Pacific Grove City Council
September 18, 2024

A-3-PGR-22-0004 (American Tin Cannery Hotel Resort)

significance and will no longer be eligible for listing in the California Register of Historical Resources or the Pacific Grove Historic Resources Inventory.”56 While the EIR concluded that the project would result in adverse historic impacts, the City approved the project nevertheless through a Statement of Overriding Consideration. Some of the rationale for this finding was that the project met LCP objectives related to historic preservation and coastal resource protection more broadly.

In short, the City, during CEQA and CDP review, analyzed the site’s potential historic attributes, documented and described them, and required certain measures to retain some of the more important historic attributes, particularly the distinctive sawtooth roof element. The City found that demolition of the warehouse building was better from an aesthetic perspective in terms of not having industrial facilities located in a prime and conspicuous waterfront location, and that the sawtooth building’s facade changes would break up mass and scale by creating courtyards and other architectural interest. In other words, the City balanced the need for historic resource protection with other LCP coastal resource objectives. And the LCP allows modifications to structures with historic elements, whether listed or not, and the City appropriately followed its prescriptions.

These are all reasonable conclusions, particularly in light of the fact that some of the most character-defining elements of the existing site will be retained, and that many of these historic canneries in the area have been repurposed over the years into other similar modern uses where history can be honored while also adaptively reusing these facilities for modern purposes. The City’s approval does not raise a substantial LCP conformance issue with respect to historic protection.57

7. The “Five Substantial Issue” Factors
When considering a project on appeal, the Commission must first determine whether the project raises a substantial issue of LCP conformity and/or Coastal Act public access conformity, such that the Commission should assert jurisdiction over the CDP application for such development. At this stage, the Commission has the discretion to find that the project does or does not raise a substantial issue of LCP and/or Coastal Act conformance. The Commission’s regulations lay out the following five factors that it may consider when determining whether the issues raised in a given appeal are “substantial” (14 CCR section 13115(c)): the degree of factual and legal support for the local government’s decision; the extent and scope of the development as approved or denied by the local government; the significance of the coastal resources affected by the decision; the precedential value of the local government’s decision for future interpretations of its LCP; and, whether the appeal raises only local issues as opposed to those of regional or statewide significance. The Commission may, but need not, assign a particular weight to a factor, and may make a substantial issue determination for other reasons as well.
56 See Draft EIR page 8-24.
57 In addition, the City’s Historical Resources Committee is not listed in the LCP as having any required CDP reviewing authority or given legal status to review CDP applications. This contention too does not raise a substantial issue. And the project’s historic elements were reviewed by the Architectural Review Board, Planning Commission, and City Council, thereby providing sufficient historic review in this regard.

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In this case, these five factors, considered together, support a conclusion that the City’s approval of a CDP for this project does raise a substantial issue of both LCP conformance and Coastal Act public access conformance.

In terms of factual and legal support, while the City’s record is voluminous and was reviewed by various deliberative bodies, certain factual and legal conclusions are not well founded, specifically in terms of water supply (e.g., rote reliance on the MPWMD’s water allocation provisions to satisfy LCP water supply requirements and findings without any independent analysis is not legally adequate), lower-cost accommodations (e.g., feasibility assessments, mitigation fee amounts, specifying the only persons who are eligible for lower-cost rates when the LCP prohibits same), and public coastal access (e.g., finding the project maximizes public access while bona fide public access impacts of the project related to the loss of public streets remain unmitigated). These findings suggest a substantial LCP conformance issue.

In terms of the extent and scope of development, by almost any measure, the project is large, and would be one of the largest on the entire Monterey Peninsula, spanning almost 6 acres and multiple City blocks. Its size, and particularly when understood in relation to the number of coastal resource issues implicated (water supply, habitat resources, lower-cost accommodations, public views, public access, etc.) and the other substantial issue factors, clearly argues for a substantial issue determination.

In terms of potential precedential and prejudicial impact, it should first be noted that any one case, like this one, is decided on its specific facts and its specific merits, and is not entirely dispositive as to how subsequent CDP decisions will be made. At the same time, there is always the potential that the City (and/or potential future applicants) might see the City’s action here as precedential. And in fact, it is possible that such a decision could have ripple effects on nearby communities and their LCP implementation related to the City’s interpretation of shared issues, particularly water supply, that could be used in relation to other projects in the Monterey Peninsula coastal zone that are subject to similar water issues, and thus it’s important to analytically get it right, which also argues for substantial issue.

In terms of the significance of the coastal resources involved, the project includes a suite of significant coastal resource issues, ranging from water supply (and the accompanying impacts to the sensitive aquatic environment) to lower-cost accommodations to public coastal access to marine mammal protection, which also argues for substantial issue.

Finally, in terms of whether the appeal raises only local issues as opposed to regional or statewide issues, all of these issues are important locally as well as statewide given the breadth and scope of the coastal resources implicated as described above.

Taken together, the City-approved CDP for the project does not adequately address Coastal Act public access and LCP coastal resource protection issues, and the five factors, individually, and on the whole, support a finding of substantial issue as to conformity of it with the Coastal Act and the certified LCP. Thus, for the reasons stated herein, the Commission finds that Appeal Number A-3-PGR-22-0004 raises substantial issues with respect to the City-approved project’s conformance with the certified LCP PGCC 9-18-24

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and the public access policies of the Coastal Act and takes jurisdiction over the CDP application for the proposed project.

H. De Novo Coastal Development Permit Determination
The standard of review for this CDP determination is the City of Pacific Grove certified LCP. All Substantial Issue Determination findings above are incorporated herein by reference.

1. Proposed Project
On de novo review and including in response to the issues identified in the preceding Substantial Issue analysis, the Applicant has modified their proposed project. While its core elements remain the same in terms of it being a full-service hotel resort, several changes have been proposed in response to the substantial issues previously identified regarding the former City-approved version. The newly proposed project is reduced in size and scope from 225 hotel rooms to 206 (along with a ‘Group’ wing with 64 beds in 16 units in a shared accommodations construct), removal of one pool and spa (from 2 pools and 2 spas to one pool and one spa), relocation of a vehicle entrance/turnaround along Ocean View Boulevard and replacement with a public park/open space along the intersection of Ocean View Boulevard and Dewey Avenue, and an overall reduction in square footage of some 85,000 square feet. In addition, and as explained in more detail in the subsequent findings, several project elements have also been modified, including now providing direct public access to the ‘living’ green roof from the new public park and direct public bathroom access from Eardley Avenue, and a new lower-cost accommodations component comprised of 18 on-site traditional hotel rooms at LCPdefined lower-cost rates, a 16-unit/64-bed on-site Group wing with shared accommodations, and low- and no-cost overnight stays for lower-income groups for 300 guest nights (i.e., one guest for one night) per year within the Group wing, all as described in more detail subsequently.

2. Water Supply
As discussed in the preceding Substantial Issue determination, the Pacific Grove LCP can largely be understood as a two-step process. The first step is ensuring that the City has a sufficient water allocation to provide the site with water. This can largely be understood as whether the particular site in question has a water allotment from the Monterey Peninsula Water Management District (i.e., whether the site is allowed water in the first place pursuant to the District’s water management programs and policies).

And the second step is ensuring that such water is coming from a source and in an amount that is environmentally sustainable. On this point, the Commission has typically understood ‘sustainable’ to mean water that is being extracted in such a manner as to not have any adverse impacts to sensitive coastal resources, including wetlands, streams, creeks, the ocean, and other aquatic habitats.

Regarding the first point, as discussed, MPWMD has allotted 18.53 AFY of water to the ATC site, which it finds is both the amount the City is allowed to allocate for the site, and which represents what the site is equipped to accommodate at full use. This metric is what the District uses to ascertain the amount of water an existing site is ‘allotted’ and thus what it will allow Cal-Am to serve. As applied to this project, the District has indicated that, so long as water usage remains at or below this amount, the project PGCC 9-18-24

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doesn’t run afoul of their water allocation provisions. To be clear, this provision of the LCP is akin to the requirement for a ‘will-serve’ letter or some other type of affirmative determination that the applicable water provider can and will legally provide water to the proposed development, including in conformance with their own procedures. If the entity cannot or will not provide water for whatever reason, then this independently would require a project’s denial regardless of whether the water source is sustainable or not.

In other words, this prong of the LCP can be understood as a factual yes or no in terms of the water provider allowing water to be served to this proposed project. The District has said yes, so long as it’s below the 18.53 AFY amount. When viewed in this light, such determination can serve to satisfy the first part of the LCP’s water supply requirement as it relates to the allocation requirement.

However, regarding the second point, as explained in detail in the Substantial Issue findings, at this time, given the myriad factors facing the Monterey Peninsula’s water supply, including in terms of historic adverse impacts to sensitive aquatic species in the Carmel River as a result of water overconsumption, concerns regarding overdraft and seawater intrusion in the Seaside Groundwater Basin, the State Water Board’s CDO to prohibit new connections and intensifications of existing connections, and various uncertainties regarding the timing of Cal-Am’s desalination project, the efficacy of Monterey One Water’s Pure Water Monterey Expansion, and various determinations regarding the region’s water demand and supply assumptions, it cannot be found at the current juncture that such water would currently come from a long-term, sustainable supply.

In light of such determination, the question then goes to how to apply such understanding to this proposed project. While it’s more straightforward to apply this understanding to a new use on vacant land (as it’s clearly new water-using development when there isn’t available supply to newly serve it), it’s somewhat more complex to apply it to existing developed sites. One way to understand it is that the public policy goal of the area is to reduce water usage from existing levels so as to bring the Peninsula’s water usage into a sustainable state. As such, it doesn’t really matter if there is an existing water-using use as any form of new water-using development must be denied unless and until the requisite Coastal Act findings regarding water supply health and adequacy can be met. This position would certainly be consistent with the intent of the State Water Board’s CDO, which is premised overall on the requirement to reduce water usage to legal and sustainable levels. Reducing water usage would also clearly be consistent with the LCP’s requirement to protect sensitive aquatic resources and only provide water in an amount that sustains such resources. Applying this understanding to this proposed project would result in its denial, as there wouldn’t be any water available to serve it unless and until there is evidence about the sustainability of the region’s water supply.

A second way to approach this is to cap water usage at existing usage amounts. The idea in this scenario would be to recognize that there is currently water flowing at the site, and thus limiting new development to that actual flowing amount wouldn’t exacerbate the problem. It would effectively maintain the baseline status quo. The question then would become one of how to calculate and determine the appropriate ‘baseline’. The MPWMD has its own protocols for doing so, including establishing water PGCC 9-18-24

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demand and use calculations based on the site’s ‘capacity for use’, or what the site is physically equipped to accommodate water-wise at full build out rather than what it actually uses. The State Water Board has opined that, while the District’s ‘capacity for use’ method may be appropriate in some cases, another analytically compelling method would be to determine the actual average water use for a water year from the past five years, or to use both methods and use whichever is the lessor amount. This makes sense for a variety of analytical reasons, not the least of which being that the idea that a baseline should be based on the amount of water the site could use at full occupancy and use is also inaccurate from a CDP perspective inasmuch as changes in use and changes in intensity of use, such as would occur should new/different tenants come into the space, is development requiring its own CDP, and such development itself would be required to meet the same LCP water supply tests as this proposed development, and would not be somehow ‘grandfathered’ in and allowed to use that amount of water no questions asked. As a result, the concept embedded in the District’s ‘full use’ baseline is inherently flawed.

That said, MPWMD has strongly opposed the use of actual water consumption data, arguing that doing so may incentivize prospective property sellers to artificially increase water use to facilitate changes in use by prospective buyers, as well as penalize those that implement conservation features to reduce water consumption. Additionally, MPWMD claims that it is unlawful to use actual water consumption data because it would violate CPUC policies regarding customer privacy, 58 and MPWMD’s Board even
went as far as to adopt a resolution identifying the flaws and legal problems associated with using actual water data, and concluding that they will not do so when establishing baseline water usage.
59 It should be noted that Commission staff, despite repeated requests for same, were not given the actual flowing water records for the ATC site, with the non-disclosure agreement cited as justification for not doing so, even if it appeared to staff that the property owner and underlying site users weren’t under the same restrictions as MPWMD and Cal-Am, and could have provided such data legally as it was their own water data. In any case, and as a work around, the actual flowing water for the site can be estimated by using the District’s water use factors as applied to only the square footage that is currently occupied by a tenant, thereby avoiding counting vacant space as using water. Commission staff worked with the Applicant to get such rent data, and then applied the water use factors to that square footage. The results of that exercise show that, as of July 2022, the estimated total water use was 5.924 AFY, with water use as of July 2021 at 8.030 AFY, and, pre-Covid, at 13.159 AFY as of July 2019. While it is true that the pandemic and the project’s pendency has led to some increases in vacancies, which could skew such numbers, it is also true that the site has not been at full occupancy and use for many, many years, and since well before 2019.

Using these numbers as a proxy for what the State Water Board suggests is a more 58 Specifically, the District cites to a non-disclosure agreement required by Cal-Am of its customers as a prerequisite to providing water service that prohibits providing access to water use records to anyone other than the specific account holder. The District indicates that this agreement means that neither MPWMD nor Cal-Am are legally allowed to provide actual water consumption data for existing service addresses.
59 See Resolution No. 2018-05 adopted in 2018 at:
https://www.mpwmd.net/resolutions/2018/Resolution2018-05.pdf.

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accurate determination of existing/baseline water use shows that the site’s running water has ranged from roughly 6 AFY to 13 AFY. And applying this metric to the site would yield a pretty significantly downscaled project.

And finally, a third permutation, and related to the second one, is to cap water usage in line with what the MPWMD did for this site in terms of its capacity for use. As described previously, the MPWMD’s 18.53 AFY water allocation is based on the amount of water the site is physically equipped to accommodate at full occupancy. Water usage fluctuates, particularly at a commercial building where tenants routinely change hands, which is evident by the fact that the site appears to have used only about 6 AF last year, but three years earlier it had used about twice that amount. And, to the District’s point, looking at actual water usage can lead to deviations for a variety of reasons, particularly for commercial spaces, that can make it difficult for use in planning applications like this.

At the same time, this is simply ‘paper water’ inasmuch as it doesn’t actually reflect running water, nor the long-term sustainability of its source. When using this method, which is the version relied on by the District and the City, the site would be allowed no more than the 18.53 AFY identified/allocated for this site.

Each of the three permutations runs across the spectrum of methodologies for evaluating water use under the LCP. The most conservative approach, of course, would be the first alternative (no new water use allowed scenario) that indicates that no water use at the site is permissible pursuant to the LCP, which would require project denial.

While this would help address coastal resource impacts more broadly as it relates to water supply issues, the existing status quo at the site would remain, so it would only hold such impacts steady, and not actually decrease them. In other words, denial of this project would not mean that the existing commercial uses at the site also go away, and thus water use would be expected to continue at current levels (i.e., roughly 6 AFY). To put it another way, denial would eliminate new water use, but is not likely to reduce water use at this site and there is still the possibility of the site being entirely rented out and utilizing their full ‘paper’ water amount. That said, there would still be resource value to applying this scenario.

The second alternative (actual flowing water scenario) makes more sense since it is applying a more apples to apples comparison between the actual water currently being used at the site and what a future project would be using. In other words, the water use stays the same, but the use that is using it would change, from commercial uses to hotel uses. Application of this scenario suffers from the fact that there can be any number of reasons why water use might be at a certain level in an existing situation (including, as the District identifies, where potential applicants might try to increase their water use in order to be allowed a larger development in the future), but it also is more analytically pure because it compares actual before and after consumption, and allows for decisions to be made based on the water use difference, and what that difference means in terms of the applicable LCP coastal resource requirements and questions raised. Even with PGCC 9-18-24

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the inherent issues, this scenario is probably the simplest, most straightforward, and analytically accurate scenario.60
And lastly, the third alternative would be to apply the District’s water use credits to the site as the District recommends (the estimated water use at full capacity scenario). This method is probably the least protective of coastal resources that are impacted by water demand, but it has the benefit of providing the market with greater certainty in terms of potential growth, even as it essentially represents ‘paper’ water credits and not actual water use. As applied to the subject case, it also is the option that allows the City to move forward with what it considers its largest growth opportunity site at the scale the City has long envisioned, going back to the citizens’ initiative from almost a decade ago that allowed the project at this location in the first place. And where that project is a visitor-serving project, a project type that has priority over other types of projects that might otherwise be considered here under the LCP and the Coastal Act. This scenario also leans most heavily on estimates that the Peninsula’s water supply issues are nearing a point where they will not lead to these types of difficult questions as a general rule, and where development may be able to proceed in the relatively near future based on a sustainable supply, thus mooting some of these very questions.

In short, it is a judgment call as to the best method to find LCP consistency, requiring the weighing of costs and benefits, including costs and benefits of different potential resource outcomes, and applying various temporal considerations. And while it may not be directly applicable to other potentially proposed development on the Peninsula, including as it is attributable uniquely to the context and attributes of the proposed project at this location at this time, the Commission here applies the third scenario.

Thus, as long as water use is below 18.53 AFY, then the Commission can find the project consistent with the LCP on this point. Special Condition 5 thus limits the approved project to that amount, and requires the MPWMD to provide written concurrence that the approved project in its totality (inclusive of all hotel rooms, restaurants, pool/spa amenities, and any other water-using development, and not offering ‘credit’ for off-site laundry or greywater system) is within such water budget.61 It also requires audits of actual water usage so as to ensure compliance with such water budget over time, and remedial measures if such usage is in excess of this limit.

MPWMD staff have reviewed the Applicant’s proposed project and has preliminarily confirmed that it falls under the prescribed 18.53 AFY amount.

3. Lower-Cost Accommodations
As described in the Substantial Issue findings, the Pacific Grove LCP includes a robust set of specific standards related to the provision of lower-cost accommodations. The LCP defines what qualifies as lower-, medium-, and higher-cost accommodations, 60 And has been the method repeatedly recommended by Commission staff for as long as this application has been pending at the local level; see Exhibit 7.
61 To be clear, this condition requires total water consumption to be within 18.53 AFY. If the Applicant provides signoff of the efficacy of on-site greywater recycling and use by requisite agencies (as required of Special Condition 1(d)), then such ‘credit’ could be understood in relation to the 18.53 AFY water budget. In other words, the condition doesn’t provide for a ‘credit’ per se, but rather such savings would be reflected in the amount of water the site actually uses.

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requires new development to provide lower-cost accommodations in an amount equal to at least 25% of the number of high-cost accommodations, and requires such lower-cost units to be provided on-site as part of the proposed project, unless doing so is found to be infeasible. On this point, the LCP requires a detailed analysis underlying the factors regarding a project’s infeasibility of providing such lower-cost units on site, including specifying the financial assumptions and rationale for this conclusion. If on-site infeasibility is determined, then the LCP allows for such lower-cost requirements to be satisfied by the payment of an in-lieu fee in an amount equal to providing new such accommodations units elsewhere in the City.

This LCP construct is specific and rather unique to the City, and three important points should be made. The first is that the standards are more robust and detailed than many other LCPs, which is reflective of the fact that the City’s LCP is the most recent newly certified one in the State. The LCP was fully certified for the first time, with the City assuming CDP review authority, in 2020, and thus the lower-cost provisions reflect some of the Commission’s most recent contemporary understandings of the importance of these issues. Second, the LCP speaks to the importance of providing lower-cost units on-site as part of the proposed project, with in-lieu fees and off-site units allowed only as a second resort due to on-site infeasibility issues. And this is for several reasons, including both the Commission’s general difficulty in getting in-lieu fees spent on actual new lower cost units, as well as the overarching goal of providing more equitable mixeduse/income accommodations types in the coastal zone, which is both a public access issue as well as an environmental justice issue. These understandings after almost 45 years of Coastal Act implementation helped inform the LCP’s on-site preferences. And third, and perhaps most importantly for this project, these policies were written with the ATC site in mind. This reason is twofold: one, the LCP envisioned a hotel at this site, with various iterations of hotel proposals in the past. And in fact, this particular hotel proposal was in its infancy when the LCP was being developed. And two, there simply aren’t many other sites in the City where new hotel development would be possible.

Due to water supply issues as discussed previously, and due to voter initiatives from the 1980s that restrict the building of new hotel units, developing new hotel units at all, let alone lower-cost ones, is a difficult endeavor in Pacific Grove. As such, and while the LCP’s lower-cost requirements apply throughout the coastal zone to all accommodations projects, there was a particular understanding of their applicability to the then-upcoming proposed ATC project to meaningfully provide lower-cost units and address this pressing affordable lodging issue in the Monterey Peninsula.

In this case, the Applicant is proposing 188 high cost rooms, which would necessitate the provision of 47 lower-cost ones (i.e., 25% of the higher cost rooms) whether on site, in an offsite project (i.e., a 47-room lower cost hotel), or a fee (calculated for 47 rooms to be some $22 million in this case.
62 In light of this, and in response to the articulated issues with the City’s previous approval, the Applicant revised its lower-cost proposal to include three parts. The first is to include 18 traditional, double-occupancy hotel rooms interspersed within the rest of the hotel. These units would be capped at the LCP’s defined lower-cost rates, which, as described previously, at the current time in 2024 62 Where that fee is inclusive of land acquisition, construction costs, and a 10% management fee, estimated to be $463,972.55 per unit, or $21,806,710.08 for 47 units: see Exhibit 6.

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would be no more than $184 per night. The second component is the construction of a ‘Group’ wing somewhat separated from the main hotel facility, but still on-site and part of the overall ATC hotel resort complex. In this area, there would be 64 shared beds within 16 units. Each bed would be priced at $85 with common areas and shared bathrooms (eight bathrooms in total, with each bathroom serving two units, or serving occupants of up to 8 beds total). And third, within this Group wing, the Applicant proposes a program to provide for low- and no-cost stays for groups, including from schools, underrepresented youth, and underserved communities. The Applicant proposes to provide at least 300 bed-nights per year63 in the Group wing for such programming, where 150 such stays would be free, and the others would be provided at lower cost (again, where each of the rooms wouldn’t cost more than $184 per night).

The Applicant indicates that the intent is also to work in partnership with the Monterey Bay Aquarium and other area attractions and educational facilities to provide for environmental education opportunities along with overnight stays.

There are numerous issues to discuss with respect to the Applicant’s proposal. It first should be noted that the proposal to provide for on-site lower-cost hotel rooms is clearly consistent with both the intent and letter of the LCP’s lower-cost requirements. That said, the LCP requires 47 such units, and this proposal is for 18, thus not all of the requirement is satisfied. The Applicant believes that the remainder of its proposal in terms of its proposed Group wing and its low- and no-cost group programming efforts fills in that remaining 29-unit gap. Their thinking is that, pursuant to the Commission’s general understanding, including from research done by Hostelling International, a hostel bed utilizes about 125 square feet and a lower-cost, double-occupancy hotel unit 250 square feet. Thus, based on these typical unit sizes, the Applicant seeks a ‘2:1 conversion’, meaning that 2 hostel beds are equivalent to 1 hotel room or “unit” for LCP purposes. In other words, the Applicant wants the Commission to consider the 64 beds in 16 shared rooms (with shared bathrooms) to be the equivalent of 32 standard lower cost hotel rooms. And the Applicant posits that, along with programming efforts totaling some 300 bed-nights per year within, more than satisfies the LCP’s requirements.

A first question is how to treat the proposed hostel/group/shared accommodations construct as a form of lower-cost accommodation. One could argue that these units are inferior to the luxury hotel units being proposed in the main hotel complex, and that the lower-cost units should all be like-for-like in terms of affordable hotel rooms (with private bathrooms, minimum double occupancy, and on the same grounds/treated in all the same manner as the rest of the hotel). Another way to look at it is that these type of proposed shared accommodations are an affordable way to target single travelers and couples who may not need a full hotel room and would benefit from cheaper shared accommodation. In addition, these types of units would be geared toward the budget conscious traveler and would therefore be more amenable to being reserved for and used by those who need such lower-cost accommodation the most, rather than a lowcost hotel room that could be used by a higher-income traveler who would already be 63 Where one bed-night is when one user of one bed stays one night. At full occupancy of the Group wing, and its 64 total beds, a group of 64 staying for one night would take up 64 of the 300 bed-nights.

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looking to stay at the high-end ATC hotel. In other words, a hostel/group quarters might naturally better target those of lower income and be more fruitful in this regard.

Still yet, there are questions as to how to analytically compare an $85 per bed shared room (4 occupants) with an individual $184 lower-cost hotel unit at double occupancy.

When looked at from the perspective of a single traveler or couple, the price point would be below the $184 threshold and could therefore be considered lower-cost, bracketing whether this is a correct comparison between these two accommodations types (i.e., sharing rooms and bathrooms with strangers). However, when looked at the price per unit, the four beds in the hostel unit would be $340, almost double the $184 hotel room cost and clearly not lower-cost, particularly for a family of four who each want their own bed. In addition, while the Applicant believes the correct comparison between these two accommodations types is two hostel beds to every one hotel room, there are questions as to whether this is appropriate or not. While square footage and occupancy may lead to the 2:1 conclusion, based on other metrics, like privacy, bathrooms, and price per unit/bed, these are analytical apples and oranges that do not lend themselves to a clean 2:1 conversion.

In light of all of this, several points can be made. First, all of the benefits and limitations identified previously regarding hotel vs. hostel/group quarters can be true. It is accurate to state that hostels can provide a specific type of accommodation for couples and single travelers, and can better naturally target the type of budget conscious traveler for whom such lower-cost rooms are intended. And, based on the proposed rates, the proposal can be understood as lower-cost for those that seek hostel style accommodations – usually single travelers, couples, or groups of friends on a budget.

But it’s also true that many people, including families with young children, will not seek and will not be comfortable in a shared accommodation construct and will instead seek a traditional hotel room. And in a hotel project with 188 traditional hotel rooms, and in an area with severe limitations in terms of where additional hotel units can be built (again, due to water scarcity, voter restrictions, lack of vacant properties, etc.) where it is imperative to take full advantage of the extremely limited opportunities for when units of any type are proposed, the lower-cost units provided should reflect the rest of the product, and thus include lower-cost hotel units. And, again, such lower-cost hotel units are more conducive to serve as an option for families, where they would be more likely to seek out the privacy and lower-cost price point associated with this accommodation type over a group quarter. As such, a package/mix provides the benefits of both of them.

Second, while the Commission understands the rationale behind the Applicant’s 2:1 hostel bed to hotel room conversion based on size alone, the other inherent differences between the two accommodations types simply does not lend itself to such a ‘clean’ ratio. Two twin hostel beds in a shared room is simply not the same as two twin beds or one queen size bed in a private traditional hotel room. A more apt comparison between the two would be to compare units for units, in this case one hotel room with one hostel unit. The Commission can then understand the proposed Group wing to be comprised of 16 units. Thus, the proposed project provides 18 hotel units and 16 group/hostel units.

