Agenda packet — Pacifica City Council, November 14, 2022 (part 1 of 2)

CITY OF PACIFICA

CITY COUNCIL AGENDA
Council Chambers
2212 Beach Blvd
Pacifica, CA 94044
Mayor Mary Bier
Mayor Pro Tem Tygarjas Bigstyck
Councilmember Mike O'Neill
Councilmember Sue Vaterlaus
Councilmember Sue Beckmeyer
City Council Regular Meeting 1 November 14, 2022
November 14, 2022 (MONDAY)
www.cityofpacifica.org
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BEFORE THE MEETING: Written public comments may be submitted in advance by 12:00 p.m. on the meeting date by email to: [email protected]. Written public comments submitted by email should adhere to the following:
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AT THE MEETING: Materials in writing provided at the meeting should provide seven (7) copies to provide for each Councilmember, City Clerk and City staff.

City Council Regular Meeting 2 November 14, 2022
7:00 PM OPEN SESSION
Call to Order
Roll Call
Reading of Land Acknowledgment
The City of Pacifica acknowledges that we occupy the unceded ancestral homeland of the Ramaytush Ohlone peoples, who are the original inhabitants of the San Francisco Peninsula. We honor the Ramaytush Ohlone peoples for their enduring commitment to Mother Earth. As the Indigenous protectors of this land and in accordance with their traditions, the Ramaytush Ohlone have never ceded, lost, nor forgotten their responsibilities as the caretakers of this place, as well as for all peoples who reside in their traditional territory. We affirm their sovereign rights as First Peoples and wish to pay our respects to the ancestors, elders, and relatives of the Ramaytush Ohlone peoples.

Salute to the Flag led by Local Veterans from American Legion Post 238 / Veterans of Foreign Wars (VFW)

SPECIAL PRESENTATIONS
A. San Mateo County Libraries Annual Report (Stephanie Saba)

CONSENT CALENDAR
Persons wishing to address the Council on any Consent Calendar item may do so at this time. Each speaker will be allotted three minutes. Those wishing to address the Council on any item listed on the agenda should submit a speaker card to the City Clerk.

Items on the consent calendar will be adopted by one motion unless a Councilmember requests, before the vote on the motion, to have an item discussed. Time limit on comments is three minutes or less.

1. Approval of Disbursements for Dated 9/16/22 through 9/30/22.

PROPOSED ACTION: Move to approve attached lists of disbursements for 9/16/22 through 9/30/22.

2. Approval of Minutes
PROPOSED ACTION: Move to approve the minutes of the City Council Regular Meeting held on October 24, 2022.

3. Continuation of Proclamation of Local Emergency of the Pacifica Coastline from Westline Drive to the End of Beach Boulevard.

PROPOSED ACTION: Accept report and make a determination that conditions of local emergency continue to exist within the Pacifica Coastline from Westline Drive to the end of Beach Boulevard.

4. Continuation of Proclamation of Local Emergency at the Anza Pump Station.

PROPOSED ACTION: Accept Report and Make a Determination that Conditions of City Council Regular Meeting 3 November 14, 2022
Local Emergency Continue to Exist at the Anza Pump Station at the Pacifica State Beach.

5. Continuation of Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”).

PROPOSED ACTION: Accept report and make a determination that conditions of local emergency continue to exist regarding Novel (new) Coronavirus ("COVID-19”).

6. Consideration of a Resolution Making Findings as Required by AB 361 to Continue to Permit the City Council and City Commissions and Committees to Conduct Teleconferenced Meetings Due to Health and Safety Concerns Relating to COVID-19 PROPOSED ACTION: Move to adopt a Resolution making findings pursuant to AB 361 to authorize the City Council and City Commissions and Committees to conduct teleconferenced meetings due to health and safety concerns relating to COVID-19.

7. Side letter agreement between the City of Pacifica and the Pacifica Police Officer's Association (PPOA) regarding compensation adjustment for Police Officer Trainee classification.

PROPOSED ACTION: Adopt a resolution authorizing the City Manager to enter into a side letter agreement between the City of Pacifica and PPOA to amend the salary structure for the Police Officer Trainee classification to bring compensation for this position closer to market and make it more attractive for future recruitments.

8. Authorization to extend contract with HdL to provide cannabis inspections/audit services.

PROPOSED ACTION: Move to authorize the City Manager to sign a contract extension with Hinderliter, de Llamas and Associates (HdL), and additional (2) years to provide cannabis inspection compliance and financial audit services.

ORAL COMMUNICATIONS
This portion of the Agenda is available for the public to address the City Council on any issue that is not on the Agenda. Any person wishing to address the Council shall be recognized by the Mayor during Oral Communications, provided, however, that during the Oral Communications portion of the agenda, only items not on the agenda for that meeting may be addressed. All remarks shall be addressed to the Council as a body and not to any member thereof. Councilmembers shall not enter into debate with speakers under Oral Communications. A maximum time of three minutes will be allowed for any speaker. Pursuant to Pacifica Municipal Code Title 2, Chapter 1, Section 2-1.118 any person making impertinent, slanderous, or profane remarks or who becomes boisterous while addressing the Council shall be called to order by the presiding officer and, if such conduct continues, may, at the direction of the presiding officer, be ordered barred from further audience before the Council during the meeting.

COUNCIL COMMUNICATIONS
The purpose of Council Communications is for Councilmembers to inform each other of items of potential interest to other Councilmembers, such as interagency meetings.

City Council Regular Meeting 4 November 14, 2022

STAFF COMMUNICATIONS
The purpose of Staff Communications is for the City Manager to offer announcements as appropriate.

PUBLIC HEARINGS

9. Consideration of an appeal of the Planning Commission's approval of Site Development Permit PSD-811-16, Use Permit UP-76-16, Tentative Subdivision Map SUB-233-16, Sign Permit S-129-19, Parking Exception PE-183-19, and Heritage Tree Removal Authorization, and Recommendation for City Council approval of General Plan Amendment GPA-96-19, Rezoning RZ-194-16, Zoning Text Amendment TA-116-19, and Development Agreement DA-4-21, filed by Brendan and Eamon Murphy, for construction of a three-building mixed-use project with 3,165-square feet (sf) of commercial floor area and 19 residential units, and associated condominium subdivision, at 570 Crespi Drive (APN 022-162-310) and a portion of 540 Crespi Drive (APN 022-162-420). The proposed General Plan amendment and zoning text amendment would have city-wide applicability and allow residential uses to be established either in the same building as a commercial use above the ground floor or in residential-only buildings on a site that also contains a commercial use (horizontal mixed-use) with approval of a use permit.

Recommended California Environmental Quality Act (CEQA) Status: Provide direction to prepare an environmental impact report (EIR) in accordance with the California Environmental Quality Act (File No. 2016-004).

PROPOSED ACTION: Move to adopt the attached Resolution to refer the subject project back to the Planning Commission for reconsideration following the preparation of an environmental impact report (EIR) as provided in PMC section 9-4.3208(b)(2).

10. Council call-up and consideration of an appeal of the Planning Commission’s revocation of Cannabis Activity Permit CAP-8-18 which authorizes the operation of a cannabis retail operation known as Seaweed Holistics, LLC at 450 Dondee Way, Suite 2 (APN 022-021- 640), for the sale of medicinal and adult use cannabis.

PROPOSED ACTION: Move to adopt the attached Resolution to DENY the appeal and UPHOLD the Planning Commission’s revocation of Cannabis Activity Permit CAP-8-18 (File Nos. 2018-029 and 2020-020), which authorizes operation of a cannabis retail operation known as Seaweed Holistics at 450 Dondee Way, Suite 2 (APN 022-021-640), and finding the project exempt from the California Environmental Quality Act (CEQA) by adopting the resolution included as Attachment A.

CONSIDERATION

11. Introduction of an Ordinance to Adopt the 2022 Edition of the California Building Standards Code and Fire Code with Local Amendments, including amendments to require building electrification (Reach Codes), underground utility installation, and expanded geotechnical hazard evaluation.

PROPOSED ACTION: Move to take the following actions:
1) Introduce by title only and waive the first reading of an Ordinance of the City Council of the City of Pacifica:
a. Repealing and replacing Chapters 1 (Building Code), 2 (Mechanical Code), 3 (Plumbing City Council Regular Meeting 5 November 14, 2022
Code), 4 (Electrical Code), 5 (International Property Maintenance Code), 6 (Energy Code), 7 (Green Building Code), 7.5 (Residential Code), 8 (Historical Buildings Code,

8.5 (Existing Buildings Code), 9 (Reference Standards Code) of Title 8 of the Pacifica Municipal Code, to adopt by reference the 2022 California Building Standards (California Code of Regulation, Title 24, Parts 1, 2, 2.5, 3, 4, 5, 6, 8, 10, 11 and 12) and the 2021 International Property Maintenance Code and making certain amendments thereto;
b. Repealing and replacing Article 1 (Fire Code) of Chapter 3 (Fire Protection) of Title 4 of the Pacifica Municipal Code to adopt the 2022 California Fire Code and making certain amendments thereto; and
c. Finding adoption of the Ordinance exempt from the California Environmental Quality Act 2) Set a public hearing to consider adoption of the Ordinance on November 28, 2022.

12. Update on Highway1/Manor Drive Overcrossing Improvement Project PROPOSED ACTION: Accept Update Report on Highway 1/Manor Drive Overcrossing Improvement Project

ADJOURN
NOTICE: If you challenge a city's zoning, planning or other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. Judicial review of any city administrative decision may be had only if a petition is filed with the court not later than the 90th day following the date upon which the decision becomes final. Judicial review of environmental determinations may be subject to a shorter time period for litigation, in certain cases 30 days following the date of the final decision The City of Pacifica will provide assistance for disabled citizens upon at least 24 hours advance notice to the City Manager’s Office (650) 738-7301, or send request via email to:
[email protected] if you need sign language assistance or written material printed in a larger font or taped, advance notice is necessary. All meeting rooms are accessible to the disabled.

