email at [email protected] or call (916) 879-6528.

Sincerely,
Originally signed by
Jonathan Huff
Associate Transportation Planner
Division of Aeronautics

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 35, Packet Page 73 Ms. Fernanda Roveri
April 1, 2023

Page 2 ends

“Provide a safe and reliable transportation network that serves all people and respects the environment” c: Fionna Jensen, Airport Land Use Commission Staff, Monterey County, [email protected]
Matt Friedman, Chief, Office of Aviation Planning, Division of Aeronautics [email protected]
Christopher Bjornstad, District 5; [email protected] Attachments: 23_0313_City of Monterey Notice of Intent to Overrule ALUC.pdf

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 36, Packet Page 74 March 13, 2023
ATTN: Fionna Jensen ATTN: Division of Aeronautics
Airport Land Use Commission Staff California Department of Transportation Monterey County HCD Planning Department P.O. Box 942873 1441 Schilling Place, South, 2nd Floor Sacramento, CA 94273-0001 Salinas, CA 93901 [email protected]
[email protected]

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 37, Packet Page 75 Resolution No. 23-027 includes specific findings, which will be considered during the public hearing to consider overruling the ALUC’s determination (tentatively scheduled for May 2, 2023), that the project is consistent with the purposes of the State Aeronautics Act.

Fernanda Roveri, AICP, Principal Planner
City of Monterey Community Development Department
580 Pacific Street
Monterey, CA 93940
[email protected]

If you have any questions regarding this matter, or require any additional information, please feel free to contact me at (831) 242-8788 or [email protected].

Sincerely,
Fernanda Roveri, AICP
Principal Planner
Attachment: Resolution No. 23-027
e: Clementine Bonner Klein, City Clerk, City of Monterey

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 38, Packet Page 76 RESOLUTION NO. 23-027 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY

ADOPTING PROPOSED DRAFT FINDINGS AND DECLARING AN INTENT TO CONSIDER

OVERRULING THE

CONSISTENCY DETERMINATION FOR THE DRAFT ACCESSORY DWELLING UNITS

AND JUNIOR ACCESSORY DWELLING UNITS ORDINANCE PROPOSED AMENDMENTS TO CITY OF MONTEREY ZONING CODE SECTION 38-112.6 AND AMENDING SECTION 38-

AND DIRECTING THAT NOTICE OF THE PROPOSED DECISION AND

FINDINGS BE PROVIDED TO THE AIRPORT LAND USE COMMISSION AND THE

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 39, Packet Page 77 2 protection of public health, safety and welfare in areas surrounding airports and provides the a copy of the proposed decision and findings at least 45 days prior to the City's action to overrule the ALUC, pursuant to Public Utilities Code section 21676(a); WHEREAS, the Section 21676(a) provides that the ALUC and the Division shall respond to the referral of the findings of override within 30 days of receiving the proposed decision and findings. However, in the event that the ALUC or Division's comments are not available within this time limit, the City may act without them;
WHEREAS, the comments by the ALUC or Division are advisory to the City under State law;
WHEREAS, the City Council shall include comments from the ALUC and the Division in the final record of any final decision to overrule the ALUC, which may only be adopted by a twothirds vote of the Council; and WHEREAS, the City of Monterey has determined that the adoption of an ordinance approving Zoning Ordinance amendments related to accessory dwelling units implements the provisions of Government Code sections 65852.1 and 65852.2 and is therefore statutorily exempt from CEQA pursuant to Public Resources Code Section 21080.17.

NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby adopts the following proposed draft findings overruling the

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 40, Packet Page 78 3 NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that: based on the above findings, it does hereby express its intention to adopt findings and overrule the ALUC determination on the proposed ordinance, and provides and directs City staff to provide the ALUC and the Division decision to overrule the ALUC.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 7th day of March, 2023, by the following vote:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof

EXHIBIT A
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 41, Packet Page 79 RESOLUTION NO. 23-027 C.S.

A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY

ADOPTING PROPOSED DRAFT FINDINGS AND DECLARING AN INTENT TO CONSIDER OVERRULING THE MONTEREY COUNTY AIRPORT LAND USE COMMISSION’S CONSISTENCY DETERMINATION FOR THE DRAFT “ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY DWELLING UNITS” ORDINANCE PROPOSED AMENDMENTS TO CITY OF MONTEREY ZONING CODE SECTION 38-112.6 AND AMENDING SECTION 38- 11 “DEFINITIONS”AND DIRECTING THAT NOTICE OF THE PROPOSED DECISION AND

FINDINGS BE PROVIDED TO THE AIRPORT LAND USE COMMISSION AND THE

CALIFORNIA DEPARTMENT OF TRANSPORTATION DIVISION OF AERONAUTICS WHEREAS, on September 6, 2022, pursuant to the provisions of Section 21670 et seq. of the California Public Utilities Code ("Section 21670"), City staff referred Monterey City Code Section 38-112.6 “Accessory Dwelling Units and Junior Accessory Dwelling Units” (ALUC File No. REF220059) for a determination of consistency with the 2019 Monterey Regional Airport Land Use Compatibility Plan (ALUCP);
WHEREAS, on November 1, 2022, City staff submitted to ALUC staff draft amendments of Sections 38-112.6 and 38-11 that incorporated the new ADU/JADU requirements signed into law on September 28, 2022;
WHEREAS, on November 14, 2022, the ALUC, acting pursuant to its authority under Section 21670, determined that the proposed amendments are consistent with the 2019 Airport Land Use Compatibility Plan for Monterey Regional Airport, provided that the City modifies Section 38-112.6.1.g of the proposed ordinance to include the following language:
“Accessory Dwelling Units and Junior Accessory Dwelling Units are prohibited in Airport Safety Zones 1 and 6, which do not allow residential use. An Accessory Dwelling Unit or Junior Accessory Dwelling Unit is allowable where residential use is consistent with the Airport Land Use Compatibility Plan for the Monterey Regional Airport (ALUCP), as may be periodically amended, and the Accessory Dwelling Unit or Junior Accessory Dwelling Unit meets the following criteria, as applicable:
(i) The Accessory Dwelling Unit does not exceed 850 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and
(ii) The Junior Accessory Dwelling Unit does not exceed 500 square feet in Airport Safety Zones 2, 3, 4, and 5, as delineated by the ALUCP; and (iii) Any Accessory Dwelling Unit or Junior Accessory Dwelling Unit is required to be constructed to meet Allowable Interior Noise Levels as established by the California Building Standards Code; and
(iv) Neither the Accessory Dwelling Unit or Junior Accessory Dwelling Unit is located in noise contour zones where airport noise may equal or exceed 65 CNEL (Community Noise Equivalent Level) as delineated by the ALUCP.”; WHEREAS, the City may overrule a determination of the ALUC if it makes findings that the proposed ordinance is consistent with the purposes of Section 21670 regarding the DocuSign Envelope ID: 678D845D-3ABD-47FC-BA9F-20E68AE265AC ATTACHMENT 3
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 42, Packet Page 80 2 protection of public health, safety and welfare in areas surrounding airports and provides the ALUC and the California Department of Transportation Division of Aeronautics (“Division”) with a copy of the proposed decision and findings at least 45 days prior to the City's action to overrule the ALUC, pursuant to Public Utilities Code section 21676(a); WHEREAS, the Section 21676(a) provides that the ALUC and the Division shall respond to the referral of the findings of override within 30 days of receiving the proposed decision and findings. However, in the event that the ALUC or Division's comments are not available within this time limit, the City may act without them;
WHEREAS, the comments by the ALUC or Division are advisory to the City under State law;
WHEREAS, the City Council shall include comments from the ALUC and the Division in the final record of any final decision to overrule the ALUC, which may only be adopted by a twothirds vote of the Council; and WHEREAS, the City of Monterey has determined that the adoption of an ordinance approving Zoning Ordinance amendments related to accessory dwelling units implements the provisions of Government Code sections 65852.1 and 65852.2 and is therefore statutorily exempt from CEQA pursuant to Public Resources Code Section 21080.17.

NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that it hereby adopts the following proposed draft findings overruling the ALUC’s consistency determination for the draft ordinance, as follows:

DocuSign Envelope ID: 678D845D-3ABD-47FC-BA9F-20E68AE265AC ATTACHMENT 3
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 43, Packet Page 81 3 NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that: based on the above findings, it does hereby express its intention to adopt findings and overrule the ALUC determination on the proposed ordinance, and provides and directs City staff to provide the ALUC and the Division notice at least 45 days prior to City’s decision to overrule the ALUC.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this 7th day of March, 2023, by the following vote:

AYES: 5 COUNCILMEMBERS: Barber, Garcia, Haffa, Smith, Williamson NOES: 0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
ABSTAIN: 0 COUNCILMEMBERS: None
APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
DocuSign Envelope ID: 678D845D-3ABD-47FC-BA9F-20E68AE265AC ATTACHMENT 3
Council Regular Meeting, 5/2/2023, Item No. 6., Item Page 44, Packet Page 82 Council
Agenda Report
№08/22
FROM: Nat Rojanasathira, Assistant City Manager
Kimberly Cole, Community Development Director
SUBJECT: Approve Project Description for Cannabis Businesses so that the Community Development Department Can Start Environmental Review under the California Environmental Quality Act (Not a Project under CEQA per Article 20, Section 15378 and under General Rule Article 5, Section 15061)
RECOMMENDATION:

That the City Council approve the project description for cannabis businesses so that the Community Development Department can start environmental review under the California Environmental Quality Act (CEQA). The scope of the environmental review will depend on the type of activity the City of Monterey (“City”) will be authorizing under the ordinance. The proposed project, as described in the attached draft ordinance, would allow three storefront cannabis retail sales (adult use and/or medicinal), one non-storefront (medicinal delivery only), and an unlimited number of cannabis testing laboratories in the city.

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.

POLICY IMPLICATIONS
The City’s authority to regulate cannabis stems from the California Constitution’s grant of police powers and the City’s charter, and provisions of the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”). On December 21, 2021, the City Council directed staff to develop regulations allowing no more than three cannabis retail permits, one each in Downtown, Lighthouse, and Cannery Row. On November 8, 2022, Measure J, the City’s Cannabis Business License Tax, passed with more than 65% of the voters voting in the election approving the measure.

Effective January 1, 2024, the City cannot prohibit retail sale by delivery of medical cannabis. (SB 1186).

The purpose of CEQA is to inform government decision-makers and the public about the potential significant environmental impacts of proposed activities, identify ways that environmental impacts may be avoided or significantly reduced, prevent significant avoidable damage to the environment by requiring changes in the project using alternatives and mitigation, and to disclose to the public the reason that an agency approved a project notwithstanding its environmental impacts.

Date: 5/2/2023
Item No.: 7.

Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 1, Packet Page 83 FISCAL IMPLICATIONS:

The city estimates the Cannabis Business License Tax (City Code section 19-122 et seq.) may raise from about $604,000 to about $1.3 million per year if the City Council allows cannabis businesses in the city. To date, direct costs are approximately $30,000 in general consulting costs. The estimated cost for environmental review for the current scope of work in the draft ordinance could be up to $200,000 depending on the type of environmental document required to be prepared, and additional consulting costs to total $60,000.

ENVIRONMENTAL DETERMINATION:

The purpose of this agenda item is to establish the scope of work for the environmental document. Since no action is being taken on the agenda item other than general direction, 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.

Subsequent environmental review will occur based on the approved scope of work/project description.

ALTERNATIVES CONSIDERED:

The City could revise the project description to:

1. Change the number and/or authorized locations for storefront cannabis retail sales.

2. Change the number of authorized non-storefront cannabis retail (delivery only) sales.

3. Change or add the locations where cannabis testing laboratories may operate.

4. Add additional types of cannabis businesses, such as cultivation, manufacturing, microbusinesses, event organizer, or consumption lounges as authorized uses.

DISCUSSION:

The Cannabis Roadmap: Progress to Date
In September 2020, the City Council launched a Cannabis Policy Framework, which kicked off an extensive public engagement, legal, fiscal, and regulatory review of the potential use of cannabis retail, manufacturing, cultivation, events, and testing in the City of Monterey.

Following several months of public input, including community surveys and discussions during City Council meetings, the City Council provided initial input on elements of the Commercial Cannabis Roadmap in late 2021. In summer 2022, the City Council adopted a resolution placing Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 2, Packet Page 84 a Cannabis Tax Measure for the November 2022 ballot. This tax measure, Measure J, passed by Monterey voters with 65.19% support.

The prior City Council directed staff to consider as few as one and as many as three cannabis retailers total, in the downtown (except Alvarado Street), Lighthouse District, Cannery Row Business District (except Cannery Row itself), and to discuss both Cannery Row and cannabis events at the Monterey Fairgrounds at a future date. Retailers authorized would include adultuse (Type 10A) and medicinal (Type 10M). Testing laboratories (Type 8) would continue to be allowed in the city’s I-R – Industrial, Administration and Research districts.

A draft regulatory ordinance has been prepared based on prior City Council feedback. The next step is to confirm the project description so that Staff may conduct environmental review.

Next Steps in the Environmental Review Process
The MAUCRSA statutory CEQA exemption expired on June 30, 2021. Although AB 1719 (Bonta) would provide that CEQA does not apply to specified actions taken by a city that authorizes commercial cannabis activity if certain conditions related to the premises are met, September 14, 2023 is the last day for any bill to be passed in 2023, and October 14, 2023 is the last day of the Governor to sign or veto bills. Therefore, under current law, the City must conduct environmental review before adopting an ordinance authorizing cannabis businesses.

The California Supreme Court has held that an ordinance amending zoning regulations to allow up to four medicinal cannabis dispensaries in each council district at specific locations with a conditional use permit qualified as a project under CEQA. The court found the regulations could potentially result in indirect physical changes in the environment by permitting the establishment of a sizeable number of a new type of business that could foreseeably result in new retail construction to accommodate the businesses and by changing patterns of vehicle traffic. (Union of Med. Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 117; see also 4 CCR 15010.)
Draft Project Description
The composition of the City Council has changed since the last time direction was provided to Staff. The purpose of this action is for the City Council to review and approve the draft project description so that staff may begin environmental review.

The proposed project would:
(1) Allow three storefront cannabis retail stores (adult use and/or medicinal), one each in Downtown (except fronting Alvarado Street), Lighthouse Avenue Business District, and the Cannery Row Business District (except fronting Cannery Row itself). Storefront retailers are also authorized to deliver cannabis. A cannabis overlay zone is proposed for this purpose. The Community Development Department will issue a zone clearance on a first-come, first-served basis in the Lighthouse Avenue, Cannery Row, and Downtown business districts once the three cannabis retailers have been selected. The city will notify any remaining applicants when a zone is no longer available, until all three zones have one storefront retail cannabis business permittee.

Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 3, Packet Page 85 (2) Allow one non-storefront retail store (closed to the public/delivery only) of medicinal cannabis in any cannabis overlay zone location.
(3) Allow an unlimited number of cannabis testing laboratories in the city’s I-R – Industrial, Administration and Research districts.
(4) Authorize cannabis distributors to deliver cannabis to retailers and testing laboratories in the city without a city regulatory permit.
(5) Authorize out-of-city delivery businesses to deliver in the city with a Cannabis Business License Tax certificate.

No cannabis business may be located within a 600-foot (600’) radius measured from property line to property line of a school, day care center, or youth center that is in existence at the time of submission of a completed initial application for a commercial cannabis permit. This prohibition shall not apply to any subsequent renewal of a commercial cannabis permit at the same location.

In summary, staff recommends the City Council approve the project description for cannabis businesses so that the Community Development Department can start environmental review under the California Environmental Quality Act.

Attachment: 1. Draft Ordinance (Project Description)
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, 5/2/2023, Item No. 7., Item Page 4, Packet Page 86 ATTACHMENT 1

Page 1 of 28 ends

ORDINANCE NO.