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And third, while it is an even more ‘apples to oranges’ analytical comparison between units and lower-cost programs, the Commission can ‘value’ the Applicant’s proposed group programming provisions within the context of the LCP’s on-site lower-cost requirements for this project. And in this case, the proposal seeks to provide at least 150 free and 150 lower cost stays per year for those who traditionally may not be able to experience a coastal zone stay and related activities. This represents a meaningful lower cost accommodation benefit, and clearly is in line with the Commission’s environmental justice principles and the objective of ‘access for all’. Again, it is acknowledged that this isn’t a perfect analytical fit, and that the program will mean that the Group wing isn’t available to other users during these group occupancy times. But the ability to provide free and lower cost group accommodations so close to the shore and in such a highly visible and prime coastal locale for schools, youth groups, and other underrepresented communities is something that strikes at the heart of the Commission’s lower-cost accommodations, public coastal access, and environmental justice mandates.

In short, while some may argue that the Applicant should provide 47 standard doubleoccupancy hotel rooms on site at a lower cost to satisfy the LCP, the Applicant has actually proposed a mix of lower cost amenities to satisfy the LCP, and that package can be considered by the Commission as well. The fact that the Applicant is proposing eighteen on site, lower cost hotel rooms is significant, including as it has been difficult in the Commission’s experience to get fully integrated lower cost rooms as part of these types of projects, and there’s a significant benefit to having that in this case. In addition, the 16 hostel/group rooms perform a different lower cost function, and target a different type of user, which provides a range of different accommodation options. Together, and together with the group programming aspect, the Applicant has proposed a significant lower cost visitor serving package, one that avoids in-lieu fees, and actually targets onsite and offsetting lower cost facilities, where the package can be considered adequate to satisfy the LCP’s requirements in a slightly different way.

As such, Special Condition 6 codifies the Applicant’s proposal, and includes important measures to ensure that these lower-cost provisions are effectively carried out over time. Among other things, the condition specifies that the lower-cost thresholds are caps,64 and that all hotel fees, including parking, resort fees, and administrative fees, with the exception of government-imposed fees/taxes, are to be reflected/included in that price. The condition also specifies some minimum standards for the lower-cost units, including that such hotel rooms must be at least 250 square feet (with a queen size bed or two twins) and all users of the lower-cost hotel units and the hostel/group quarters are required to have access to the same amenities in the rest of the hotel as would any other paying guest, including those in the high cost rooms. As for programming, while the condition is meant to be slightly broad in order to be nimble enough for flexibility in program elements, the condition does specify some overall minimum performance standards, including requiring at least 300 bed-nights per year of group stays, with 150 of those free and the other 150 capped at the LCP’s lower-cost 64 Subject to changes with the Consumer Price Index.

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unit threshold,
65 specifying that the targeted clientele is those from lower-income communities, communities of color, and other communities that have been historically marginalized and face greater barriers to coastal access, and requiring yearly monitoring reports that identify program effectiveness and group composition, along with the proposed programming for the upcoming year. The condition also requires yearly monitoring and a third-party audit every third year to help measure effectiveness of the lower-cost provisions overall, as well as outreach to market such rooms to inland communities, including in Spanish and other appropriate languages.

And finally, Special Condition 7 requires that all overnight accommodations (hotel rooms and group quarters) be open and available to the general public, that rooms shall not be rented to any individual, family, or group for more than 29 consecutive days and that no individual ownership or long-term occupancy of hotel rooms shall be allowed. To further ensure that the hotel operates as proposed and approved, Special Condition 7(b) prohibits the conversion of any of the hotel overnight rooms to limited-use overnight visitor accommodation units (e.g., timeshare, fractional ownership, etc.) or to full-time occupancy condominium units or to any other units with use arrangements that differ from the approved project, as well as requires annual monitoring reports to ensure same.

In conclusion, the Applicant has proposed a meaningful package of lower-cost accommodation types that can serve as lower cost options for families (in 18 such hotel rooms), for single/couple travelers (in 64 beds in shared group accommodations), and for underserved groups (via at least 150 free and 150 lower cost stays for group programming). The Commission welcomes – and prefers – these types of on-site lower cost packages as a means of addressing Coastal Act and LCP lower cost overnight accommodation issues, and finds that as conditioned the project can be found consistent with the LCP.

4. Public Views/Community Character and Public Access
As described in the Substantial Issue section previously, the LCP is protective of public views, including stating that the visual qualities of Pacific Grove’s coastal areas are a resource of public importance, requiring development to be compatible with its built and natural environment surroundings, and otherwise ensuring development does not significantly adversely impact significant public views. To meet these overarching objectives, the LCP specifies that protection of scenic resources and other coastal resources must be the priority in all City actions and decisions, and that all development standards (including with respect to height, setback, density, lot coverage, etc.) must be interpreted as maximums (such as for height) or minimums (such as for setbacks) that are required to be reduced (or increased) to protect and enhance such resources to the maximum extent feasible. And for the project site specifically, development needs to include sufficient articulation and massing so as to avoid the appearance of domineering over the adjacent public realm.
65 Meaning that 150 guest nights are free, and 150 guest nights are capped at the LCP’s lower-cost threshold of $184 per night as of 2024.

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In addition, because the project site is located in such a visually conspicuous and popular visitor-serving location, the LCP only allows the proposed site coverage of up to 90% if significant public access amenities are provided beyond which the LCP would ordinarily require. In other words, the LCP requires some of the allowed site coverage to be programmed for public plazas, parks, restrooms, and similar public access amenities so as to maximize public recreational access and utility at this important site. With such requirements, and with the overall understanding that the LCP mirrors the Coastal Act in terms of the requirement to maximize public recreational access opportunities, the issues of access and views/character are largely intertwined. In short, the project needs to respect its surroundings and ensure that public access is an intrinsic part of the project.

Analysis
As described previously, while the overall site plan and design aesthetic has largely been retained from the City-approved version, the Applicant has made some modifications to better address views and access, including to ‘fix’ some of the issues and problems identified from the City’s approval. There are several design changes, including by overall making the project smaller by some 85,000 square feet and removing a proposed vehicular ingress/egress along Ocean View Boulevard. Doing so provides for the creation of a new public park/plaza at the downcoast site corner at Ocean View Boulevard and Dewey Avenue. Such change, along with other proposed articulation and small ‘pocket’ plazas along the rest of the Ocean View Boulevard frontage and proposed landscaping, should help to soften the perceived mass and scale of the building from the road and from the Monterey Bay Coastal Trail, which is a key LCP objective so as to avoid structures looming over the public viewshed. In addition, the Applicant has also modified certain public access elements to better meet LCP objectives, including now providing direct access from the new park to the living roof, which itself will be open and available for public enjoyment with benches, interpretive displays, and other amenities. The living roof area will aid in public enjoyment and offer an exciting opportunity for the general public to obtain expansive views of Monterey Bay from an elevated vantage point. In addition, the public restroom has been relocated closer to Eardley Avenue so as to better provide for access and use for the general public without having to venture deep into the hotel itself. Having a readily accessible public restroom, particularly in this area with the many children and families coming to and from the Monterey Bay Aquarium, is an important public benefit.

The Applicant firmly believes that the proposed design and access offerings materially will benefit this site over the existing status quo and meet the LCP’s requirements for this site, including going ‘above and beyond’ what would ordinarily be required and provide extra benefits for the public and not just hotel guests. They opine that this project isn’t introducing a new structure to a currently undeveloped site, or even one on the seaward side of the road or fronting the shoreline, but rather is replacing the existing ATC building which itself is a large two-story structure that takes up the entire City block with little setback from the road and few amenities geared to the general public. And while the sawtooth building includes some notable and distinctive architectural features (and these features, like the roof, will be predominately retained), it otherwise is a flat, uninterrupted plane along this visually prominent stretch.

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While reasonable people can – and often do – disagree when it comes to matters of design and community character, in this case and given the context, the Commission agrees with the Applicant’s assessment. While the project is clearly still quite large, and there could be other permutations that could further add articulation (e.g., not building in the Sloat Avenue right-of-way and keeping it as a public street) or otherwise reduce its size and scope, it’s also true that the site is not pristine. Rather, the site is a mix of old industrial buildings and surface parking lots that can be put to better and higher uses. In sum, the project will provide for some pretty substantial public access benefits that materially will benefit the public, and will do so with a design approach that similarly respects the character of the area as much as possible for a large project of this type.

Special Condition 1 thus approves the proposed site plan and overall design, and includes a series of conditions and performance standards to ensure consistency with LCP design requirements, including final plans that specify landscaping (e.g., only using native and non-invasive species to provide for visual softening and screening of structural development), signage (e.g., reducing their number and visibility, and using natural materials and earth tones to effectively blend in with the surrounding aesthetic), lighting (e.g., using wildlife friendly lights facing downward and shielded to prevent light spill and glare), utilities (e.g., placing them underground or away from public view), and windows (e.g., using non-glare and bird safe glass) to all be compatible with the overall area design aesthetic. And Special Condition 4 similarly codifies the proposed public access amenities via a Public Access Management Plan, with provisions to ensure that such amenities (e.g., the public park, living roof, and public restroom) are clearly identified on final plans, adequately signed to alert the public of these spaces, include appropriate amenities to aid in their enjoyment (e.g., benches, picnic tables, and trash cans), and maintained over time to maximize their use and utility in this regard.

That being said, the proposed project does materially affect public parking and the use of public street space. The project still proposes to convert portions of the existing Sloat Avenue public street to private hotel use. Doing so will result in the loss of some 20,000 square feet of publicly owned space, 17 parking spaces along the street (along with an additional 7 spaces lost along Dewey and Eardley Avenues due to curb cuts, driveways, and similar measures to access the proposed hotel), as well as its sidewalk space and corresponding ability for the public to easily walk between Eardley and Dewey Avenues.

The project also proposes to encroach into the Ocean View Boulevard right-of-way with an elevated sidewalk that will be privately owned but open to public use, totaling some roughly 3,000 square feet. While the Ocean View Boulevard encroachment can be addressed through conditions that clearly state that such elevated walkway is to remain open and available for public use without obstruction (and Special Condition 1(a) does just this), the Sloat Avenue and public parking impacts require more evaluation. The privatization of this area represents both a direct, quantifiable impact,66 including direct loss of parking spaces, as well as a more intangible loss of public space to private use that is difficult to fully quantify. Public space of any type, particularly so close to the 66 As part of the City’s street right-of-way vacation efforts, the appraised value of the roughly 20,000 square feet of road space that would be sold to the Applicant was valued at roughly $2 million, or about $200 per square foot (as of December 2021). The City has not yet sold the street, pending resolution of the Commission’s action on this CDP.

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ocean and prime visitor-serving uses, is a valuable common resource that must be protected, or, at a minimum, sufficiently mitigated. While one way to address this issue is through alternative siting and design that eliminates the privatization of this street, including eliminating it from hotel use (and instead having elevated walkways above the street to connect ‘wings’ on either street side, as is done with some structures along Cannery Row) and thereby avoiding the impact in the first place, another way is to ensure that the public utility of the street space is fully mitigated.

The Applicant proposes to mitigate for the loss of parking by adding six on-street spaces (through elimination of existing driveways that serve the existing ATC site), and providing 20 new spaces in a new paid public lot at 124 Central Avenue. The end result will be a net gain of 2 spaces. And while this is true, it’s also true that the public is losing sidewalk space, that the new spaces will be located further away and not as close to area amenities, and that the public’s real estate is lost. The on-street parking around the ATC site represents some of the closest, low-cost parking for visitors to the Monterey Bay Aquarium and Monterey Bay Coastal Trail. To access the coast, visitors who park in the public lot on 124 Central Avenue will have to traverse around the ATC hotel and downhill from Central Avenue. This represents an even greater barrier for visitors with ADA-needs.
67 In short, the Applicant’s public parking proposal does not have the same utility nor access to the coastline as the on-street parking spaces that will be removed around the ATC site, and thus does not sufficiently mitigate for the impact.

To do so, Special Condition 4(d) requires the 20 spaces in the public lot to be free for 6 hours a day subject to a 3-hour maximum stay for any one vehicle (and ADA spaces free all day and not subject to such restrictions). This requirement recognizes that the utility of these spaces isn’t as high as the status quo, and thus to make up the difference, the spaces are free of charge during this time frame. Along with the fact that there is a net increase in public parking overall, the finding can be made that parking and public space impacts from Sloat Avenue’s conversion to private use are appropriately mitigated in this way. To further ensure that the project addresses traffic and multi-modal transportation requirements, Special Condition 8 requires the preparation of a Transportation Demand Management Plan that requires, among other things, ride sharing programs and transit passes to reduce single-occupant car trips for workers, as well as shuttles and free bikes for guests to accomplish same.

As proposed and as conditioned, the project meets the LCP’s requirements for public view and public access protection and provision overall, as well as the specific directives for this specific site. It also adequately mitigates for the project’s impacts to public streets. The end result is a project that should be a measurable improvement over the status quo and one worthy of this prime coastal setting. 67 It should also be noted that the on-street parking spaces located on Ocean View Boulevard, Eardley Avenue, Dewey Avenue, and Sloat Avenue are authorized by a Commission-issued CDP (3-04-027) that allows the City to operate a metered parking program that includes a 2-hour time restriction for 31 parking spaces on Sloat Avenue and Ocean View Boulevard between 9am and 6pm, consistent with other 2-hour parking areas within the City (i.e., at Lover’s Point). Any changes proposed to the on-street parking spaces on these streets must obtain an amendment to the CDP, for which the City must apply.

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5. Habitat Resources
As explained in the Substantial Issue section, the LCP includes numerous provisions to protect the area’s rich biological resources, including policies mirroring the Coastal Act in this regard to prevent adverse impacts to environmentally sensitive habitats and biologically sensitive species, including marine wildlife haul-out, breeding, and nesting habitats located along the beaches and offshore rocky areas near the project site. The LCP also includes specific protections for marine mammals such as harbor seals. And while the project is located in an inland location and not physically within coastal waters, as identified in the project’s EIR and as noted in the substantial issue findings, the project’s construction may result in adverse impacts that transcend the site, particularly with respect to noise. And while the project’s EIR recognized such potential impacts and identified ways to mitigate them, it didn’t go into sufficient detail regarding the specific mechanisms by which construction noise and impacts would be defined, monitored, reported, and corrected should there be any.

In this vein, Commission staff, including the Commission’s Ecologist Dr. Rachel Pausch, has reached out to various local marine mammal and avian experts to best articulate the specifics of what would constitute adverse impacts and recommended monitoring techniques to sufficiently document such impacts should they occur. The result of such collaboration is the Marine Wildlife Protection Plan required by and specified in Special Condition 3. This condition builds upon that which the Commission required in previous projects in the area,68 and defines, among other things, the locations for habitat monitoring (i.e., the ‘Protection Areas’, defined as the three identified harbor seal rookeries at West Beach, Fisher Beach, and Fifth Street and out to at least 10 meters offshore), the protocols for where and how biological monitors are to assess for potential impacts (including provisions for on-site as well as remote monitoring), the specific behavioral cues for what may constitute an adverse impact (e.g., sustained head raises/alerts, rapid movements in response to acute noise stressors, feeding/nursing disruptions), and the notification process for when, in the monitor’s best professional opinion and in conformance with the identified criteria, construction noise is adversely impacting marine wildlife, including harbor seals and black oystercatchers.

These notifications include the Commission’s Executive Director, as well as other fellow resource experts at the Monterey Bay National Marine Sanctuary and NOAA Fisheries, and may, depending on the severity of potential impact, necessitate a stop work order and new CDP authorization.

Again, it’s important to reiterate that these are all precautions and that the EIR found that construction impacts should not be substantial, including in light of expected noise levels in these sensitive offshore environments, as well as with precautions to avoid the loudest construction activities during pupping season (which is similarly included in the special conditions). And that analysis was based on the previous City-approved project, which was larger and included more extensive grading than what is currently proposed.

In fact, the project’s smaller scope and elimination of certain structural elements along Ocean View Boulevard (and replacement with the public park/plaza) reduces excavation 68 Including in the Monterey Bay Aquarium’s new sea otter research and rescue facility authorized via CDP 3-23-0656-W.

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by about 27,500 cubic yards, which should translate into a reduction of noise and vibration impacts at the most seaward project location.

With such understanding and as conditioned, including ensuring that such provisions are identified as part of required Construction Plans (see Special Condition 269), the project can be found consistent with the LCP’s habitat resource provisions.

6. Archaeological/Cultural Resources
As shown on Figure 7 of the LUP, the entire coastal zone in the City of Pacific Grove has been designated an Archaeologically Sensitive Area, including the project site. The LUP requires development to implement reasonable mitigation measures to protect identified archaeological or paleontological resources. The LUP further requires a site survey and associated report, and a mitigation plan to be completed by a qualified archaeologist for projects within an archaeologically sensitive area. Applicable LUP provisions include:

LUP Policy CRS-1. The City will conduct consultations with any federally recognized California tribal government listed on the most recent notice of the United States Federal Register and any non-federally recognized California tribe listed on the California Tribal Consultation List maintained by the California Native American Heritage Commission that identifies as native to the Monterey Peninsula, including the Ohlone Costanoan Esselen Nation, in accordance with state law.

LUP Policy CRS-2. The City will ensure the protection, preservation, and proper disposition of archaeological resources within the Coastal Zone by assessing the potential impact of proposed development and ensuring, to the maximum extent feasible, that tribal concerns are considered before actions on proposed development are taken and that such impacts are avoided, minimized, or mitigated in conformity with the Coastal Act and other applicable legal requirements.

LUP Policy CRS-3. The City will assist developers and landowners by providing early identification of sensitive sites so that archaeological resources can be considered and protected during the early phases of project design. The City shall require new development to prepare an archaeological report by a qualified professional and, where appropriate, shall require mitigation measures to adequately protect and preserve potential archeological resources.

An archaeological assessment was included in the EIR and found that the project location has a high sensitivity for archaeological resources. Prehistoric shell middens and habitation sites have been recorded to the immediate northwest, north, and southeast of the project site and given their distribution and the recorded depths of deposition (approximately one meter below the surface), there is a high likelihood that 69 Special Condition 2 also includes the Commission’s suite of typical best management practices to ensure that construction activities avoid adverse coastal resource impacts, including on water quality and nesting birds. And Special Condition 9 also protects coastal water quality and habitats through a required Plastic Reduction Program to minimize single-use plastics in all aspects of hotel operations.

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additional prehistoric resources may lie beneath the current ATC facility complex.

Furthermore, the site is situated within the recorded boundaries of an historic Chinese village and intact deposits relating to this resource have been recovered within the project vicinity.

The Monterey Bay region is represented by the Ohlone/Costanoan-Esselen Nation (OCEN), which is comprised of over 600 enrolled tribal members of Esselen, Carmeleno, Monterey Band, Rumsen, Chalon, Soledad Mission, San Carlos Mission (Carmel) and/or Costanoan Mission Indian descent. The EIR documents the Applicant’s and City’s tribal consultation efforts, including working with OCEN officials to develop appropriate construction mitigation protocols (such as on-site monitoring during ground construction activities and stop-work orders should human or other sensitive remains/materials be unearthed).

Special Condition 10 carries forward these measures, and includes the Commission’s typical archaeological protection protocols, which, similar to the identified habitat resource protections, must be identified on all required construction plans. As conditioned, the project can be found consistent with the LCP’s archaeological/cultural provisions.

7. Other
Other Agency Approvals
In addition to CDP authorization under the Coastal Act and LCP, the proposed project appears to affect the Monterey Bay National Marine Sanctuary, which may need to provide authorization, and may affect marine resources that are protected by NOAA Fisheries, as well as water resources governed by the Monterey Peninsula Water Management District and applicable health and building departments. To ensure that the Applicant has a sufficient legal interest to carry out the project consistent with the terms and conditions of this CDP and to ensure that the proposed project is authorized by all applicable regulatory agencies, Special Condition 11 requires the Applicant to submit written evidence either of these other agencies’ approvals of the project (as conditioned and approved by this CDP) or evidence that such approvals are not required. Special Condition 12 also specifies that the Permittee is to follow all other requirements and conditions imposed by the City of Pacific Grove pursuant to their nonCoastal Act authorities. If there is any conflict, however, between those conditions and this CDP, this CDP shall govern.

Future Permitting
The Commission herein fully expects to review any future proposed development at and/or directly related to this project and/or project area, including to ensure continued compliance with the terms and conditions of this CDP through such future proposals, but also to ensure that any such future proposed development can be understood in terms of same. Thus, any and all future proposed development at and/or directly related to this project, this project area, and/or this CDP shall require a new CDP or a CDP amendment that is processed through the Coastal Commission, unless the Executive Director determines a CDP or CDP amendment is not legally required (see Special Condition 13).

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Minor Changes
This CDP authorizes the project proposed except as modified by the special conditions.

As is typical of large and complicated construction projects like this, there can be the need for minor changes as circumstances dictate. Thus, this approval allows for such changes through either (a) a CDP amendment, or (b) if the Executive Director determines that no amendment is legally required, then such changes may be allowed by the Executive Director if the Executive Director determines that such changes: (1) are deemed reasonable and necessary; and (2) do not adversely impact coastal resources (Special Condition 14).

Indemnification
Coastal Act Section 30620(c)(1) authorizes the Commission to require applicants to reimburse the Commission for expenses incurred in processing CDP applications. Thus, the Commission is authorized to require reimbursement for expenses incurred in defending its actions on the pending CDP applications in the event that the Commission’s action is challenged by a party other than the Applicant. Therefore, consistent with Section 30620(c), the Commission imposes Special Condition 15 requiring reimbursement for any costs and attorneys’ fees that the Commission incurs in connection with the defense of any action brought by a party other than the Applicant challenging the approval or issuance of this CDP, or challenging any other aspect of its implementation, including with respect to condition compliance efforts.

Deed Restriction
The terms and conditions of this approval are perpetual and run with the land, thus binding any future buyers and owners of the properties subject to this CDP. This approval is also conditioned for a deed restriction to be recorded against the property involved in the application (see Special Condition 16). This deed restriction will record the conditions of this permit as covenants, conditions and restrictions on the use and enjoyment of the property.

I. California Environmental Quality Act (CEQA)
CEQA Section 21080.5(d)(2)(a) prohibits a proposed development from being approved if there are feasible alternatives and/or feasible mitigation measures available that would substantially lessen any significant adverse effect that the development may have on the environment. CEQA further requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits, including regionwide or statewide environmental benefits, of a proposed project against its unavoidable environmental risks when determining whether to approve a project. If the specific benefits of a proposal outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered “acceptable.” The City of Pacific Grove, acting as the CEQA lead agency, certified a final Environmental Impact Report for the project in January 2022. Pursuant to State CEQA Guidelines Section 15093, the City prepared and adopted a Statement of Overriding Considerations that notes that although the EIR identifies significant and unavoidable PGCC 9-18-24

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impacts in the categories of Aesthetics and Cultural Resources,70 the City found that there are overriding considerations that provide specific economic, legal, social, technological, and other benefits, including region-wide or statewide environmental benefits, that outweigh the unavoidable adverse environmental effects.

The Commission’s review, analysis, and decision-making process for CDPs and CDP amendments has been certified by the Secretary of the Natural Resources Agency as being the functional equivalent of the environmental review required by CEQA (CCR Section 15251(f)). Accordingly, in fulfilling that review, this report has analyzed the relevant coastal resource issues with the proposal, has addressed comments received, and has identified appropriate and necessary modifications to address adverse impacts to such coastal resources. The Commission finds that only as modified and conditioned herein will the proposed project avoid significant adverse effects on the environment within the meaning of CEQA. Thus, the proposed project as modified will not result in any significant environmental effects for which feasible mitigation measures have not been employed, consistent with CEQA Section 21080.5(d)(2)(A).

4. APPENDICES
A. Substantive File Documents71
 American Tin Cannery Hotel and Commercial Project EIR B. Staff Contact with Agencies and Groups
 City of Pacific Grove Community Development Department  California Public Utilities Commission
 California Water Resources Control Board
 California Department of Fish and Wildlife
 Monterey Bay National Marine Sanctuary
 United States Department of Fish and Wildlife
 NOAA Fisheries
 Monterey Peninsula Water Management District
 Stanford University, Hopkins Marine Station
 Unite Here
70 Cultural resources include archaeological and historic resources. In this case, the EIR found that the project would have significant and unavoidable impacts to historic resources, namely historic structures, but not archeological/cultural resources.
71 These documents are available for review in the Commission’s Central Coast District office.

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Agenda No. 13 B

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Robert Perrault, Interim City Manager
MEETING DATE: April 3, 2024
SUBJECT: American Tin Cannery Project and Comment by City to the California Coastal Commission.

CEQA: Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Direct the Mayor to provide written comment to the California Coastal Commission in support of the revised ATC Project or other action related to this item.

DISCUSSION
On April 19, 2016, the votes of the City of Pacific Grove at a Special Election approved an initiative measure (“Measure X”) to change the zoning of the American Tin Cannery (ATC) to enhance the commercial viability of this area to provide for uses envisioned in the Land Use Plan and California Coastal Act. The City zoning code at that time did not allow for hotels, but Measure X included hotels as a use permitted in this zone. To implement Measure X, City Ordinance No. 16-009A (Attachment 1) was adopted by the City Council on May 18, 2016 which amended Chapter 23.31 of the City Municipal Code and added Chapter 23.31.025. Council approved a Coastal Development Permit (CDP) for the American Tin Cannery Hotel and Commercial Project on January 12, 2022; Agenda Report linked herein. The project is located on a 6-acre site just inland of Ocean View Boulevard between Dewey and Eardley. The project approved at that time consisted of a 225-room hotelresort facility with 350,000 sq. ft. of floor area.

The City approved CDP was appealed to the California Coastal Commission (“Commission”) by Coastal Commissioners Linda Escalante and Caryl Hart, Pacific Grove Coastal Watch, and community members: Kim and Thom Akeman, Anthony Ciani, Jane Haines, and Michelle Raine. The appeal raised issues regarding conformance with the City’s Local Coastal Program provisions and Coastal Act including water supply, public access, low cost accommodations, and habitat and wildlife protections among others.

The Appeal Hearing is scheduled for Thursday morning April 11, 2024, in Long Beach, California. Please see the Commission Staff Report (Attachment 2). After two years of reviewing the record, Commission staff recommends the Commission make a finding of substantive issues and then approve the revised project with conditions.

The revised project has been agreed to by the applicants and includes the following key elements:

1. Reduction in rooms from 225 to 206

2. Reduction in size by 85,000 sq. ft.

3. Reduction in retail space

4. Includes a new public park and planned viewing area.

ATTACHMENT 11
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5. Direct access to a rooftop green area.

6. Public restroom.

7. The reduced scope addresses the water supply concern.

8. Provide lower-cost rooms for 18 rooms on a first come first served basis.

9. Construction of a 16 unit/64 bed group wing with 300 bed nights reserved for use by certain special needs youth groups.