The Pacifica Municipal Code is available on line at the City’s website (www.cityofpacifica.org/municode);

HOW TO OBTAIN CITY COUNCIL AGENDAS
Posted agendas:

Agendas are posted no later than Friday prior to the City Council meeting date, at the entrance to the City Hall location at the Pacifica Community Center, 540 Crespi Drive.

View on the Internet:

Follow the link to Council agenda, at www.cityofpacifica.org E-mail subscription:

Send a request to Sarah Coffey, at [email protected] City Clerk’s Office/City Manager’s Office
City Hall, 540 Crespi Drive
Council meetings:

Agendas are available at the City Council meeting
City Council Regular Meeting 6 November 14, 2022

HOW TO REACH YOUR GOVERNMENT OFFICIALS
• Governor Gavin Newsom, State Capitol Building, Sacramento CA 95814 (916) 445-2841 • State Senator Josh Becker, 1528 So. El Camino Real, Suite 303, San Mateo CA 94402 (650) 212-3313
• Assembly Member Kevin Mullin, 1528 South El Camino Real, Suite 302 San Mateo, CA 94402 (650) 349-2200
• Congresswoman Jackie Speier, 155 Bovet Road, Suite 780, San Mateo CA 94402 (650) 342-0300
• Senator Alex Padilla, B03 Russell Senate Office Building, Washington DC 20510 (202) 224-3553
• Senator Dianne Feinstein, #1 Post Street, Suite 2450, San Francisco CA 94104 (415) 393-0707
• President Joseph R. Biden, 1600 Pennsylvania Ave. NW, Washington DC 20500

CITY COUNCIL
• Mayor Mary Bier, [email protected]
• Mayor pro Tem Tygarjas Bigstyck, tbigstyck@ pacifica.gov • Councilmember Mike O’Neill, mo’[email protected]
• Councilmember Sue Vaterlaus, [email protected]
• Councilmember Sue Beckmeyer, [email protected]

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Approval of Disbursements for Dated 9/16/22 through 9/30/22.

RECOMMENDED ACTION:

Move to approve attached lists of disbursements for 9/16/22 through 9/30/22.

STAFF CONTACT:

Yulia Carter, Assistant City Manager
(650) 738-7402
[email protected]
BACKGROUND/DISCUSSION:

Staff has submitted the following disbursements for Council approval:
• Disbursements dated 9/16/22 through 9/30/22 in the amount of $851,557.77 as written on regular checks numbered 61901-62027 & 62173-62188 (Attachment 1). These disbursements are for Fiscal Year 2022- 2023.

FISCAL IMPACT:

These disbursements are within budgeted appropriations.

ORIGINATED BY:

Finance Department
ATTACHMENT LIST:

FY 2022-2023 Disbursements 61901-62027 & 62173-62188 - 9-16 to 9-30-22 (PDF) 1 Packet Pg. 7
Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 1

REPORT PARAMETERS
---------------------------
ORGANIZATION : 001
BANK : 1
PRINT BY : CHECK #
SORT OPTION : CHECK #
PRINT DETAILS : N
ORG NAME FOR EXTRACT FILE : PACIFICA
Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 2

CITY OF PACIFICA

CHECK REGISTER
CHECK RANGE: 61901 - 62027
CHECK
BANK CHECK # CHECK AMT CHECK DATE VENDOR # ADDRS # VENDOR NAME TYPE STATUS ------------------------------------------------------------------------------------------------------------------------------------ 1 61901 $242.76 09/16/22 00814 1 CALIFORNIA STATE DISBURSEMENT UNIT S OUTSTANDING 1 61902 $240.00 09/16/22 00814 1 CALIFORNIA STATE DISBURSEMENT UNIT S OUTSTANDING 1 61903 $50.00 09/16/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 61904 $350.00 09/16/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 61905 $562.66 09/16/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 61906 $100.00 09/16/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 61907 $110.00 09/16/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 61908 $4.00 09/16/22 01764 3 NATIONAL D.R.I.V.E S OUTSTANDING 1 61909 $246.00 09/16/22 01767 0 NPFBA S OUTSTANDING
1 61910 $930.60 09/16/22 01758 1 PACIFICA FIREFIGHTERS UNION S OUTSTANDING 1 61911 $439.00 09/16/22 01758 0 PACIFICA FIREFIGHTERS-LTD S OUTSTANDING 1 61912 $800.00 09/16/22 01759 0 PACIFICA POLICE OFFICERS ASSOCIATION S OUTSTANDING 1 61913 $200.00 09/16/22 01760 0 PACIFICA POLICE OFFICERS SAVINGS S OUTSTANDING 1 61914 $420.00 09/16/22 01769 0 PACIFICA POLICE SUPERVISORS ASSOCIATION S OUTSTANDING 1 61915 $1401.16 09/16/22 01758 5 SMC FIREFIGHTERS IAFF Local 2400 S OUTSTANDING 1 61916 $2617.50 09/16/22 01764 0 TEAMSTERS LOCAL #856 S OUTSTANDING 1 61917 $6305.07 09/28/22 00009 8 AT&T S OUTSTANDING
1 61918 $330.00 09/28/22 04066 0 ALERT PEST CONTROL COMPANY INC S OUTSTANDING 1 61919 $555.11 09/28/22 05693 0 ALEXANDRIA AND GARY SLIPPY S OUTSTANDING 1 61920 $106.74 09/28/22 00136 0 ALHAMBRA S OUTSTANDING 1 61921 $600.57 09/28/22 00138 0 ALL INDUSTRIAL ELECTRIC SUPPLY, INC. S OUTSTANDING 1 61922 $13.95 09/28/22 04980 1 AMAZON.COM SALES, INC. S OUTSTANDING 1 61923 $271.00 09/28/22 05556 0 AMERICAN DEBRIS BOX SERVICE INC. S OUTSTANDING 1 61924 $1946.00 09/28/22 04150 0 AMERICAN SCALE CO., INC S OUTSTANDING 1 61925 $198.96 09/28/22 04459 0 ARROWHEAD FORENSICS S OUTSTANDING 1 61926 $27491.10 09/28/22 05475 0 B.E.A.M. CONSTRUCTION ENTERPRISES, INC S OUTSTANDING 1 61927 $2463.80 09/28/22 00337 2 BANK OF NEW YORK MELLON S OUTSTANDING 1 61928 $2671.00 09/28/22 03634 0 BAY POWER LLC GENERATOR SYSTEM DESIGN AND SER S OUTSTANDING 1 61929 $17243.78 09/28/22 05484 1 BAY VIEW FUNDING S OUTSTANDING 1 61930 $4725.00 09/28/22 05463 0 BRETT STOLLENWERK S OUTSTANDING 1 61931 $85.30 09/28/22 03402 1 BSN SPORTS, LLC S OUTSTANDING 1 61932 $4950.00 09/28/22 05483 0 CALIFORNIA CONSULTING, INC. S OUTSTANDING 1 61933 $256.00 09/28/22 00014 5 CALIFORNIA STATE OF S OUTSTANDING 1 61934 $22697.10 09/28/22 05519 1 CARDIO PARTNERS INC. S OUTSTANDING 1 61935 $1181.25 09/28/22 00471 1 CARPENTER RIGGING & SUPPLY S OUTSTANDING 1 61936 $163.06 09/28/22 00001 352 CASTRO, ANGEL S OUTSTANDING 1 61937 $2769.45 09/28/22 00507 0 CHILDCARE CAREERS S OUTSTANDING 1 61938 $929.63 09/28/22 00510 0 CINTAS CORPORATION #464 S OUTSTANDING 1 61939 $125.14 09/28/22 02822 0 CITY AUTO SUPPLY S OUTSTANDING 1 61940 $502.64 09/28/22 03246 0 COAST COUNTIES PETERBILT & COAST COUNTIES PAC S OUTSTANDING 1 61941 $2392.50 09/28/22 05082 1 COLUMN, PBC S OUTSTANDING 1 61942 $86.34 09/28/22 02168 1 COMCAST S OUTSTANDING
1 61943 $169.02 09/28/22 02168 2 COMCAST S OUTSTANDING
1 61944 $10202.00 09/28/22 05341 0 CREATIVE DIGITAL AGENCY INC. S OUTSTANDING 1 61945 $134.15 09/28/22 01204 1 CRESCO EQUIPMENT RENTALS S OUTSTANDING 1 61946 $342.77 09/28/22 00622 0 CURTIS & SONS, L.N. S OUTSTANDING 1 61947 $156.80 09/28/22 00025 0 DALY CITY/CITY OF S OUTSTANDING 1 61948 $2004.50 09/28/22 05694 0 DARLENE ESTRADA S OUTSTANDING 1 61949 $390.14 09/28/22 03590 0 DASH MEDICAL GLOVES S OUTSTANDING 1 61950 $160.00 09/28/22 04768 0 DIAMOND DIESEL SERVICE, INC. S OUTSTANDING 1 61951 $1080.22 09/28/22 04354 0 DOOLEY ENTERPRISES, INC. S OUTSTANDING Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 3