AN ORDINANCE OF THE CITY OF MONTEREY

APPROVING AMENDMENTS TO THE CITY CODE AND ZONING ORDINANCE

TO AUTHORIZE AND REGULATE A LIMITED NUMBER AND TYPE OF CANNABIS

BUSINESSES
THE CITY COUNCIL OF THE CITY OF MONTEREY DOES ORDAIN AS FOLLOWS:

SECTION 1:

WHEREAS, this article is adopted pursuant to the authority granted to the city by Section 7 of Article XI of the California Constitution, California Government Code sections 50022.1-50022.8 and 50022.10, Title 4, Division 19 of the California Code of Regulations, and the provisions of the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”);
WHEREAS, all forms of cannabis businesses are prohibited in the city, except for cannabis testing laboratories, which were first authorized at a public hearing held on January 21, 2020, where the City Council interpreted the City Code as allowing that use in the I-R Industrial, Administration, and Research District. The city’s prohibition on cannabis businesses was upheld by the Sixth District Court of Appeals in City of Monterey v. Jhonrico Carrnshimba et al., (2013) 215 Cal.App.4th 1068. This ordinance authorizes certain types of cannabis businesses to operate in the city; WHEREAS, on September 30, 2020, cannabis policy was discussed at a City Council Study Session;
WHEREAS, on December 1, 2020, staff proposed a plan and timeline for authorizing cannabis businesses in the city;
WHEREAS, on December 15, 2020, the City Council adopted Ordinance 3634 to formalize its January 21, 2020 interpretation that cannabis testing laboratories are principally permitted in the I-R zone;
WHEREAS, on December 21, 2021, the City Council directed staff to develop regulations allowing no more than three cannabis retail permits, one each in Downtown, Lighthouse, and Cannery Row;
WHEREAS, community outreach meetings were held on January 26, 2021 and January 28, 2021 to discuss cannabis policy. Online and postcard surveys were conducted in January - February 2021 to receive public input on cannabis policy and additional City Council discussions were held on February 24, 2021, April 13, 2021, May 4, 2021, and August 17, 2021;
Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 5, Packet Page 87 ATTACHMENT 1

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WHEREAS, on July 25, 2022, the City Council approved Resolution 22-097, placing a Cannabis Business License Tax on the ballot for the November 2022 election; WHEREAS, Measure J, the city’s Cannabis Business License Tax, passed on November 8, 2022, with more than 65% of the voters voting in the election approving the measure;
WHEREAS, the city intends to restrict access to retail storefront facilities, whether adult use, or medical, or both, to ages 21 and older; WHEREAS, the city intends to authorize deliveries of medicinal cannabis to individuals 18 years and older to facilitate access to medicinal cannabis consistent with SB 1186 (Weiner);
WHEREAS, the city intends to authorize one non-storefront retailer for delivery of medicinal cannabis to be consistent with SB 1186 (Weiner); WHEREAS, on May 2, 2023, the City Council approved the project description to guide environmental review:

WHEREAS, at a public hearing on ___________, 2023, the Planning Commission considered and recommended the amendments to the zoning code set forth in Sections 18 and 19;
WHEREAS, at a public meeting held on _________, 2023, the City Council approved the project description and scope of work and directed planning staff to review it under the California Environmental Quality Act to ascertain environmental impacts; WHEREAS, [INSERT CEQA];
NOW THEREFORE, the Monterey City Council declares as follows:

SECTION 2: The foregoing recitals are adopted as findings of the City Council as though set forth fully herein.

SECTION 3: Monterey City Code, Chapter 19, Licenses, Fees and Charges is hereby renamed as follows:

Chapter 19. Business Licenses, Fees, and Charges
SECTION 4: Chapter 7, Reserved, is hereby renamed as follows:

Chapter 7. Health and Safety
SECTION 5: Monterey City Code, Chapter 19, Article 3, Sections 19-90 through 19-100 are hereby recodified as Monterey City Code, Chapter 7, Article 1, Health Permits, Section 7-1.00 through 7-1.10.

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SECTION 6: Monterey City Code, Chapter 19, Article 5, Sections 19-105 through 19-121 are hereby recodified as Monterey City Code, Chapter 7, Article 3, Section 7-

3.00 through 7-3.16.

SECTION 7: Monterey City Code, Chapter 22, Sections 22-31 through 22-31.16 are hereby recodified as Monterey City Code, Chapter 7, Article 4, Section 7-4.00 through 7-4.16.

SECTION 8: Monterey City Code, Chapter 22, Article 4, Section 22-39, Prohibiting Medical Marijuana Dispensaries, Delivery, and Cultivation, and Marijuana Dispensaries and Marijuana Sales, is hereby repealed in its entirety.

SECTION 9: Monterey City Code, Chapter 22, Article 1, Section 22-31 through 22-31.16 are renumbered and recodified as Monterey City Code, Chapter 7, Article 5, Massage Therapists and Massage Establishments, Sections 7-5.00 through 7-5.16.

SECTION 10: Monterey City Code, Chapter 38, Article 8, Section 38-41(H) through 38-41(J), are hereby repealed.

SECTION 11: Chapter 7, Article 6 is added to read as follows:

ARTICLE 6. CANNABIS BUSINESS REGULATIONS
Sec. 7-6.00. Title.

This article shall be known as the Cannabis Business Permit Ordinance of the City of Monterey.

Sec. 7-6.01. Purpose and Intent.

It is the purpose and intent of this article to regulate cannabis activity in the city, whether the cannabis is for medicinal or adult-use commercial purposes. It is also the purpose and intent of this article to allow cannabis businesses while imposing sensible regulations on commercial activities to protect the city’s residents, neighborhoods, and businesses from disproportionately negative impacts. It is the purpose and intent of this article to regulate the commercial sale, delivery and testing of cannabis and cannabis products in a responsible manner to protect the public’s health, safety, and welfare and to enforce rules and regulations consistent with state law.

The provisions of this article are not intended to and shall not regulate the cultivation or possession of cannabis for personal use in full compliance with all applicable state laws at a person’s primary residence located in a zoning district that allows for residential uses.

Sec. 7-6.02. Definitions.

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For purposes of this article, the following words shall have the meanings ascribed to them by this section unless the context makes apparent another meaning was intended.

Any reference to state statutes includes any regulations promulgated thereunder and is deemed to include any successor or amended version of the referenced statute or regulatory provision.

A. “Applicant” means a person, or any officer, director, partner, or other duly authorized representative applying on behalf of an entity, applying for a cannabis business permit under this article.

B. “Cannabis” means all or parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, or any other strain or varietal of the genus Cannabis that may exist or hereafter be discovered or developed that has psychoactive or medicinal properties, whether growing or not, including the seeds of such plants. “Cannabis” also means cannabis as defined by Business and Professions Code section 26001(f), Health and Safety Code section 11018, and by other state law.

C. “Cannabis business” means the activity of any natural or legal person, business, or collective in the City relating to cannabis, including but not limited to transportation, distribution, manufacture, compounding, conversion, processing, preparation, testing, storage, packaging, delivery and sales (including both wholesale and retail sales) of cannabis, cannabis products, or cannabis accessories, whether or not carried on for gain or profit, whether for medical or adult use, and whether or not such business is licensed by the State. A cannabis business does not include any business the only relationship of which to cannabis or cannabis products is the production or sale of cannabis accessories. A cannabis business does not include cannabis cultivation.

D. “Cannabis business permit” means a regulatory license issued by the city to a cannabis business pursuant to this article.

E. “Cannabis product” means any product containing cannabis or its derivatives, including, but not limited to, flowers, buds, oils, tinctures, concentrates, extractions, edibles, and products described in Health & Safety Code section 11018.1.

F. “City Manager” shall mean the City of Monterey City Manager or their designee.

G. “Competitive application” means the screening and selection process used when the number of storefront retail cannabis business applications submitted during the initial 45-day permit screening period exceed the maximum number of storefront retail cannabis business permits authorized.

H. “Delivery” means the transfer for any form of compensation of cannabis or cannabis products to a customer or caregiver at a location that is not a dispensary, including the use by a retailer of a technology platform that is owned and controlled by the retailer.

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I. “Dispensary” means a fixed place at which cannabis, cannabis products, or accessories for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale, including, without limitation, a dispensary that engages in delivery.

J. “Dispensing” means any activity involving the retail sale of cannabis or cannabis products from a retailer.

K. “Employee” means persons who are participating, whether directly or indirectly, in the cannabis business regulated under this article.

L. “Limited-access area” means an area in which cannabis is stored or held and is only accessible to a licensee and authorized personnel.

M. “Manager” means any person(s) designated by the commercial cannabis business to act as the representative or agent of the commercial cannabis business in managing day-to-day operations with corresponding liabilities and responsibility and/or the person in apparent charge of the premises where the commercial cannabis business is located. Evidence of management includes, but is not limited to, evidence that the individual has the power to direct, supervise, hire, and dismiss employees, control hours of operations, provides strategic direction, creates policy rules, and purchases supplies.

N. “Medicinal cannabis” or “Medicinal cannabis product” shall have the same meaning as that appearing in Business and Professions Code section 26001(ak)(1).