Recommended conditions of approval of the revised project address:

1. Water Supply

2. Low-Cost Accommodations

3. Public Views/Community Character and Public Access

4. Habitat Resources

5. Archaeological/Cultural Resources
Conditions include those imposed by the City of Pacific Grove in its January 12, 2022 CDP.

The revised project with conditions revitalizes commercial properties adjacent to the Monterey Bay Aquarium providing economic benefit to the community. Commission conditions reinforce those imposed by the City to safeguard the environment.

The Commission finds that the proposed project as modified will not result in any significant environmental effects for which feasible mitigation measures have not been employed, consistent with CEQA Section 21080.5(d)(2)(A).

It is customary for cities who have been a part of the original project approval process to comment on the Commission’s staff recommendation. Comments can be part of the Commission public record if submitted by April 5.

OPTIONS

1. Do not comment.

2. Provide the Mayor and City Manager with other directions.

FINANCIAL IMPACT:

There is no direct financial impact resulting from written comment to the Coastal Commission. Should this project be approved, it would result in significant additional revenue for the City.

FOCUSED PRIORITY AREA:Not Applicable.

Attachments
Written public comment
Attachment 1 - Ordinance No. 16-009A
Attachment 2 - CC Staff Report
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ATTACHMENT 12
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ATTACHMENT 13
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1 Matthew Mogensen
From: Kahn, Kevin@Coastal <[email protected]>
Sent: Friday, September 6, 2024 12:54 PM
To: Matthew Mogensen; Butler, Katie@Coastal
Cc: Karen Vaughn; Debra Geiler
Subject: RE: California Coastal Commission A-3-PGR-22-0004 (American Tin Cannery Resort) Notice of Developer Request to Vacate a portion of Sloat Avenue [NOTICE: This message originated outside of the City of Pacific Grove email system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Hi Matthew, thanks for reaching out. I’m not sure we’ve oƯicially met yet, so also nice to e-meet you as well! To your question, yes, the Commission’s CDP approval provides the requisite authorization under the Coastal Act and LCP to use a portion of Sloat Avenue in a diƯerent way (i.e., from public street use to hotel use). The findings and conditions you cite below provide the justification for doing so, including via mitigation in the Central Avenue parking lot. So from a Coastal Act/LCP/CDP perspective, it’s covered in this regard. That said, other non-Coastal Act/LCP issues, like payment, are within the City’s discretion to determine.

Hope that helps, and don’t hesitate with any other questions.

Kevin Kahn
District Manager
Central Coast District Office
California Coastal Commission
725 Front Street, Suite 300
Santa Cruz, CA 95060
From: Matthew Mogensen <[email protected]> Sent: Friday, September 6, 2024 12:22 PM
To: Butler, Katie@Coastal <[email protected]>; Kahn, Kevin@Coastal <[email protected]> Cc: [email protected]; Debra Geiler <[email protected]> Subject: California Coastal Commission A-3-PGR-22-0004 (American Tin Cannery Resort) Notice of Developer Request to Vacate a portion of Sloat Avenue
Ms. Butler and Mr. Kahn:

Attached for reference is the California Coastal Commission (CCC) Staff Report of April 11, 2024 (“Report”) regarding Appeal Number A-3-PGR-22-004. At page 82 of the Report (see yellow highlight), there is a statement that “…the Sloat Avenue and public parking impacts require more evaluation." On page 83 of the Report, there is this statement (highlighted): “In short, the Applicant’s public parking proposal does not have the same utility nor access to the coastline as the on-street parking spaces that will be removed around the ATC site, and thus does not sufficiently mitigate for the impact.” The Report at page 83 continues with a discussion about Special Condition 4(d) and Special Condition 8 and then there is this statement (highlight):

ATTACHMENT 14
PGCC 9-18-24

2 “As proposed and as conditioned, the project meets the LCP’s requirements for public view and public access protection and provision overall, as well as the specific directives for this specific site. It also adequately mitigates for the project’s impacts to public streets. The end result is a project that should be a measurable improvement over the status quo and one worthy of this prime coastal setting.” In addition, we note that Section 16 of the CCC Conditions on page 25 of the Report reference a deed restriction and state that includes:
“PRIOR TO ISSUANCE OF THE CDP, the Permittee shall submit to the Executive Director for review and written approval documentation demonstrating that the landowners have executed and recorded against the properties governed by this CDP (i.e., APNs 006-231-001, 006-234-004, 006-234-005, 006-234-008, and the portion of Sloat Avenue between Eardley Avenue and Dewey Avenue) a deed restriction, in a form and content acceptable to the Executive Director indicating that, pursuant to this CDP, the California Coastal Commission has authorized development on the subject property, subject to terms and conditions that restrict the use and enjoyment of that property, and that such terms and conditions shall be imposed as covenants, conditions and restrictions on the use and enjoyment of the property. The deed restriction shall include a legal description of all of the properties governed by this CDP. The deed restriction shall also indicate that, in the event of an extinguishment or termination of the deed restriction for any reason, the terms and conditions of this CDP shall continue to restrict the use and enjoyment of the subject property so long as either this CDP or the development it authorizes - or any part, modification, or amendment thereof-·· remains in existence on or with respect to the subject property.” The City is being requested by the developer to vacate a portion of Sloat Avenue (legal description and plat attached). Based on our review of the Report, including the language at pages 82 and 83 of the Report, it is our understanding that the CCC has no issues with the City considering the vacation of Sloat as requested by the developer provided that the developer complies with all the conditions imposed by the City and the conditions (Standard and Special) imposed by the Coastal Commission in the Report and with all mitigation measures in the EIR. It is understood that in the event of a conflict between any the City Conditions and the CCC Conditions that the CCC Conditions will prevail.

If the CCC has any issues with the City considering the vacation of Sloat as requested by the developer, please contact me at your earliest convenience.

If you have any questions, please contact me.

Thank you.

Matt Mogensen
City Manager
City of Pacific Grove
[email protected]
831-648-3174
PGCC 9-18-24

SUM-100

CITY OF PACIFIC GROVE
/s/ Rowena Esquerra
[SEAL]

3. 4.

CCP 416.60 (minor)
CCP 416.70 (conservatee)
CCP 416.90 (authorized person)

SUMMONS
(CITACION JUDICIAL)

FOR COURT USE ONLY
(SOLO PARA USO DE LA CORTE)
Form Adopted for Mandatory Use
Judicial Council of California SUM- 100 [Rev. July 1,2009]

RECEIVED
CITY MANAGER’S OFFICE

ELECTRONICALLY FILED BY
Superior Court of California,
County of Monterey
On 2/9/2022 7:07 PM
By: Rowena Esquerra, Deputy
2 *
CASE del Caso>:

NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):

City of Pacific Grove; Pacific Grove City Council; and DOES 1 to 100, inclusive, | q. jg YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):

PACIFIC GROVE COAST WATCH, an unincorporated association; and ANTHONY A. CIANI, a taxpayer and resident of Pacific Grove,
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. jAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su version. Lea ia information a continuation. Tiene 30 DlAS DE CALENDARIO despues de que le entreguen esta citation y papeles legates para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una Hamada telefonica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que ustedpueda user para su respuesta.

Puede encontrar estos formularios de ia corte y mas information en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado o en la corte que le quede mas cerca. Si no puede pagar la cuota de presentation, pida al secretario de la corte que le de un formulario de exencion de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podra quitar su sueldo, dinero y bienes sin mas advertencia.

Hay otros requisitos legates. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remision a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servitios legales gratuitos de un programa de servitios legates sin fines de lucro. Puede encontrar estos grupos sin fines de iucro en el sitio web de California Legal Services, (www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperation de $10,000 6 mas de valor recibida mediante un acuerdo o una concesion de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso.

The name and address of the court is:
(El nombre y direction de la corte es): Monterey County Superior Court Monterey Courthouse
1200 Aguajito Road, Monterey, California 93940
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direction y el numero de telefono del abogado del demandante, o del demandante que no tiene abogado, es):

Beverly Grossman Palmer, Strumwasser & Woocher LLP, 10940 Wilshire Blvd., #2000, Los Angeles, CA 90024, (310) 576-1233 DATE: 2/10/2022 Clerk, by /s/ Rowena Esquerra .Deputy
(Fecha) (Secretario) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)).

NOTICE TO THE PERSON SERVED: You are served

1. 2.
0\JRT Ofi
<£•
£
v>
2| as an individual defendant.
| | as the person sued under the fictitious name of (specify)-. | "KJ on behalf of (specify):
under: | | CCP 416.10 (corporatiorfj
| | CCP 416.20 (defunct corporation)
| | CCP 416.40 (association or partnership)
| X.I other (specify): QiAk>Vc C.cASA'f
IK- I by personal delivery on (date): f Q I |
SUMMONS^
. I o
, r W
x—
ATTACHMENT 15
PGCC 9-18-24

SUM-200(A)
CASE NUMBER:

INSTRUCTIONS FOR USE
List additional parties (Check only one box. Use a separate page for each type ofparty.)’. x Defendant Cross-Complainant Cross-Defendant

-> This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. -> If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: "Additional Parties Attachment form is attached."
Form Adopted for Mandatory Use
Judicial Council of California SUM-200(A) [Rev. January 1, 2007] SHORT TITLE:

Pacific Grove Coast Watch, et al. v. City of Pacific Grove I | Plaintiff
Real Parties in Interest.

FOURSOME DEVELOPMENT COMPANY, a California general partnership; PAUL LIVING TRUST;
CCS PACIFIC GROVE MANAGER, LLC, a Delaware limited liability company; and ROES 1 to 100, inclusive,

ADDITIONAL PARTIES ATTACHMENT
Attachment to Summons
PGCC 9-18-24

Case Management Conference

NOTICE OF ASSIGNMENT AND CASE MANAGEMENT CONFERENCE
Your case is assigned for all purposes to the Honorable Carrie M. Panetta.

Date: June 14, 2022 Time:ShOOAM Department 14
Location: Monterey Courthouse, 1200 AGUAJITO ROAD, MONTEREY, CA 93940

COURT REPORTER INFORMATION
[Rev. Nov 2021]

NOTICE OF ALL PURPOSE CASE ASSIGNMENT
(Civil)
Effective January 1, 2022, Monterey County Superior Court will only be providing court reporter services in the following, statutorily-mandated case types:

Telephonic appearance, two days prior to the hearing, can be arranged directly through Court Call Service at 1-888-882-6878. California Rule of Court 3.670. Authorization for telephone appearance will not be given on the day of the hearing.

CASE NUMBER
22CV000387
Your civil case, excluding unlawful detainer and collections are a rotational assignment among three judicial officers:

Judge Thomas W. Wills; Judge Carrie M. Panetta, Judge Vanessa W. Vallarta

SUPERIOR COURT OF MONTEREY COUNTY
Monterey Branch, 1200 Aguajito Road, Monterey, CA 93940 This notice, which includes the Alternative Dispute Resolution (ADR) information packet (CI-127), must be served together with the Summons and Complaint or Petition pursuant to California Rule of Court 3.221. Parties are required to follow the complex case instructions, case management rules as outlined in California Rule of Court 3.722 and Chapter 6 of the Local Rules of Court, all can be found on the court website at www.montereY.corts.ca.gov. A case management statement from each party or joint statement shall be filed prior to the conference as outlined in California Rule of Court

3.725.

Ciani, Anthony A., et al.
vs.

Pacific Grove City Council, et al.

Your provisionally complex case or "is complex" designation at case initiation are assigned ODD/EVEN by ending number among two judicial officers: Judge Thomas W. Wills and Judge Carrie M. Panetta 1 . Death penalty proceedings under Penal Code §190.9;

2. Juvenile proceedings not before a referee or commissioner under Welfare & Institutions Code §347 and §677;

3. Felony cases under Code of Civil Procedure §269; and

4. "Withdrawal of consent to adopt" proceedings under Family Code §9005.

PGCC 9-18-24

The goals of the Monterey County civil case and trial management system are:

3. [Rev. Nov 2021] NOTICE OF ALL PURPOSE CASE ASSIGNMENT (Civil)
Pursuant to statutes of the State of California, it is the responsibility of the court to establish procedures for the timely and effective disposition of civil cases.

The court is charged with the responsibility of ensuring all parties a fair and timely resolution of their disputes, and the court is in the best position to establish neutral rules and policies without adversely affecting all parties' right to a fair trial. Effective management of the judicial system will build continuing respect by the community of government, minimize the costs to the parties and the public, and maximize the probability that cases will be timely resolved.

For all other, non-statutorily-mandated cases, litigants who need court reporter services, and who are not entitled to a court-provided reporter due to indigency, will need to arrange for such services.

To provide an effective and fair procedure for the timely disposition of civil cases; To provide a mechanism to gather needed case information in order to make appropriate judicial management decisions; and
To establish reasonable rules and policies to require that cases reporting “ready” for trial may be tried without unnecessary delays or interruptions.

1. 2.

Alternative Dispute Resolution (CI-127) - (INFORMATION PACKET)

OPTIONS FOR RESOLVING YOUR DISPUTE
There Are Alternatives to Going to Trial
Did you know that 95 percent of all civil cases filed in court are resolved without going to trial? Many people use processes other than trial to resolve their disputes. These alternative processes, known as Alternative Dispute Resolution or ADR, are typically less formal and adversarial than trial, and many use a problem-solving approach to help the parties reach an agreement.

Advantages of ADR
Here are some potential advantages of using ADR:
• Save Time: A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, while bringing a lawsuit to trial can take a year or more. • Save Money: When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, and expert's fees. • Increase Control over the Process and the Outcome: In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute.

Court proceedings are in English. Ifyou or a witness in your case needs an interpreter, please complete Judicial Council form INT—300. You mustfile INT-300 at thefirstfloor clerks counter (or by e-file) 15* business days prior to your hearing.

Los procedimientos judiciales son en ingles. Si usted o un testigo en su caso necesita un interprete, complete elformulario INT-300 del Consejo Judicial. Debe presentar el INT-300 con los empleados legates de la oficina del primer piso (o mediante archivo electronico) 15* dias habiles antes de su audiencia.

PGCC 9-18-24

[Rev. Nov 2021] NOTICE OF ALL PURPOSE CASE ASSIGNMENT
(Civil)
Cases for Which Mediation May Be Appropriate: Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use.

Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner. • Preserve Relationships: ADR can be a less adversarial and hostile way to resolve a dispute. For example, an experienced mediator can help the parties effectively communicate their needs and point of view to the other side.

This can be an important advantage where the parties have a relationship to preserve. • Increase Satisfaction: In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help the parties find win-win solutions and achieve their real goals. This, along with all of ADR’s other potential advantages, may increase the parties’ overall satisfaction with both the dispute resolution process and the outcome. • Improve Attorney-Client Relationships: Attorneys may also benefit from ADR by being seen as problem solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are likely to produce happier clients and thus generate repeat business from clients and referrals of their friends and associates.

Cases for Which Mediation May Not Be Appropriate: Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

Arbitration
In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.

Arbitration may be either “binding” or “nonbinding.” Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Generally, there is no right to appeal an arbitrator’s decision in binding arbitration. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator’s decision. The Monterey County Superior Court offers a nonbinding judicial arbitration program.

Cases for Which Arbitration May Be Appropriate: Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate: If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator’s award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.

Neutral Evaluation
In neutral evaluation, each party gets a chance to present the case to a neutral person called an “evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party’s evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator’s opinion is nonbinding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.

Because of these potential advantages, it is worth considering using ADR early in a lawsuit or even before you file a lawsuit.

What Are the ADR Options?
The most commonly used ADR processes are mediation, arbitration, neutral evaluation, and settlement conferences.

Mediation
In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties. The Monterey County Superior Court offers a CourtDirected Mediation Program.

PGCC 9-18-24

[Rev. Nov 2021] NOTICE OF ALL PURPOSE CASE ASSIGNMENT
(Civil)
Cases for Which Neutral Evaluation May Be Appropriate: Neutral evaluation may be most appropriate in cases in which there are technical issues that require expertise to resolve or the only significant issue in the case is the amount of damages.

Cases for Which Neutral Evaluation May Not Be Appropriate: Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.

Settlement Conference
Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or neutral person called a “settlement officer” to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set
PGCC 9-18-24

FOR COURT USE ONLY
CASE NUMBER: 22CV000387
X
M
C.
punitive
(SIGNATURE OF PARTY OR TORNEY FOR PARTY)

CIVIL CASE COVER SHEET
Filed with first appearance by defendant
(Cal. Rules of Court, rule 3.402)
Partnership and corporate governance (21)
Other petition (not specified above) (43)
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Beverly Grossman Palmer (SBN 234004) Strumwasser & Woocher LLP 10940 Wilshire Boulevard, Suite 2000, Los Angeles, CA 90024 Complex Case Designation
"I Counter I I Joinder
Provisionally Complex Civil Litigation
(Cal. Rules of Court, rules 3.400-3.403)
| | Antitrust/Trade regulation (03)
| Construction defect (10)
| | Mass tort (40)
] Securities litigation (28)
| Environmental/Toxic tort (30)
] Insurance coverage claims arising from the
above listed provisionally complex case
types (41)
Enforcement of Judgment
| | Enforcement of judgment (20)
Miscellaneous Civil Complaint
| | RICO (27)
| | Other complaint (not specified above) (42)
Miscellaneous Civil Petition
JUDGE:

DEPT.:

ELECTRONICALLY FILED BY
Superior Court of California,
County of Monterey
On 2/9/2022 7:07 PM
By: Rowena Esquerra, Deputy
“ NOTICE
• Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions.
• File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding.
• Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. Page 1 of 2 Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.740; Cal. Standards of Judicial Administration, std. 3.10 TELEPHONE NO.: 310-576-1233 FAX NO. (Optional): 310-319-0156 e-mail address: [email protected]
attorney for (Name): Pacific Grove Coast Watch and Anthony A. Ciani

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
street address: 1 200 Aguajito Road mailing address: 1200 Aguajito Road city and zip code: Monterey 93940
branch name: Monterey Courthouse
CASE NAME: Pacific Grove Coast Watch, et al. vs. City of Pacific Grove, et al

CIVIL CASE COVER SHEET
Unlimited
(Amount
demanded
exceeds $25,000)
Form Adopted for Mandatory Use
Judicial Council of California
] Uninsured motorist (46)
Other PI/PD/WD (Personal Injury/Property
Damage/Wrongful Death) Tort
| Asbestos (04)
| | Product liability (24)
] Medical malpractice (45)
| | Other PI/PD/WD (23) Non-PI/PD/WD (Other) Tort
] Business tort/unfair business practice (07)
| | Civil rights (08)
] Defamation (13)
| | Fraud (16)
2J Intellectual property (19)
| | Professional negligence (25)
| | Other non-PI/PD/WD tort (35)
Employment
] Wrongful termination (36)
| Other employment (15)

2. This case | | is | x | is not
factors requiring exceptional judicial management:
a. | | Large number of separately represented parties
b. | | Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve
Substantial amount of documentary evidence

3. Remedies sought (check all that apply): a. L

4. Number of causes of action (specify): Three

5. This case | | is | x | is not a class action suit.

6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: February 9, 2022
Beverly Grossman Palmer
(TYPE OR PRINT NAME)
Limited
(Amount
demanded is
$25,000 or less)
Items 1-6 below must be completed (see instructions on page 2). 1 . Check one box below for the case type that best describes this case: Auto Tort Contract | | Auto (22) | | Breach of contract/warranty (06)
| | Rule 3.740 collections (09)
| | Other collections (09)
] Insurance coverage (18)
| | Other contract (37)
Real Property
] Eminent domain/lnverse
condemnation (14)
] Wrongful eviction (33)
] Other real property (26)
Unlawful Detainer
] Commercial (31)
| | Residential (32)
| | Drugs (38)
Judicial Review
] Asset forfeiture (05)
] Petition re: arbitration award (1 1 )
j X | writ of mandate (02)
complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the d. | | Large number of witnesses
e. | | Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court
f. | | Substantial postjudgment judicial supervision
monetary b. | x | nonmonetary; declaratory or injunctive relief c.

PGCC 9-18-24

CM-010 [Rev. September 1, 2021] CIVIL CASE COVER Page 2 of 2 SHEET Provisionally Complex Civil Litigation (Cal.

Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
Construction Defect (10)
Claims Involving Mass Tort (40)
Securities Litigation (28)
Environmental/Toxic Tort (30)
Insurance Coverage Claims
(arising from provisionally complex
case type listed above) (41 )
Enforcement of Judgment
Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non
domestic relations)
Sister State Judgment
Administrative Agency Award
(not unpaid taxes)
Petition/Certification of Entry of
Judgment on Unpaid Taxes Other Enforcement of Judgment
Case
Miscellaneous Civil Complaint
RICO (27)
Other Complaint (not specified
above) (42)
Declaratory Relief Only
Injunctive Relief Only (non
harassment)
Mechanics Lien
Other Commercial Complaint
Case (non-tort/non-complex) Other Civil Complaint
(non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified
above) (43) Civil Harassment Workplace Violence
Elder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition
CASE TYPES AND EXAMPLES Contract Breach of Contract/Warranty (06) Breach of Rental/Lease
Contract (not unlawful detainer
or wrongful eviction)
Contract/Warranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breach of Contract/
Warranty Other Breach of Contract/Warranty
Collections (e.g., money owed, open
book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case
Insurance Coverage (not provisionally
complex) (18)
Auto Subrogation Other Coverage Other Contract (37)
Contractual Fraud Other Contract Dispute
Real Property Eminent Domain/lnverse
Condemnation (14)
Wrongful Eviction (33)
Other Real Property (e.g., quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure
Quiet Title Other Real Property (not eminent
domain, landlord/tenant, or
foreclosure) Unlawful Detainer Commercial (31)
Residential (32)
Drugs (38) (if the case involves illegal
drugs, check this item; otherwise,
report as Commercial or Residential)
Judicial Review
Asset Forfeiture (05) Petition Re: Arbitration Award (1 1 ) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010
To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1 . This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1 , check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.

To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.

To Parties in Rule 3.740 Collections Cases. A ''collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740.

To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex.

Auto Tort
Auto (22)-Personal Injury/Property
Damage/Wrongful Death Uninsured Motorist (46) (if the
case involves an uninsured motorist claim subject to
arbitration, check this item
instead ofAuto) Other PI/PD/WD (Personal Injury/
Property Damage/Wrongful Death) TortAsbestos (04)
Asbestos Property Damage
Asbestos Personal Injury/
Wrongful Death Product Liability (not asbestos or
toxic/environmental) (24)
Medical Malpractice (45)
Medical MalpracticePhysicians & Surgeons
Other Professional Health Care
Malpractice
Other PI/PD/WD (23)
Premises Liability (e.g., slip
and fall)
Intentional Bodily Injury/PD/WD
(e.g., assault, vandalism)
Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PI/PD/WD Non-PI/PD/WD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil
harassment) (08)
Defamation (e.g., slander, libel)
(13) Fraud (16)
Intellectual Property (19)
Professional Negligence (25)
Legal Malpractice
Other Professional Malpractice
(not medical or legal)
Other Non-PI/PD/WD Tort (35)
Employment
Wrongful Termination (36)
Other Employment (15)
PGCC 9-18-24

1 2
3 4
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7 8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF MONTEREY
11 22CV000387 Case No.:
12 13
Petitioners/Plaintiffs, 14
v.
15 16
17 Respondents/Defendants.
18 19
20 21
22 Real Parties in Interest.
23 24
25 26
27 28
Attorneysfor Petitioners andPlaintiffs
Pacific Grove Coast Watch andAnthony A. Ciani

CALIFORNIA ENVIRONMENTAL QUALITY
ACT (“CEQA”) ACTION

VERIFIED PETITION FOR WRIT OF

MANDATE AND COMPLAINT FOR

INJUNCTIVE AND DECLARATORY RELIEF
PACIFIC GROVE COAST WATCH, an
unincorporated association; and ANTHONY A.