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Attachment: FY 2022-2023 Disbursements 61901-62027 & 62173-62188 - 9-16 to 9-30-22 (5157 : Disbursements - Dated 9/16/22 through 9/30/22) 1 61957 $17913.23 09/28/22 02199 0 EPS, INC. S OUTSTANDING 1 61958 $3724.00 09/28/22 05102 0 EPSTEIN + HOLTZAPPLE LLP S OUTSTANDING 1 61959 $38500.00 09/28/22 02713 0 ESRI S OUTSTANDING
1 61960 $77.00 09/28/22 00758 0 EXPERIAN S OUTSTANDING
1 61961 $60.00 09/28/22 03047 0 FASTRAK VIOLATION PROCESSING DEPARTMENT S OUTSTANDING 1 61962 $37.00 09/28/22 05695 0 FBI NATIONAL ACADEMY ASSOCIATES, INC S OUTSTANDING 1 61963 $32.86 09/28/22 00773 1 FEDEX S OUTSTANDING
1 61964 $28019.83 09/28/22 02767 0 FLYERS ENERGY, LLC S OUTSTANDING 1 61965 $100.00 09/28/22 05394 0 GAIL EDWARDS S OUTSTANDING 1 61966 $46.86 09/28/22 00870 0 GOVCONNECTION, INC. S OUTSTANDING 1 61967 $169.44 09/28/22 02415 0 GYM DOCTORS S OUTSTANDING 1 61968 $6756.28 09/28/22 04859 1 HOME DEPOT CREDIT SERVICES S OUTSTANDING 1 61969 $631.56 09/28/22 04850 1 HOME DEPOT USA, INC. S OUTSTANDING 1 61970 $1209.45 09/28/22 04999 2 IMAGE SOURCE S OUTSTANDING 1 61971 $161.88 09/28/22 00990 0 INTERSTATE TRAFFIC CONTROL PRODUCTS S OUTSTANDING 1 61972 $58.50 09/28/22 05532 0 JOAN ARTHUR S OUTSTANDING 1 61973 $2353.74 09/28/22 01014 0 JOHN THE SIGN GUY LLC S OUTSTANDING 1 61974 $495.37 09/28/22 01027 0 K 119 OF CALIFORNIA S OUTSTANDING 1 61975 $95.00 09/28/22 05333 1 KASEYA US LLC S OUTSTANDING 1 61976 $264.41 09/28/22 03700 0 KIMBALL MIDWEST S OUTSTANDING 1 61977 $768.13 09/28/22 03522 0 MACKAY METERS, INC. S OUTSTANDING 1 61978 $633.96 09/28/22 00001 324 MARTINEZ, ROBERT S OUTSTANDING 1 61979 $1744.44 09/28/22 01142 0 MC MASTER-CARR SUPPLY COMPANY S OUTSTANDING 1 61980 $272.49 09/28/22 01164 0 MILLBRAE LOCK S OUTSTANDING 1 61981 $507.88 09/28/22 01183 0 MUNICIPAL MAINTENANCE EQUIPMENT, INC. S OUTSTANDING 1 61982 $285.00 09/28/22 01378 0 MUSCIO SECURITY S OUTSTANDING 1 61983 $739.01 09/28/22 04549 0 NAF SERVICES, INC. S OUTSTANDING 1 61984 $512.00 09/28/22 04782 0 NATIONAL TRAINING CONCEPTS INC. S OUTSTANDING 1 61985 $14331.01 09/28/22 01206 0 NORTH COAST COUNTY WATER DIST. S OUTSTANDING 1 61986 $1101.15 09/28/22 03981 0 NORTHERN SAFETY CO. INC S OUTSTANDING 1 61987 $58.63 09/28/22 01217 0 OFFICE DEPOT S OUTSTANDING 1 61988 $5258.75 09/28/22 01238 0 PACIFIC ECORISK S OUTSTANDING 1 61989 $206854.77 09/28/22 01240 0 PACIFIC GAS & ELECTRIC CO. S OUTSTANDING 1 61990 $439.86 09/28/22 01244 0 PACIFIC NURSERIES S OUTSTANDING 1 61991 $4951.00 09/28/22 01249 0 PACIFICA CHAMBER OF COMMERCE S OUTSTANDING 1 61992 $385.64 09/28/22 00054 2 PAPE MACHINERY S OUTSTANDING 1 61993 $1279.06 09/28/22 01297 0 PARS S OUTSTANDING
1 61994 $1338.94 09/28/22 03782 0 PRIORITY 1 PUBLIC SAFETY EQUIPMENT S OUTSTANDING 1 61995 $421.97 09/28/22 01322 0 PROFORCE LAW ENFORCEMENT S OUTSTANDING 1 61996 $436.84 09/28/22 01336 0 QUILL CORPORATION S OUTSTANDING 1 61997 $574.60 09/28/22 01337 0 R & H WHOLESALE SUPPLY, INC. S OUTSTANDING 1 61998 $503.13 09/28/22 01367 0 RICE TRUCKING SOIL FARM S OUTSTANDING 1 61999 $424.16 09/28/22 01372 0 RITE-WAY ELECTRIC S OUTSTANDING 1 62000 $5360.00 09/28/22 03306 1 ROBERT HALF MANAGEMENT RESOURCES S OUTSTANDING 1 62001 $121.06 09/28/22 05041 0 ROSA MACK S OUTSTANDING 1 62002 $612.00 09/28/22 02040 0 ROSS' LADDER SERVICE S OUTSTANDING Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 4

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Attachment: FY 2022-2023 Disbursements 61901-62027 & 62173-62188 - 9-16 to 9-30-22 (5157 : Disbursements - Dated 9/16/22 through 9/30/22)

FUND TOTALS
-----------

FUND FUND NAME ISSUED TOTAL VOIDED/REISSUED TOTAL
------ ------------------------------ --------------- ---------------------- 001 GENERAL FUND 180,453.14 0.00
005 TRUST AND AGENCY FUND 121.06 0.00
007 S.L.E.S. FUND 24,036.04 0.00
010 GAS TAX MAINTENANCE FUND 7,442.49 0.00
016 NPDES STORMWATER FUND 10,199.88 0.00
018 SEWER CHARGE FUND 213,678.18 0.00
022 GENERAL CAPITAL IMPROVEMENT 48,457.35 0.00
031 PACIFICA LIBRARY FUND 540.00 0.00
034 SEWER FACILITY CONSTRUCT. FUND 35,476.86 0.00
035 BEACH PARKING FUND 3,650.64 0.00
071 MOTOR POOL OPERATIONS FUND 31,519.76 0.00
091 REDEVELOPMENT-SUCCESSOR AGENCY 2,463.80 0.00
================ ================
TOTAL - 558,039.20 0.00
Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 6

CITY OF PACIFICA

CHECK REGISTER
CHECK RANGE: 62173 - 62188
CHECK
BANK CHECK # CHECK AMT CHECK DATE VENDOR # ADDRS # VENDOR NAME TYPE STATUS ------------------------------------------------------------------------------------------------------------------------------------ 1 62173 $186758.12 09/30/22 05495 0 W.E. LYONS CONSTRUCTION CO. S OUTSTANDING 1 62174 $242.76 09/30/22 00814 1 CALIFORNIA STATE DISBURSEMENT UNIT S OUTSTANDING 1 62175 $240.00 09/30/22 00814 1 CALIFORNIA STATE DISBURSEMENT UNIT S OUTSTANDING 1 62176 $50.00 09/30/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 62177 $350.00 09/30/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 62178 $562.66 09/30/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 62179 $100.00 09/30/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 62180 $110.00 09/30/22 00814 0 FRANCHISE TAX BOARD S OUTSTANDING 1 62181 $930.60 09/30/22 01758 1 PACIFICA FIREFIGHTERS UNION S OUTSTANDING 1 62182 $800.00 09/30/22 01759 0 PACIFICA POLICE OFFICERS ASSOCIATION S OUTSTANDING 1 62183 $200.00 09/30/22 01760 0 PACIFICA POLICE OFFICERS SAVINGS S OUTSTANDING 1 62184 $420.00 09/30/22 01769 0 PACIFICA POLICE SUPERVISORS ASSOCIATION S OUTSTANDING 1 62185 $1401.16 09/30/22 01758 5 SMC FIREFIGHTERS IAFF Local 2400 S OUTSTANDING 1 62186 $10984.76 09/30/22 05469 0 BCC BENEFIT COORDINATORS CORPORATION S OUTSTANDING 1 62187 $60965.00 09/30/22 01771 0 TEAMSTERS LOCAL 856 S OUTSTANDING 1 62188 $29403.51 09/30/22 04608 0 TRI COUNTIES BANK S OUTSTANDING TOTAL # OF ISSUED CHECKS: 16 TOTAL AMOUNT: 293,518.57
TOTAL # OF WIRES: 0 TOTAL AMOUNT: 0.00
TOTAL # OF VOIDED/REISSUED/UNCLAIMED CHECKS: 0 TOTAL AMOUNT: 0.00 TOTAL # OF ACH CHECKS: 0 TOTAL AMOUNT: 0.00
TOTAL # OF UNISSUED CHECKS: 0
Report: CHECKREG Generated: 18DEC20 13:17 Run: TUESDAY OCT1122 8:04 Page: 7

FUND TOTALS
-----------

FUND FUND NAME ISSUED TOTAL VOIDED/REISSUED TOTAL
------ ------------------------------ --------------- ---------------------- 001 GENERAL FUND 86,718.61 0.00
010 GAS TAX MAINTENANCE FUND 229.01 0.00
016 NPDES STORMWATER FUND 656.25 0.00
018 SEWER CHARGE FUND 1,435.80 0.00
022 GENERAL CAPITAL IMPROVEMENT 188,248.17 0.00
035 BEACH PARKING FUND 203.43 0.00
065 SELF-FUNDED DENTAL PLAN FUND 15,222.76 0.00
071 MOTOR POOL OPERATIONS FUND 804.54 0.00
================ ================
TOTAL - 293,518.57 0.00

Page 3 of 3 ends

http://pac-gems/fms/BISystem/ReadROCFile.asp?sWC=C&iIdx=&FileName=D:\GemsE... 10/11/2022 TOTAL = $558,039.20 + $293,518.57 = $851,557.77

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Attachment: FY 2022-2023 Disbursements 61901-62027 & 62173-62188 - 9-16 to 9-30-22 (5157 : Disbursements - Dated 9/16/22 through 9/30/22)

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Approval of Minutes
RECOMMENDED ACTION:

Move to approve the minutes of the City Council Regular Meeting held on October 24, 2022.

STAFF CONTACT:

Sarah Coffey, City Clerk
650-738-7307
[email protected]
BACKGROUND/DISCUSSION:

Move to approve the minutes of the City Council Regular Meeting held on October 24, 2022 (Attachment A).

FISCAL IMPACT:

None.