O. “Owner” means any of the following, or a group or combination of any of the following, acting as a unit: a person with an aggregate ownership interest of 5 percent or more in the cannabis business applying for a permit under this article, whether a partner, shareholder, principal, member, or the like, unless the interest is solely a security, lien or encumbrance. For purposes of this section, “aggregate” means the total ownership interest held by a single person through any combination of individually held ownership interests in a cannabis business and ownership interests in an entity that has an ownership interest in the same cannabis business. For example, a person who owns 2.5 percent of the stock in a cannabis business as an individual shareholder and 100 percent of the stock in an entity that owns 2.5 percent of the stock in the same cannabis business has a 5 percent aggregate ownership interest in the cannabis business.

P. “Permittee” means a person or entity that has received a cannabis business permit from the City.

Q. “Premises” all have the same meaning as that appearing in Business and Professions Code section 26001(as).

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R. “Retailer” or “Storefront Retailer” shall have the same meaning as that contained in Business and Professions Code section 26001(av).

S. “State license” means a license issued by the State of California Department of Cannabis Control (“DCC”), or other authorized state agency, under the MAUCRSA and any subsequent related State of California legislation, to engage in cannabis activity.

Sec. 7-6.03. Cannabis Businesses Prohibited Unless Specifically Authorized.

A. Except as specifically authorized by this article, or expressly made exempt from city regulation by state law, the cultivation, manufacturing, processing, storing, laboratory testing, labeling, transporting, dispensing, furnishing, delivery, and/or sale of cannabis or a cannabis product is expressly prohibited anywhere in the city.

B. No person shall engage in, conduct, or operate a cannabis business, or cause, allow, permit, or maintain a cannabis business on any real property within the city except as specifically authorized by this code, including but not limited to this article and Chapter 38, Article 16D.

Sec. 7-6.04. Compliance with State and Local Laws.

Nothing in this article shall be construed as authorizing any actions that violate state law or local law with respect to engaging in, or in the operation of, a cannabis business. It shall be the responsibility of the permittees and responsible persons of a cannabis business to ensure that a cannabis business is, always, operating in a manner compliant with all applicable state and local laws, including any subsequently enacted state and local laws, or regulatory, licensing, certification standards or requirements, and any specific additional operating procedures or requirements.

Sec. 7-6.05 Cannabis Permit Required.

A. It shall be unlawful to engage in any cannabis business within the city unless the person has:

1. A valid cannabis permit issued by the city pursuant to this article; 2 A valid state license issued by the DCC;

3. A valid cannabis business license tax registration certificate issued pursuant to Monterey City Code, Chapter 19, Article 6;

4. A city zoning clearance pursuant to Monterey City Code, Chapter 38, Article 16D;
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5. Paid in full all required fees and charges which shall be established by resolution of the City Council; and

6. Obtained any other applicable approvals, such as a city building permit.

B. It shall be unlawful to rent, lease, or otherwise permit any cannabis business at any location, structure, or vehicle in the city by a person that:

1. Does not have a valid cannabis permit issued by the city;

2. Does not have a valid state license issued by the DCC; or

3. That is not in compliance with all applicate State and local laws and regulations pertaining to the cannabis activity.

Sec. 7-6.06 Allowed License Types and Number of Cannabis businesses Authorized.

A. The following DCC cannabis license types are authorized to operate in the city:

1. Storefront Retailer: Type 10A (adult-use) and/or Type 10M (medicinal)

2. Non-storefront Retailer: Type 10M (medicinal cannabis only)

3. Testing Laboratory: Type 8

4. Distributor: Type 11
B. Cannabis license types not identified in Section 19-7.06(A) are prohibited in the city. A State Type 11 Distributor licensee does not need a city permit issued under this article to distribute to a permitted cannabis businesses in the city.

C. Number of Cannabis Businesses Authorized.

1. Type 10 retail permits (adult use, medicinal, or both) are authorized to operate at no more than three locations in the city.

2. The maximum number of non-storefront medical use retail permits in the city shall be one.

3. There is no limit on the number of cannabis testing laboratory permits allowed in the city.

4. Each year following the city’s initial award of cannabis permits, if any, or at any time thereafter in the City Council’s discretion, the City Council may eliminate, increase, or decrease the number of permits which are Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 11, Packet Page 93 ATTACHMENT 1

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authorized for issuance by amending this ordinance. Nothing in this section authorizes the revocation or non-renewal of an existing cannabis permit solely due to a reduction in the number of permits authorized for issuance.

D. No person may have an ownership interest in more than one commercial cannabis business in the city for a storefront retail business.

Sec. 7-6.07. Location Limitations.

A. Cannabis businesses shall only locate in those zoning districts set forth in City Code Chapter 38, Article 16D (Zoning, Part III – Overlay District Regulations) and pursuant to the development standards set forth therein.

B. A zone clearance shall be obtained before the city will issue a cannabis permit.

Zone clearances shall be reviewed by the Community Development Department on a first-come, first-served basis. The city will notify any remaining applicants when a zone is no longer available, until all three zones have one storefront retail cannabis business permittee.

Sec. 7-6.08. City Manager Authority.

The City Manager shall have the authority to adopt rules, regulations, and forms governing the implementation of this article. Cannabis businesses shall be required to comply with any rules, regulations or standards adopted by the City Manager.

Sec 7-6.09. Permit Application.

A. Every owner of a proposed cannabis business shall complete an application furnished by the City Manager’s Office. The person(s) authorized to sign on behalf of and legally bind the cannabis business shall print their name and sign the application under penalty of perjury. All applications shall be filled out completely and include the following:

1. Payment of fees.

2. Business plan.

3. The address of the property on which the proposed business shall be located. Applications may be accepted without having secured a physical business location; however; a physical location shall be required prior to the issuance of a zone clearance or a cannabis business permit by the city.

4. The name, address, and contact information for the business owners(s) and the percentage of ownership interest held in the applicant entity. If the owner is a corporation, limited liability company, partnership or other type of entity, legal Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 12, Packet Page 94 ATTACHMENT 1

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documents outlining the business structure shall be provided, along with the name, address, and phone number for each officer. The following documents, if applicable to the business structure, shall be provided: Articles of Incorporation, Articles of Organization, Certificate of Limited Partnership, Statement of Partnership Authority, and/or Fictitious Name Statements. All entities and individuals with a financial interest in the entity shall be disclosed to the city and may be considered owners of the cannabis business. Ownership of any cannabis business operating in the city is a matter of public record.

5. Security plan. Provide a detailed security plan, which includes measures to be used to prevent unauthorized access, protect the physical safety of employees and surrounding properties, and protect against theft/loss of cannabis, cannabis products, and all other related materials and equipment.

Identify surveillance equipment and locations, physical barriers, alarm systems, and storage of samples and records.

6. Transportation plan. As part of the application and licensing process each Cannabis Business shall have a storage and transportation plan, which describes in detail the procedures for safely and securely storing and transporting all cannabis, cannabis products, any hazardous materials that may be used by the business, and any currency.

7. Experience. Previous adult-use retail, medical-use dispensing that was subject to state cannabis regulation, or experience in a similarly state-regulated activity (by way of example and not limitation, alcohol sales).

8. Employee training, wages and employee benefits, and compliance with local, state, and federal employee non-discrimination policies.

9. Ability to conform with the city’s general plan, any applicable specific plans, and design standards.

10. Steps the cannabis business will take to ensure the cannabis it receives is sourced from cultivators that provide safe working conditions and pay wages to laborers for work performed.

11. Steps the cannabis business will take to reduce the carbon footprint of cannabis by reducing greenhouse gas emissions.

12. Community engagement including past, present, or planned activities that demonstrate how the cannabis business plans to integrate into the community, and involvement in local non-profits/charitable/volunteer organizations.

13. Description of accounting software system to provide point of sale data as well as audit trails of both product and cash.

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14. Demonstrate how compliance with the state’s track and trace system for cannabis and cannabis products will be achieved. Describe the quality of cannabis strains and derivative product offerings.

15. Additional information that demonstrates a connection to the city, ability to serve the city, familiarity with the city, and innovative business models consistent with the city’s community.

16. An executed release of liability and hold harmless in the form set forth in the city’s application form.

B. All information submitted by applicants shall be true, correct, whole, and free of any material misrepresentation or omission.