CIANI, a taxpayer and resident ofPacific Grove,
(Pub. Res. Code, §§ 21168, 30802; Code Civ. Proc.,
§§ 525, 1060, 1094.5)
FOURSOME DEVELOPMENT COMPANY, a
California general partnership; PAUL LIVING
TRUST; CCS PACIFIC GROVE MANAGER,
LLC, a Delaware limited liability company; and
ROES 1 to 100, inclusive,
CITY OF PACIFIC GROVE; PACIFIC GROVE
CITY COUNCIL; and DOES 1 to 100, inclusive,
Fredric D. Woocher (SBN 96689)
Beverly Grossman Palmer (SBN 234004)

STRUMWASSER & WOOCHER LLP
10940 Wilshire Boulevard, Suite 2000
Los Angeles, California 90024
Telephone: (310) 576-1233
Facsimile: (310)319-0156
E-mail: [email protected]

ELECTRONICALLY FILED BY
Superior Court of California,
County of Monterey
On 2/9/2022 7:07 PM
By: Rowena Esquerra, Deputy
Printed on Recycled Paper
Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory PGCC
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1 INTRODUCTION
2 1. Petitioners and Plaintiffs Pacific Grove Coast Watch (“PGCW”) and Anthony A. Ciani 3 (collectively, “Petitioners”) seek to enforce the mandates of two of California’s most significant 4 environmental laws, the California Environmental Quality Act (“CEQA”) and the California Coastal 5 Act (“Coastal Act”). In approving Real Parties in Interest Foursome Development Company, Paul 6 7 225-room hotel and commercial project, The American Tin Cannery (“ATC") Hotel and Commercial 8 Project,
9 Respondents and Defendants City of Pacific Grove (“the City”) and the Pacific Grove City Council 10 (“the City Council”) (collectively “Respondents”) failed to comply with important state mandates to 11 protect the precious California environment and scarce coastal resources. 12 2. Respondents prepared an Environmental Impact Report (“EIR”) for the Project and 13 adopted mitigation measures that purport to reduce the environmental impacts of the Project. However, 14 the report’s analysis is lacking in critical respects and thus fails to properly analyze the true 15 environmental impacts of the Project. The proposed mitigation measures lack enforceable performance 16 17 mitigated. For these reasons, all the Project’s entitlements that were issued in reliance on this defective 18 EIR are void and must be rescinded.
19 3. Respondents also issued a Coastal Development Permit (“CDP”) as legally required to 20 permit development within the Coastal Zone. However, the Project’s conditions of approval do not 21 comply with the requirements of the City’s recently-certified Local Coastal Program (“LCP”) or the 22 requirements ofthe Coastal Act. For this reason, the CDP is void and invalid and must be rescinded. 23 4. In light of these manifest deficiencies, the approval of the Project cannot stand. 24 Petitioners ask this Court to issue a writ of mandate requiring Respondents to vacate all Project 25 approvals and to rescind the certification of the EIR. Petitioners also seek to enjoin Respondents from 26 taking any action to further the construction of the Project, and to enjoin Real Parties from any activity 27 in furtherance of the construction of the Project. Only after an adequate environmental analysis, paired 28 with sufficient mitigation measures and proper conditions of approval, can Respondents evaluate 2 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief Living Trust, and CCS Pacific Grove Manager LLC’s (collectively, “RPIs”’) proposal to construct a standards and specific detail to ensure that the Project’s environmental impacts will be adequately on the site of the historic American Can Company in Pacific Grove (“the Project”), PGCC 9-18-24

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1 whether it is appropriate to construct and operate a hotel and commercial complex of this size and scope 2 in this sensitive coastal location.
3 PARTIES
4 5. Petitioner and Plaintiff PACIFIC GROVE COAST WATCH is an unincorporated 5 association of citizens who are concerned about the protection of Pacific Grove’s natural, scenic, and 6 cultural resources, including the impact of coastal development on wildlife and overall environmental 7 quality. Since September 15, 2021, PGCW has sent an email newsletter to roughly 50 persons 8 discussing topics relevant to protection of coastal resources in Pacific Grove, including harbor seals and 9 locally important trees.
10 committee members include Michelle Raine, Janet Cohen, and Tony Ciani, residents and voters in 11 Pacific Grove. Other members of PGCW are individuals who are on the unincorporated association’s 12 email list. PGCW provided written comments to the City of Pacific Grove Planning Commission and 13 City of Pacific Grove City Council regarding the entitlements requested to construct and operate the 14 Project, and provided oral comments before the City Council and Planning Commission through its 15 16 section 30801.
17 6. Petitioner and Plaintiff ANTHONY A. CIANI (aka Tony Ciani) is a property owner, 18 19 comments on the EIR, wrote letters to the Site Plan Review Committee, Architectural Review Board, 20 the Planning Commission, and the City Council, and attended the hearings of the Site Plan Review 21 Committee, the Architectural Review Board, the Planning Commission and the City Council to present 22 oral comments at the same. Mr. Ciani has been interested in the conservation and use of the Project site 23 for many years due to its status in the City of Pacific Grove’s cultural history, its significance at the 24 entrance to the City, and its proximity to the coast and its population ofharbor seals. 25 7. Respondent and Defendant CITY OF PACIFIC GROVE is a charter city and the 26 governmental entity serving the people of the City of Pacific Grove. The City is the lead agency under 27 28 Coastal Development Permit under the Coastal Act. 3 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief CEQA for the approval of the Project, and is the local government entity responsible for issuing a members’ public comments. PGCW is an aggrieved person as defined by Public Resources Code resident, taxpayer, and registered voter of the City of Pacific Grove. Mr. Ciani provided written The newsletter has extensively discussed the Project. PGCW’s steering PGCC 9-18-24

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1 8. Respondent and Defendant PACIFIC GROVE CITY COUNCIL is the seven-member 2 elected body that represents the citizens of Pacific Grove. The Council was the final decision-making 3 body that certified the Project’s EIR and approved the Project’s entitlements, including the Coastal 4 Development Permit.
5 9. Respondents and Defendants Does 1 through 100
6 contractors, and/or entities acting under the authority of each other respondent or defendant, and each 7 performed acts on which this action is based within the cause and scope of such agency and/or 8 employment. Petitioners do not know the true names and capacities, whether individual, corporate, or 9 otherwise, of Respondent and Defendant Does 1 through 100, inclusive, and therefore sue said 10 Respondent and Defendant under fictitious names. Petitioners will amend their Petition and Complaint 11 to show their true names and capacities when they have been ascertained. 12 10. Real Party in Interest FOURSOME DEVELOPMENT COMPANY, a California general 13 partnership, is the owner of the properties at 109/125 Ocean View Boulevard in Pacific Grove, and is 14 listed as an owner/applicant on the Final Local Action Notice filed by the City ofPacific Grove with the 15 California Coastal Commission on January 20, 2022.
16 11. Real Party in Interest PAUL LIVING TRUST is the owner of the parcel at 124 Central 17 Avenue that will serve as a parking facility for the Project, and is listed as an owner/applicant on the 18 Final Local Action Notice filed by the City of Pacific Grove with the California Coastal Commission on 19 January 20, 2022.
20 12. Real Party in Interest CCS PACIFIC GROVE MANAGER, LLC is a Delaware limited 21 liability company. CCS Pacific Grove Manager, LLC is identified as the “Project Applicant” on the 22 Notice of Determination posted on January 13, 2022 by the Monterey County Clerk, and as an 23 owner/applicant on the Final Local Action Notice filed by the City of Pacific Grove with the California 24 Coastal Commission on January 20, 2022.
25 13. Real Parties in Interest Roes 1 to 100 are or were the agents, employees, contractors, 26 and/or entities acting under the authority of each other respondent or real party in interest, and each 27 performed acts on which this action is based within the cause and scope of such agency and/or 28 employment. Petitioners do not know the true names and capacities, whether individual, corporate, or 4 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief are or were the agents, employees,
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1 otherwise, of real parties in interest Roes 1 to 100, inclusive, and therefore sue said real parties in 2 interest under fictitious names. Petitioners will amend their Petition and Complaint to show their true 3 names and capacities when they have been ascertained. 4 VENUE
5 14. This Court has original jurisdiction over this matter pursuant to article VI, section 10 of 6 the California Constitution, sections 1094.5 of the Code of Civil Procedure, and Public Resources Code 7 section 21 168.5.
8 15. Venue is proper in the County of Monterey pursuant to Code of Civil Procedure section 9 394 in that Respondents/Defendants are government entities and/or agents of the City ofPacific Grove. 10 EXHAUSTION OF ADMINISTRATIVE REMEDIES
11 16. As set forth in paragraph 10 above, Petitioner Pacific Grove Coast Watch has exhausted 12 its administrative remedies in all circumstances when exhaustion of remedies was available to 13 Petitioner. Petitioner submitted comments, by and through its counsel in written letters, and by and 14 through its members’ oral testimony, before the Pacific Grove Planning Commission and the Pacific 15 Grove City Council. Because, as set forth herein, the Planning Commission denied all Project 16 approvals, no appeal to the City Council was possible or required for Petitioner. 17 17. On February 2, 2022, Petitioner appealed the issuance of the CDP to the California 18 Coastal Commission. The appeal concerns only the portion of the Project site within 300 feet of the 19 coastal bluffs, which constitutes a narrow strip running along a portion of the Ocean View Boulevard 20 21 determination whether the appeal presents a “substantial issue.” (Id, § 30625, subd. (b)(2).) If the 22 23 subd. (a).)
24 18. On February 9, 2022, Petitioner notified the City of Pacific Grove, by letter to the City 25 Clerk, carbon copied on the City Attorney, of its intention to file a suit under the California 26 Environmental Quality Act. A true and correct copy of that letter is attached as Exhibit A hereto. 27 19. On February 10, 2022, Petitioner notified the California Attorney General that it would 28 file this Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief. A true and 5 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief frontage of the Project. (Public Resources Code, § 30603, subd. (a)(2).) The Commission must make a Commission makes this determination, it will consider the Project’s CDP de novo. (Id. at § 30621, PGCC 9-18-24

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1 correct copy ofthis notification, omitting its exhibit, is attached as Exhibit B hereto. 2 STATEMENT OF FACTS
3 20. The Project is proposed for construction and operation at 109/125 Ocean View 4 Boulevard, a portion of Sloat Avenue, and 124 Central Avenue, a 5.59-acre site in the City of Pacific 5 Grove. The site is current occupied by the American Tin Cannery, a historic cannery operation that is 6 now a partially occupied retail outlet center with stores, restaurants, and recreation uses. The site also 7 contains a surface parking lot with 140 spaces.
8 21. The Project site is bisected by Sloat Avenue, between Dewey Avenue and Eardley 9 Avenue, a one-way street, and the project includes the City’s vacation of Sloat Avenue so as to permit 10 private hotel development on this now-public street. 11 22. The Project proposes 225 hotel rooms in two separate wings, originally described as the 12 “Family/Group Wing” and the “Executive Wing,” now referred to as the Shoreline and Bluffs wings, 13 respectively. The hotel will also include two separate swimming pools. The hotel will also include 14 more than 35,000 square feet of restaurant, bar, ballroom and meeting, space, and lobby/lounge space, 15 as well as more than 10,000 square feet of retail space. Garage and surface parking will provide spaces 16 17 the Project site is 353,489 sq. ft. The site will cover 89 percent of the 243,635 sq. ft. site. Seventy-nine 18 existing on-site trees would be removed from the site. 19 23. The approval of the Project required the issuance of a Coastal Development Permit 20 (Pacific Grove Municipal Code (PGMC) 23.90.080); Use Permit (PGMC § 23.70.080.a.4); Tree Permit 21 (PGMC § 12.60.080); and Architectural Permit (PGMC § 23.70.060); and the certification ofthe EIR. 22 24. The Project is proposed to be located on Ocean View Boulevard, directly across the street 23 from Monterey Bay Coastal Recreation Trail. On the other side of the trail, within 300 feet of the 24 Project site, lies the coastal bluff. Hopkins West Beach and Fisher Beach are located below these bluffs. 25 At these beaches, hundreds ofharbor seals haul out ofthe water during the day. These marine mammals 26 are nocturnal, hunting in the waters of the Pacific Ocean at night and returning to land to rest, sleep, and 27 recharge during the day. In addition, pregnant females give birth to their pups and nurse and wean them 28 on these beaches during the winter and spring seasons, every year. The harbor seals are very sensitive 6 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief for 290 cars, with 133 spaces in an underground garage. The total square footage to be constructed on PGCC 9-18-24

22CV000387
1 to noise disturbance and easily “flushed” from the beach into the water if disturbed. The City of Pacific 2 Grove has policies in its Municipal Code and LCP specifically recognizing the importance of these 3 creatures to the City and the need to protect them from human interference. 4 25. The site contains four adjacent buildings with varying degree of historicity. Three of the 5 buildings are associated with the American Can Company constructed at 109/125 Ocean View 6 Boulevard in 1927 - 1928. The Office (now Archie’s American Diner), built in 1927, the Factory and 7 Warehouse (now the American Tin Cannery (ATC)), with retail, commercial, and restaurant uses) were 8 constructed in 1928. In 1929, the factory averaged 70,000,000 cans annually, reflecting the canning of 9 over 420 million fish (sardines). When the factory stopped operations in the early 1950s, the National 10 Automotive Fibres, Inc. of Detroit purchased the property and made components for car interiors. This 11 operator added a building to the site, but the original factory, warehouse and office buildings remained 12 largely unchanged. The Respondent’s EIR concluded the ATC complex qualifies as a historic resource 13 eligible for listing on the Pacific Grove Historic Resources Inventory and California Register of Historic 14 Resources inventories for its association with the industrial development of Pacific Grove and direct 15 contributions to the rise of the Monterey Peninsula fish canning industry. The EIR determined these 16 buildings retain their historical significance and integrity of design, materials, workmanship, and 17 feeling. The Project will retain portions of the Factory, but substantially cut into the center of the 18 primary facade to create a courtyard. The Project will demolish the Warehouse building. 19 26. When Pacific Grove Measure C was enacted by the voters in 1986, hotels and motels 20 were restricted to a specific zone in the city and highly limited in number. In 2016, however, the voters 21 approved Measure X, an initiative that added section 23.31.025 to the Pacific Grove Municipal Code. 22 This ordinance changed the zone on three of the parcels included in the Project site (not including 124 23 Central Avenue) to C-V-ATC zoning district, and expressly permitted a hotel and accessoiy uses, to be 24 developed consistent with the requirements of the LCP’s Land Use Plan. Without the zone change 25 included in Measure X, no hotel development would be permissible at the Project site. 26 27. An initial application for the Project was filed on June 1 1, 2019, and deemed complete on 27 October 4, 2019.
28 28. On or about November 7, 2019, the City released a “Notice of Preparation of an 7 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory PGCC
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1 Environmental Impact Report for the American Tin Cannery Hotel and Commercial Project and Notice 2 of Public Scoping Meeting” (“NOP”). The Notice requested comments from the public and responsible 3 and trustee agencies, and announced a public scoping meeting on December 3, 2019. 4 29. The California Coastal Commission (“Coastal Commission”) responded to the NOP, 5 noting potential issues with respect to water supply, low cost accommodations, coastal hazards, parking, 6 and coastal community design standards.
7 30.
8 about the size, scope, scale, and intensity of the proposal so close to the coast. 9 31.
10 November 13, 2020.
11 32. On July 30, 2020, a Draft EIR (DEIR) was released for a 60-day public review period. 12 The Coastal Commission again commented on the EIR, along with the Monterey Bay Aquarium, 13 Stanford University, the Alliance of Monterey Area Preservationists, and the Monterey Audubon 14 Society. More than 140 comments were received from individuals, including members of PGCW such 15 as Petitioner Ciani, Janet Cohen, and Michelle Raine (however, representing themselves as individuals). 16 33. Commenters raised concerns about water supply, the impact of the Project’s construction 17 on harbor seals, the visual impact and size and scale of the design, the destruction of historic resources, 18 and the loss of 79 trees, parking, and circulation, among other things. 19 34. The City released the Final EIR (“FEIR”) responding to the DEIR comments in 20 December 2020.
21 35. The Site Plan Review Committee (“SPRC”), a committee composed of directors of 22 various City governmental departments, held a public hearing on December 8, 2020. Petitioner Ciani 23 and others presented concerns regarding the Project’s proposed design and height. 24 36. The City’s Architectural Review Board (“ARB”) held a public hearing about the Project 25 on December 15, 2020. After receiving written and oral comments from more than 150 people, the 26 ARB moved to send the Project to the Planning Commission with a number ofrecommended revisions, 27 including specifically to require story balloons for any new construction to improve the public’s 28 8
Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief The Project’s CDP application was filed on July 7, 2020, and deemed complete on Numerous other local residents provided responses to the NOP expressing concerns understanding of the visual impacts and bulk and scale of the Project. The ARB also requested PGCC 9-18-24

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1 historic building proposed for demolition and
2 replacement, the elimination of excavation for underground parking from the portions of the property 3 closest to Ocean View Boulevard, and retention of certain trees that were in fair condition. Members of 4 PGCW, including Petitioner Ciani, commented at the ARB hearing. 5 37. The applicant revised the Project somewhat in response to the ARB’s requests, including 6 removing the underground parking in a portion of the site (reducing excavation by a claimed 38 7 percent), but did not install story balloons or story poles. 8 38. Instead of the Project going to the Planning Commission in January 2021, as originally 9 scheduled by the Planning Director, the City, working with the applicant, crafted changes to the LCP’s 10 development standards that were designed to accommodate the applicant’s design, allowing additional 11 height at Sloat Avenue and the Bluff/Executive Wings. The City approved an amended LCP in June 12 2021, which was certified by the Coastal Commission in August 2021. The applicant then submitted 13 revised plans on September 8, 2021, along with amended CDP application. 14 39. On October 28, 2021, the Planning Commission held a public hearing on the entitlements 15 requested for the Project. Under the Pacific Grove Municipal Code, the Planning Commission had 16 authority to take initial action on the Use Permit, Architectural Permit, Tree Permit, and the Coastal 17 Development Permit, which could then be appealed to the City Council. The Planning Commission 18 received over 200 written comments and heard oral testimony from more than 40 persons. Petitioner 19 PGCW submitted a written letter, as did individual members of PGCW including Petitioner Ciani, who 20 was granted additional speaking time at the hearing as the representative of a group organized to oppose 21 the Project. Staff of the Coastal Commission also submitted a comment letter, raising concerns about 22 the Project’s compliance with the LCP, specifically with respect to water resources, lower-cost 23 accommodations, public amenities, and design.
24 40. The Planning Commission continued its October 28 hearing to November 18, 2021, 25 during which time it received an additional 32 comments. At that hearing the Planning Commission 26 voted 4-2 against certifying the EIR and to deny all requested approvals, including the CDP. As the 27 City summarized the Planning Commissioners’ concerns motivating their denial were “the size and 28 scale of the project, the removal of the on-site trees, and the potential for impacts to the harbor seals on 9 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief reductions in height and scale, the reuse of an
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1 the shoreline across Ocean View Boulevard.”
2 41. On November 24, 2021, the applicant appealed the Planning Commission’s denial to the 3 substantial evidence, that the project was
4 consistent with the zoning ordinance, the General Plan, and the LCP, and that the EIR adequately 5 addressed the issues raised by the Planning Commission. 6 42. On December 1, 2021, the City Council voted to “call up” the Planning Commission 7 action for City Council review as set forth in Municipal Code section 23.74.040. 8 43. A final amended planning application incorporating additional native trees was submitted 9 in December 2021, dated December 8, 2021.
10 44. The City Council held a special meeting to consider the appeal and the call up of the 11 Project on January 12, 2022. PGCW submitted comments in a written letter addressing concerns with 12 respect to CEQA and LCP compliance. PGCW’s members, including Petitioner Ciani, also submitted 13 written comments. The Coastal Commission again submitted comments raising concerns about the 14 Project’s lack of compliance with the LCP, particularly with regard to water supply, lower-cost 15 accommodations, and design standards. Late-received comments were not posted in a manner that 16 members ofthe public had ready access to these documents prior to the hearing. 17 45. During the City Council hearing, Tony Ciani, as a representative ofPGCW, was afforded 18 additional time at the outset of the hearing to present the case defending the Planning Commission’s 19 denial of the requested entitlements and certification of the EIR, reflecting the City Council’s 20 21 proposed.
22 46. The City Council took public comment for several hours and then began debate on the 23 Project, covering topics including water resources, harbor seal protection, lower-cost accommodations 24 and massing and scale.
25 47. After midnight on January 13, 2022, the City Council voted to 6 to 1 to certify the EIR 26 and approve the Project’s entitlements, including the CDP. 27 48. The Notice of Determination to approve the Project was posted on January 13, 2022 by 28 the Monterey County Assessor.
10 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Ret iff City Council, contending that the denial was not based on recognition of PGCW as one of the primary entities that opposed development of the Project as PGCC 9-18-24

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1 49. The Final Local Action Notice was received by the Coastal Commission on January 20, 2 2022, commencing a 10-working-day appeal period which closed on February 3, 2022. 3 50. On February 2, 2022, PCGW filed an appeal of the determination to issue the CDP to the 4 Coastal Commission. Petitioner Ciani filed an appeal on February 2, 2022. Others also filed appeals, 5 including two Commissioners. At the time of the filing of this Verified Petition, the Coastal 6 Commission has not made a determination whether a substantial issue has been raised by the appeals. 7 8
9 51.
10 11 52. quality
12 environment for the people of this state now and in the future is a matter of statewide concern.” (Pub. 13 Resources Code, § 21000, subd. (a).) This includes ensuring that the people of this state have access to 14 clean air and water, and to maintain self-perpetuating levels of fish and wildlife species. (Id., § 21001.) 15 “[I]t is the policy of the state that public agencies should not approve projects as proposed if there are 16 feasible alternatives or feasible mitigation measures available which would substantially lessen the 17 significant environmental effects of such projects.” (Id., § 21002.) 18 53. The purpose of the EIR is to “identify the significant effects on the environment of a 19 20 effects can be mitigated or avoided.” (Pub. Resources Code, § 21002.1, subd. (a).) Ifthe EIR does not 21 accurately evaluate and disclose the environmental impacts of a project, CEQA’s objectives are stymied. 22 54. CEQA is not merely a procedural statute; it imposes clear and substantive responsibilities 23 on agencies that propose to approve projects, requiring that public agencies not approve projects that 24 harm the environment unless and until all feasible mitigation measures are employed to minimize that 25 harm. (Pub. Resources Code., §§ 21002, 21002.1, subd. (b).) 26 55. Failure either to comply with the substantive requirements of CEQA or to carry out the 27 full CEQA procedures so that complete information as to a project’s impacts is developed and publicly 28 disclosed constitute a prejudicial abuse of discretion that requires invalidation of the public agency

FIRST CAUSE OF ACTION
Violation of California Environmental Quality Act
(Public Resources Code § 21168, Code of Civ. Proc., § 1094.5) Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
11 Verified Petition for Writ of Mandate and Complaint forInjunctive and Declaratory Relief project, to identify alternatives to the project, and to indicate the manner in which those significant CEQA reflects the Legislature’s determination that “the maintenance of a PGCC 9-18-24

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1 action regardless of whether full compliance would have produced a different result. (Pub. Resources 2 Code, §21005.)
3 56. CEQA authorizes and directs the State Office of Planning and Research to adopt 4 guidelines for the implementation of CEQA by public agencies. (Pub. Resources Code, § 21083.) 5 These guidelines, which are found at title 14, California Code of Regulations section 1500 et seq. 6 (“Guidelines”), are binding on all state and local agencies, including Respondents. 7 57. The Guidelines establish procedures for calculating the baseline environmental 8 conditions at a proposed project site, providing that “[a]n EIR must include a description of the physical 9 environmental conditions in the vicinity of the project, as they exist at the time the notice ofpreparation 10 is published, or if no notice of preparation is published, at the time the environmental analysis is 11 commenced. . . (14 Cal. Code Regs., § 15125 (a).)
12 58. Agencies may not undertake actions that could have a significant adverse effect on the 13 environment, or limit the choice of alternatives or mitigation measures, before complying with CEQA. 14 (14 Cal. Code Regs., § 15004(b)(2).) The “lead agency,” which is the public agency that has the 15 principal responsibility for carrying out the project, is responsible for conducting an initial study to 16 determine, in consultation with other relevant state agencies, whether an environmental impact report, a 17 negative declaration, or a mitigated negative declaration will be prepared for a project. (Pub. Resources 18 Code., §§ 21067; 21080.1, subd. (a); 21080.3, subd. (a).) 19 59. CEQA defines a project as “the whole of an action, which has a potential for resulting in 20 either a direct physical change in the environment, or a reasonably foreseeable indirect physical change 21 in the environment.” (14 Cal. Code Regs., § 15378(a).) 22 60. The City prepared an EIR for the Project, but that EIR fails to satisfy CEQA’s mandates 23 in several critical respects.
24 61. The EIR failed to utilize a proper baseline to measure the water resources impacts of the 25 Project. Rather than determining and reporting the actual water consumed by the quiet retail center and 26 surface parking lot for use as a baseline reflecting the actual physical conditions at the time the Notice 27 of Preparation was published, the EIR utilized a theoretical baseline of water use based on historic 28 entitlements at that site. The record was clear that this facility had long been using significantly less 12 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory PGCC
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1 than its entitled water. The Monterey Peninsula has a documented water shortage, made more 2 significant by legal restrictions on water provider Cal-Am’s ability to provide water from the Carmel 3 River. It is highly relevant to know how much additional water over the actual recent water use the 225- 4 room hotel with two swimming pools would be drawing from this scarce resource. 5 62. The EIR also failed to analyze the impact on water resources resulting from the lack of 6 increased water service due to state agency (State Water Resources Control Board and California Public 7 Utilities Commission) limitations on providing serving for increased water uses resulting from a zone 8 change. As discussed herein, hotel uses were not permissible on the Project site until the zone change 9 that resulted from Measure X in 2016.
10 63. The EIR also erred by crediting significant water reductions for off-site laundry. Off-site 11 laundry is not a requirement of approval for the Project nor is a mitigation measure for the Project. 12 There is no legal obligation or binding commitment for the Project to have its laundry conducted off 13 site, nor to have it conducted outside of the Monterey Peninsula. The Monterey Peninsula Water 14 Management District recently ordered that water credits for offsite laundry are not permitted to reduce 15 water demand for new users in a recognition that off site use simply shifts the water demand elsewhere. 16 The EIR’s reliance on these reductions to find that sufficient water was available to serve the Project 17 was improper.
18 64. The EIR also erred by failing to adequately analyze the impacts of construction on the 19 nearby harbor seal population. The DEIR failed to disclose the location of the closest harbor seal haul 20 out and pupping location, Fisher Beach, mentioning only Hopkins West Beach which is further from the 21 site. While the FEIR was amended to add Fisher Beach as a haul out location, no new analysis was 22 conducted of the construction noise impacts at Fisher Beach. The EIR instead interpolated between two 23 locations to arrive at an approximate estimate for Fisher Beach, without providing any additional 24 analysis by a noise expert.
25 65. The EIR did not present any expert analysis of the impact of noise on harbor seal 26 populations, even though acknowledging that animal response to noise is less predictable than human 27 responses. The EIR simply adopted a threshold of significance based on an analysis from 2013 of a 28 brief, 8 -day long construction project with 8.5 hours of noise generation without exploring whether 13 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory PGCC 9-18-24
Rft iff

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1 repeated exposure over the 18-24 months of construction required for the Project would have a different 2 impact on this marine mammal. The EIR did not utilize input from the BayNet docents who are 3 recognized by the City as resources with regard to these marine mammals to determine whether any 4 behavioral observations of the harbor seals in situ would support the threshold of significance or require 5 alterations to that approach.
6 66. The EIR’s mitigation measures for impact to harbor seals 7 8 a.
9 materials.” The EIR contained no analysis of how this barrier fencing would 10 reduce noise impacts, particularly from noise above the sight line ofthe fencing. 11 b. BIO- 1.2 limits “demolition, grading, and excavation for subgrade construction,” 12 to the period between July 1 and February 1 to avoid pupping and weaning 13 14 removal activities, and no requirement to survey for early pups in January and 15 cease such activities ifthey are on-going.
16 c. BIO- 1.3 requires a “qualified biological monitor” hired by the City to “observe 17 and document behavior of . . . harbor seal . . . populations.” Monitoring is 18 “daily” during “initiative demolition and excavation phase,” and “twice monthly” 19 during the remainder of the construction program. “Activity or behavior 20 identified by the monitor(s) indicative of unusual stress or threatening relocation 21 shall cause immediate work stoppage and notification of the City and project 22 sponsor. Work shall resume only after noise levels are reduced and additional 23 noise/disturbance protection measures are employed and tested in the field for 24 effectiveness.” This measure does not incorporate any standards for disturbance, 25 and the frequency of monitoring is insufficient to ensure that the harbor seals are 26 not disturbed by these impacts. There is no threshold to determine whether noise 27 levels are reduced, because the noise levels are not being measured in the first 28 instance.
14 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Ret .iff CEQA. The EIR included three mitigation measures for harbor seal impacts.