ORIGINATED BY:

City Clerk
ATTACHMENT LIST:

Attachment A: Minutes of City Council Regular Meeting on 10-24-2022 (PDF) 2 Packet Pg. 11

CITY OF PACIFICA

CITY COUNCIL MINUTES
Council Chambers
2212 Beach Blvd
Pacifica, CA 94044
Mayor Mary Bier
Mayor Pro Tem Tygarjas Bigstyck
Councilmember Mike O'Neill
Councilmember Sue Vaterlaus
Councilmember Sue Beckmeyer
City Council Regular Meeting 1 October 24, 2022
October 24, 2022 (MONDAY)
www.cityofpacifica.org
Mayor Mary Bier called the meeting to order on October 24, 2022 at 7:04 PM 7:00 PM OPEN SESSION
Call to Order
Mayor Bier called the meeting to order at 7:04 p.m.

Attendee Name Title Status Arrived
Mary Bier Mayor Present
Tygarjas Bigstyck Mayor Pro Tem Present
Mike O'Neill Councilmember Present
Sue Vaterlaus Councilmember Present
Sue Beckmeyer Councilmember Present
City Clerk Coffey took a verbal roll call.

Staff Present: Kevin Woodhouse, City Manager; Michelle Kenyon, City Attorney; Lisa Petersen, PW Director; Yulia Carter, Asst. City Manager; Christian Murdock, Planning Director; Kirk Stratton, Interim Police Chief; Ryan Marquez, Project Manager.; Michael Perez, PB&R Director; Jason Bustria, IT Analyst; Sarah Coffey, City Clerk; Emily La, Dep. City Clerk.

City Manager Woodhouse introduced Emily La as the Dep. City Clerk.

City Clerk Coffey gave background information on Dep. City Clerk La.

Mayor Bier welcomed her. Mayor Bier referred to the upgrade of the Council Chambers and turned it over to the City Manager.

City Manager Woodhouse wanted to recognize all the work on remodeling the Council Chambers, i.e., new carpeting, painting, etc. He stated that they will also have new windows, framed pictures, etc. He acknowledged all the employees who worked on the upgrading, as well as PCTV staff. He then had all of them take a picture with Council.

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Reading of Land Acknowledgment
Mayor Bier read the Land Acknowledgment.

Salute to the Flag led by Councilmember Beckmeyer

SPECIAL PRESENTATIONS
A. Proclamation - Arbor Day 2022
Mayor Bier read a proclamation honoring Arbor Day 2022.

Paul Totah, Pacifica, thanked Council and staff for the Arbor Day proclamation. He referred to a resolution on the consent calendar to commit to holding an annual Arbor Day event to ensure we are always a Tree City USA. He stated that this is the 4th annual Arbor Day tree planting at Oceana High School: The event will start at 10 a.m. on November 12 in the school’s little theater, and will include Mayor Bier announcing the tree art contest and the student video on how to plant a tree. Pacifica’s Poet Laureate will read a special poem for the occasion, and he encouraged anyone wanting to plant a tree on that day to contact [email protected].

He shared his thoughts on continuing collaboration with the city on their goals.

The Council extended their thanks and appreciation to Tree City Pacifica for their collaborations and positive impact on the community.

B. Proclamation - Pacificans Care 40th Anniversary
Mayor Bier read the proclamation on behalf of Pacificans Care 40th Anniversary.

Bruce Banco, Pacifica, thanked Council for this honor. He gave a brief report of what they have accomplished over the 40 years that they have been in operation. He thanked everyone for acknowledging Pacificans Care and stated that they are always happy to accept donations and invited everyone to their 40th anniversary meeting at the Community Center on November 5, 3-5 pm., with snacks available, and they will thank everyone for what they have done for Pacificans Care.

The Council extended their thanks and appreciation to Pacificans Care for their remarkable work and positive impact on the community.

Mayor Bier stated that she should have reminded the public before the proclamations that, if they wanted to comment, and she would like to give them a chance by opening up public comments for either proclamation. She asked City Clerk Coffey to explain the process.

City Clerk Coffey explained the process for any call ins.

Mayor Bier stated that they will wait a few minutes to see if there are anyone bringing up cards or calling in, and since there was no one, she closed public comments.

CONSENT CALENDAR
Mayor Bier stated that she will open public comments on the consent calendar.

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City Manager Woodhouse stated that, before they consider the consent calendar, he had two changes. He wanted to remove Item #7 from the calendar. On Item #3, there are three administrative edits he would like to point out for an amendment to the item.

Mayor Bier asked if any Councilmembers would like to pull anything from the consent calendar, and seeing none, she opened up public comments and seeing no one, closed public comments.

Councilmember O’Neill moved to approve the consent agenda as amended for item #3 and dropped Item #7 from the consent calendar; seconded by Councilmember Vaterlaus.

CONSENT CALENDAR INCL. ITEM #3 AS AMENDED, EXCL. ITEM #7 RESULT: ADOPTED [UNANIMOUS]
MOVER: Mike O'Neill, Councilmember
SECONDER: Sue Vaterlaus, Councilmember
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer

1. Approval of Disbursements for Dated 9/01/22 through 9/15/22.

PROPOSED ACTION: Move to approve attached lists of disbursements for 9/01/22 through 9/15/22.

2. Approval of Minutes
PROPOSED ACTION: Move to approve the minutes of the City Council Special Meeting held on September 27, 2022 and the City Council Regular Meeting held on October 10, 2022.

3. Resolution In Recognition and Observation of Arbor Day PROPOSED ACTION: Adopt a Resolution in Recognition and Observation of Arbor Day on the Second Saturday in November and State Pacifica’s Intent to Maintain Membership in the Tree City USA Program and Show Appreciation to Tree City Pacifica for Holding an Arbor Day Celebration Each Year in Partnership with the City

4. Response to San Mateo County Civil Grand Jury Report Titled "A Delicate Balance Between Knowledge and Power: Government Transparency and the Public's Right to Know"
PROPOSED ACTION: Move to approve the response to San Mateo County Civil Grand Jury Report Titled "A Delicate Balance Between Knowledge and Power: Government Transparency and the Public's Right to Know".

5. Adoption of a Resolution of the City Council of the City of Pacifica approving the Second Amendment to the Lease Agreement between the City of Pacifica and Stephen Johnson Photography for the premises located at 1220-C Linda Mar Boulevard (located in the Pacifica Center for the Arts) and finding the lease categorically exempt from the California Environmental Quality Act (“CEQA”).

PROPOSED ACTION: Move to adopt the Resolution of the City Council of the City of Pacifica approving the Second Amendment to the Lease Agreement between the City of Pacifica and Stephen Johnson Photography for the premises located at 1220-C Linda Mar Boulevard (located in the Pacifica Center for the Arts); authorizing the City Manager to execute the Second Amendment to the Lease Agreement and finding the lease categorically exempt from the California Environmental Quality Act (“CEQA”).

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6. Resolution in support of the SMCTA Cycle 6 Pedestrian and Bicycle Program Funding PROPOSED ACTION: Adopt the resolution next in order, “A Resolution Supporting the Palmetto & Esplanade Bicycle & Pedestrian Improvement Project and Submitting an Application to the San Mateo County Transportation Authority for Cycle 6 Pedestrian and Bicycle Program Funding” for the Esplanade & Palmetto Bicycle & Pedestrian Improvement Project; Adopt the resolution next in order “A Resolution Supporting the Pacifica Mid-Block Crosswalk Safety Project and Submitting an Application to the San Mateo County Transportation Authority for Cycle 6 Pedestrian and Bicycle Program Funding” for the Pacifica Mid-Block Crosswalk Project; and authorizing the City Manager to execute any documents required for the grant.

AGENDA ITEM #7:

RESULT: WITHDRAWN
MOVER: Mike O'Neill, Councilmember
SECONDER: Sue Vaterlaus, Councilmember
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer

7. Resolution authorizing a Side letter agreement between the City of Pacifica and Teamsters Management 350 regarding labor representation and compensation for Deputy Fire Chief and Paramedic Coordinator classifications.

PROPOSED ACTION:

1. Adopt a resolution authorizing the City Manager to enter into a side letter between the City of Pacifica and Teamsters Local 350 to move the Deputy Fire Chief and Paramedic Coordinator classifications to the Unrepresented Management and Confidential Employees Group.

2. Amend the benefit structure for these positions to include holiday pay compensation consistent with other fire classifications to make total compensation for these positions closer to market and make the positions more attractive for future recruitment.

ORAL COMMUNICATIONS
Cindy Abbott, Pacifica, informed everyone that they will be hosting the first annual PacificaCoastside Electric Vehicle Expo on October 29 from 10 am to 1 pm, and everyone was invited to attend this outdoor event in the front parking lot at the Pacifica Community Center on Crespi.

Christine Boles, Pacifica, complimented the Council Chambers but noted some audio issues.

City Manager Woodhouse stated that IT has identified that and suggested that they be very deliberate and speak closely into the microphone.

Dep. City Clerk La introduced the call-in speaker.

Jeremy Stafford, Pacifica, stated he was with the Pacifica Fire Fighters Union and he wanted to call and say hello, and he thought the chamber looked great. He then stated that, regarding Measure Y, they have 8,000 printouts and they are doing their part.

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Attachment: Attachment A: Minutes of City Council Regular Meeting on 10-24-2022 [Revision 1] (5180 : Approval of Minutes) City Council Regular Meeting 5 October 24, 2022

COUNCIL COMMUNICATIONS
Councilmember O’Neill stated that he was out of town at conferences all last week. He gave an update on the high school employee housing and their grant from the MTC for the van pools.

He also facilitated a tour of meeting sites in Pacifica and drove the staff of the San Mateo County Convention and Visitors Bureau (which has changed their name to the Peninsula) around last year, and because of the outreach, they are bringing a group of meeting planners to Pacifica to look at places where they can host conferences. He reminded everyone that, before the next Council meeting, there will be a vote and he urged everyone to mail in or drop their ballots in the collection box before November 8.

Councilmember Vaterlaus stated she was out of town too, and she went to an electrification meeting again and they heard from a gas company. She stated Smart Coast California is a group which monitors LCPs and all of the differences happening on the coast to all the cities.