C. If any items required by the application are not met or provided, the City Manager may notify the applicant of the deficiency in writing, after which the applicant will have 10 business days from the date of the notice to correct the deficiency.

D. The city reserves the right to reject any or all applications for a cannabis permit.

Persons submitting applications assume the risk that all or any part of this code authorizing cannabis businesses may be repealed at any time prior to license issuance.

E. Pursuant to California Penal Code sections 11105(b)(11) and 13300(b)(11), which authorizes city authorities to access state and local summary criminal history information for cannabis employment, licensing, or certification purposes and authorizes access to federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation, every person listed as an owner or employee must submit fingerprints and other information deemed necessary by the Chief of Police or their designee for a background check by the City of Monterey Police Department.

Sec. 7-6.10. Application Period
A. Cannabis Testing Laboratories. Cannabis testing laboratory applications may be accepted at any time.

B. Storefront and Non-Storefront Retail Sales. There shall be an initial 45-day storefront and non-storefront retail cannabis business permit application screening period to be determined by the City Manager. Subsequent screening application periods shall commence upon certification by the City Manager that additional cannabis permits are available and shall close 45 days after such certification.

C. Should the number of applications submitted during the initial 45-day permit screening period exceed the maximum number of storefront and/or non-storefront retail cannabis business permits authorized, the competitive procedure set forth in Section 19-7.11 shall be utilized to award those permits.

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Sec. 7-6.11. Storefront and Non-Storefront Retail Competitive Application Review, Selection, and Waitlist
A. Prior to cannabis business permit issuance, the city may modify, postpone, or cancel any request for applications, at any time without liability, obligation, or commitment to any party, firm, or organization, to the extent permitted under California law. Persons submitting applications assume the risk that all or any part of the cannabis business permit program, or any category of cannabis business potentially authorized under this article, may be cancelled at any time prior to permit issuance. The city further reserves the right to request and obtain additional information from any candidate applying.

B. Applications that meet the criteria for permit approval set forth in Section 19-7.12 shall be reviewed and scored by a qualified consulting firm. The consulting firm will rank up to six storefront cannabis retail applications and up to three non-storefront retail (medicinal cannabis delivery only) to a Final Selection Committee for consideration. The Final Selection Committee shall be comprised of the Mayor, Vice Mayor, and City Manager. The Final Selection Committee will select the final three storefront cannabis retailers and one non-storefront retail store. The Final Selection Committee shall score each application based on the general criteria listed under subsection (B). The specific criteria and weighting (points per criteria) will be determined prior to the commencement of the initial screening application period and posted publicly. Each application will be independently scored by the consulting firm and the Final Selection Committee members utilizing a point system scale. There shall be no right to appeal the ranking and/or scoring of applications.

C. General Ranking Criteria. The objective review criteria shall include at a minimum the following elements and the City Manager may establish additional elements in their discretion to be included in the objective review criteria to select the most qualified applicants:

1. Community engagement;

2. Local business partnerships; and

3. Sustainable business practices that will reduce greenhouse gas emissions.

The City Manager may establish additional elements in their discretion to be included in the objective review criteria to select qualified applicants.

D. The scores awarded by the application evaluation committee shall be totaled and averaged for each applicant. The applicants shall then be ranked from highest to lowest based on their scores.

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E. The top three applicants for storefront retail, and top applicant for non-storefront retail, based on points, or applicants applying for vacated licenses, are required to apply for and obtain a zone clearance from the city’s Community Development Department – Planning Office.

F. The top ranked three storefront retail applicants, and the top ranked applicant for non-storefront retail, that have obtained a zone clearance from the city are required to be reviewed and approved by the City Manager prior to issuance of a cannabis permit by the city. Any permit awarded under this section may include conditions of approval requiring the cannabis business permittee to comply with the objective review criteria set forth in its application.

G. If any of the selected storefront or non-storefront retail applicants fail to exercise a cannabis business permit under the time specified in Section 19-7.13(D), all rights to the permit shall terminate and be forfeited.

H. If the City Council authorizes additional cannabis businesses, or if any of the top three ranked applicants have not exercised a storefront or non-storefront retail commercial cannabis permit within 12 months after selection, or within 18 months if the City Manager granted an extension under Section 19-7.12(E), the City Manager shall invite the next ranked applicant from the results of the City’s initial screening application process in the applicable license category to apply for a cannabis permit; however, the waitlist shall expire on January 1, 2026. Once the waitlist applicant is notified of the right to apply for a vacant permit, the applicant shall secure a permit within the time frame specified in Section 19-7.12(E). If the waitlist applicant fails to exercise a cannabis business permit within that time, they are removed from the waitlist.

Sec. 7-6.12. Permit Issuance.

A. The City Manager, after receiving the application and the required information, and except for competitive applications, shall grant the permit if they find all the following:

1. Granting the permit would not exceed the number of cannabis businesses authorized under Section 19-7.06(C).

2. The applicant has not knowingly made a material misrepresentation or omission in the application.

3. The applicant has not had a cannabis business permit denied or revoked by the state, county, city, city and county, or any other state within five years of the date of the application.

4. The cannabis business, as proposed by the applicant, would comply with all applicable provisions of state law and this code, including but not limited to this article, and all health, zoning, fire, and safety requirements.

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5. No grounds for denial exist under Section 19-7.13.

6. Competitive applications for which the City Manager has decided are compliant with this article shall be reviewed pursuant to the competitive application selection process described in Section 19-7.11.

B. To the fullest extent permitted by law, the city shall not assume any liability whatsoever with respect to having issued a cannabis business permit pursuant to this article or otherwise approving the operation of any cannabis business. As a condition to the approval of any cannabis business permit, the applicant shall be required to meet all the following conditions prior to receiving the cannabis business permit:

1. Execute an agreement, in a form approved by the City Attorney, agreeing to indemnify, defend (at applicant’s sole cost and expense), and hold the City of Monterey, and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the city ’s issuance of the cannabis business permit, the city’s decision to approve the operation of the cannabis business or activity, the process used by the city in making its decision, or the alleged violation of any federal, state or local laws by the cannabis business or any of its officers, employees or agents.

2. Maintain insurance at coverage limits determined necessary and appropriate from time to time by the City’s Risk Manager or designee.

3. Reimburse the city for all costs and expenses, including but not limited to legal fees and court costs, which the city may be required to pay because of any legal challenge related to the city’s approval of the applicant’s cannabis business permit or related to the city’s approval of a cannabis activity. The city, at its sole discretion, may participate at its own expense in the defense of any such action, but such participation shall not relieve the applicant of any of the obligations imposed hereunder.

C. Duration.

1. A cannabis business permit is valid for one year from the date of issuance and must be renewed by the permittee annually.

2. A permittee may apply for a renewal of a permit 60 calendar days prior to the expiration of the permit.

3. Permit renewals shall be granted if the information upon which the original application was granted remains unchanged, no violations of this article have been committed, and the renewal fee is paid. In all other situations, the City Manager shall approve or deny the application within 60 calendar days. A cannabis business may Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 17, Packet Page 99 ATTACHMENT 1

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continue to operate under the terms of the previous permit if a timely renewal application has been received and is awaiting a determination by the City Manager.

4. If a renewal cannabis business permit application is not timely filed, or the required fees are not paid prior to the expiration date of the permit, the permit shall be deemed expired and no privilege to operate a cannabis business shall exist after the expiration date.

5. The City Manager is authorized to impose additional conditions to a renewal license to ensure compliance with state or local laws or to preserve the public health, safety, or welfare.

6. If a renewal application is denied, one year from the date of the denial, a person may file a new application at the next permit application screening period set forth in Section 19-7.10(B).

D. Cannabis permits issued under this article are valid only as to the approved permittee at the specified approved location, and is nontransferable to other persons, entities, projects, or locations. The assignment of or the attempt to assign any permit issued pursuant to this article is unlawful and any such assignment or attempt to assign a permit shall render the permit null and void. A cannabis business shall be deemed to have transferred to a new owner within the meaning of this section if person(s) or entities with controlling interest at the time the cannabis business permit was first issued ceases at any time to possess or control ownership interest and/or an ownership interest of less than 51%.