BIO- 1.1 called for “construction perimeter fencing” with “noise attenuating are also inadequate under
season. However, there are no limits on other construction activities or tree PGCC 9-18-24

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1 67. The Planning Commission specifically recognized the deficiency of these mitigation 2 3 Two Planning Commissioners commented at length that BIO-1.3 was inadequately designed to address 4 noise impacts to harbor seals because it lacked any standards and any plan to follow if disturbance was 5 identified.
6 68. The EIR also failed to analyze the possible impacts of harbor seal displacement to other 7 of this beach by
8 humans.
9 69. The EIR failed to adequately mitigate for the loss of historic and architectural resources 10 due to the destruction of the Warehouse building and the remodeling of the historic and character11 defining faqade of the Factory building without adherence to the Secretary of Interior’s Standards for 12 Rehabilitation codified as 36 C.F.R. 67. The EIR determined that “the project is not in compliance with 13 Standards 1, 2, 4, 9, and 10 and the project therefore cannot be said to be in compliance with the 14 Secretary of Interior’s Standards for Rehabilitation.” The EIR also determined that “[a]s a result of the 15 demolition of Building No. 2 (Warehouse) and the partial demolition of Building No. 1 (Factory), the 16 American Tin Cannery will no longer retain sufficient historical integrity to convey its significance and 17 will no longer be eligible for listing in the California Register of Historical Resources or Pacific Grove 18 Inventory of Historical Resources. Thus, as proposed the American Tin Cannery Hotel & Commercial 19 project will create a significant and unavoidable impact on the historic resource.” 20 70. Moreover, the EIR failed to adequately consider or require a reasonable range of 21 alternatives including an alternative that would retain the historic warehouse building or the entire 22 Factory.
23 71. The EIR also failed to account for the impacts of truck trips to off site laundry facilities 24 in the Project’s greenhouse gas emission analysis.
25 72. The Final EIR’s responses to comments did not satisfy the requirements of CEQA to 26 analyze and respond to relevant comments. For instance, with respect to water resources, the FEIR 27 ignores comments requesting
28 Management District instead of addressing issues raised by the Coastal Commission, and states that the 15 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief nearby recreational beaches, such as Lovers Point Beach, which would limit use measures and requested noise monitoring equipment be installed, but this proposal was not accepted. a genuine baseline analysis, defers to the Monterey Peninsula Water PGCC 9-18-24

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1 State Water Resources Control Board did not comment on the DEIR as if this silence were a relevant 2 3 responses fail to include any new expert analysis and simply interpolate two data points, without 4 addressing the substantive comments provided by numerous citizens who observe the harbor seals on a 5 6 significant environmental issues raised in comments on the DEIR. 7 73. Petitioners have a direct and beneficial interest in the action herein and have exhausted 8 all other available remedies.
9 74. Petitioners have a beneficial right to Respondents’ performance of their respective duties 10 based on Petitioners’ interest in protecting Pacific Grove’s coastal resources from impacts of 11 commercial development and construction.
12 75. Respondents’ actions in approving the Project have caused and threatens to cause 13 Petitioners irreparable and substantial harm.
14 76. Petitioners have no plain, speedy, and adequate remedy at law, in that unless this Court 15 enjoins the Real Parties, they will commence construction of the Project, which will cause the 16 environmental impacts detailed herein, without adequate environmental review and mitigation required 17 by CEQA. No amount of monetary damages or other legal remedy can adequately compensate 18 Petitioner for the irreparable harm that Petitioners, its members, and the residents of the City of Pacific 19 Grove and California will suffer from the violations of law described herein. 20 21
22 77.
23 paragraphs as though fully set forth herein.
24 78. The Coastal Act must “be liberally constructed to accomplish its purposes and 25 objectives.” (Pub. Resources Code, § 30009.)
26 79. In the Coastal Act, the Legislature specifically declared that the coastal zone “is a distinct 27 and valuable natural resource of vital and enduring interest to all the people and exists as a delicately 28 balanced ecosystem;” and that “to promote the public safety, health, and welfare, and to protect public

SECOND CAUSE OF ACTION
Violation of Coastal Act/Local Coastal Program
(Public Resources Code § 30802; Code of Civ. Proc., § 1094.5) Petitioners incorporate by reference all the allegations contained in the previous 16 Verified Petition forWrit of Mandate and Complaint for Injunctive and Declaratory Relief regular basis. These and other responses fail to satisfy CEQA’s mandate for informed responses on reflection of that Board’s concurrence in the DEER’s conclusions. As to harbor seals, the FEIR’s PGCC 9-18-24

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1 and private property, wildlife, marine fisheries, and other ocean resources, and the natural environment, 2 it is necessary to protect the ecological balance of the coastal zone and prevent its deterioration and 3 destruction.” (Pub. Resources Code, § 30001.)
4 80. When policy conflicts arise under the Coastal Act, “such conflicts [must] be resolved in a 5 manner which on balance is most protective of significant coastal resources.” (Pub. Resources Code, § 6 30007.5.)
7 81. The Coastal Act requires local governments like the City to develop a local coastal 8 9 designed to further the objectives of the Coastal Act. (Pub. Resources Code, § 30001.5.) The City’s 10 LCP was certified by the Coastal Commission on March 11, 2020. An amendment to the LCP’s design 11 standards specifically focused on the ATC Project site was certified by the Coastal Commission on 12 August 12, 2021.
13 82. Affordable coastal overnight accommodations is a key goal of the Coastal Act. “A lack 14 of affordable accommodations remains a barrier to coastal access. California’s historic supply of lower 15 cost coastal accommodations has been reduced, and continues to be diminished, as a result of high 16 coastal property values and economic pressures to develop new coastal accommodations that are too 17 expensive to be affordable to most visitors.” (Pub. Resources Code, § 31411.) 18 83. The Coastal Act also contains policies protecting marine environments. “Marine 19 resources shall be maintained, enhanced, and, where feasible, restored. Special protection shall be given 20 to areas and species of special biological or economic significance. Uses of the marine environment 21 shall be carried out in a manner that will sustain the biological productivity of coastal waters and that 22 will maintain healthy populations of all species of marine organisms adequate for long-term 23 commercial, recreational, scientific, and educational purposes.” (Pub. Resources Code, § 30230.) 24 84. Environmentally sensitive habitat areas, which include areas such as the harbor seal 25 rookeries on Hopkins West and Fisher Beaches, are also afforded special protection under the Coastal 26 Act, and such areas “shall be protected against any significant disruption of habitat values,” while 27 “[development in areas adjacent to environmentally sensitive habitat areas and parks and recreation 28 areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and 17 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief program (“LCP”). The LCP consists of a land use plan (LUP) and implementing ordinances, all PGCC 9-18-24

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1 shall be compatible with the continuance of those habitat and recreation areas. (Pub. Resources Code, § 2 30240.)
3 85. “The scenic and visual qualities of coastal areas shall be considered and protected as a 4 resource of public importance. Permitted development shall be sited and designed to protect views to 5 and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be 6 visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance 7 8 designated in the California Coastline Preservation and Recreation Plan prepared by the Department of 9 Parks and Recreation and by local government shall be subordinate to the character of its setting.” (Pub. 10 Resources Code, § 30252.)
11 86. The City prepared an LCP to implement policies of the Coastal Act. The approval of the 12 Project did not conform to numerous policies, as set forth below. 13 87. With respect to harbor seals and the Project’s construction impacts on the nearby harbor 14 seal population, the approval was inconsistent with the following policies of the LCP:
15 a. BIO-7. The City will preserve its character-defining flora and fauna, such as rosy 16 ice plant (Drosanthemum floribundum), Monterey pine, Monterey cypress, Coast 17 Live Oak, Monarch butterfly, Harbor seal, Southern Sea Otter, Humpback and 18 Gray Whale and Black Oystercatcher.
19 b. BIO-1. Environmentally Sensitive Habitat Areas, or “ESHAs,” are defined as any 20 area in which plant or animal life or their habitats are either rare or especially 21 valuable because of their special nature or role in an ecosystem and which could 22 23
24 bluff, sandy and rocky beaches, intertidal and subtidal zones, tide pools, kelp 25 forests, offshore reefs, rocks, and islets, and rookery areas. 26 c. MAR-5. Marine resources shall be maintained, enhanced, and where feasible, 27 restored. Special protection shall be given to species and areas of special 28 biological significance. Lises of the marine environment shall be carried out in a be easily disturbed or degraded by human activities and developments. In Pacific Grove these areas include, but are not limited to, dime, wetland, streams, coastal 18 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief visual quality in visually degraded areas. New development in highly scenic areas such as those PGCC 9-18-24

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1 manner that will sustain the biological productivity of coastal waters and that will 2 maintain healthy populations of all species of marine organisms adequate for 3 long-term commercial, recreational, scientific, and educational purposes. 4 88. As set forth in the previous paragraphs regarding CEQA, the approval of the Project did 5 not include adequate protections or mitigation measures to protect harbor seals from the impacts of 6 noise associated with construction activities.
7 89. The approval of the Project was inconsistent with LCP Policy INF-2: “Development shall 8 only be approved if it is first clearly demonstrated that the development will be served by an adequate 9 existing water allocation and sustainable water supply.” As the Coastal Commission staff repeatedly 10 informed the City, this policy requires an assessment of the impact of new development against water 11 current used by the existing site uses. The policy also requires assurance of sustainable water service, 12 which cannot be demonstrated due to the moratorium on increased service resulting from a change of 13 zoning.
14 90. The LCP requires the provision of lower-cost accommodations and mitigation for 15 16
17 lower-cost accommodations on site or to determine the appropriate value of any in-lieu mitigation fee. 18 (PGMC, § 23.90.220(c).) The approval of the Project was not consistent with these policies because the 19 City permitted, at the last moment after the public hearing was closed, for the applicant to completely 20 substitute an in-lieu fee with a poorly defined on-site program that was not supported by any substantial 21 evidence in the record.
22 91. The applicant prepared a feasibility study regarding lower cost accommodations which 23 concluded that “providing on-site lower-cost rooms would likely render the development of the ATC 24 The
25 analysis concluded that providing 56 lower-cost rooms at a rate of $117 on-site would leave the hotel 26 27
28 92. After the feasibility study, the applicant proposed a $1.8 million in-lieu fee to mitigate 19 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Rft.tff operations with a $9 million financial gap, and therefore was infeasible. Paying an in-lieu fee of $1.8 million, a cost of $32,000 per unit, would be financially feasible. projects that fails to provide for such accommodations in PRA-1 1 and PRA-12. The Implementation Program requires the provision of a feasibility study to analyze the financial feasibility for providing Project financially infeasible but that payment of the in-lieu fee may be financially viable.” PGCC 9-18-24

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1 the failure to provide on-site lower cost accommodations. The Coastal Commission expressed 2 significant concern that this value was inadequate to serve as a replacement cost for the lower-cost 3 accommodations.
4 93. After the close of the public hearing at the City Council, one Councilmember raised 5 concerns regarding the Project’s lower-cost accommodations proposals. Staff responded and defended 6 the calculation of the in-lieu fee amount, and then the applicant’s representative spoke. For the first 7 time, the applicant’s representative alleged that it had agreed to pay the in-lieu fee before because the 8 Coastal Commission insisted on it, but that it would instead prefer to provide 56 units on-site, to be 9 made available to “active military, nurses, frontline workers.” The applicant stated it would like to work 10 11 financial feasibility in light of the feasibility study, regarding the proposed lower-cost rate, or regarding 12 the implementation of the program.
13 94. At the close of the hearing, the condition of approval regarding lower-cost 14 accommodations was re-written to eliminate the in-lieu fee and now provides: “In compliance with the 15 City’s requirement for inclusion of lower-cost overnight accommodations for new hotels, prior to the 16 issuance of building permits, the project sponsor shall provide for Community Development Director 17 review and approval, a revised project description noting that 56 hotel rooms will be available as on-site 18 lower-cost overnight visitor accommodations, the eligibility requirements for such rooms, and how the 19 lower-cost overnight visitor accommodations program will be implemented. In addition, the project 20 sponsor shall pay $8,000.00 into the City’s fund for development of lower-cost overnight 21 accommodations as the in-lieu contribution for the 0.25 -unit fractional remainder to meet the City’s 22 25% minimum number of lower-cost overnight accommodations.” 23 95. The determination that this undefined program satisfied the LCP’s and the Coastal Act’s 24 lower-cost accommodation policies was not supported by substantial evidence, because there was no 25 evidence in the record of proposed room rates or implementation plans and no evidence supporting the 26 conclusion that the hotel would be able to operate while renting 56 rooms at the rates deemed truly 27 lower-cost.
28 96.
20 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief The public, including Petitioners, could not object to this proposal because it was with the City to develop this program. There were no questions asked of the applicant regarding PGCC 9-18-24

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1 presented only after the public hearing was closed. Therefore, exhaustion of administrative remedies 2 was infeasible.
3 97. The project site is located in a popular visitor-destination recreation area on the nearest 4 5
6 circulation on Ocean View Boulevard and Sloat Avenue. These policies include:
7 a. Coastal Act (Pub. Resources Code §§30212.5, 30252, and 30254). 8 b. PRA-9. New development shall ensure that public access opportunities are 9 maximized, including [through] offsetting any temporary (e.g., during 10 construction) and potential permanent impacts to public access (including in 11 terms of increased traffic leading to impacts to public access use of the City’s 12 circulation system) appropriately and proportionally. Development shall provide 13 for public access enhancements and improvements as much as possible, 14 including in terms of providing public access use areas in private development 15 projects (e.g., visitor serving development) as appropriate. Development that 16 does not meet these requirements shall be denied.
17 98. The Project is also inconsistent with LCP policies regarding protection of public views 18 and visual quality in the coastal area. These include:
19 a. SCE-1. Public views to and along the shoreline shall be protected and enhanced, 20 and alteration of natural landforms shall be minimized. 21 b. SCE-2. Preserving and enhancing the scenic qualities of the Coastal Zone is a 22 priority in all City actions and decisions. Development that could adversely 23 impact public views and scenic coastal areas shall only be allowed where it 24 protects, preserves, and, iffeasible, enhances such scenic and visual qualities. 25 c. SCE-3. Where appropriate, protect special communities and neighborhoods that, 26 because of their unique characteristics, are popular visitor destination points for 27 recreational uses or are locally important historic areas. 28 d. SCE-5. The City will designate scenic areas of the Coastal Zone, including those 21 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief coastal road paralleling the sea. The project is inconsistent with the public access policies of the LCP and Coastal Act to protect public access to and along the shoreline, including public parking and PGCC 9-18-24

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1 areas described in Policy SCE-3, as areas having special scenic significance 2 requiring the imposition of project-specific development standards designed to 3 protect these scenic areas (refer to Figure 4, Scenic Areas). 4 5
6 Figure 4, and on all parcels that abut Ocean View Boulevard and Sunset Drive, 7 8
9 10 viewshed protection, and through such measures as height and story limitations, 11 and bulk and scale limitations. Clustering development to maximize open space 12 views may also be considered.
13 99. The Project is substantially larger than any other nearby structure and significantly out14 of-scale with the community surrounding it. The Project is roughly the size of three of the largest area 15 structures located in Monterey, combined together. The Project’s visual impacts were never assessed 16 utilizing story poles or story balloons, or any other form of on-site full-size visual impact assessment, 17 even though the Implementation Program requires such assessment: “Any other information deemed 18 necessary to determine the visual impact of the proposed project, including but not limited to analysis of 19 the heights of existing buildings within 150 feet of the proposed structure; story poles and netting 20 showing proposed ridgelines; and visual simulations to help identify potential visual impacts.” (PGMC, 21 § 23.90.160 (b)(1)(E).)
22 100. The Project also maximizes lot coverage but does not provide for adequate public 23 amenities, removing on street parking, eliminating Sloat Avenue as a right of way, and failing to provide 24 corresponding public benefits.
25 101. Petitioners have a direct and beneficial interest in the action herein and has exhausted all 26 other available remedies. Petitioners have appealed to the Coastal Commission and awaits a substantial 27 issue determination on Petitioner’s appeal.
28 102. Petitioners have a beneficial right to Respondents’ performance of their respective duties impact on significant public views, including by situating buildings, access roads, and related development in a manner and configuration that maximizes public 22 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory relief Development within visually prominent settings, including those identified on shall be sited and designed to avoid blocking or having a significant adverse PGCC 9-18-24

V WVOO I
1 based on Petitioner’s interest in protecting Pacific Grove’s coastal resources from impacts of 2 commercial development and construction.
3 103.
4 Petitioners irreparable and substantial harm.
5 104. Petitioners have no plain, speedy, and adequate remedy at law, in that unless this Court 6 enjoins the Real Parties, they will commence construction of the Project, which is inconsistent with the 7 requirements of the LCP and the Coastal Act. No amount of monetary damages or other legal remedy 8 9 residents of the City of Pacific Grove and California will suffer from the violations of law described 10 herein.
11 12
13 105.
14 though fully set forth herein.
15 106. A dispute has arisen between Petitioners and Respondents, in that Petitioners believe and 16 contend, for the reasons set forth above, that Respondents’ actions as set forth above were unlawful and 17 invalid. Petitioners are informed and believe, and on that basis contend, that Respondents contend in all 18 respects to the contrary.
19 107. Petitioners contend that the approval of the Project did not comply with CEQA, because 20 the EIR failed to comply with CEQA’s requirements for analysis, including all reasonable project 21 alternatives and mitigation of the Project’s environmental impacts. Petitioners are informed and believe 22 that in response to Petitioners having identified these issues for Respondents, Respondents have 23 disagreed with Petitioners’ contentions.
24 108. Petitioners contend that the approval of the Project did not comply with the LCP or the 25 Coastal Act, including policies for the protection of public access, wildlife, environmentally sensitive 26 habitat, water resources, lower-cost accommodations, and visual impacts. Petitioners are informed and 27 believe that in response to Petitioners have identified this issue for Respondents, that Respondents have 28 disagreed with Petitioners’ contentions.

THIRD CAUSE OF ACTION
Declaratory Relief
(Code of Civ. Proc., § 1060)
Petitioners incorporate by reference all of the allegations of the previous paragraphs, as 23 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief can adequately compensate Petitioner for the irreparable harm that Petitioners, its members, and the Respondents’ actions in approving the Project have caused and threatens to cause PGCC 9-18-24

22CV000387
1 109. A judicial declaration as to the legality of Respondents’ actions, as set forth above, is 2 therefore necessary and appropriate to determine the respective rights and duties ofthe parties. 3 PRAYER FOR RELIEF
4 WHEREFORE, Petitioners pray for relief as follows:
5 1. As to the First Cause of Action, that this Court issue a peremptory writ of mandate 6 commanding Respondents to rescind the certification of the EIR and all approvals of the Project which 7 rely upon the EIR, including the Use Permit, Architectural Permit, Coastal Development Permit, and 8 Tree Permit; and that this Court issue a temporary restraining order, preliminary injunction, 9 administrative stay, and permanent injunction enjoining Respondents and Real Parties from constructing 10 or operating the Project;
11 2. As to the Second Cause of Action, that this Court issue a peremptory writ of mandate 12 commanding Respondents to rescind the approval of the Coastal Development Permit; and that this 13 Court issue a temporary restraining order, preliminary injunction, administrative stay, and permanent 14 injunction enjoining Respondents and Real Parties from constructing or operating the Project; 15 3. As to the Third Cause of Action, that this Court issue declaratory relief that Respondents 16 have not complied with CEQA in their approvals ofthe Project; 17 4. Also as to the Third Cause of Action, that this Court issue declaratory relief that 18 Respondents have not complied with the Coastal Act and the Local Coastal Program in their approvals 19 ofthe Project;
20 5. That this Court award Petitioners costs and attorneys’ fees pursuant to Code of Civil 21 Procedure section 1021.5 or other applicable law; and 22 6. That this Court grant Petitioners such other, different, or further relief as the Court may 23 deem just and proper.
24 Dated: February 9, 2022
25 26
27 28
24 Verified Petition forWrit of Mandate and Complaint forInjunctive and Declaratory Relief Respectfully submitted,

STRUMWASSER & WOOCHER LLP
Fredric D. Woocher
Beverly Grossman Palmer
ZV
By: /ZyrG y
Beverly Grossman Palmer
Attorneysfor Petitioner Pacific Grove
Coast Watch; andAnthony Ciani
PGCC 9-18-24

22CV000387
1 VERIFICATION
2 I, Anthony A. Ciani, declare:
3 I am a member of Pacific Grove Coast Watch and a resident of Pacific Grove, California. I am 4 authorized to make this verification for Petitioner and Plaintiff Pacific Grove Coast Watch. I have read 5 the foregoing VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR 6 INJUNCTIVE AND DECLARATORY RELIEF. I am informed and believe that the contents thereof 7 are true, and on that ground I allege that the matters stated therein are true. 8 I declare under penalty of perjury under the laws of the State of California that the foregoing is 9 true and correct.
10 11
12 iani
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
25 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Executed this
-/A
day ofFebruary, 2922 at Pacific Grove, California.

PGCC 9-18-24

22CV000387
1 VERIFICATION
2 I, Anthony A. Ciani, declare:
3 I am a resident of Pacific Grove, California and a Petitioner in this action. I make this 4 verification on my own behalf. I have read the foregoing VERIFIED PETITION FOR WRIT OF 5 MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF. I am 6 informed and believe that the contents thereof are true, and on that ground I allege that the matters stated 7 therein are true.
8 I declare under penalty of perjury under the laws of the State of California that the foregoing is 9 true and correct.
10 Executed this day ofFebruary, 2022 at Pacific Grove, California. 11 12
.ni my A. Ciani
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
26 ___
Verified Petition for Writof Mandate and Complaint forInjunctive and Declaratory Relief PGCC 9-18-24

22CV000387

EXHIBIT A
PGCC 9-18-24

22CV000387
i
Please see the attached letter notifying the City of Pacific Grove that Pacific Grove Coast Watch and Anthony A. Ciani intend to commence litigation under the California Environmental Quality against the City and the City Council.

Beverly Grossman Palmer
Strumwasser & Woocher LLP
10940 Wilshire Boulevard, Suite 2000
Los Angeles, CA 90024
T: 310-576-1233
F: 310-319-0156
Dir: 310-933-5930
Beverly Grossman Palmer
Wednesday, February 9, 2022 2:44 PM
[email protected]
[email protected]
Notice of Intent to Commence Litigation Under CEQA
220209 Letter to City Clerk re CEQA.pdf
IMPORTANT NOTICE: At this time, Strumwasser & Woocher LLP is CLOSED TO THE PUBLIC. Packages requiring signatures will be returned undelivered - do not serve papers by this method. While our office is closed, Strumwasser & Woocher LLP consents to electronic service in all of its matters. Please serve by electronic mail to [email protected] AND to our Senior Legal Assistant, LaKeitha Oliver, at [email protected]. We reserve the right to object to any notice or delivery of any kind if not actually received by counsel before all statutory deadlines.

From:

Sent:

To:

Cc:

Subject:

Attachments:

PGCC 9-18-24

^uvuuuda/
f Also admitted to practice in Washington
Re:

Dear Ms. Kandell:

This firm writes on behalf of the Pacific Grove Coast Watch and Anthony A. Ciani.

Cc: David Laredo ([email protected])
Michael J. Strumwasser Bryce A. Gee Beverly Grossman Palmer Dale K. Larson Caroline C. Chiappetti Julia G. Michel Salvador E. Perez
Please take notice under section 21 167.5 of the Public Resources Code, as agent for the City ofPacific Grove and the Pacific Grove City Council, that Pacific Grove Coast Watch and Anthony A. Ciani intend to file a lawsuit under the California Environmental Quality Act (CEQA) in Monterey County Superior Court. The lawsuit will name as Respondents and Defendants the City ofPacific Grove and the Pacific Grove City Council, and will contend that the January 12, 2022 approval ofthe American Tin Cannery (ATC) Project at 109/125 Ocean View Boulevard and 124 Central Avenue, including the certification ofthe Environmental Impact Report and the approval of the Use Permit, Architectural Permit, Tree Permit and Coastal Development Permit, did not comply with the requirements of CEQA.

February 9, 2022
Via email to skandell®,citvofDacificgrove.org
Sandra Ann Kandell
City Clerk
City ofPacific Grove
300 Forest Ave
Pacific Grove, CA 93950
Notice of Intent to Commence CEQA Action
Pacific Grove Coast Watch v. City ofPacific Grove
Telephone: (310) 576-1233
facsimile: (310) 319-0156 WWW.STRUMWOOCI1.COM
Fredric D. Woocher Andrea Sheridan Ordin Senior Counsels

STRUMWASSER & WOOCHER LLP
Attorneys At Law
10940 Wilshire Boulevard, Suite 2000 Los Angeles, California 90024 The lawsuit will also object to the issuance ofthe Coastal Development Permit as inconsistent with the requirements of the City’s certified Local Coastal Program and the Coastal Act.

PGCC 9-18-24

22CV000387

EXHIBIT B
PGCC 9-18-24

22CV000387
f Also admitted to practice in Washington
February 9, 2022
Re:

Dear Attorney General:

Sincerely,
Beverly Grossman Palmer
Michael J. Strumwasser Bryce A. Gee Beverly Grossman Palmer Dale K. Larson Caroline C. Chiappetti Julia G. Michel Salvador E. Perez
A copy ofthe Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief is attached to this notice.

Pursuant to Public Resources section 21 167.5 and Code of Civil Procedure section 388, Petitioners Pacific Grove Coast Watch and Anthony A. Ciani (“Petitioners”) hereby gives notice that on February 10, 2022, a verified petition for writ of mandate and complaint for injunctive and declaratory reliefwill be filed against Defendants and Respondents, the City ofPacific Grove, and the Pacific Grove City Council (collectively “the City”) in Monterey County Superior Court, Monterey Courthouse. The action challenges the City’s approval of the American Tin Cannery Hotel Project at 109/125 Ocean View Boulevard in the City ofPacific Grove for failure to comply with the California Environmental Quality Act and the California Coastal Act.

Telephone: (310) 576-1233 Facsimile: (310)319-0156 WWW.STRUMWOOCJ1.COM Fredric D. Woocher Andrea Sheridan Ordin Senior Counsels Rob Bonta
Attorney General
Office of the Attorney General
1300 1 Street
Sacramento, California 95814

STRUMWASSER & WOOCHER LLP
Attorneys At Law
10940 Wilshire Boulevard, Suite 2000
Los Angeles, California 90024
Notice of Intent to Commence CEQA Action
Pacific Grove Coast Watch, et al. v. City ofPacific Grove, et al.

PGCC 9-18-24

Form Adopted for Mandatory Use
Judicial Council of California
CIV-110 [Rev. January 1, 2013]
Code of Civil Procedure, § 581 et seq.;
Gov. Code, § 68637(c); Cal. Rules of Court, rule 3.1390

REQUEST FOR DISMISSAL
ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NUMBER:

NAME:

FIRM NAME:

STREET ADDRESS:

CITY: STATE: ZIP CODE:

TELEPHONE NO.: FAX NO.:

E-MAIL ADDRESS:

ATTORNEY FOR (name):

SUPERIOR COURT OF CALIFORNIA, COUNTY OF
STREET ADDRESS:

MAILING ADDRESS:

CITY AND ZIP CODE:

BRANCH NAME:

PLAINTIFF/PETITIONER:

DEFENDANT/RESPONDENT:

REQUEST FOR DISMISSAL

FOR COURT USE ONLY
CASE NUMBER:

A conformed copy will not be returned by the clerk unless a method of return is provided with the document.

This form may not be used for dismissal of a derivative action or a class action or of any party or cause of action in a class action. (Cal. Rules of Court, rules 3.760 and 3.770.)