She attended the Democrats meeting and Anna Eshoo was supposed to have a debate but the opposition did not show up as he called stating he did not want to debate. She attended a party for candidates and they did Council interviews for commissions and committees. She stated that there were a lot of events this weekend, and went to Brews and Blues, Trunk or Treat, the Haunted House, an escape room and the carnival.

Councilmember Beckmeyer attended the Democrats meeting which she found interesting and beneficial to hear more from Congresswoman Eshoo. On October 13, she attended CCAG meeting as the alternate for Councilmember Vaterlaus. She stated that there is a presentation every month on the express lanes on Highway 101 and the new feature is that there is going to be a JPA board with two seats available and any letters of interest should go to Sean Carpentia by November 2. She shared her enthusiasm about Pacifica’s potential participation in the shared micro mobility planned draft. She stated that the timeline is a spring start to the program and it is a preliminary draft plan and they will be spending a whole year implementing and having it ready to launch in spring 2024. She stated that there will be a plan coming out next month and they will have opportunities to comment on the draft plan.

Mayor pro Tem Bigstyck stated that he will begin remembering that there is a horrible war going on in Ukraine and his heart continues to be with them and makes the envelope in his hand that he will deposit downstairs after the meeting into the voting box more important. He referred to the election on November 8, and there is a voting box at 2112 Beach Boulevard and another one at 540 Crespi or they can go to any mailbox and stick the envelope in after they cast their vote and if they don’t want to wait until November 8, please do so. He attended the Boys and Girls Club parent meeting on the 11th. He enjoyed the Democrat meeting where Anna Eshoo spoke and he enjoyed the Meet and Greet held for Anna Eshoo and Mark Berman afterwards. He stated that there was a Peninsula Cal Cities lunch on the 19th and they enjoyed some updates from Peninsula Clean Energy and Silicon Valley Clean Energy, the PCE equivalent in Santa Clara County. They heard from the sustainability coordinator from San Mateo speaking about their approach to existing REACH codes. He attended the Emergency Preparedness meeting and they spoke about the wood chipper program, the Loma Prieta anniversary, and World Tsunami Awareness Day. He stated that they debriefed about Fog Fest and they spoke about how little people seem to be aware of Zone Haven and he was urging everyone to go to zonehaven.com as those alerts really come in handy.

Mayor Bier attended a virtual meeting of Fixin’ San Mateo County (FxSMC), a local grassroots organization working to enact citizens oversight of San Mateo County Sheriff, where Congresswoman Speier spoke. She stated that our Economic Development Committee

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meeting and OSPAC meeting both canceled. She attended the YIMBY prom (Yes in my Backyard) which is a housing leadership fundraiser and attended it with Jefferson Union High School District trustee, Andy Lee. She also attended the Pacifica Democrats meeting and did outreach with the North County outreach collaborative and coast pride at the Half Moon Bay pumpkin fest. She attended the committee and commission interviews and the Rotary Breakfast meeting. She attended the planning meeting for the working to end homelessness summit. She attended Blues and Brews and thanked the Economic Development Committee and Asst. City Manager Carter for working so hard and getting that event out. She also went to trunk or Treat also and attended the Terra Nova football game.

Councilmember O’Neill shared information about a grand program that he learned of last week when he went to his conference, in which virtually the entire Linda Mar neighborhood is eligible.

Councilmember Vaterlaus added one more thing about voting, praising the ability to receive notifications about their ballots being counted, and encouraged everyone to vote.

STAFF COMMUNICATIONS
City Manager Woodhouse wanted to follow up on Mayor Bier’s comments on the Brews and Blues event and Saturday’s Economic Development program and Economic Development committees proof of concept event, and as an initial event it was a great success. He thanked Sean Thompson and Robert Foster from the Economic Development Committee as they were the subcommittee that worked closely with management analysts, the Finance Dept. and Asst.

City Manager Yulia Carter to bring this together, along with the Bike Park, local vendors, etc.

He mentioned that the following night is the next phase of community workshops for the housing element, 6 pm to 8:30 pm at Cabrillo School, and the second meeting will be later at Sunset Ridge on November 1 from 6 pm to 8:30 pm. He then announced that they completed compiling the details of citywide accomplishments as they do annually for the previous fiscal year.

PUBLIC HEARINGS - NONE.

CONSIDERATION

8. Discussion of 2022 California Building Code triennial update and proposed local amendments including building electrification requirements (i.e., Reach Codes), geotechnical hazard analysis requirements, and utility undergrounding.

PROPOSED ACTION: Receive a presentation and provide direction to confirm local amendments to be included in an ordinance to be introduced on 11/14/2022.

Mayor Bier stated that Planning Director Murdock would be making the presentation.

Consultant Rafael Reyes was also present via phone.

Planning Director Murdock stated he was joined by Asst. Fire Marshal Craig Whitner from the North County Fire Authority. He then presented the staff report.

Mayor pro Tem Bigstyck asked about wood-burning fireplaces.

Planning Director Murdock stated that this local amendment does not seek to address woodburning fireplaces. He stated that the Bay Area Air Quality Management District, BAAQMD, a regional air quality jurisdiction, already has regulations which prohibit the installation of wood2.a Packet Pg. 17
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burning fireplaces in newly constructed residential buildings. While Council could consider such a local amendment, it is unnecessary under current law as it is already prohibited in new residential buildings.

Mayor pro Tem Bigstyck thought they spoke at the last meeting about the reach codes regarding prohibition on converting an all-electric building into a mixed field building after the fact. He asked where they were on incorporating that prohibition into their new codes.

Planning Director Murdock thought there were “two flavors” that issue could take: first option, which he recalls discussing at the study session, was a prohibition on the extension of gas infrastructure; and the other option is part and parcel to the all-electric building requirement so there is not a loophole to prohibit conversions back to mixed fuel buildings. That would be part of the regulations in the ordinance brought back for introduction and potential adoption by Council.

Mayor pro Tem Bigstyck concluded that both of those items are going to be incorporated as they currently understand it.

Planning Director Murdock stated that the second is but the first is not. He thought the first is a broader potential issue of the policy which he thought Council did not provide direction to explore. He stated that the second one, prohibiting conversion back to mixed fuel buildings is a simpler policy question and one that can be put into the ordinance prepared by staff.

Mayor pro Tem Bigstyck asked if he was saying that the first option is more difficult to implement and requested further clarification.

Planning Director Murdock stated that he didn’t mean to say they could not explore, but he thought it was the more complicated of the two options and there are potentially a number of other unintended consequences that are more difficult to grapple with. He thought that, regarding prohibition on extending gas infrastructure, they provided examples where there may have been a previous building on the site that was demolished and may have had a gas meter, and they didn’t allow the gas meter to have an extended and plumping extended to put gas into the new building and not allowing new connections to extend existing gas appliances within an existing building, but the Council’s direction was not to venture into existing building reach code.

That is an example of where it quickly becomes a more complicated policy question and staff’s opinion was that it was better explored and considered as part of a later process.

Mayor pro Tem Bigstyck thought marking that for discussion they have during goal setting about existing structures sounded like the recommendation.

Planning Director Murdock stated it would be his recommendation, given the variety of unknowns and the various different circumstances that could affect.

Mayor pro Tem Bigstyck inquired about nomenclature of no entry onto adjacent properties.

Planning Director Murdock stated that the real key issue is that Council, by ordinance, cannot authorize one private individual to enter the property of another private individual, and that example makes sense, but when thinking about a geotechnical hazard assessment, Council cannot authorize or direct a geotechnical engineer for one person’s project to go onto their neighbor’s property to perform evaluations, soil borings, etc., without that owner’s authorization.

He stated that, to keep it within the realm of what the Council can mandate, staff’s

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recommendation is to restrict the analysis to publicly available information or observations that can be made from publicly available spaces, such as the right-of-way, public areas, public property, etc.

Mayor pro Tem Bigstyck referred to the California building codes and, before it comes back to Council the next time, he asked if there was any thought of sending it to the Planning Commission to look at.

Planning Director Murdock thought that is a possibility, but not one that they have identified or recommended yet as workable, given where they are in the timeline of required adoption.

Mayor pro Tem Bigstyck thought, for starters, the geotechnical stuff would be great to have their feedback. He referred to the undergrounding of utilities and electric lines, and he thought he has heard many impassioned conversations on the Planning Commission regarding undergrounding, and a question he has asked is about undergrounding poles along frontages, not necessarily in front of single family homes on single lots but in terms of business buildings and subdivisions. He thought, if a subdivision is going in, it should be a simple matter of making sure our law says that they underground the poles in that instance, and it is something they do in other cities. He wondered if it would be a relatively simple matter to incorporate it here.

Planning Director Murdock stated that there are various forms that the undergrounding can take.

He stated that this local amendment as conceived by staff at this point in time addresses the installation of the new connections to existing utility poles and ensuring that those new connections are installed underground so as not to expand the above ground utility network, and that is different from undergrounding existing utility poles which service a neighborhood or potentially more than one property. He stated that process is much more complex and more costly, and the level of coordination is correspondingly much greater, given the need to coordinate with PG&E for the undergrounding with multiple other property owners, etc., and it would go beyond the scope of this particular grounding requirement proposed in this local amendment to a broader policy question and there are also relevant considerations about the cost of the undergrounding and whether it is proportionate to the project being undertaken. That is a more complex policy question to look beyond undergrounding the new connections to utilities and undergrounding existing utility poles.

Councilmember O’Neill stated that Margo sent him an invite to some sort of Webinar a while back about what a city can do, and one thing they mentioned was rainwater. He asked, if they do gray water retention base in some sort, could they not also make a requirement that the rainwater runoff from the roof go into that basin also.

Planning Director Murdock supposed it was possible, but the issue is that they are quite different issues in terms of the source and potential volumes and a policy requirement in the systems involved might be quite different even though they seem similar issues of trapping “wastewater” that might otherwise run off the site or go into the sewer and using some other intentional purpose. He would need to further study potential options that could be included in the building code process and that is not something he is prepared to speak about in depth at this meeting.

Councilmember O’Neill stated that North Coast has rain barrels you can get and hook up to your spout, and he wondered if it would be possible to do something underneath as part of every home remodel.