E. A cannabis business permit shall be exercised within 12 months of issuance.

Upon a showing of significant and diligent progress towards exercising the cannabis business permit, the City Manager may provide one six-month extension of time. A cannabis business permit shall be considered exercised when any of the following occur:

1. A Certificate of Occupancy has been issued.

2. The permitted use has commenced on the site.

3. A city Building Permit is secured, and construction lawfully commenced.

F. Prior to commencing operations, a cannabis business permittee shall be subject to a mandatory building inspection.

G. The permittee may apply to amend the permit on a form provided by the City Manager. The application shall not be granted unless the city determines that the terms of the amended permit comply with all requirements of this article and all other state and local laws. An amended permit shall retain its original expiration date. A cannabis Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 18, Packet Page 100 ATTACHMENT 1

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business may continue to operate under the terms of the previous permit while an application for an amended permit is awaiting a determination.

H. No permittee may operate a commercial cannabis business under any name other than the name specified in the permit and business license certification without first obtaining approval to amend the permit pursuant to Section 9-7.12(G).

Sec. 7-6.13. Permit Denial
An application for a cannabis permit shall be denied by the City Manager if any of the following findings are made:

A. It contains false or misleading information.

B. It does not meet the requirements of the city code or other applicable laws.

C. It was received after the submission deadline.

D. It was not fully responsive to the request for a permit application.

E. Applicant failed to exercise a cannabis business permit within the time frame established in Section 19-7.12(C).

F. The applicant, or any existing or prospective manager, is not at least 21 years of age.

G. The applicant, or any existing or prospective manager, has had a similar type of license previously revoked or denied within five years immediately preceding the permit application.

H. The applicant, or any existing or prospective manager, was notified within five years immediately preceding the permit application by the state, county, city, or city and county, that it was conducting cannabis activity in violation of state or local laws and failed to cure the violation in a timely manner.

I. The applicant, or any existing or prospective manager, is delinquent in payment of federal, state, or local taxes and/or fees.

J. Pursuant to California Penal sections 11105(b)(11) and 13300(b)(11), which requires exclusion from cannabis employment, licensing or certification based on specific criminal conduct on the part of the subject of the record, no person shall be issued a permit to operate a cannabis business or be allowed to work in a cannabis business unless they have first cleared the background check, as determined by the Chief of Police or their designee(s). Evidence of a conviction of any of the offenses enumerated in Business and Professions Code section 26057(b)(4), absent the issuance of a Certificate of Rehabilitation pursuant to Penal Code section 4852.05, Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 19, Packet Page 101 ATTACHMENT 1

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shall be grounds for immediate disqualification of the applicant.

K. If an applicant is denied a license due to a disqualifying factor including, but not limited to, failing a background check or not complying with any state, or local jurisdictions regulatory requirements in which legal or administrative action has been taken, a new application may not be filed by the applicant for one (1) year from the date of the denial. This section shall not apply to an approved applicant not awarded a license resulting from the city not selecting them in an application process with a finite number of available licenses.

Sec. 7-6.14. Modification, Suspension, or Revocation of Permits.

A. Any cannabis business permit may be modified, suspended, or revoked when the City Manager finds that any of the following have occurred on even a single occasion:

1. For any violation of this article, any state or local laws, rules, and/or any standards, policies, procedures, or regulations adopted pursuant to this article relating to the cannabis businesses.

2. Where the permittee, cannabis business, and/or any owner, manager, or employee has violated the terms and provisions of the cannabis business permit.

3. The permittee or any person employed or retained by the commercial cannabis business has been convicted of any of the offenses enumerated in Business and Professions Code section 26057(b)(4), absent a Certificate of Rehabilitation.

4. The permittee has been subject to a temporary or permanent injunction against the conducting or maintaining of a nuisance pursuant to the City Code or Section 11225 through 11235 of the California Penal Code, or any similar provision of law.

5. A permit has been granted on false or fraudulent evidence, testimony, or application.

6. The permittee or any employee of the cannabis business has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the cannabis business.

7. The permittee has continued to operate the cannabis business after the permit has expired or been suspended.

8. When the City Manager determines there to be an imminent threat to public health, safety or welfare, the City Manager may take immediate action to temporarily suspend a Cannabis Business License issued by the city.

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9. When the preservation of the public health, safety, or welfare necessitate revocation of the permit.

10. The failure to operate for 120 continuous days for any reason. If the cannabis business has not been in regular and continuous operation in the preceding 120 days at the permitted location, the cannabis business permit shall be deemed to be not in good standing, abandoned, and null and void.

B. A decision of the city to modify, suspend, or revoke a cannabis business permit is appealable as set forth in Section 19-7.17.

Sec. 7-6.15. Effect of State License Suspension, Revocation or Expiration.

A. Suspension, revocation, or expiration of a DCC license shall immediately suspend the ability of that cannabis business to operate within the city and shall serve to suspend the cannabis business permit. Should the DCC license remain suspended or expired for 120 days or longer, the cannabis permit shall expire and be of no further force and effect. Should the DCC revoke or terminate the license of a cannabis business for cause, such revocation or termination shall also serve to revoke or terminate the city issued cannabis business permit and the ability of the permittee, including any owner or manager thereof, to operate any cannabis business within the city for a period of five years from the date of such revocation or termination. If the DCC reinstates or reissues the license within 120 days of the DCC suspension or expiration, the cannabis business may seek reinstatement of its city permit if the business can demonstrate that the grounds for suspension or revocation of the license by the DCC no longer exist or that the underlying deficiency has otherwise been cured. Any cannabis business permittee shall inform the City Manager of any suspension or revocation of a state license within two days.

B. A permittee shall have no right to appeal the suspension or revocation of a cannabis business permit that is based on the status of their state license, provided, however, an owner or manager thereof may appeal the term of their prohibition from operating another cannabis business in the city. Such appeal shall be based on the hearing procedures set forth in Section 19-7.17. The burden shall always be on the appellant to show good cause why the term of the prohibition should be less than five years.

Sec. 7-6.16. Effect of Revocation or Nonrenewal on Property Owner.

If a cannabis business permit is revoked or not renewed as a result of violations, no cannabis business permit may be issued at that location for a period of five years from the date of the revocation or nonrenewal. A property owner may appeal their prohibition from operating another cannabis business in the city at that location. Such appeal shall be based on the hearing procedures set forth in Section 19-7.17. The burden shall at all times be on the appellant to show good cause why the prohibition should be reversed or modified.

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Sec. 7-6.17. Notice, hearing, and appeal.

A. Appeals relating to denial of an application, the decision of the city to revoke, suspend or modify a permit, or to deny renewal of an application for a permit; or to add conditions to a permit, or under Sections 19-7.15 or 19-7.16 shall be conducted as prescribed in this section.

B. Any person who has been denied a cannabis business permit; any person whose application for an amended cannabis business permit has been denied; or any person whose privilege to operate a cannabis business has been modified, suspended, or revoked shall be notified in writing by means of registered mail, certified mail, email, or hand delivery of the City Manager’s decision as well as the person’s right to request a hearing under subsection (D) of this section.

C. Notwithstanding the foregoing, the City Manager may immediately suspend a cannabis business permit without a prior hearing if they determine that the operation of the cannabis business constitutes an immediate and significant threat to the public health, safety, or welfare. In such a case, if requested, the Appeals Hearing Board shall conduct the hearing following the suspension.

D. A request for a hearing before the Appeals Hearing Board shall be in writing and shall be made within 10 calendar days from the date of the decision to deny, suspend, revoke, or modify the permit. If no hearing request is made within this time period, the City Manager’s notice of denial, revocation, suspension, or modification shall become final and shall go immediately into full force and effect.

E. Upon receiving a written request for hearing, the Appeals Hearing Board shall set a time and place for the hearing not less than 10 days or more than 60 days thereafter.

The applicant or permittee shall be notified of the hearing by means of registered mail, certified mail, email, or hand delivery at least five days before the hearing date.

1. Apart from an immediate suspension under subsection (C), in the event a written notice of appeal is timely filed, the nonrenewal, suspension, or revocation shall not become effective until a final decision has been rendered and issued by the Appeals Hearing Board. Notices of appeal not served in a timely manner or served by non-operational business shall not serve to allow such business to operate pending appeal.

2. If no appeal is timely filed in the event of a decision of nonrenewal, the cannabis businesses permit shall expire at the conclusion of the term of the permit. If no appeal is timely filed in the event of a decision supporting modification, suspension, or revocation, the decision shall become effective upon the expiration of the period for filing a written notice of appeal
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F. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine witnesses. Formal rules of evidence shall not apply; any relevant evidence may be admitted if it is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Except for appeals under Section 19-7.15 and 19-7.16, where the appellant carries the burden of proof, the city shall have the burden of proof of any violations by a preponderance of the evidence.