1. TO THE CLERK: Please dismiss this action as follows:
a. (1) With prejudice (2) Without prejudice
b. (1) Complaint (2) Petition
(3) Cross-complaint filed by (name): on (date):
(4) Cross-complaint filed by (name): on (date):
(5) Entire action of all parties and all causes of action (6) Other (specify):*
Date:

2. (Complete in all cases except family law cases.)
The court waive court fees and costs for a party in this case. (This information may be obtained from the clerk. If court fees and costs were waived, the declaration on the back of this form must be completed). did did not
(TYPE OR PRINT NAME OF ATTORNEY PARTY WITHOUT ATTORNEY) *If dismissal requested is of specified parties only of specified causes of action only, or of specified cross-complaints only, so state and identify the parties, causes of action, or cross-complaints to be dismissed
(SIGNATURE)
Attorney or party without attorney for:

Plaintiff/Petitioner Defendant/Respondent
Cross-Complainant

3. TO THE CLERK: Consent to the above dismissal is hereby given.** Date:
(TYPE OR PRINT NAME OF ATTORNEY PARTY WITHOUT ATTORNEY) ** If a cross-complaint - or Response (Family Law) seeking affirmative relief - is on file, the attorney for cross-complainant (respondent) must sign this consent if required by Code of Civil Procedure section 581 (i) or (j).
(SIGNATURE)
Attorney or party without attorney for:

Plaintiff/Petitioner Defendant/Respondent
Cross-Complainant

4. Dismissal entered as requested on (date):

5. Dismissal entered on (date): as to only (name):

6. Dismissal not entered as requested for the following reasons (specify):

7. a. Attorney or party without attorney notified on (date):
b. Attorney or party without attorney not notified. Filing party failed to provide a copy to be conformed means to return conformed copy
Date: Clerk, by , Deputy

CIV-110
www.courts.ca.gov
234004
Beverly Grossman Palmer
Strumwasser & Woocher LLP
1250 6th Street, Suite 205
Santa Monica CA 90401
310-576-1233 310-319-0156
[email protected]
Petitioners/Plaintiffs Pacific Grove Coast Watch and Anthony Ciani

MONTEREY
1200 Aguajito Road
1200 Aguajito Road
Monterey 93940
Monterey Courthouse
Pacific Grove Coast Watch, et al
City of Pacific Grove
22CV000387
May 29, 2024
Beverly Grossman Palmer
X
X
6/5/2024
6/5/2024
5/29/2024
/s/ Wendy Lopez

ELECTRONICALLY FILED BY
Superior Court of California,
County of Monterey
On 5/29/2024 4:36 PM
By: Wendy Lopez, Deputy
ATTACHMENT 16
PGCC 9-18-24

CIV-110 [Rev. January 1, 2013] REQUEST FOR DISMISSAL
CIV-110
PLAINTIFF/PETITIONER:

DEFENDANT/RESPONDENT:

CASE NUMBER:

COURT'S RECOVERY OF WAIVED COURT FEES AND COSTS
If a party whose court fees and costs were initially waived has recovered or will recover $10,000 or more in value by way of settlement, compromise, arbitration award, mediation settlement, or other means, the court has a statutory lien on that recovery. The court may refuse to dismiss the case until the lien is satisfied. (Gov. Code, § 68637.)
Declaration Concerning Waived Court Fees

1. The court waived court fees and costs in this action for (name):

2. The person named in item 1 is (check one below):
a. not recovering anything of value by this action.
b. recovering less than $10,000 in value by this action. c. recovering $10,000 or more in value by this action. (If item 2c is checked, item 3 must be completed.)

3. All court fees and court costs that were waived in this action have been paid to the court (check one): Yes No I declare under penalty of perjury under the laws of the State of California that the information above is true and correct.

Date:
(TYPE OR PRINT NAME OF ATTORNEY PARTY MAKING DECLARATION) (SIGNATURE) Pacific Grove Coast Watch, et al
City of Pacific Grove 22CV000387
PGCC 9-18-24

PROOF OF SERVICE
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PROOF OF SERVICE

STATE OF CALIFORNIA

COUNTY OF MONTEREY
Re: Pacific Grove Coast Watch vs. City of Pacific Grove Case Number 22CV000387
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 1250 6th Street, Suite 205, Santa Monica, California 90401. My electronic mail address is [email protected].

On May 29, 2024, I served the foregoing documents described as REQUEST FOR DISMISSAL on all appropriate parties in this action, as listed on the attached Service List, by the method stated:
☒ If Electronic Filing Service (EFS) is indicated, I electronically filed the document(s) with the Clerk of the Court by causing the documents to be sent to One Legal, the Court’s Electronic Filing Services Provider for electronic filing and service. Electronic service will be effected by One Legal’s case-filing system at the electronic mail addresses indicated on the attached Service List. ☒ If U.S. Mail service is indicated, by placing this date for collection for mailing true copies in sealed envelopes, first-class postage prepaid, addressed to each person as indicated, pursuant to Code of Civil Procedure section 1013a(3). I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing contained in the affidavit.

I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration was executed on May 29, 2024, at Los Angeles, California.

LaKeitha Oliver
PGCC 9-18-24

PROOF OF SERVICE
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SERVICE LIST
Pacific Grove Coast Watch vs. City of Pacific Grove
Case Number 22CV000387
Via EFS
Christopher L. Stiles
Remy Moose Manley LLP
555 Capitol Mall, Suite 800
Sacramento, California 95814
Telephone: 916-443-2745
Email: [email protected]
Attorneys for Respondents and Defendants
City of Pacific Grove; and Pacific Grove City
Council
Via U.S. Mail
Forest Paul
508 Loma Alta Road
Carmel-by-the-Sea, California 93923
Authorized to accept on behalf of Real
Party in Interest Paul Living Trust
Via U.S. Mail
Theodore J. Balestreri
555 Abrego Street
Monterey, California 93940
Authorized Agent for Real Party in Interest
Foursome Development Company
Via EFS
Arthur F. Coon
Miller Starr Regalia
1331 North California Boulevard, 5th Fl.

Walnut Creek, California 94596
Tel: 925-935-9400● Fax: 925-933-4126
Email: [email protected]
Attorney for Real Party in Interest
CCS Pacific Grove Manager, LLC
PGCC 9-18-24

Agenda No. 12 A

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Daniel Gho, Public Works Director/Deputy City Manager MEETING DATE: September 18, 2024
SUBJECT: Pine Avenue Street Improvements, Fountain and 15th CEQA: Categorical Exemption, CEQA Guidelines Section 15301, Class I, Existing Facilities

RECOMMENDATION

1. Receive presentation
Authorize staff to discuss options with the Traffic Safety Commission and Pacific Grove Unified School District Staff to gain feedback on improvements and subsequently, bring back refined options to the City Council

2. 3. Alternatively, discuss and take other action related to this item

DISCUSSION
As part of the fiscal year 23/24 Capital Improvement Program, the City Council allocated funds for safety improvements in front of Robert Down Elementary School, on Pine Avenue.

The approval of the project prompted the Traffic Engineer to observe and evaluate the location and prepare a set of recommendations for safety enhancements. The Traffic Engineers recommendations were brought before the City Council at their February 7, 2024 meeting. The item was continued to the February 14, 2024 meeting, at which time the Council approved a plan to relocate the stop sign at Fountain and Pine Avenues to 15th St and Pine Avenue and initiate all signage and advance warning street markings associated with the plan, which was attached to the staff report for reference. The staff report further specified that as a next step, the safety improvements would be incorporated into the 23/24 Crack and Slurry Seal Project.

At their April 17, 2024 meeting, the City Council authorized the agreement for the Crack and Slurry Seal Project. The Agenda Report stipulated that the improvements on Pine Avenue were incorporated and included as an element of the agreement.

In May 2024, the recommendations were implemented. The improvements received some criticism, which triggered the Traffic Engineer to further evaluate the implemented improvements.

The Traffic Engineer and his staff evaluated the intersections at Fountain and Pine Avenues and 15th St and Pine Avenue on August 28 and September 4th, 5th and 6th. Initial high-level observations include that the initial improvements improved the safety and functionality of the roadway.

PGCC 9-18-24

In addition to observing the implemented roadway improvements, the Traffic Engineering provided an analysis of the stop sign and crosswalk reconfiguration, following community inquiries received.

Traffic Engineer's Analysis on the Stop Sign & Crosswalk Reconfiguration The two crosswalks across Pine Avenue at Fountain were removed, and the stop control was moved to Pine Avenue and 15th Street to reduce conflicts between vehicles traveling on Pine Avenue and school pedestrians crossing Pine Avenue. Prior to the recent striping and stop sign changes, there were three crosswalks across Pine Avenue in this stretch of roadway. The striping changes consolidated them into one crosswalk at Pine Avenue and 15th Street. This consolidation displaced roughly 25 students in each crosswalk at Fountain to the single crosswalk at 15th, where the all-way stop control and school crossing guard provide better control for the 100+ students crossing Pine Avenue before and after school.

Eastbound drivers on Pine Avenue approach a single school crosswalk with an all-way stop and school crossing guard, instead of two crosswalks with a stop sign at Fountain Avenue and an uncontrolled crosswalk at 15th Street with one crossing guard. A single crosswalk at 15th Street with all-way stop control is more predictable for drivers to discern where students will cross. The change places the majority of students crossing Pine Avenue at 15th Street in front of Robert Down School at the single crosswalk, which increases driver expectations of the school crosswalk and a heightened awareness of students crossing in front of them. Additionally, middle school students are also using the single crosswalk and school crossing guard at 15th Street to cross Pine Avenue, instead of crossing at Fountain Avenue. Essentially, consolidating the three school crosswalks into one crossing at 15th Street is operating as it was intended. For these reasons, adding school crosswalks back to Fountain Avenue is not recommended.

Consolidating the school crosswalks across Pine Avenue from Fountain Avenue to 15th Street changed the Safe Route to School path of travel. However, removing the stop signs and school crosswalks at Fountain Avenue does not prohibit pedestrians from crossing Pine Avenue at Fountain Avenue. Without painted crosswalks, crossing Pine Avenue is considered legal in an “unmarked crosswalk.” California Vehicle Code section 21954(a) and (b) provides the legal basis for crossing a street in either a marked or unmarked crosswalk:
(a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard.
(b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.” Pine Avenue has 28 intersections with “unmarked crosswalks”. It is legal to cross all of them, including Pine / Fountain.

The City’s Traffic Engineer and his team also developed two plans that could be implemented to further increase safety adjacent to the school. The first option would be to install a temporary Eastbound lane drop-off from Fountain Avenue to 13 th Street along the frontage of the school. The second option entails implementing permanent lane reduction measures in both directions from Carmel Avenue to Fountain Avenue.

PGCC 9-18-24

Traffic Engineers Options for Further Enhancing Safety
Option 1:
· Temporary Eastbound lane reduction to create a drop-off lane · Eliminates East bound dual threat at the crosswalk by creating only 1 lane of traffic · Separates school drop-off traffic from through traffic · This option also includes education of parents and Pacific Grove Unified School District (PGUSD) Staff and enforcement
Option 2:
· Eliminates dual threat at crosswalks in both directions by reducing traffic lanes to one · Creates shorter crossing times as permanent bulb outs could be constructed · Separates drop-off traffic from through traffic in front of the school · This option creates positive driver and pedestrian interaction Draft conceptual drawings of both options are attached to this report and included in the presentation.

City Staff and the Traffic Engineering team are requesting City Council to authorize staff to present these two options to the City’s Traffic Safety Commission, PGUSD staff and also at the City’s and PGUSD joint sub-committee meeting. The intentions of these meetings is to gather feedback from the groups, and for staff to prepare a set of safety improvements, if warranted, that could be implemented in front of Robert Down Elementary School.

OPTIONS
Do not authorize staff to pursue additional safety measures along Pine Avenue FINANCIAL IMPACT:

There is no fiscal impact by receiving this report. When a plan is approved, based on design, engineering and features, a Capital Improvement Project may have to be developed.

FOCUSED PRIORITY AREA: Infrastructure
Attachments
Option 1
Option 2
PGCC 9-18-24

Safety Measures:
1) Eliminate EB Dual
Threat at
Crosswalk
2) Separate School
Drop Off Traffic
3) Parent Education
& Enforcement
Option 1: Eastbound Lane Drop
PGCC 9-18-24

Safety Measures:
1) Eliminate Dual
Threat in both dir.
2) Separate School
Drop Off Traffic
3) Create positive
driver – Ped
Interaction
Option 2: Lane Red. + Curb Extensions
PGCC 9-18-24

Agenda No. 12 B

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Daniel Gho, Public Works Director/Deputy City Manager MEETING DATE: September 18, 2024
SUBJECT: Lighthouse Avenue Sidewalk Widening Project
CEQA: Categorical Exemption, CEQA Guidelines Section 15301, Class I, Existing Facilities

RECOMMENDATION
Authorize the City manager to enter into an agreement with Silcon Constructors Inc. for the Lighthouse Avenue Widening Project in an amount not to exceed $242,360.53 plus a 25% contingency

1. 2. Alternatively, discuss and take other action related to this item

DISCUSSION
In June of 2020, the City Council ratified emergency measures taken by the City Manager to streamline the processes through which businesses could offer outside dining (“parklets”). By August 1, 2020, approximately 11 restaurants were operating parklets on City property under the temporary rules established by the local emergency. In 2021 and 2022, the City Council adopted an ordinance with one-year sunset provisions that clarified the scope and effect of the temporary Parklet Program and Outside Dining rules.

At the March 22, 2023, meeting the City Council adopted Ord. 23-004, which expands the encroachment permit process to allow parklets in the public right-of-way.

With the adoption of Ord. 23-004, parklets are now authorized through an annual, temporary encroachment permit. Issuing an annual encroachment permit allows the parklets to remain temporary and revocable if the conditions noted on the encroachment permit are not met. At that same meeting, the City Council also formed a subcommittee, consisting of Councilmembers Beck, Coletti and McDonnell. Since late October 2023, Councilmember Beck has recused herself from participation in the parklet subcommittee. The subcommittee continued its efforts and developed the Lighthouse Avenue Sidewalk Widening Project.

The intent of the parklet subcommittee was to address the numerous inquiries and concerns related to the three parklets at Lighthouse Ave and Fountain Ave and to devise methods to best address the safety concerns and potential conflicts between pedestrians and vehicles created by the parklets on this block.

With increased visibility and safety front of mind, the subcommittee, in consultation with the City’s contracted Traffic Engineer, recommended extending the sidewalk where the parklets currently exist.

PGCC 9-18-24

City Staff, in conjunction with the members of the subcommittee, presented a rendering and options to the City Council at their February 21, 2024 meeting. At the meeting, Council authorized the City Manager to finalize plans and prepare a Call for Bids for the Lighthouse Avenue Sidewalk Widening Project. At the City Council’s June 19, 2024 meeting, Staff presented the final plans and bidding package to the City Council and Council authorized the release of the call for bids.

On August 9, 2024, the City received 3 bids for the construction of the Lighthouse Avenue Sidewalk Widening Project.

Firms Bids
Silcon Constructors Inc. $242,360.53
Monterey Peninsula Engineering $419,075.00
Vanguard Construction $442,107.00
City staff presented the bids to the Council at their September 4, 2024, meeting and requested that the Council authorize the City manager to prepare a budget amendment to allocate funding for the construction of the Lighthouse Avenue Sidewalk Widening Project. If the City Council authorizes an agreement with Silcon Constructors, City staff will begin discussions with the business owners, Wild Fish, Victorian Corner, and Rudolpho’s, along with the contractor, to develop a schedule that meets the needs of all involved parties. City staff will then relay that schedule to the City Council at a future meeting.

If approved, the City will harness the standard construction agreement template approved by the California Joint Powers Insurance Authority (CJPIA) and the City Attorney.

OPTIONS
Do not authorize the execution of a contract for the Construction of the Lighthouse Avenue Sidewalk Widening project
FINANCIAL IMPACT:

As part of the FY23/24 Capital Improvement Plan (CIP), the City Council allocated $50,000 for the Design of Lighthouse Avenue Sidewalk Widening Project (CIP24-06). This was harnessed to develop the plans, specifications and bidding package.

The recommendation in this report authorizes an agreement with Silcon Constructors Inc. for the Lighthouse Avenue Widening Project in an amount not to exceed $242,360.53 plus a 25% contingency.

A first read of an Ordinance to allocated funding in Fiscal Year 2024/25 for the construction of the Lighthouse Avenue Sidewalk Widening Project was incorporated in a previous agenda item at this meeting (September 18, 2024). If this budget amendment was approved, funding would be allocated to the Capital Improvement Program for this construction contract.

FOCUSED PRIORITY AREA: Infrastructure
PGCC 9-18-24

Agenda No. 12 C

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Alyssa Kroeger, Housing Program Manager
MEETING DATE: September 18, 2024
SUBJECT: Second Amendment to Professional Services Agreement (PSA) with Rincon Consultants, Inc. for the Sixth Cycle Housing Element Update (HEU) CEQA: Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Approve motion to authorize the Mayor to execute the Second Amendment to Professional Services Agreement with Rincon Consultants for the Sixth Cycle Housing Element Update (HEU) and associated Zoning Code, Land Use Element, and Health and Safety Element Updates and Program Environmental Impact Report (EIR) (“Project”), adding an amount not to exceed $157,699.00 to complete the following:

Cover out-of-scope work associated with alternative housing sites and methods to replace three (3) Unclassified sites for the 6th Cycle HEU ($134,209.00); and

1. Provide optional task funding to cover additional work only to be utilized in the event the City receives substantive comments from HCD ($23,490.00). (Attachment A)

2. DISCUSSION
The City has contracted with Rincon Consultants, Inc. for the preparation of a Focused General Plan Update (FGPU) which includes the 6th Cycle Housing Element Update, Land Use Element Update, Health and Safety Element Update, Zoning Code and map amendments, and a Program Environmental Impact Report (EIR) (collectively the "Project"). Work is currently underway and expected to be complete by late summer 2025.

The First Amendment to the Rincon Professional Services Agreement (“PSA”) for the Sixth Cycle Housing Element and associated Zoning Code and General Plan amendments and Program EIR was approved by City Council on December 20, 2023, which brought the total contract amount to $1,180,626.20.

On February 21, 2024, in response to comments raised by the State Department of Housing and Community Development (HCD) in their January 31, 2024, formal comment letter, staff brought a discussion item to the Council regarding three "Unclassified" sites that were included in the proposed Housing Sites Inventory of the first submissions of the Draft Housing Element (DHE). Sites zoned "Unclassified" ("U") do not allow for residential uses and may only be rezoned by a vote of the people.

At that meeting, Council directed staff to find alternative sites or other methods to achieve the City's Regional Housing Needs Allocation (RHNA) capacity in place of the three "Unclassified" sites.

PGCC 9-18-24

Regional Housing Needs Allocation (RHNA) capacity in place of the three "Unclassified" sites.

Because the Rincon contract included an assumption that the Housing Sites Inventory was stable, the additional work to identify alternative sites or other methods to achieve the City's RHNA allocation was out-of-scope.

On February 22, 2024, Rincon provided a rough estimate of tasks associated with finding alternative sites and methods to achieve RHNA capacity. Rincon proposed moving funds from other tasks within the existing contract to cover the out-of-scope housing sites work so that work on the Draft Housing Element could continue uninterrupted, with the understanding that a contract budget amendment would be necessary at a later date.

On March 8, 2024, the City issued a Notice to Proceed to allow the out-of-scope alternative sites and methods work to begin. As part of the FY24/25 budget process, staff included $50,000 in the Community Development Department funding to be used toward the Rincon out-of-scope alternative sites and methods work.

On August 13, 2024, Rincon provided a full cost estimate that included the out-of-scope work associated with changes to the housing sites inventory, revisions to work that was already underway or completed on the EIR, and an optional task in the event that the City receives additional substantive comments from HCD on the upcoming fall 2024 resubmittal.

On August 26, 2024, Rincon submitted a revised timeline, and the City issued a Notice to Proceed, authorizing Rincon to continue work on the tasks outlined in Exhibit A-2 of the draft amendments (Attachments A and B). These tasks include Task 1.6 (Housing Element Project Management), Task 1.8 (Housing Element Updates), and Task 3.3 (Project Description). This step ensures that the project remains on track with the current timeline targets, pending the Council’s approval of the Second Amendment.

While it is fairly common practice to have work on a project and the associated environmental analysis run concurrently, this is typically only after the “Project Description” has been finalized. Due to an aggressive project schedule to achieve Project completion (certified EIR and HEU) by end of 2024, work began on the EIR before the City received formal comments from HCD and Council's February 21, 2024, direction to find alternative sites/methods.

Now that the City has amended the housing sites inventory to address HCD's comments regarding the rezoning of the Unclassified sites, the EIR project description must be revised, which will have rippling effect through the environmental analysis that has already been performed. The total cost estimate for the out-of-scope work is $134,209. The optional task (Task 1.9) for an additional round of substantive HCD comments and review is $23,490.

This optional task is specifically to allow for timely completion of any subsequent revisions to address any possible substantial comments from HCD that may arise after the second submittal of the revised Housing Element. With a revised Site Inventory, the Housing Element Team anticipates a need to review and respond to additional comments from HCD and make associated revisions to the draft for public review before receiving a certificate of substantial compliance. In this event, it is crucial for the Housing Element Team to continue working on these efforts without any unnecessary delays by including the optional Task 1.9 budget item to be used in the event it becomes necessary, contingent on HCD’s response to the second draft submission.

Staff recommends Council include the additional task amount in the contract and budget amendment so that work can continue in earnest should HCD provide further comments on the upcoming resubmittal.

PGCC 9-18-24

The total second contract amendment would be $157,699.00, and the total budget amendment would be $107,699.00 ($157,699.00 minus $50,000 already budgeted in CDD’s FY2425 budget). This would bring the full Rincon contract amount to $1,338,325.20.

Summary of Second Amendment to the Rincon HEU PSA
This second amendment to the contract includes the following provisions:

Increase the contract dollar amount to $1,338,325.20, including the out-of-scope work of $134,209.00 and the optional task (Task 1.9) amount of $23,490.00 (only to be used if the City receives additional substantive HCD comments that require further revisions of the Draft Housing Element).

1. 2. Add the out-of-scope tasks (Task 1.7 and Task 1.8) to the scope of work.

3. Extend the contract timeframe to December 31, 2025.

As an alternative, staff have also included a version of the amended contract that does not include the optional task to cover responses/revisions due to additional HCD comments (Attachment B). If the City does receive additional HCD comments, work on the Project would be paused at that time and staff would return to Council for another contract and budget amendment. This would further delay completion of the Project and final certification of the City’s Housing Element. Should Council decide not to include the additional task for HCD comments, the total second contract amendment would be $134,209.00, and the total budget amendment would be $84,209.00.

OPTIONS
Approve motion to authorize the Mayor to execute Second Amendment to HEU Professional Services Agreement with Rincon Consultants, Inc., adding an amount not to exceed $157,669.20 to the Agreement (Attachment A); or

1. Approve motion to authorize the Mayor to execute Second Amendment to HEU Professional Services Agreement with Rincon Consultants, Inc., adding an amount not to exceed $134,209.00 and not to include the optional task funding (Attachment B); or

2. 3. Provide alternative direction to the City Manager.

FINANCIAL IMPACT:

Approval of the Second Amendment with the optional task would require an appropriation of $107,699.00 from the General Fund. This amount is included in the City-wide budget amendment that is included in Item 11A on this agenda.

1. Approval of the Second Amendment without the optional task would require an appropriation of $84,209.00 from the General Fund.

2. FOCUSED PRIORITY AREA: Affordable Housing
Attachments
A. DRAFT Second Amendment to Rincon HE PSA with Optional Task 1.9 (staff recommendation) B. DRAFT Second Amendment to Rincon HE PSA without Optional Task 1.9 C. Professional Services Agreement with Rincon dated April 1, 2023 PGCC 9-18-24

D. First Amendment to Professional Services Agreement with Rincon Consultants dated December 20, 2023
PGCC 9-18-24

1 This SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT, (this “Amendment”) is made and effective as of September ___, 2024 (the “Effective Date”) by and between the CITY OF PACIFIC GROVE, a municipal corporation (hereinafter "City") and RINCON CONSULTANTS (hereinafter “Consultant” or “Rincon”). City and Consultant are sometimes referred to herein as a “Party” and collectively as the “Parties.”

RECITALS
The following Recitals are a substantive part of this Agreement:

A. City and Consultant entered into the Professional Services Agreement dated effective as of April 1, 2023 in connection with the City’s Housing Element (the “PSA”).

B. City and Consultant entered into the First Amendment to the PSA dated effective as of December 20, 2023 (the “First Amendment”) to add additional services to the Scope of Work and related increases to the fee to be paid to Consultant for the additional work. The PSA and the First Amendment are referred to collectively herein as the “Agreement”.

Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.

C. City and Consultant desire to enter into a Second Amendment to the Agreement to extend the Term, and add additional services to the Scope of Work and related increases to the fee to be paid to Consultant for the additional work.

In consideration of the mutual promises contained herein, the Parties hereto agree as follows:

Section 1. Term
Section 1 of the Agreement is amended to read as follows:
“This Agreement shall commence on April 1, 2023 and shall remain and continue in effect until the tasks described herein are completed, but in no event later than December 31, 20242025, unless sooner terminated pursuant to the provisions of this Agreement. In the event that unforeseen circumstances require additional time for the completion of the Services (as defined below) upon written approval of the City Manager, this Agreement may be extended by a period of up to six (6) months.”
Section 2. Scope of Work
Section 2 of the Agreement is amended to provide that in addition to the Services to be provided by Consultant under the Agreement, the Services shall also include the services described in the “2
nd Amendment Additional Services” described in Exhibit A-2 which is attached hereto and incorporated herein by this reference as though set forth in full.

In addition, at the City’s option, the 2nd Amendment Additional Services may include optional task (Task 1.9). This optional task is specifically for addressing substantial comments from the California Department of Housing and Community Development (HCD) that may arise after the PGCC 9-18-24

2 second submittal of the revised Housing Element. The City Manager, or designee, may authorize Consultant to perform optional Task 1.9 by issuing a written notice to proceed.

Section 3. Payment
Section 5 of the Agreement is amended to revise the not to exceed amount in Section 5.a. to be One Million Three Hundred Fourteen Thousand Eight Hundred Thirty Five Dollars and 20/100 ($1,314,835.20). If the City elects to have Consultant perform additional Task 1.9 the not to exceed amount shall be increased by Twenty Three Thousand Four Hundred Ninety Dollars and 00/100 ($23,490.00) to a total not to exceed amount of One Million Three Hundred Thirty Eight Thousand Three Hundred Twenty Five Dollars and 20/100 ($1,338,325.20).

Section 4. Remaining Terms in Effect
Except as modified herein, all other terms set forth in the Agreement shall remain in full force and effect.