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Planning Director Murdock thought there were different options, a continuum of simple to complicated, and not knowing exactly what the Council’s intent is, he would need to look carefully at want the potential options are for that as it could be as simple as mandating a rain barrel for full interception and retention of all storm water runoff which would be a much more complicated regulatory approach.

Councilmember O’Neill stated, for new construction, he has seen some really major remodels going on in Pacifica now. He knows there is a rule as the school district had to follow this when the remodeled the schools, i.e., in order to qualify as a remodel they had to keep one wall up so they kept Prop. 13, and that was for state bond money in regard to the school district, and he asked if they need to put a trigger in there as to what is a remodel to electrify a home and convert a home whether 80% or 50%.

Planning Director Murdock stated that what he is touching on is a million-dollar question of building code application to existing buildings and whether it is the reach code context or undergrounding of utilities or sidewalk improvement, and staff has discussed this point and they think a unified, comprehensive approach is appropriate. He stated that, to grapple with the question of what defines a remodel, if Council undertakes an existing building reach code work item next year, that is probably the recommended opportunity because there is a lot of complexity, similar to the gas infrastructure extension, with a number of potential unanticipated consequences. Council discussed at the study session on September 27, with income issues, hardship questions with respect to lower income, existing property owners, and there are a range of policy questions that are complex on simply words and numbers to define a particular threshold. He stated that, for a variety of reasons, they want to put it together but it needs time and careful thought, in staff’s opinion.

Councilmember O’Neill thought it was more appropriate as a work plan thing than reach code inclusion.

Planning Director Murdock stated that it is, in his opinion, as it quickly merges into triggering these for existing buildings and that is something that Council felt was much more complex and potentially more controversial and could sidetrack this critical process to get the new codes adopted by January, as it needs proper time and thought to do it right, if that is what Council wants to undertake next year.

Councilmember Beckmeyer referred to packet page 188, new reach codes to adopt applicable to new buildings having to do with EV parking. In the second box, the last paragraph states, “to minimize costs associated with affordable housing development, the local amendment would give a developer the discretion to exclude any dwelling unit that is a deed-restricted affordable housing unit from EV parking requirements”, and she asked about what she mentioned in Council communications about equity.

Planning Director Murdock stated that he will offer some initial thoughts and it is probably something that warrants further discussion and consideration by the Council. He thought Mayor Bier was the champion of this component of the provision which was to reduce the cost of construction of new affordable housing, as to construct such projects is already challenging before leveling on additional local requirements, i.e., EV charging requirements. This, along with potential exceptions for park in lieu fees and other financial assistance, direct and indirect, all help make construction of affordable housing units feasible, and as discussed at the study session, to come in after the fact and install electric vehicle infrastructure is considerably more expensive and one can imagine a time in the next 10, 20 or 30 years where the high cost of

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electrical vehicles now moderates and become more accessible to people with low and moderate incomes and they may be at a disadvantage at that time by having to bear the cost of installing their own electric vehicle infrastructure. He stated that is a policy attention and there is no technical answer to help resolve that and he thinks, if anything, should Council require EV charging infrastructure for affordable housing developments, at least it is a clear requirement and affordable housing developers can try to adapt to it and work through it. He stated that there is a good policy reason to exclude affordable housing units from the requirement, and in this instance, it is at the developer’s option and they could choose to include them or not and it gives them the convenience and ability to take advantage of that cost reduction if that is needed to make the project pencil out and that is a question for Council as a policy consideration.

Consultant Reyes wanted to offer one point of information on this item.

Mayor Bier welcomed his contribution.

Consultant Reyes stated that it certainly the case that a number of cities have, in the prior code cycle, included exclusions for affordable housing and that is understandable. He stated that, subsequent to those steps by prior cities, Peninsula Clean Energy has since and continues to offer incentives to cover most or all of the cost of EV charging for 100% affordable housing developments with the intention of ensuring that affordable housing developers have the support they need to deploy this kind of infrastructure.

Mayor Bier appreciated that he spoke up on that.

Councilmember Vaterlaus asked if they are discussing the gray water issue now.

Mayor Bier asked if she has a question.

Councilmember Vaterlaus stated that she does. She was talking to someone about gray water and there are various types of gray water issues. She stated you can take a hose and connect it to your laundry and let the gray water out and there are also plans where you have to filter everything and then you need electrical. She asked what they are actually talking about, additional plumping pipe for gray water or just a simple gray water system.

Planning Director Murdock stated that the direction from Council was to evaluate the ordinance in effect in the town of Portola Valley. He stated he is far from an expert on gray water systems, but it is his opinion, on looking at their ordinance, was that it was a relatively complex and sophisticated side.

Mayor Bier clarified that they were talking about new development.

Planning Director Murdock agreed, adding that it would apply as a reach code to new development.

Councilmember O’Neill stated that, the Webinar he went to that was talking about the reach codes, when they mentioned gray water, it was quite extensive and the lot sizes in Woodside or Portola Valley are substantially bigger than our 5,000 square foot lots. He just wanted to give more information.

Mayor Bier opened public comments.

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Margo Meiman, Pacifica, stated she has been volunteering for the Pacific Beach Coalition and more recently working with the Climate Reality Project and acknowledged that climate change must be addressed at all levels of government, and encouraged them to include language that no existing all electric buildings may be converted into a mixed fuel building, sharing her thoughts on the importance of that language.

Christine Boles, Pacifica, thanked Council for taking this up and look for ways to fight climate change. She referred to a letter she sent to Council and shared a few items and also had questions, i.e., on how they identify what properties need to go to this extra level, etc., and suggested some options to consider, including her willingness to help on the subject of gray water as she has a lot of knowledge on that issue.

Dep. City Clerk La introduced the call-in speakers.

Samantha Hauser, Pacifica, stated that she was speaking as an individual, adding that she appreciated the city updating reach codes and sustainability. She shared her insight and suggestions regarding the utility undergrounding recommendations in the staff report which she thought was a little confusing and needed clarification.

Remi Tan, Pacifica, thanked staff and Council for expanding the reach codes to address our climate change issues, and shared his thoughts, suggestions and questions on the subject.

Mayor Bier closed public comments.

Mayor pro Tem Bigstyck wanted to follow up on some of the questions from the public regarding geotechnical. The first question he heard was how properties are identified.

Planning Director Murdock stated that he conceived of it the same way the commenter did, i.e., they will use the technical term of seismic induced landslide hazard zones mapped by the Department of Conservation as well as in our General Plan and those areas with potential seismic induced landslide hazards are a good proxy for areas that warrant this type of geotechnical investigation but they could make it a different qualifier, i.e., sites greater than 15 or 20% slope.

Mayor pro Tem Bigstyck stated that the point is well-taken that there are legal implications for what they can’t do such as authorizing going into a neighbor’s property. He stated the question was regarding incorporating if the neighbor agrees or something similar to that, and he asked if it legally jives.

Planning Director Murdock stated that he would need to consult with the city attorney’s office as it seems workable to include some permissive language where a property owner agreement can be obtained, etc.

City Attorney Kenyon stated that she didn’t have anything to add, and she thought that opportunity already exists so the language would not prevent but might encourage, but it isn’t necessarily required. She didn’t know what the effectiveness of that would be but they could consider looking into what kind of language would be possible.

Mayor pro Tem Bigstyck thought it would be aspirational language to encourage, even though there is no enforcement mechanism attached to it. He then referred to the question which is at what point would they be doing this analysis, such as during the planning review process.

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Planning Director Murdock stated, to be clear as shown on the slide, he would restate it, i.e., this local amendment, if enacted by Council, would supplement existing geotechnical hazard review processes required in the General Plan for discretionary review projects such as those that go to the Planning Commission.

Mayor pro Tem Bigstyck referred to a commenter’s question regarding not allowing an electrified building to incorporate gas and there should be very specific clear nomenclature of no existing all electric buildings can be converted into a mixed fuel building, and he heard Planning Director Murdock saying that, depending on how they go about it, they could start crossing the line into existing structures and what does it mean legally. He asked if there was a place where they can have the clear nomenclature inserted for the sake of what they are trying to effectuate.

Planning Director Murdock thought there was. He stated that they will need to consider the pros and cons of different approaches, but he thought they could come up with language that is clear that buildings constructed after a particular date in time become mixed fuel buildings, and that provides a clear distinction between no other existing buildings and a more complicated policy discussion.

Councilmember O’Neill stated that they know they all have reach codes and if they are limited to geography, they are going to require mixed use buildings. He fully supported the concept of not allowing an electric building to go to mixed fuel use. He thought that the commercial part in the bottom, if they want to be a restaurant that gets that barbecue joint, that should be allowed for the restaurant first floor, only for cooking, not for heating, etc. He asked if they wanted to discuss that as that was a point he wanted to bring up.

Mayor pro Tem Bigstyck thought it was a good point.

City Manager Woodhouse stated that a thought that occurs to him is that one of the clarification points they need at this meeting relates to new cooking facilities and whether they’re allowed to install gas. If the direction was to not allow new cooking facilities to use gas then the point he is talking about then becomes a discussion related to what happens to existing facilities converting to gas.

Councilmember O’Neill understood, and stated that, if they want to have a downtown in Palmetto, he had mentioned previously that he would like to see the buildings there built to allow restaurant for the duck work, fans, and stuff like that which need to be done. He stated that, if it converts from a store to a new restaurant, that is a conversion for a commercial property and they don’t end up with what they have at Rockaway, a commercial space in prime view from the highway that cannot be rented because there is nothing there and that is the concern he is bringing up.

Mayor Bier thought it goes back to information that was shared to them from Ms. Meiman from bayareareachcodes.org which talks about the non-residential buildings that contain kitchens located in the place of public accommodations where it says they may apply to the local enforcing agency for modification to install commercial food heating processing equipment served by fuel gas. She stated that they can ask for the exception. She stated that was the language sent to them and she thought it was important language to add.