Any hearing under this section may be continued for a reasonable time for the convenience of a party or witness. If the applicant or permittee fails to appear at the hearing, the evidence of the existence of facts which constitute grounds for the denial, suspension, revocation, or restriction of the permit shall be considered conclusively established.

G. Within 30 days of the hearing, the Board shall issue a written decision specifying the reasons for the decision, which shall be delivered by either registered mail, certified mail, email, or hand delivery to the applicant or permittee. The decision of the Board shall be final and shall be subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure section 1094.6.

Sec. 7-6.18. Operational Requirements.

A. General Operating Requirements.

1. Restriction on Sales and Consumption. Cannabis shall not be consumed by any person on the premises of any cannabis business. No person shall cause or permit the sale, dispensing, or consumption of alcoholic beverages or tobacco on or about the premises of the cannabis business.

2. No persons under the age of 21 years shall be allowed on the premises of a cannabis business.

3. Inspections. The investigating officials of the city shall have the right as otherwise provided for by law to inspect a cannabis business during regular business hours, without notice and without a search or inspection warrant, to ascertain whether there is compliance with the provisions of this article and state law.

4. Records.
a. Each owner and operator of a cannabis business shall maintain accurate books and records in an electronic format, detailing all of the revenues and expenses of the business, and all of its assets and liabilities for a period not less than seven (7) years. On no less than an annual basis (at or before the time of the renewal of a cannabis business tax registration certificate issued pursuant Chapter 19, Article 7), or at any time upon reasonable request of the city, each cannabis business shall file a sworn statement detailing the number and amount of sales by the Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 23, Packet Page 105 ATTACHMENT 1

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cannabis business during the previous twelve-month period (or shorter period based upon the timing of the request), provided on a per-month basis. The statement shall also include gross sales for each month, and all applicable taxes and/or fees paid or due to be paid. On an annual basis, each owner and operator shall submit to the city a financial audit of the business’s operations conducted by an independent certified public accountant. Each licensee shall be subject to a regulatory compliance review and a gross receipts financial audit, where applicable, as determined by the city.
b. Each owner and operator of a cannabis business shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an interest in the cannabis business, and separately of all the officers, managers, employees, agents, and volunteers currently employed or otherwise engaged by the cannabis business. The register required by this paragraph shall be provided to the City Manager upon request.

5. Security. The cannabis business permittee shall implement sufficient security measures to deter and prevent the unauthorized entrance into areas containing cannabis or cannabis products and to deter and prevent the theft of cannabis or cannabis products at the premises. Except as may otherwise be determined by the City Manager, these security measures shall include, but shall not be limited to, all the following:
a. Sensors installed to detect entry and exit from all secure areas and shall be monitored in real time by a security company licensed by the State of California Bureau of Security and Investigative Services. b. Panic buttons with direct notification to the Police Department dispatch and shall be configured to immediately alert dispatch for the Police Department.
c. A professionally installed, maintained, and monitored real-time alarm system by a security company licensed by the State of California Bureau of Security and Investigative Services. The permittee shall be required to obtain an alarm permit from the Police Department. Upon request, permittee shall make available to the Police Department all information related to the alarm system, monitoring, and alarm activity. d. Windows and roof hatches shall be secured from the inside with effective means so as to prevent unauthorized entry and shall be equipped with latches or a similar mechanism that may be released quickly from the inside to allow exit in the event of an emergency. e. Each cannabis business shall have the capability to remain secure Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 24, Packet Page 106 ATTACHMENT 1

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during a power outage and shall ensure that all access doors are not solely controlled by an electronic access panel to ensure that locks are not released during a power outage.
f. Secured Doors. All areas of the business that are not open to the public shall be secured from unauthorized entry by closed and locked doors during public operating hours.
g. Surveillance records shall be maintained for a minimum of one year and shall be made available within 24 hours at the request of the City Manager, Police Chief, or their designee.
h. Each cannabis business shall identify a designated security representative/liaison to the City, who shall be reasonably available to meet with the City Manager regarding any security related measures and/or operational issues.
i. A cannabis business shall notify the Monterey Police Department within 24 hours after discovering any of the following:
i. Significant discrepancies identified during inventory. The level of significance shall be determined by the regulations promulgated by the City Manager.
ii. Diversion, theft, loss, or any criminal activity involving or perpetrated against the cannabis business or any agent or employee of the cannabis business or at the cannabis business. iii. The loss or unauthorized alteration of records related to cannabis, customers or employees or agents of the cannabis business.
iv. Any other breach of security.

6. Emergency Contact. Each cannabis business shall provide the City Manager with the name and telephone number (both land line and mobile) of an on-site manager or owner to whom emergency notice can be provided at any hour of the day or night.

7. Signs and Notices.
a. Business identification signage for a cannabis business shall conform to the requirements of Chapter 31 Signs, including, but not limited to, seeking the issuance of a City sign permit.
b. Each entrance to a cannabis business shall visibly post a sign that Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 25, Packet Page 107 ATTACHMENT 1

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persons under the age of 21 years are not permitted to enter the premises.
c. Each entrance to a cannabis business shall visibly post a sign, consistent with City Code section 22-29(d), that smoking within 20 feet of the areas adjacent to the cannabis business is prohibited. d. The cannabis business permit issued by the city pursuant to this article and the city-issued cannabis business license certificate shall be posted inside the cannabis business in a conspicuous and public location.

8. Odor control. All cannabis business shall provide an air treatment system that ensures off-site odors shall not result from its operations. This requirement at a minimum means that the facility shall be designed to provide sufficient odor absorbing ventilation and exhaust systems so that any odor generated inside the location is not detected on adjacent properties or public rights-of-way, or within any other unit located within the same building as the cannabis business if the cannabis business occupies only a portion of a building.

9. Background check. Every owner, manager, supervisor, or employee of the cannabis business must submit fingerprints and other information necessary deemed by the City Manager for a background check by the Police Department to verify that person’s criminal history pursuant to the requirements of this article.

10. No cannabis business shall provide or cause to be provided any free samples of cannabis goods to any person within the city.

11. Each cannabis operator shall establish minimum training standards for all employees. The City Manager shall have the discretion to require other training for the business operations should the City identify deficiencies or non-compliance issues with City or state requirements.

12. Each cannabis business shall provide the name, telephone number, and email address of a community relations contact to whom notice of problems associated with the cannabis business can be provided. Each cannabis business shall also provide the above information to all businesses and residences located within three hundred (300) feet of the cannabis business within 30 days of commencing operations.

13. Each cannabis business shall have an on-site manager present during business hours.

B. Additional Operating Requirements for Storefront Retail Sales. In addition to requirements set forth in subsection (A) (General Operating Requirements), every storefront retail sales cannabis business shall comply with the following:

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1. A storefront retailer shall not conduct sales exclusively by delivery.

2. A storefront retailer retail shall not provide cannabis to an individual in excess of the amount that is consistent with personal possession and use limits allowed by the state.

3. Ancillary manufacturing and cultivation at the premises are not permitted.

4. Retailers may have only that quantity of cannabis and cannabis products to meet the daily demand readily available for sale on-site in the retail sales area of the retailer. Additional product may be stored in a secured, locked area to which customers, vendors, and visitors shall not have access.

5. All restroom facilities shall remain locked and under the control of management.

6. Retailers shall only serve customers who are within the permitted premises, or at a delivery address that meets the requirements of this division.

7. The sale and delivery of cannabis goods shall not occur through a passthrough window or a slide-out tray to the exterior of the premises.

8. Retailers shall not operate as or with a drive-in or drive-through at which cannabis goods are sold to persons within or about a motor vehicle.

9. No cannabis goods shall be sold and/or delivered by any means or method to any person within a motor vehicle.

10. Retailers shall record point-of-sale areas and areas where cannabis goods are displayed for sale on the video surveillance system. At each point-of-sale location, camera placement must allow for the recording of the facial features of any person purchasing or selling cannabis goods, or any person in the retail area, with sufficient clarity to determine identity.

11. Limited Access Areas. A retailer shall establish limited-access areas and permit only authorized individuals to enter the limited-access areas. Authorized individuals include individuals employed by the retailer as well as any outside vendors, contractors, or other individuals conducting business that requires access to the limited access area. A retailer shall maintain a log of all individuals who are not employees who are granted access to the limited access area.