In Witness Whereof, City and Consultant have executed this Amendment as of the Effective Date.

City of Pacific Grove Rincon Consultants, Inc.

By:

Bill Peake
Mayor
By:

Richard Daulton
Executive Vice President
Date:

Approved as to Form:

Date:

Brian Pierik, Esq.

City Attorney
Date:____________________
PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 1
EXHIBIT A-2
Task 1 Housing Element1
Task 1.6 Housing Element Project Management [AMENDED]
This task (identified as Task 2.6 in the PSA) includes coordination with the City and internal project team, project oversight, budget and schedule management, and attendance of bi-weekly meetings associated with the Housing Element work effort. The previously authorized budget for this task included attendance by Consultant Community Planning Staff at approximately 26 joint bi-weekly meetings including both the Consultant Community Planning and EIR staff, and the City project team, and was based on an estimated timeline for project completion. The estimated timeline from the original contract assumed the preparation of a final Housing Element and City Council adoption between the months of February to May 2024. Due to the need for revisions to the Site Inventory, the project schedule was extended by approximately six months, with the preparation of a final Housing Element now estimated in December 2024. Therefore, we are requesting an additional budget to continue to manage the Housing Element over the extended timeline. This will include an additional attendance by three Consultant Community Planning Staff at 12 joint bi- weekly meetings and additional time for Project Manager general coordination, calls, project oversight, and management.

Task 1.7 Revised Site Inventory Strategy [NEW TASK]
This task includes work already completed out of scope to identify and facilitate staff review and recommendations and ultimately achieve Planning Commission and City Council approval of the new options for the Site Inventory as authorized in the Notice to Proceed on February 29, 2024.

Upon receiving authorization from staff, Consultant identified additional sites, areas to be rezoned, and other strategies to make up the unit shortfall caused by the removal of the unclassified sites to meet the City’s Regional Housing Needs Allocation and required Site Inventory buffer. Consultant also prepared for and presented at two hearings: a Planning Commission Hearing on June 13, 2024, and a City Council Hearing on July 17, 2024. Consultant’s work to prepare for the hearings included developing presentations, agenda attachments, and recusal maps/analyses for the Planning Commission and City Council. Consultant also met with City staff to coordinate and strategize for these additional hearings.

Task 1.8 Updated Site Inventory Housing Element Revisions [NEW TASK] Additional work is required to incorporate the updated Sites Inventory strategy completed in Task 1.7 in the Housing Element. The following describes the revisions and additional work required.

The PSA scope of work and Task 1.8 assume that following submission to HCD, the 60-day review period will culminate with a certification of substantial compliance from HCD. If additional substantial revisions and resubmittal to HCD is required, an optional scope of work and related budget request is included in Task 1.9.

Housing Resources
The Housing Resources chapter of the Housing Element includes the Site Inventory as well as the analysis to support the identified sites and assumptions. This includes, but is not limited to, a realistic capacity analysis and nonvacant sites analysis. With the inclusion of new sites and strategies, the Housing Resources chapter will require edits summarizing the new sites and unit numbers, as well as revisions to the realistic capacity and nonvacant sites analysis to support the new identified sites. The current draft Housing Resources chapter is based on the previous version of the Site Inventory. Consultant will update the Housing Resources section based on the new Sites Inventory.
1 The Services identified in the PSA are considered Task 1.

PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 2
Affirmatively Furthering Fair Housing (AFFH)
The AFFH analysis includes a Site Inventory component that looks at the distribution of sites in the city by census tract. The current draft AFFH analysis is based on the previous version of the Site Inventory. Consultant will update the AFFH analysis based on the new Site Inventory. This includes additional GIS work to revise maps and conduct the Site AFFH analysis.

Housing Goals, Objectives, and Policies
The Housing Action Plan chapter of the Housing Element includes goals, objectives, and policies. The chapter also includes programs that commit the City to providing adequate sites and implementing rezoning strategies (Program 5 specifically). The current draft Housing Action Plan chapter is based on the previous version of the Site Inventory. Rincon will update the Housing Action Plan based on the new Site Inventory.

Draft Housing Element/HCD Review
With a revised Site Inventory, we anticipate that there may be a need to review and respond to additional public comments as a result of the new Site Inventory strategy. In addition, we anticipate that HCD may have additional comments on the Site Inventory components of the Housing Element, specifically the Housing Resources chapter that will need to be addressed. This task includes additional work to respond to public comments and HCD comments as a result of the updated Sites Inventory and resulting changes to the Housing Element.

Task 1.9 Additional HCD Review and Submittal [OPTIONAL] This optional task is included in the event that if after the second submittal to HCD and their 60-day review period, the HCD review letter includes substantial comments that necessitate further revisions and a third submittal. If the City authorizes Consultant to provide the services under this Task 1.9, Consultant will address all HCD-issued comments, communicate with HCD, and facilitate the review of the revisions via revised pages in the Housing Element for one additional round of public review and review by HCD. All revisions will be shown as tracked changes. The deliverables under this task will be a revised public review draft and response to any public comments received, a revised HCD Review Draft of the Housing Element. Task 1.9 also accounts for additional project management hours including seven bi-weekly meetings, and two meetings with HCD to discuss their comments. Task 1.9 assumes that no additional public hearings will be required prior to resubmittal to HCD.

Task 3 Environmental Impact Report
Task 3.3 Project Description [AMENDED]
The EIR Project Description was drafted and reviewed by the City in February 2024. The current draft is based on the previous version of the Site Inventory, which included the Unclassified sites. Consultant’s scope of work assumed no changes to the Site Inventory or buildout, as well as only one round of City review. Based on the Site Inventory updates, additional budget is required to revise the draft Project Description for the EIR, including updates to figures and tables, as well as to address one additional round of City review.

Task 3.6 Administrative Draft EIR [AMENDED]
The existing conditions analysis for environmental topics in the CEQA Guidelines Appendix G checklist had previously been started ahead of City Council direction to find alternative options for the Site Inventory. The existing conditions analysis was based on the previous version of the Site Inventory. Therefore, Consultant is requesting additional budget for revisions to maps and existing conditions discussions based on Site Inventory updates. Additional budget is also included to take site photographs of the new sites in the updated Site Inventory to include in the Aesthetics chapter of the EIR.

The transportation analysis was previously started before the Site Inventory updates. Therefore, additional budget is requested for sub-consultant Kimley-Horn to update the transportation modeling according to the PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 3
Site Inventory updates. This task is also amended to include scope for Kimley-Horn to complete an update of the City VMT Policy, including additional coordination calls with City staff and preparation and attendance for the City Planning Commission and City Council meetings.

Task 3.15 EIR Project Management and Coordination [AMENDED] This task in the Agreement scope of work includes coordination with the City and internal project team, project oversight, budget and schedule management, and attendance of bi-weekly meetings associated with the EIR work effort. The previously authorized budget for this task included attendance by Consultant EIR Staff at approximately 26 joint bi- weekly meetings with Consultant Community Planning staff and City staff and was based on an estimated timeline for project completion through May 2024.

Although the EIR tasks were placed on hold following City Council direction in February, Consultant’s EIR project management team was requested to attend several unanticipated conference calls, including calls related to the City’s VMT Policy Update, and calls related to coordination of the Climate Change Vulnerability Assessment.

Additional time is also necessary to capture additional coordination and meetings related to the revised Sites Inventory and restart the EIR analysis.

Assumptions
This scope of work incorporates the following assumptions:  Task 1.8 Updated Site Inventory Housing Element Revisions assumes there will not be significant revisions to the Site Inventory beyond those recommended by the Planning Commission and City Council in June and July 2024. Minor changes based on HCD review could be accommodated, assuming they will not require new rezoning options.  The EIR project description assumes there would be no additional rezoning strategies needed for the Site Inventory outside of those identified at the July 17th City Council hearing. Alternative options can be included in the Alternatives section and approved if needed based on HCD review.

Estimated Timeline
The project schedule has been updated with the assumption that we have achieved a stable Sites Inventory.

Timelines for review have been estimated based on preliminary discussions with City staff. Rincon will continue to provide regular updates during our biweekly check ins with staff and as part of our ongoing monthly progress reporting to ensure we continue to communicate any risks to the project schedule.

PGCC 9-18-24

Rincon Consultants, Inc. Page 5

Task Timeframe Anticipated Dates
Housing Element Tasks and Timeline
Housing Element HCD Revisions and Site
Inventory Updates
5 weeks August 27 - September 23, 2024
City Review Housing Element 3 weeks September 23 – October 14, 2024 Screencheck Housing Element 2 weeks October 15 - October 29, 2024 City Review Screencheck Housing Element 1 week October 29 – November 4, 2024 Public Review Housing Element and Review
Comments
1 week November 5 – November 12, 2024
Response to Comments and Preparation of HCD
Submittal, Submit to HCD
1 week November 12 – November 19, 2024
HCD Review 60 days November 19 – January 17, 2025
HCD Comment Letter Responses and Necessary
Revisions
4 weeks January 17 – February 14, 2025
Task 1.9 (Optional)
Housing Element HCD Revisions 8 weeks January 17 – March 14, 2025 City Review Housing Element 3 weeks March 14 – April 4, 2025 Screencheck Housing Element 2 weeks April 4 – April 18, 2025 City Review Screencheck Housing Element 1 week April 18 – April 25, 2025 Public Review Housing Element and Review
Comments
1 week April 28 – May 5, 2025
Response to Comments and Preparation of HCD
Submittal, Submit to HCD
1 week May 5 – May 12, 2025
HCD Review 60 days May 12 – July 10, 2025
HCD Comment Letter Responses and Necessary
Revisions
3 weeks July 10 – July 31, 2025
City Review and Updates for Adoption Hearings1 -- Summer 2025 Land Use, Safety Element, and Zoning Ordinance Updates Task and Timeline Administrative Draft Climate Change Vulnerability
Assessment
-- August 13, 2024
City Review Climate Change Vulnerability
Assessment
2 weeks August 13 – August 30, 2024
Finalize Climate Change Vulnerability Assessment 2 weeks August 30 – September 13, 2024 Administrative Draft Accessibility & Evacuation
Analysis Memo
4 weeks from build out September 6 – October 4, 2024
City Review Accessibility & Evacuation Analysis
Memo
3 weeks October 4 – October 25, 2024
Finalize Accessibility & Evacuation Analysis Memo 1 week October 25 – November 1, 2024 Administrative Draft Land Use, Safety Element,
and Zoning Amendment Updates2 12 weeks August 27 – November 12, 2024 PGCC 9-18-24

Rincon Consultants, Inc. Page 6

City Review Administrative Draft Land Use, Safety
Element, and Zoning Amendment Updates
4 weeks November 12 - December 6, 2024
Screencheck Draft Land Use, Safety Element, and
Zoning Amendment Updates3 5 weeks December 6 – January 10, 2024 City Review Screencheck Draft Land Use, Safety
Element, and Zoning Amendment Updates
1 weeks January 10 – January 17, 2025
Public Review Draft Land Use, Safety Element,
and Zoning Amendment Updates4
2 weeks January 20, 2025

1. After receiving HCD’s second comment letter, a strategy and more detailed schedule will be prepared to get the Housing Element ready for adoption hearings.

2. Some pieces might be ready earlier for City review.

3. Timeline includes consideration of City holidays.

4. After public review a more detailed schedule will be prepared to respond to public input and get the General Plan Elements and Zoning Ordinance Amendments ready for adoption hearings.

Task Timeframe Anticipated Dates
EIR Tasks and Timeline
Project Description 4 weeks (from
Amendment Request
Approval)
September 6, 2024
City Review Project Description1 2 weeks September 6 - September 24, 2024 Finalize Project Description2 1 week September 24 – October 2, 2024 AB 52 and SB 18 Consultation Assistance - August - November 2024 Administrative Draft EIR 10 weeks (from
Amendment Request
Approval)
November 29, 2024
City Review Administrative Draft EIR 4 weeks November 29 – January 3, 2025 Screencheck EIR 3 weeks January 3 – January 24, 2025
City Review Screencheck EIR 4 weeks January 24 – February 21, 2025 Public Draft EIR 4 weeks February 21 – March 21, 2025
Public Comment Period 45 Days March 21 – May 5, 2025
Responses to Comments and Administrative Final
EIR
4 weeks May 5, 2025 – June 2, 2025
City Review Responses to Comments and
Administrative Final EIR
3 weeks June 2 – June 23, 2025
Mitigation Monitoring and Reporting Program
(MMRP)
1 week June 10 – June 17, 2025
Final EIR 3 weeks (from City
review)
June 23 – July 14, 2025
CEQA Findings, Statement of Overriding
Considerations, and Resolution
Concurrent with Final
EIR
June 23 – July 14, 2025
City Review Findings/SOC/Resolution 2 weeks July 14– July 28, 2025 Finalize CEQA Findings, Statement of Overriding
Considerations, and Resolution
2 weeks July 28 – August 11, 2025
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Rincon Consultants, Inc. Page 7

Planning Commission Hearings (2) - Summer 2025
City Council Hearings (2) - Summer 2025

1. “City review” assumes simultaneous review by all City reviewers and outside legal counsel; comments will be consolidated, and conflicting direction resolved by staff before sending to Rincon.

2. Maximum buildout must be finalized at this time.

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Rincon Consultants, Inc. Page 8

EXHIBIT B

FEE SCHEDULE
Consultant shall be paid an additional amount of One Hundred Thirty Four Thousand Two Hundred Nine Dollars and 00/100 ($134,209.00) to complete the 2nd Amendment Additional Services. If the City authorizes Consultant to perform the services under optional Task 1.9 Consultant shall be paid an additional Twenty Three Thousand Four Hundred Ninety Dollars and 00/100 ($23,490.00) which would result in a total cost of One Hundred Fifty Seven Thousand Six Hundred Ninety Nine Dollars and 00/100 ($157,699.00) for the 2nd Amendment Additional Services if Task 1.9 is authorized. A breakdown of costs by task is summarized in the table on the next page. Costs have been allocated to tasks based on out-of-scope work completed in accordance with the Notice to Proceed, as well as Consultant’s proposed approach for remaining out-of-scope work to be completed. Consultant may reallocate costs among tasks and/or direct costs as circumstances warrant, provided that such adjustments maintain the total price within its authorized amount. All services will be provided on a time and expense reimbursement basis and will be billed in accordance with the standard fee schedule for professional services.

PGCC 9-18-24

Rincon Consultants, Inc. Page 9

RINCON CONSULTANTS, INC.
23-14477 Pacific Grove Housing
Element Update
Cost Estimate
Labor Budget Direct
Expenses Total Budget
Contract Amendment 2
Task 1.6 Housing Element Project Management 13,350.00 0.00 13,350.00 Task 1.7 Sites Inventory Strategy 55,173.50 0.00 55,173.50 Task 1.8 Housing Element Updates 23,100.00 0.00 23,100.00 Task 3.3 Project Description 8,718.00 0.00 8,718.00
Task 3.6 Administrative Draft EIR 10,395.00 20.10 10,415.10 Task 3.15 EIR Project Management and
Coordination 3,135.00 0.00 3,135.00
Kimley Horn
VMT Policy 0.00 7,511.00 7,511.00
Housing Element LU Traffic Modeling 0.00 12,806.40 12,806.40 Optional Tasks
Task 1.9 Additional HCD Review and Submittal 23,490.00 0.00 23,490.00 Project Total 113,871.50 20,337.50 134,209.00
Project Total with Optional Task 137,361.50 20,337.50 157,699.00 PGCC 9-18-24

1 This SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT, (this “Amendment”) is made and effective as of September ___, 2024 (the “Effective Date”) by and between the CITY OF PACIFIC GROVE, a municipal corporation (hereinafter "City") and RINCON CONSULTANTS (hereinafter “Consultant” or “Rincon”). City and Consultant are sometimes referred to herein as a “Party” and collectively as the “Parties.”

RECITALS
The following Recitals are a substantive part of this Agreement:

A. City and Consultant entered into the Professional Services Agreement dated effective as of April 1, 2023 in connection with the City’s Housing Element (the “PSA”).

B. City and Consultant entered into the First Amendment to the PSA dated effective as of December 20, 2023 (the “First Amendment”) to add additional services to the Scope of Work and related increases to the fee to be paid to Consultant for the additional work. The PSA and the First Amendment are referred to collectively herein as the “Agreement”.

Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.

C. City and Consultant desire to enter into a Second Amendment to the Agreement to extend the Term, and add additional services to the Scope of Work and related increases to the fee to be paid to Consultant for the additional work.

In consideration of the mutual promises contained herein, the Parties hereto agree as follows:

Section 1. Term
Section 1 of the Agreement is amended to read as follows:
“This Agreement shall commence on April 1, 2023 and shall remain and continue in effect until the tasks described herein are completed, but in no event later than December 31, 20242025, unless sooner terminated pursuant to the provisions of this Agreement. In the event that unforeseen circumstances require additional time for the completion of the Services (as defined below) upon written approval of the City Manager, this Agreement may be extended by a period of up to six (6) months.”
Section 2. Scope of Work
Section 2 of the Agreement is amended to provide that in addition to the Services to be provided by Consultant under the Agreement, the Services shall also include the services described in the “2
nd Amendment Additional Services” described in Exhibit A-2 which is attached hereto and incorporated herein by this reference as though set forth in full.

Section 3. Payment
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2 Section 5 of the Agreement is amended to revise the not to exceed amount in Section 5.a. to be One Million Three Hundred Fourteen Thousand Eight Hundred Thirty Five and 20/100 dollars ($1,314,835.20).

Section 4. Remaining Terms in Effect
Except as modified herein, all other terms set forth in the Agreement shall remain in full force and effect.

In Witness Whereof, City and Consultant have executed this Amendment as of the Effective Date.

City of Pacific Grove Rincon Consultants, Inc.

By:

Bill Peake
Mayor
By:

Richard Daulton
Executive Vice President
Date:

Approved as to Form:

Date:

Brian Pierik, Esq.

City Attorney
Date:____________________
PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 1
EXHIBIT A-2
Task 1 Housing Element1
Task 1.6 Housing Element Project Management [AMENDED]
This task (identified as Task 2.6 in the PSA) includes coordination with the City and internal project team, project oversight, budget and schedule management, and attendance of bi-weekly meetings associated with the Housing Element work effort. The previously authorized budget for this task included attendance by Consultant Community Planning Staff at approximately 26 joint bi-weekly meetings including both the Consultant Community Planning and EIR staff, and the City project team, and was based on an estimated timeline for project completion.

The estimated timeline from the original contract assumed the preparation of a final Housing Element and City Council adoption between the months of February to May 2024. Due to the need for revisions to the Site Inventory, the project schedule was extended by approximately six months, with the preparation of a final Housing Element now estimated in December 2024. Therefore, we are requesting an additional budget to continue to manage the Housing Element over the extended timeline. This will include an additional attendance by three Community Planning Consultant staff at 12 joint bi- weekly meetings and additional time for project manager general coordination, calls, project oversight, and management.

Task 1.7 Revised Site Inventory Strategy [NEW TASK]
This task includes work already completed out of scope to identify and facilitate staff review and recommendations and ultimately achieve Planning Commission and City Council approval of the new options for the Site Inventory as authorized in the Notice to Proceed on February 29, 2024.

Upon receiving authorization from staff, Consultant identified additional sites, areas to be rezoned, and other strategies to make up the unit shortfall caused by the removal of the unclassified sites to meet the City’s Regional Housing Needs Allocation and required Site Inventory buffer. Consultant also prepared for and presented at two hearings: a Planning Commission Hearing on June 13, 2024, and a City Council Hearing on July 17, 2024. Consultant’s work to prepare for the hearings included developing presentations, agenda attachments, and recusal maps/analyses for the Planning Commission and City Council. Consultant also met with City staff to coordinate and strategize for these additional hearings.

Task 1.8 Updated Site Inventory Housing Element Revisions [NEW TASK] Additional work is required to incorporate the updated Sites Inventory strategy completed in Task 1.7 in the Housing Element. The following describes the revisions and additional work required.

The PSA scope of work and Task 1.8 assume that following submission to HCD, the 60-day review period will culminate with a certification of substantial compliance from HCD. If additional substantial revisions and resubmittal to HCD is required, an additional scope of work and related budget request will be provided to staff for consideration.

Housing Resources
The Housing Resources chapter of the Housing Element includes the Site Inventory as well as the analysis to support the identified sites and assumptions. This includes, but is not limited to, a realistic capacity analysis and nonvacant sites analysis. With the inclusion of new sites and strategies, the Housing Resources chapter will require edits summarizing the new sites and unit numbers, as well as revisions to the realistic capacity and nonvacant sites analysis to support the new identified sites. The current draft Housing Resources chapter is based on the previous version of the Site Inventory. Consultant will update the Housing Resources section based on the new Sites Inventory.
1 The Services identified in the PSA are considered Task 1.

PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 2
Affirmatively Furthering Fair Housing (AFFH)
The AFFH analysis includes a Site Inventory component that looks at the distribution of sites in the city by census tract. The current draft AFFH analysis is based on the previous version of the Site Inventory. Consultant will update the AFFH analysis based on the new Site Inventory. This includes additional GIS work to revise maps and conduct the Site AFFH analysis.

Housing Goals, Objectives, and Policies
The Housing Action Plan chapter of the Housing Element includes goals, objectives, and policies. The chapter also includes programs that commit the City to providing adequate sites and implementing rezoning strategies (Program 5 specifically). The current draft Housing Action Plan chapter is based on the previous version of the Site Inventory. Rincon will update the Housing Action Plan based on the new Site Inventory.

Draft Housing Element/HCD Review
With a revised Site Inventory, we anticipate that there may be a need to review and respond to additional public comments as a result of the new Site Inventory strategy. In addition, we anticipate that HCD may have additional comments on the Site Inventory components of the Housing Element, specifically the Housing Resources chapter that will need to be addressed. This task includes additional work to respond to public comments and HCD comments as a result of the updated Sites Inventory and resulting changes to the Housing Element.

Task 3 Environmental Impact Report
Task 3.3 Project Description [AMENDED]
The EIR Project Description was drafted and reviewed by the City in February 2024. The current draft is based on the previous version of the Site Inventory, which included the Unclassified sites. Consultant’s scope of work assumed no changes to the Site Inventory or buildout, as well as only one round of City review. Based on the Site Inventory updates, additional budget is required to revise the draft Project Description for the EIR, including updates to figures and tables, as well as to address one additional round of City review.

Task 3.6 Administrative Draft EIR [AMENDED]
The existing conditions analysis for environmental topics in the CEQA Guidelines Appendix G checklist had previously been started ahead of City Council direction to find alternative options for the Site Inventory. The existing conditions analysis was based on the previous version of the Site Inventory. Therefore, Consultant is requesting additional budget for revisions to maps and existing conditions discussions based on Site Inventory updates. Additional budget is also included to take site photographs of the new sites in the updated Site Inventory to include in the Aesthetics chapter of the EIR.

The transportation analysis was previously started before the Site Inventory updates. Therefore, additional budget is requested for sub-consultant Kimley-Horn to update the transportation modeling according to the Site Inventory updates. This task is also amended to include scope for Kimley-Horn to complete an update of the City VMT Policy, including additional coordination calls with City staff and preparation and attendance for the City Planning Commission and City Council meetings.

PGCC 9-18-24

City of Pacific Grove
Amendment Request to Revise the Housing Element Site Inventory and Associated Analysis Rincon Consultants, Inc. Page 3
Task 3.15 EIR Project Management and Coordination [AMENDED] This task in the Agreement scope of work includes coordination with the City and internal project team, project oversight, budget and schedule management, and attendance of bi-weekly meetings associated with the EIR work effort. The previously authorized budget for this task included attendance by Consultant EIR staff at approximately 26 joint bi- weekly meetings with Consultant Community Planning Staff and City staff and was based on an estimated timeline for project completion through May 2024.

Although the EIR tasks were placed on hold following City Council direction in February, Consultant’s EIR project management team was requested to attend several unanticipated conference calls, including calls related to the City’s VMT Policy Update, and calls related to coordination of the Climate Change Vulnerability Assessment.

Additional time is also necessary to capture additional coordination and meetings related to the revised Sites Inventory and restart the EIR analysis.

Assumptions
This scope of work incorporates the following assumptions:  Task 1.8 Updated Site Inventory Housing Element Revisions assumes there will not be significant revisions to the Site Inventory beyond those recommended by the Planning Commission and City Council in June and July 2024. Minor changes based on HCD review could be accommodated, assuming they will not require new rezoning options.  The EIR project description assumes there would be no additional rezoning strategies needed for the Site Inventory outside of those identified at the July 17th City Council hearing. Alternative options can be included in the Alternatives section and approved if needed based on HCD review.

Estimated Timeline
The project schedule has been updated with the assumption that we have achieved a stable Sites Inventory.

Timelines for review have been estimated based on preliminary discussions with City staff. Rincon will continue to provide regular updates during our biweekly check ins with staff and as part of our ongoing monthly progress reporting to ensure we continue to communicate any risks to the project schedule.

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Rincon Consultants, Inc. Page 5
Task Timeframe Anticipated Dates
Housing Element Tasks and Timeline
Housing Element HCD Revisions and Site
Inventory Updates
5 weeks August 27 - September 23, 2024
City Review Housing Element 3 weeks September 23 – October 14, 2024 Screencheck Housing Element 2 weeks October 15 - October 29, 2024 City Review Screencheck Housing Element 1 week October 29 – November 4, 2024 Public Review Housing Element and Review
Comments
1 week November 5 – November 12, 2024
Response to Comments and Preparation of HCD
Submittal, Submit to HCD
1 week November 12 – November 19, 2024
HCD Review 60 days November 19 – January 17, 2025
HCD Comment Letter Responses and Necessary
Revisions
4 weeks January 17 – February 14, 2025
City Review and Updates for Adoption Hearings1 -- Summer 2025 Land Use, Safety Element, and Zoning Ordinance Updates Task and Timeline Administrative Draft Climate Change Vulnerability
Assessment
-- August 13, 2024
City Review Climate Change Vulnerability
Assessment
2 weeks August 13 – August 30, 2024
Finalize Climate Change Vulnerability Assessment 2 weeks August 30 – September 13, 2024 Administrative Draft Accessibility & Evacuation
Analysis Memo
4 weeks from build out September 6 – October 4, 2024
City Review Accessibility & Evacuation Analysis
Memo
3 weeks October 4 – October 25, 2024
Finalize Accessibility & Evacuation Analysis Memo 1 week October 25 – November 1, 2024 Administrative Draft Land Use, Safety Element,
and Zoning Amendment Updates2 12 weeks August 27 – November 12, 2024 City Review Administrative Draft Land Use, Safety
Element, and Zoning Amendment Updates
4 weeks November 12 - December 6, 2024
Screencheck Draft Land Use, Safety Element, and
Zoning Amendment Updates3 5 weeks December 6 – January 10, 2024 City Review Screencheck Draft Land Use, Safety
Element, and Zoning Amendment Updates
1 weeks January 10 – January 17, 2025
Public Review Draft Land Use, Safety Element,
and Zoning Amendment Updates4
2 weeks January 20, 2025
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Rincon Consultants, Inc. Page 6

1. After receiving HCD’s second comment letter, a strategy and more detailed schedule will be prepared to get the Housing Element ready for adoption hearings.