Councilmember O’Neill thought that was good, but he stated that the requirement they are discussing, new building that will be all electric and there is a new restaurant going in for

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conversion and an existing building where the first floor might be converted to gas for barbecue grill, etc., and there is a difference between a new restaurant being built. He wanted to be sure they are clear on it.

City Attorney Kenyon wanted to clarify for Council where she thinks the discussion point that Councilmember O’Neill is bringing up really does need to be a deliberation by Council to address that issue which she says is for new construction that is built all electric, and it is commercial, but it does not anticipate restaurant use, and does a restaurant use that goes in after the fact have an exception applied to that new restaurant use to allow mixed fuel. She thinks that is the question as now the issue is whether the Council want to have, as the speaker pointed out, a requirement that, if a new building was constructed all electric, they could not move to mixed fuel, and Councilmember O’Neill is bringing up about the instance where an allelectric building has been constructed and didn’t include a restaurant, and it was commercial but now a restaurant wants to go in and is prohibited from doing so because they cannot use mixed use fuel in that building. She thought Council should deliberate on that. If they allow that exception in a new building, if there is a restaurant, as she would assume that would be the only business that would need kitchen facilities that included mixed fuel and would that be an exception. She stated that is really the discussion that they need to have.

Councilmember O’Neill reminded them that they have a restaurant in an old train station, in a caboose, in a box car and he recalls the Pacifica Brewery at one time was a guarded rock place. He stated that they have these instances happening.

Mayor Bier appreciated the language presented to them and asked if they could use some of that language in that exception as well.

Planning Director Murdock wanted to add another complicating factor. He stated that there is the tension between the immediate business needs of these particular restaurant owners that Council is struggling to accommodate but they may recall from the study session that there is the longer term question for business owners and property owners as to what many people, including the expert from Peninsula Clean Energy believes is a long term phase out of the existing past infrastructure network. He stated that, if they think over the horizon that these buildings may be constructed and they are talking about new buildings 30, 50, 70, 100 years, not placing your bet on one side or the other, but chances are that it potentially exists that the gas infrastructure network will be phased out and they may just be accelerating that to some degree as it may be occurring in 20 years. He asked that they keep that in mind when thinking about the question about restaurant gas exception.

Mayor pro Tem Bigstyck thought, if they allow for the restaurant exception, they allow for that exception within that context specifically and he thought, if there was consensus on Council that they aren’t interested in the restaurant exception, he could vote in that direction of making it simple and under any circumstances they won’t allow this to become a mixed fuel. He stated that, if they are allowing for the exception for restaurants anyway and the only exception in a building that they allow a mixed fuel exception is if they are making it as a restaurant, he was okay with that exception in that context as long as they are very tight about how they word that in terms of that one and only exception.

Councilmember Beckmeyer stated that it doesn’t address the specific question about, if the new construction doesn’t put that in, and five years later a different business goes in and wants to have a restaurant, she thought the question Councilmember O’Neill was posing is whether they could invoke the exception at that point, even though it is not a new construction at that point.

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She asked what Mayor pro Tem Bigstyck’s feeling was on that.

Mayor pro Tem Bigstyck stated that he agrees if they are allowing the exceptions for restaurants because right now, he can easily go either way, but if they are allowing the exception for restaurants, they allow that exception for restaurants.

Councilmember Vaterlaus stated that there is a difference between residential and mixed use and commercial. She suggested that they eliminate the conversion in residential and not in the commercial mixed use.

Councilmember O’Neill stated that he was okay with that.

Mayor Bier didn’t think that was tight enough. She thought they needed to talk about restaurants only.

Consultant Reyes wanted to add a comment.

Mayor Bier stated she would appreciate that.

Consultant Reyes thought staff may confirm it, but it was his understanding that what is before the Council at this time is strictly a new construction code and, with a new construction code, Council could provide for an exception for restaurants, as some cities have done so. He stated that there is all electric equipment that is available and some restaurants are being built with all electric equipment but some cities are opting for an exception there. He stated that this would not speak to an existing building once it is built, and his understanding from staff’s presentation was that anything related to an existing building, whether new or not and it could be five years down the road, would need to fall under an existing building code which he believes staff’s intention is to explore that at a later point. In other words, a conversion where a restaurant comes to a building that was all electric, whether allowed or not, would need to be addressed in an existing building code and, if allowed, then the restaurant would need to install the gas system to allow that to happen.

Planning Director Murdock suggested thinking of existing buildings as those not constructed as new buildings under this code. He thought it was technically true that a new building, once constructed and altered, is an existing building but he didn’t think that was the right construct.

He thought that was the loophole that one of the commenters is asking Council to close. He stated that, similar to his answer to Mayor pro Tem Bigstyck earlier, he thought they can craft language, and he will check with the City Attorney and her team, but perhaps something along the lines of any building constructed after the date of this ordinance, January 1, 2023, shall not be converted to a mixed fuel building. He stated, whether Council wants to provide some other exception to that is a different policy question, but he didn’t think it was the right construct for this meeting to think of such a building constructed after January 1, 2023 as the same building, and he thinks they need to close that loophole and talk about existing buildings as those that exist as of today, already constructed under some prior building code to that in effect on January 1, 2023.

Mayor Bier appreciated that, adding that she thought that was where they were trying to get at.

Councilmember O’Neill stated that he wanted to summarize it as he understands it. He stated that there seems to be three options. Planning Director Murdock’s is option A, any building built after January 1, 2023 all electric does not have any option for restaurant, etc., and will remain all

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electric. If that is a mixed use building, residential on top, commercial on the bottom, that restaurant would not have the choice of option B which is to add gas for cooking if it is a building built after January 1, 2023 so everything on Palmetto now would be eligible to do that.

Planning Director Murdock responded affirmatively. He didn’t have a particular policy recommendation but is just trying to simplify the category so Council can get its desired policy outcome. He stated, to Councilmember O’Neill’s point, if Council were to not venture into the existing building territory at this point in time, on adoption of this code, all the buildings that exist as of today on Palmetto would be eligible to convert if they are all electric buildings. He thought very few, if any, are, but they would be able to add a gas line to a new restaurant coming in and that could change in the future if Council undertakes existing building reach codes and decides that some of those gas extensions should not be authorized or those conversions should not be authorized and that is a different set of questions than should a new building allow a restaurant to have gas, which is policy question No. 1. If the answer is no, it would seem fine to prohibit existing building conversions at some point in the future. If the decision is to allow certain restaurants to have gas in new buildings, it also seems to be finding existing building policy to allow those conversions. He stated that those are questions for some point in the future, most likely with respect to existing buildings. He stated that his recommendation would be to think about the simplest question, which is should there be an exception in new buildings for restaurants to have gas. If they say no, perhaps some of the other questions flow more easily.

If they don’t think there should be gas, then maybe existing buildings shouldn’t have gas at some point in the future. If there should be an exception, then maybe exceptions should also be afforded to existing buildings. He stated that it might be a helpful starting point.

Councilmember Beckmeyer thought they should have both.

Councilmember Vaterlaus believes that restaurants should have the option to have gas.

Councilmember O’Neill thought that was either a new or existing building.

Councilmember Vaterlaus responded affirmatively.

Councilmember O’Neill asked if she was okay if the residential portion has to remain electric and there is no option to go to gas.

Councilmember Vaterlaus responded affirmatively.

Councilmember O’Neill concluded gas only for cooking.

Councilmember Vaterlaus responded affirmatively.

Mayor pro Tem Bigstyck added that the only exception is for restaurants and he will agree.

Mayor Bier thought it was important for them to pay attention to the information that has been provided by their community, especially the community that has been studying this topic for a long time. She wants to include this language provided to them about the non-residential buildings containing kitchens. She thought it was good language and offers an exception and there are certain bindings that have to happen if they have the exception.

City Attorney Kenyon stated that, if Mayor Bier is asking the Councilmembers , they need consensus from the Council as to whether everybody wants this language. She is not familiar

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with the language she is referring to and she asked the Planning Director if he was familiar with the language and can he synthesize it for Council so they know what the mayor is referring to so they can agree or not.

Planning Director Murdock believes Mayor Bier is referring to public comments in the supplemental public comment packet distributed after agenda publication earlier today by the City Clerk.

Mayor Bier stated that is the language.

Planning Director Murdock stated, with respect to that proposed policy language, he thought that a lot of it is already contained in exception No. 4 of the city’s reach codes. He stated that the current exception to all the electric building requirement, exception 4 reads as follows, “nonresidential buildings containing a for-profit restaurant open to the public may be approved at the discretion of the building official for an exception to install gas-fueled cooking appliances. This request must be based on a business-related reason to cook with a flame that cannot be reasonably achieved with an electric fuel source. The examples include barbecue-themed restaurants and pizza ovens.” It then goes on to provide additional criteria that building official must use to evaluated and determine to grant or not grant that exception request. He stated that there is perhaps some tweaking or updating as proposed by the commenter and they can consider that. He stated that the core question is does the Council want to continue with this exception for in largely the same form, broaden it to all restaurants or keep it more narrowly tailored as it is currently presented in exception 4, so there are variations on this that staff needs to hear from Council.

Councilmember O’Neill has no problem with the phrase Mayor Bier keeps referring to. He stated that the other language they were receiving, i.e., a new building built with electric could not become more fuels.

Mayor Bier clarified it was converted to mixed fuel.

Councilmember O’Neill agreed, adding that he is concerned about the ground floor restaurant.

He thinks they are talking about the same thing.

Mayor Bier agreed.

Councilmember O’Neill stated that he has no problem limiting it to pizza ovens and barbeque, etc.

City Attorney Kenyon asked, for clarity, if he is saying that the current exception in No. 4 is appropriate language, because language that is referred to in the public comment attachment is different than what the Planning Director just discussed. She asked Planning Director Murdock to synthesize the distinction between those two so Council knows what they are deliberating on.