These logs shall be made available to the City Manager, Chief of Police, or their designees upon request.

12. Storefront hours that are open to the public shall be limited to the hours of 9:00 a.m. through 9:00 p.m. seven days a week.

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13. Deliveries of Medical Cannabis. Medical cannabis may be delivered to individuals aged 18 and older who possesses a valid government-issued identification card, and either a valid county-issued identification card under Health and Safety Code section 11362.712 or a physician’s recommendation for themselves or for a person for whom that person is a primary caregiver.

C. Additional Operating Requirements for Non-Storefront Retail (Delivery Only) Facilities

1. A non-storefront retailer licensee shall only be issued for medicinal cannabis to conduct retail sales exclusively by delivery.

2. The licensed premises of a non-storefront retailer licensee shall be closed to the public.

3. A non-storefront retailer licensee shall comply with all the requirements applicable to retailer licensees, except for those provisions related to public access to the licensed premises and the retail area.

4. Medical cannabis may be delivered to individuals aged 18 and older who possesses a valid government-issued identification card, and either a valid county-issued identification card under Health and Safety Code section 11362.712 or a physician’s recommendation for themselves or for a person for whom that person is a primary caregiver.

D. Additional Operating Requirements for Cannabis Testing Laboratories.

1. The permittee shall provide a copy, and make available upon request to the City Manager, all records associated with the permittee’s ISO/IED 17025 certificate of accreditation.

2. Cannabis Testing Laboratories shall not be open to the public.

Sec. 7-6.19. Permit and Operating Requirements for Out-of-City Delivery Services.

Prior to commencing delivery operations inside the city, a cannabis business located outside of city limits shall comply with the following requirements:

A. Register pursuant to Monterey City Code, Chapter 19, Article 6 and obtain a cannabis business license tax registration certificate. A copy of this certificate shall be retained by all drivers.

B. The retail business operating the delivery service shall provide the City Manager with evidence of a valid state and local license/permit for a cannabis business on whose authorization the delivery service is performing the delivery function.

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Sec. 7-6.20. Existing Cannabis Operations
A. Any existing cannabis business that does not hold a cannabis business permit from the city at the time of the effective date of this article is not in compliance with the Monterey City Code and shall immediately cease operations.

B. No business is a legally established use under the provisions of this Code whether in existence before or after the effective date of this article.

Sec. 7-6.21 Penalty for violation.

Any person violating or failing to comply with any of the provisions of this article shall be guilty of a misdemeanor and any violation of this article is hereby deemed a public nuisance. Every person who violates any provision of this article may also be subject to administrative citations under Sections 1-9 through 1-9.12 and/or compliance orders under Section 1-10 through 1-10.20, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violations of this code. A compliance order may require the property owner to provide notice.

Sec. 7-6-22. License Holder Responsible for Violations.

The person to whom a license is issued pursuant to this Chapter shall be responsible for all violations of the laws of the State of California or of the regulations and/or the ordinances of the City, whether committed by the licensee or any employee or agent of the licensee, which violations occur in or about the premises of the Cannabis Business whether said violations occur within the license holder’s presence.

Sec. 7-6.23. No Vested Rights
No person(s) (including any Applicant, Owner, and/or Licensee) shall have any vested rights to any license, right, and/or interest under this chapter, regardless of whether such person(s) sold, distributed, and/or otherwise engaged in acts related to the use of Cannabis prior to the adoption of the ordinance codified in this Chapter.

SECTION 12: Monterey City Code, Chapter 38, Article 2, Section 38-6(C) is amended to insert the following base district designator, name, and article above the AP Administrative-Professional Overlay District 12:

Base
District
Designator Base District Name Article
PC-D Planned Community Downtown 11
PC-LH Planned Community Lighthouse 11
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PC-NF Planned Community North Fremont 11
SECTION 13: Monterey City Code, Chapter 38, Article 2, Section 38-6(C) is amended to insert the following base district designator, name, and article below the SC Planning Commercial Overlay District 16:

Base
District
Designator Base District Name Article
RA Religious Assembly in the Garden Rd. I-R-130 Zoning District Overlay District 16A ES Emergency Shelter Overlay District 16B
MF Multifamily Residential Overlay District 16C
CB Cannabis Business Overlay District 16D
SECTION 14: Monterey City Code, Chapter 38, Article 3, Section 38-11, is hereby amended to add the following definitions, to be inserted in the list of definitions in alphabetical order. These definitions apply to this Chapter and shall prevail over any inconsistent definitions in the City Code.

Day Care Center: has the same meaning as in Health & Safety Code section 1596.76.

Playground: has the same meaning as in Health & Safety Code section 11353.1(e)(1).

School: has the same meaning as “Educational Institution” as defined in Education Code section 210.3.

Youth center: has the same meaning as Health & Safety Code section 11353.1(e)(2).

SECTION 15: Monterey City Code, Chapter 38, Article 16D is hereby added to read as follows:

Sec. 38-99.8 CANNABIS BUSINESS OVERLAY DISTRICT
A. Specific Purposes. The Cannabis Business Overlay District is intended to facilitate the regulation, location, and development of cannabis businesses in the city.

B. Applicability and Zoning Map Designator. The Cannabis Business Overlay District shall be shown on the Zoning Map by adding a CB to the base district designator. It may be combined in any Commercial (C) district to the properties shown in Appendix A to the ordinance codified in this article. There are three storefront retail Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 30, Packet Page 112 ATTACHMENT 1

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cannabis businesses allowed, one in each overlay zone as follows:

5. CB-1, Lighthouse and Foam Street area, shown on Appendix A, except that no cannabis business shall have a retail frontage on any cross street with Lighthouse Avenue or Foam Street;

6. CB-2, the Alvarado District, shown on Appendix A, except that no cannabis business shall have a retail frontage on Alvarado Street; and

7. CB-3: Cannery Row area, shown on Appendix A, except that no cannabis business shall have a retail frontage on Wave Street or allow public access from the Recreation Trail.

One non-store front medicinal cannabis business is permitted in any cannabis business overlay zone.

C. Zoning clearance consistency review. A cannabis business must meet land use and building standards pursuant to Chapter 9, Chapter 26, Chapter 31, and Chapter 38 of this Code, including:

1. Conform with the City ’s general plan, any applicable specific plan, master plan, and design requirements.

2. Comply with all applicable zoning and related development standards.

3. Be constructed in a manner that minimizes odors to surrounding uses, and promotes quality design and construction, and consistency with the surrounding properties.

4. No cannabis business may be located within a 600-foot (600’) radius measured from property line to property line of a school, day care center, or youth center that is in existence at the time of submission of a completed initial application for a commercial cannabis permit. This prohibition shall not apply to any subsequent renewal of a commercial cannabis permit at the same location.

6. Exterior lighting shall not result in glare on adjoining properties to ensure that all areas of the premises are visible and shall provide increased lighting at all entrances to the premises. The lighting shall be turned on from dusk to dawn.

7. Ground cover shall be no higher than two feet; lower tree canopies of mature trees shall be above six feet; and tree canopies shall not interfere with or block lighting.

SECTION 23: Monterey City Code, Chapter 38, Section 38-41(H), CannabisRelated Agricultural Testing Laboratories, is repealed.

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SECTION 16: Monterey City Code, Chapter 1, Article 2, Section 1-9.2(C) is hereby added to read as follows:

C. Pursuant to Government Code section 53069.4, a property owner shall have a period of at least 10 days to correct or otherwise remedy a violation of City Code section 9-7-05(B), Cannabis Permit Required, that exists as a result of, or to facilitate, the illegal cultivation of cannabis, prior to the issuance of an administrative citation if all the following are true:

1. The tenant is in possession of the property that is the subject of the administrative action;

2. The rental property owner or agent can provide evidence that the rental or lease agreement prohibits the cultivation of cannabis; and

3. The rental property owner or agent did not know the tenant was illegally cultivating cannabis and no complaint, property inspection, or other information cause the rental property owner or agent to have actual notice of the illegal cannabis cultivation.

SECTION 17. Severance. If any section, subsection, phrase, or clause of this ordinance is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this Ordinance.

SECTION 18. Effective Date. This ordinance shall become effective thirty days from the date of adoption.

Council Regular Meeting, 5/2/2023, Item No. 7., Item Page 32, Packet Page 114

Monterey City CouncilMay 2, 2023

Monterey City Council
May 2, 2023