2. Some pieces might be ready earlier for City.

3. Timeline includes consideration of City.

4. After public review a more detailed schedule will be prepared to respond to public input and get the General Plan Elements and Zoning Ordinance Amendments ready for adoption hearings.

Task Timeframe Anticipated Dates
EIR Tasks and Timeline
Project Description 4 weeks (from
Amendment Request
Approval)
September 6, 2024
City Review Project Description1 2 weeks September 6 - September 24, 2024 Finalize Project Description2 1 week September 24 – October 2, 2024 AB 52 and SB 18 Consultation Assistance - August - November 2024 Administrative Draft EIR 10 weeks (from
Amendment Request
Approval)
November 29, 2024
City Review Administrative Draft EIR 4 weeks November 29 – January 3, 2025 Screencheck EIR 3 weeks January 3 – January 24, 2025
City Review Screencheck EIR 4 weeks January 24 – February 21, 2025 Public Draft EIR 4 weeks February 21 – March 21, 2025
Public Comment Period 45 Days March 21 – May 5, 2025
Responses to Comments and Administrative Final
EIR
4 weeks May 5, 2025 – June 2, 2025
City Review Responses to Comments and
Administrative Final EIR
3 weeks June 2 – June 23, 2025
Mitigation Monitoring and Reporting Program
(MMRP)
1 week June 10 – June 17, 2025
Final EIR 3 weeks (from City
review)
June 23 – July 14, 2025
CEQA Findings, Statement of Overriding
Considerations, and Resolution
Concurrent with Final
EIR
June 23 – July 14, 2025
City Review Findings/SOC/Resolution 2 weeks July 14– July 28, 2025 Finalize CEQA Findings, Statement of Overriding
Considerations, and Resolution
2 weeks July 28 – August 11, 2025
Planning Commission Hearings (2) - Summer 2025
City Council Hearings (2) - Summer 2025

1. “City review” assumes simultaneous review by all City reviewers and outside legal counsel; comments will be consolidated, and conflicting direction resolved by staff before sending to Rincon.

2. Maximum buildout must be finalized at this time.

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Rincon Consultants, Inc. Page 7

EXHIBIT B

FEE SCHEDULE
Consultant shall be paid an additional amount of One Hundred Thirty Four Thousand Two Hundred Nine Dollars and 00/100 ($134,209.00) to complete the 2nd Amendment Additional Services. A breakdown of costs by task is summarized in the table on the next page. Costs have been allocated to tasks based on out-of-scope work completed in accordance with the Notice to Proceed, as well as Consultant’s proposed approach for remaining out-of-scope work to be completed. Consultant may reallocate costs among tasks and/or direct costs as circumstances warrant, provided that such adjustments maintain the total price within its authorized amount. All services will be provided on a time and expense reimbursement basis and will be billed in accordance with the standard fee schedule for professional services.

PGCC 9-18-24

Rincon Consultants, Inc. Page 8

RINCON CONSULTANTS, INC.
23-14477 Pacific Grove Housing
Element Update
Cost Estimate
Labor Budget Direct
Expenses Total Budget
Contract Amendment 2
Task 1.6 Housing Element Project Management 13,350.00 0.00 13,350.00 Task 1.7 Sites Inventory Strategy 55,173.50 0.00 55,173.50 Task 1.8 Housing Element Updates 23,100.00 0.00 23,100.00 Task 3.3 Project Description 8,718.00 0.00 8,718.00
Task 3.6 Administrative Draft EIR 10,395.00 20.10 10,415.10 Task 3.15 EIR Project Management and
Coordination 3,135.00 0.00 3,135.00
Kimley Horn
VMT Policy 0.00 7,511.00 7,511.00
Housing Element LU Traffic Modeling 0.00 12,806.40 12,806.40 Optional Tasks
Task 1.9 Additional HCD Review and Submittal 23,490.00 0.00 23,490.00 Project Total 113,871.50 20,337.50 134,209.00
Project Total with Optional Task 137,361.50 20,337.50 157,699.00 PGCC 9-18-24

Professional Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICE AGREEMENT (“PSA”) FOR NON-CONSTRUCTION PROJECTS (“Agreement”), is made and effective as of April 1, 2023, between the City of Pacific Grove (“City”), a municipal corporation and Rincon Consultants, Inc., a corporation (“CONSULTANT”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on April 1, 2023 and shall remain and continue in effect until the tasks described herein are completed, but in no event later than June 30, 2024, unless sooner terminated pursuant to the provisions of this Agreement.

2. SCOPE OF WORK
CONSULTANT shall perform the tasks and services (“Services”) described and set forth in Exhibit A, Scope of Services, attached hereto and incorporated herein as though set forth in full. CONSULTANT shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. To the extent that Exhibit A is a proposal from CONSULTANT, such proposal is incorporated only for the description of the Scope of Services and no other terms and conditions from any such proposal shall apply to this Agreement unless specifically agreed to in writing.

3. PERFORMANCE
CONSULTANT shall at all times faithfully, competently and to the best of their ability, experience, and talent, perform all Services described herein. CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONSULTANT hereunder in meeting their obligations under this Agreement.

CONSULTANT is bound by the contents of City’s Request for Proposal on file hereto and incorporated herein as Exhibit D, and the contents ofthe proposal submitted by CONSULTANT, available on file at Community Development Department, hereto and incorporated herein as Exhibit E. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in CONSULTANT’s proposals.

4. CITY MANAGEMENT
The City Manager, or their designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by CONSULTANT, but not including the authority to enlarge the Scope of Work or change the compensation due to CONSULTANT. The City Manager shall be authorized to act on DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
City’s behalf and to execute all necessary documents that enlarge the Scope of Work or change CONSULTANT’s compensation, subject to Section 6 hereof.

5. PAYMENT
a. The City agrees to pay CONSULTANT monthly, in accordance with the payment rates and terms and the Payment Schedule as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed $227,918 for the total term of the Agreement unless additional payment is approved as provided in this Agreement. b. The City Manager’s contract authority is limited to $39,999.99, which includes all costs.

Contracts, including any contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void. c. CONSULTANT shall not be compensated for any Services rendered in connection with its performance of this Agreement that are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager or the City Council. CONSULTANT shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and CONSULTANT at the time City’s written authorization is given to CONSULTANT for the performance of said services.
d. CONSULTANT shall submit invoices monthly for actual Services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for Services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of CONSULTANT’s fees it shall give written notice to CONSULTANT within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.

Any final payment under this Agreement shall be made within forty-five (45) days of receipt of an invoice therefore.

6. INSPECTION
City shall at all times have the right to inspect the work and materials. CONSULTANT shall furnish all reasonable aid and assistance required by City for the proper examination of the work and all parts thereof. Such inspection shall not relieve CONSULTANT from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.

7. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. The City may at any time, for any reason, without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon CONSULTANT at least thirty (30) DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
days prior written notice. Upon receipt of said notice, CONSULTANT shall immediately cease all Services under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, the City shall pay to CONSULTANT the actual value of the Services performed up to the time of termination, provided that the Services performed are of value to the City. Upon termination of the Agreement pursuant to this Section, CONSULTANT will submit an invoice to the City pursuant to Section 6.

8. DEFAULT OF CONSULTANT
a. CONSULTANT’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that CONSULTANT is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating CONSULTANT for any Services performed after the date of default and can terminate this Agreement immediately by written notice to the CONSULTANT. If such failure by the CONSULTANT to make progress in the performance of Services hereunder arises out of causes beyond the CONSULTANT’s control, and without fault or negligence of the CONSULTANT, it shall not be considered a default. b. If the City Manager or designee determines CONSULTANT is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon CONSULTANT a written notice of the default. The CONSULTANT shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event CONSULTANT fails to cure its default within such period of time or fails to present City with a written plan for the cure of the default, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

9. OWNERSHIP OF DOCUMENTS
a. CONSULTANT shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of Services under this Agreement. CONSULTANT shall maintain adequate records of Services provided in sufficient detail to permit an evaluation of Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.

CONSULTANT shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts or copies therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
activities related to this Agreement. If there is a substantial billing deviation adverse to City, then the cost of an audit shall be borne by CONSULTANT. Such records, together with supporting documents, shall be maintained for a period of five (5) years after receipt of final payment.
b. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the Services to be performed pursuant to this Agreement shall become the sole property of City and may be used, reused, or otherwise disposed of by City without the permission of CONSULTANT.

With respect to computer files, CONSULTANT shall make available to City, at CONSULTANT’s office and upon reasonable written request by City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, copying and/or printing computer files. CONSULTANT hereby grants to City all right, title, and interest, including any copyright, in and to the documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared by CONSULTANT in the course of providing the Services under this Agreement.

10. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of greater than $10,000, records of both City and CONSULTANT shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.

11. INDEMNIFICATION AND DEFENSE
Indemnity
To the fullest extent permitted by law, CONSULTANT shall indemnify and hold harmless City and any and all of its officers, employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs and expenses, including legal counsel’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of CONSULTANT, its officers, agents, employees or subconsultants (or any City or individual that CONSULTANT shall bear the legal liability thereof) in the performance of Services under this Agreement. CONSULTANT’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence.

Duty to defend
In the event City, its officers, employees, agents and/or volunteers are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the Services encompassed by this Agreement, and upon demand by City, CONSULTANT shall defend City at CONSULTANT’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by CONSULTANT’s negligent acts, errors or omissions. Payment by City is not a condition DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
precedent to enforcement of this indemnity. In the event of any dispute between CONSULTANT and City, as to whether liability arises from the sole or active negligence of the City or its officers, employees, or agents, CONSULTANT will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the City as solely or actively negligent. CONSULTANT will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees and costs of litigation.

12. INSURANCE
CONSULTANT shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached to and part of this Agreement.

13. INDEPENDENT CONSULTANT
a. CONSULTANT is and shall at all times remain as to City a wholly independent consultant and/or independent contractor. The personnel performing the Services under this Agreement on behalf of CONSULTANT shall at all times be under CONSULTANT’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of CONSULTANT or any of CONSULTANT’s officers, employees, or agents, except as set forth in this Agreement. CONSULTANT shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of City. CONSULTANT shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
b. No employee benefits shall be available to CONSULTANT in connection with the performance of this Agreement. Except for the fees paid to CONSULTANT as provided in the Agreement, City shall not pay salaries, wages, or other compensation to CONSULTANT for performing Services hereunder for City. City shall not be liable for compensation or indemnification to CONSULTANT for injury or sickness arising out of performing Services hereunder.

14. LEGAL RESPONSIBILITIES
CONSULTANT shall keep itself informed of State and Federal laws and regulations that in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. CONSULTANT shall at all times observe and comply with all such laws and regulations. City, and its officers, employees, and agents shall not be liable at law or in equity occasioned by failure of the CONSULTANT to comply with this Section.

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Professional Services Agreement 07.19.2022

15. UNDUE INFLUENCE
CONSULTANT declares and warrants that no undue influence or pressure was used against or in concert with any officer, employee or agent of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer, employee or agent of City has or will receive compensation, directly or indirectly, from CONSULTANT, or from any officer, employee or agent of CONSULTANT, in connection with the award of this Agreement or any Services to be performed as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to any and all remedies at law or in equity.

16. NO BENEFIT TO ARISE TO CITY OFFICERS AND EMPLOYEES
No officer, employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Services performed under the Agreement during their tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the Services performed under this Agreement.

17. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
a. All information gained by CONSULTANT in performance of this Agreement shall be considered confidential and shall not be released by CONSULTANT without City’s prior written authorization. CONSULTANT, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered “voluntary” provided CONSULTANT gives City notice of such court order or subpoena.
b. CONSULTANT shall promptly notify CITY should CONSULTANT, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request (“Discovery”), court order, or subpoena from any person or party regarding this Agreement and the work performed there under or with respect to any project or property located within the City, unless City is a party to any lawsuit, arbitration, or administrative proceeding connected to such Discovery, or unless CONSULTANT is prohibited by law from informing City of such Discovery. City retains the right, but has no obligation, to represent CONSULTANT and/or be present at any deposition, hearing, or similar proceeding as allowed by law. Unless City is a party to the lawsuit, arbitration, or administrative proceeding and is adverse to CONSULTANT in such proceeding, CONSULTANT agrees to cooperate fully with City and to provide the opportunity to review any DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
response to discovery requests provided by CONSULTANT. However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

If City determines CONTRACTOR comes within the definition of Contractor under the Political Reform Act (Government Code §87100 et seq.), CONTRACTOR shall complete and file and shall require any other person doing Work under this Agreement to complete and file a “Statement of Economic Interest” with CITY disclosing CONTRACTOR’s and/or such other person’s financial interests.

18. DISCRIMINATION
CONSULTANT agrees that in the performance of this Agreement, neither CONSULTANT nor any person acting on CONSULTANT’s behalf shall discriminate against any person on the basis of race, religious creed, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sexual orientation, sex, gender identity, gender expression, military or veteran status or age.

19. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, by first class mail, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:

To City: Anastacia Wyatt
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
Attention: City Clerk
To CONSULTANT: Kimiko Lizardi
Rincon Consultants, Inc.
2511 Garden Road, Suite C-250
Monterey, CA 93940

Notice is effective on the date of personal service, or 5 days following deposit in a United States mailbox, or date of postmark. The parties may agree to service by email.

20. THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties.

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Professional Services Agreement 07.19.2022

21. ASSIGNMENT
CONSULTANT shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of CITY. Because of the personal nature of the Services to be rendered pursuant to this Agreement, only CONSULTANT shall perform the Services described in this Agreement. CONSULTANT may use assistants, under their direct supervision, to perform some of the Services under this Agreement.

22. LICENSES
At all times during the term of this Agreement, CONSULTANT shall have in full force and effect, all licenses required of it by law for the performance of the Services described in this Agreement. CONSULTANT shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions.

23. GOVERNING LAW
City and CONSULTANT understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in Monterey County, or federal district court with jurisdiction over City.

CONSULTANT agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.

24. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to their obligations described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written and pertaining to the subject of this Agreement or with respect to the terms and conditions of this Agreement, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. No amendment shall be valid unless in writing, executed by both parties.

25. DISPUTE RESOLUTION; ATTORNEY’S FEES
CONSULTANT shall continue to perform under this Agreement during any dispute.

CONSULTANT and City hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 PGCC 9-18-24

Professional Services Agreement 07.19.2022
results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.

26. WORK SCHEDULED/TIME OF COMPLETION
City and CONSULTANT agree that time is of the essence in this Agreement.

27. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of CONSULTANT warrants and represents that they have the authority to execute this Agreement on behalf of the CONSULTANT and have the authority to bind CONSULTANT to the performance of its obligations hereunder.

28. INTERPRETATION OF CONFLICTING PROVISIONS
In the event of any conflict or inconsistency between the provisions of this Agreement and the Provisions of any exhibit or other attachment to this Agreement, the provisions of this Agreement shall prevail and control.

29. SEVERABILITY
If any term of this Agreement is held invalid by a court of competent jurisdiction or arbitrator the remainder of this Agreement shall remain in effect.

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Professional Services Agreement 07.19.2022
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF PACIFIC GROVE CONSULTANT
By: By:

Anastacia Wyatt, Community
Development Director

Richard Daulton, Principal/Vice President
Date: Date:

By: ___________________________ By: ____________________________ Bill Peake, Mayor Tori Hannah, Administrative Services Director Date: ___________________________ Date: ___________________________ Approved As To Form:

City Attorney
_______________________________
Date
Attachments: Exhibit A Scope of Services
Exhibit B Payment Schedule
Exhibit C Insurance Requirements
Exhibit D Request for Proposal
Exhibit E Consultant’s Proposal
DocuSign Envelope ID: 3318917D-5770-4097-A6BA-B9D98D549197 4/5/2023 4/5/2023
4/5/2023
4/5/2023
4/6/2023
PGCC 9-18-24

Professional Services Agreement 07.19.2022

EXHIBIT A

SCOPE OF SERVICES
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2 Housing Element Scope of Work

2.1 Draft 6th Cycle Housing Element Review

2.1.1 Initiation Meeting
[Rincon lead, VTA]
The Rincon team will meet virtually with City staff to exchange information and to initiate work on the Housing Element Update. During the meeting, the team will review the overall scope and discuss schedule and data needs.

Deliverables
• Agenda and Meeting Notes

2.1.2 Review Documents and Strategy for Housing Element Update
[Rincon lead, VTA]
During this task the team will review the 6th Cycle Housing Element update materials, data/documents provided by the City, including any community engagement efforts to familiarize ourselves with the status of the project. As necessary, the Rincon team will provide a more formal data request to help the City in compiling necessary data and documents. During this review, the Rincon team will identify and outline any data deficiencies/gaps, additional analysis and engagement efforts, if any, needed to support completion of the 6th Cycle Housing Element Update.

Rincon will also describe a recommended strategy to move forward with the Housing Element Update to ensure City staff is clear on any of the potential challenges to schedule and/or with the overall update process.

Assumptions
• City staff will provide access to materials and documents need to conduct a thorough review Deliverables
• Data Request
• Memorandum Strategy for Housing Element Update

2.1.3 Scope/Budget and Schedule Updates
[Rincon lead, VTA]
This task includes, as necessary, any refinements to the scope, budget or schedule required following discussion and any needs identified during Task 2.1.2.

Deliverables
• Scope/Budget and Schedule Updates, as necessary
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City of Pacific Grove
Focused General Plan Proposal Supplement
Rincon Consultants, Inc. Page 8

2.2 Housing Element Update

2.2.1 Evaluation of Past Accomplishments
[VTA lead, Rincon]
Veronica Tam and Associates (VTA) will lead the preparation of the Evaluation of Past Accomplishments. VTA will evaluate the City’s progress in implementing the 2015-2023 Housing
Element. VTA will review the City’s Housing Element Annual Progress Reports as a starting point for this evaluation and will provide an assessment of the effectiveness of the prior housing element’s goals and programs. VTA will also interview staff to discuss the initial findings and obtain additional insight
regarding the effectiveness of the programs. VTA will compile the evaluation in a matrix format, including a brief discussion of the policy/program, an evaluation of progress and an initial recommendation on the appropriateness of the goal/program to carry forward into the updated 6th Cycle Housing Element
Deliverables
• Draft Memorandum Evaluation of Past Accomplishments of the 2015-2023 Housing Element (word) • Final Memorandum Evaluation of Past Accomplishments of the 2015-2023 Housing Element (word and PDF)

2.2.2 Housing Needs Assessment and Housing Constraints
[VTA lead, Rincon]
Housing Needs Assessment
VTA will lead the preparation of the Housing Needs Assessment. The Housing Needs Assessment will contain the following topics to satisfy Government Code Section 65583(a) requirements:
a) demographics, income, and employment trends; b) household characteristics; c) housing stock characteristics; d) at-risk housing analysis; and analysis of special housing needs. We will utilize a variety of data sources to update the City’s Housing
Element needs assessment. These include ACS, 2020 Census, Department of Finance population and housing estimates, State Employment Development Department labor statistics, and housing market data, among others.

What’s New in 6th Cycle
The review of past accomplishments must
include a discussion of the City’s
cumulative impact on addressing the
housing needs of special populations.

What’s New in 6th Cycle
HCD requires specific information on
farmworker populations (including
seasonal and migrant farmworkers).

American Community Survey (ACS) data is
not adequate to address this
requirement. If local farmworker
population is not available, HCD will
accept county-level, USDA Agricultural
Census data. HCD also requires specific
information on the
jurisdictions housing stock conditions
based on local knowledge. ACS data on
age of structure and availability of
plumbing and heating facilities is not
considered adequate.

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Housing Constraints
VTA will lead the preparation of the Housing Constraints section. The Housing Constraints section will identify potential governmental and non-governmental constraints to housing production, including environmental and infrastructural constraints. This analysis must contain a review of factors that may potentially constrain the
development, improvement, and preservation of housing
in City of Pacific Grove. Factors to be reviewed include market, governmental, environmental, and infrastructural constraints.

The City’s 6th Cycle Housing Element will be updated to meet new state law requirements. Additional
impediments may be identified based on discussions with staff and community stakeholders.

Assumptions
• City staff will provide one set of consolidated
comments on the Administrative Draft Housing
Needs Assessment and Housing Constraints sections
• The revised draft Housing Needs Assessment and
Housing Constraints sections will be incorporated
into the Screencheck Draft Housing Element in Task

2.2.7. Deliverables

• Administrative Draft Housing Needs Assessment and
Housing Constraints sections (word)

2.2.3 Housing Sites
Site Inventory Review
[Rincon lead, VTA]
Rincon will review the Sites Inventory prepared by the previous housing element consultant. We understand that the City and City’s consultant used Balancing Act to engage with the public on the sites selection process. The scope of this task assumes that the Rincon team’s efforts will largely be focused on supporting the Site
Inventory through data review to inform preparation of the Housing Resources section and other sections of the Housing Element Update.

This task assumes that the Sites Inventory is stable and that the sites identified have been vetted through an adequate community engagement process and are consistent with State Housing Element law and HCD’s Completeness Review Checklist. This means that the Sites Inventory should be considered adequate to address the following required analyses:

What’s New in 6th Cycle
• State Legislation:
o Assembly Bill (AB) 101 – Low Barrier
Navigation Centers o AB 139 – Parking
standards for emergency shelters
o AB 2162 – Supportive housing meeting
specific criteria and located within 0.5 miles
from transit
o AB 1762, SB 1227, and AB 2345 – Density
Bonus o SB 35 and objective
development standards
• Compliance with transparency in development
regulations
• Non-governmental constraints – assessment of
NIMBYism, lending practices, shortage of labor,
and other economic factors
• HCD new policy direction to address the
provision of large residential care for seven or
more persons
What’s New in 6th Cycle
State law pertaining to adequate site
requirements (AB 1397 and SB 166) has
changed. AB 1397 places higher standards
on the reuse of sites, reliance on
nonvacant sites and extreme sizes of sites
(too small and too large). SB 166 requires
a no-net loss accounting that necessitates
a sites inventory with a comfortable
buffer (typically 15-30 percent).

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City of Pacific Grove
Focused General Plan Proposal Supplement
Rincon Consultants, Inc. Page 10
• Affirmatively Furthering Fair Housing –an evaluation of the sites to determine how they meet AFFH requirements, including that they are located throughout the community in a manner that has the ability to affirmatively further an increase in fair housing.
• Non-vacant site analysis – an analysis of non-vacant sites to address a portion of the RHNA. This analysis should analyze realistic development potential within the planning period by considering the extent that a non-vacant site’s existing use impedes additional residential development, the jurisdiction’s past experience converting existing uses to higher density residential development, market trends and conditions.
• Local housing trends - an analysis using anticipated and actual project densities to project and substantiate assumed future development yields of proposed RHNA sites. This step assumes that reliance on documentation provided by City staff to compare the maximum zoning density to the actual project yield, including percentage and types of affordable units from development projects built, approved or under review during the 5th Cycle period. This step is also typically informed by input from residential developers obtained during community engagement to support estimated residential capacities on proposed RHNA sites.
• Infrastructure constraints – this analysis assumes discussions have occurred with appropriate utility providers to determine if parcels included in the sites inventory have sufficient access to water, sewer and dry utilities and adequate capacity to support housing development. This analysis typically relies on City staff to support the review of existing plans and programs and to support the consultant in identifying any potential limitations or constraints and improvements necessary to support housing development on the identified sites. This does not typically include technical infrastructure analyses.

If the site inventory is not adequate to support the required analyses and will require significant revision, including the identification of additional or replacement sites, the scope, budget and schedule will need to be revaluated.

Assumptions
• This task assumes that the Site Inventory will be provided in both GIS and excel formats. • Rincon will not edit/clean up any parcel or base data. • As stated previously, this task assumes Rincon can rely on a Draft Sites Inventory prepared by the previous housing element consultant.

Sites Working Session
[Rincon lead, VTA]
The Rincon team will participate in a virtual working session with City staff to ensure a clear understanding of the Sites Inventory and any accompanying assumptions. This session is anticipated to be up to two hours.

Deliverables
• Agenda and Meeting Notes
Sites Adjustment (Allowance)
[Rincon lead, VTA]
While the above tasks assume that the Sites Inventory is stable, we have included an allowance for some minor adjustments to the Sites Inventory. This includes up to 32 hours for the Rincon team to adjust assumptions or sites assuming that the majority of the sites can be used. Rincon will not proceed with this task unless mutually agreed upon with City staff and based on a clear understanding of the work needed to support any Sites Inventory adjustments. This task assumes one round of review by City staff of an adjusted Sites Inventory.

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Deliverables
• Draft Sites Inventory Adjustment
• Final Sites Inventory Adjustment

2.2.4 Housing Resources
[Rincon lead, VTA]
This task includes preparation of the Housing Resources section. The Housing Resources section will include a discussion of the following:
• Future housing needs, including a discussion of the RHNA requirement and planned or approved units and Accessory Dwelling Units (RHNA credit);
• Residential sites inventory, including methodology, site suitability, realistic development capacity and adequacy in meeting RHNA;
• Availability of infrastructure and services; and
• Financial resources for affordable housing.

Assumptions
• City staff will provide one set of consolidated comments provided on the Administrative Draft Housing Resources section
• The revised draft Housing Resources section will be incorporated into the Screencheck Draft Housing Element in Task 2.2.7
Deliverables
• Administrative Draft Housing Resources Section (word)

2.2.5 Affirmatively Furthering Fair Housing
[Rincon lead, VTA]
Rincon will prepare the AFFH analysis and will incorporate it as a new appendix. The AFFH analysis will address fair housing issues, identify contributing factors, develop goals and actions, and review prior goals and actions. Fair housing issues to be assessed include review of fair housing enforcement and capacity, segregation and integration, racially/ ethnically concentrated areas of poverty, access to opportunity, and disproportionate housing needs and
displacement risk. Analysis will consider local and regional patterns and trends, and local data and knowledge gathered through effective community engagement, assumed to have been completed by the previous housing element consultant. The Project Team has worked closely with HCD to fulfill the new and extensive AFFH guidance and HCD requirements.

Assumptions
• City staff will provide one set of consolidated comments on the Administrative Draft AFFH section • The revised Draft Housing Resources section will be incorporated into the Screencheck Draft Housing Element in Task 2.2.7
What’s New in 6th Cycle
The federal AFFH rule requires the
jurisdiction to take “deliberate action to
explicitly address, combat, and relieve
disparities resulting from past and
current patterns of segregation to foster
more inclusive communities.” AB 686
extended this AFFH requirement to cities
and counties in California. Cities must
incorporate fair housing issues, analysis,
goals, and actions when updating their
housing element.

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