Planning Director Murdock stated that some of the terminology is different but, largely, the substance seems to be the same. He thinks one exception is in the suggested language by the public where they are talking about requiring installation of an energy star appliance, but he believes separate provisions of the energy code already require that and he thinks a restatement with different terms is largely the same substance. He stated that they can take a more careful look if Council wants to continue forward with an exception for restaurants which is the core question to allow them to do their work to prepare the ordinance. He stated, if they

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come back and they want to massage the language further to more closely align with the public commenter’s version, they can make that change at that time.

Mayor Bier appreciated that.

Councilmember O’Neill stated he is comfortable with exception 4 and the language from the language from Ms. Meiman’s email to Council as long as, in a new building, the residents stay the same with all electric but down below they can cook on gas.

Mayor Bier thinks they need to be redirected to where they belong.

Planning Director Murdock stated, before moving in, Council previously didn’t want to venture into existing building regulation building codes and in one applicable area it is probably not all that controversial to allow the exception for existing buildings as well.

Mayor Bier agreed.

Councilmember O’Neill agreed, adding that every restaurant will be given the option of gas and electric providing they meet this criteria and will sign a form which states which preference they have.

Planning Director Murdock stated that it would be for the type of restaurants described in exception No. 4 and they would have to make an affirmative application to the building official and provide evidence to support the findings.

Councilmember O’Neill added that it would take into account any sort of ethnic hot pot, sometimes their gas checks underneath a hot pot.

Councilmember Vaterlaus stated that there are additional restaurants that use gas, such as wok cooking. They use gas source and there could be additional restaurant types other than the ones listed.

Planning Director Murdock stated that it was in the Council’s discretion if they want to expand the examples but currently the substance of this exception is not limited to a particular type of food, ethnicity, but just says a business related reason to cook with a flame. It provides some flexibility and discretion for the building official to make that determination based on that reason and the other reasons in the exception.

Mayor Bier stated that they still need to be redirected.

Planning Director Murdock stated that they can advance to the next slide.

Councilmember Beckmeyer asked if, before they move on, can they talk about exception No. 2, as what is on the slide and what is in the packet are different in regard to the concept of emergency centers. She is grappling with the difference between new construction and existing. She keeps thinking about all the kitchens at the schools that are gas as they exist and she asked, if the Community Center burns down and they have to replace it with a new building, whether they are saying, based on the slide, they would be eliminating the exception to have gas cooking in the Community Center kitchen that replaces the one that burns down.

Planning Director Murdock stated that would be the outcome of this. He stated, at the study

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session, the term was more aligned with backup generators but it would apply more broadly than that.

Councilmember Beckmeyer wanted to make sure they are good with that.

Mayor Bier was good with that as they are moving toward the phasing out and they have to prepare for it.

Planning Director Murdock stated that, in the study session, there were ample other methods of providing backup power.

Mayor Bier stated that they can go to the next slide.

Planning Director Murdock stated that, keeping on the building electrification reach codes for the time being, with respect to the multi-family dwelling EV parking requirements, there was earlier discussion at this meeting, describing both potential sides of an affordable housing exception and they heard from Mr. Reyes of PCE that as of now there are financial incentives to help reduce or eliminate the cost for 100% affordable housing developments. He stated that, to be transparent, not all of the affordable housing units constructed in Pacifica will be 100% affordable housing units, as those are larger projects constructed by an affordable housing developer and most of the projects Council is likely to see will arguably be BMR ordinance projects with 15% of those units as affordable units. He stated that the PCE’s current funding solution may not be available for all affordable housing units at this point in time.

Mayor Bier thanked him for that clarification.

Planning Director Murdock stated that, as proposed now, it is at the developer’s option and the person best situated to make that financial decision is arguably the developer saying they can’t make the project work if they have EV chargers and they would be able to exclude them if Council were to move forward with the exception. He stated that it was an option and not a mandate.

Mayor Bier concluded that they need to tell staff if they are still okay with the direction they gave them on the 27th. She stated that, if they go section by section, it might be easier to get consensus on each one. She asked Council if they are following her and are okay with that.

All councilmembers agreed.

Mayor Bier asked the Planning Director to lead them on the next item.

Planning Director Murdock stated that, the next area was identified with respect to EV parking standards, what is for the non-residential. He stated that the model code presented by PCE staff at the study session included a requirement for EV capable spaces and Council directed to change that to EV ready, but where they need Council’s guidance, if they are okay with that direction, is whether to create one or both of the new categories. He thought Councilmember O’Neill who brought up the question of overnight accommodations and one other councilmember brought up the public parking lots land use type, and those were the two that would deviate from the model code and the question is whether Council thinks there is a necessity to create one or both of those distinct categories and what should be the appropriate parking standards. Staff has included a recommendation, detailed in the staff report, based on the type of use and how it relates to the other uses and they recommended adjustments to the

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level 2 EV charging station and level 2 EV ready percentages of off street parking spaces.

Mayor Bier asked if Council was okay with that, and all agreed.

Planning Director Murdock asked if there was a desire by Council to speak further about the geotechnical hazard local amendment or the underground utilities.

Mayor Bier agreed to both of those.

Councilmember Beckmeyer stated undergrounding.

Mayor Bier stated undergrounding and the geotechnical.

Councilmember O’Neill asked what they would consider the definition of new development and AVUs. He supported the undergrounding, but they know back in Park Pacifica that there are some that actually have a driveway that is so long there are two houses back there and if they each put in an ADU, is that considered new development and have to underground for the ADU.

He asked if an ADU has its own meter or set off from the house.

Planning Director Murdock stated that it is at the option of the project applicant and related members of the new meter. He stated that the city’s ordinance does not require installation of a new meter for ADUs. With respect to undergrounding, the question depends on the available service at the property to begin with. He stated that, in relatively few cases, there is enough panel space to connect the ADU or install a subpanel. In some cases, a service upgrade is needed and in the instance where there is a service upgrade there may need to be new lines run and those upgraded lines would likely need to be undergrounded under this. He stated that, in either case, whether the existing service can accommodate or a service upgrade is needed, the connection between the new building to the detached ADU in that example would need to be all underground.

Councilmember O’Neill concluded that, if they require the undergrounding, that could potentially increase the cost of affordable housing if they are building an ADU.

Planning Director Murdock agreed it is likely to increase the cost of that project.

Mayor Bier added that they are also saying that, as we phase out, it would be more expensive later.

Councilmember O’Neill stated he was talking about electrical connections to the ADU.

Mayor Bier understands that, but it would be more expensive later as she understands it.

Mayor pro Tem Bigstyck thought Mayor Bier’s point is that the entire state is going to a place where eventually we’re getting rid of gas and what may save them money today might cost them a lot more tomorrow. He stated that the last point he was going to bring up was, as they enter the discussion about undergrounding, that it would be helpful to him to have had Planning Commission have this conversation ahead of their deliberation. He has listened to many of their conversations around this topic when it came to nuancing the General Plan, and he feels that this is the last thing they should be giving Council feedback on to make sure that they are properly in alignment with what some of their feedback intention was and that they ultimately incorporate it. He stated that, after hearing Commissioner Hauser call in, he could hear how

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much she was trying to offer them and, rather than hear that in three minutes, he would like to hear that conversation with the full Planning Commission so he has some idea of all the pros and cons and whether they jive with what Council needs to do in order to get this done in a month. He appreciated that, and it would be helpful for him to have those brains that are more attuned with this kind of work to have that discussion ahead of this discussion so Council knows exactly what they are discussing.

Planning Director Murdock stated that, for additional context for Council, he stated that it wasn’t articulated in the staff report but at least the new utility line undergrounding requirement has been a standard practice for the city. This ordinance, with respect to new utility lines in any case, would not change the past practice. With all those years of encouraging and telling applicants to underground, he was aware of one instance that occurred this year where a property owner building a new single family home refused to underground and said it was not a requirement. That prompted the city to review its regulations and determined they didn’t have an ordinance requiring what they were already doing. Perhaps PW Director Petersen can comment, but he doesn’t know if it has also been standard practice for upgraded services to also be undergrounded, but if Council wanted further input, maybe it is on any new component to this practice because the city has already been undertaking the new utility underground installation for years at this point.

City Manager Woodhouse added that there were practical considerations timeline wise, whether they could bring an item to the Planning Commission and get back to the Council by Nov. 28 for adoption of these reach codes.

Mayor pro Tem Bigstyck stated he doesn’t know enough about this thing that keeps getting to his attention about undergrounding the poles, if a subdivision or commercial building, and that is what he keeps thinking on in his brain, and the part where they might have the opportunity now to insert it now, but he doesn’t know that part. He concluded that the City Manager was saying the Planning Commission could not look on this on November 7 as it would be brought to Council on the 14th.

City Manager Woodhouse thought the real aspect of fighting that off for a Planning Commission discussion and yet still drafting an ordinance that meets those needs and Council direction by November 28.

Planning Director Murdock stated that it would be a supreme challenge for him, given the upcoming community meetings for the housing element and other technical work to prepare the draft by the end of this year.

Mayor pro Tem Bigstyck stated he will let the Councilmember weigh in, but he thought, if they have to send it back to Planning to incorporate a thing about bars into the outdoor, this seems to have more gravity than his understanding and it is frustrating for him that what wasn’t incorporated into the plan was to have Planning look at something that is building related. He stated that the best they can do is incorporate that into the existing code discussion when they come back in March.

Planning Director Murdock understood, and he needs to clarify for Council that the utility undergrounding means different things and they are striving at this meeting is to codify what had been a standard practice by the city to require underground installation of new utility lines. What the public commenter and Mayor pro Tem Bigstyck are describing is undergrounding existed utility poles is an entirely different matter, subject to entirely different regulations, legal

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considerations, financial implications, coordination requirements and those need considerable thoughtful analysis. He agreed that the Planning Commission would probably have helpful insights into that process, but keeping in mind that it is already something that can be evaluated through the discretionary review process for larger projects such as those mentioned by the commenter, mixed use buildings, commercial building, all of which are already going to the Planning Commission for a discretionary review process. The General Plan incorporated very supportive policies to help the city require the undergrounding of existing utility poles across project frontages, but what they are talking about here is 95% of projects in Pacifica being single family home projects and making sure their new utility connections are installed underground.

Undergrounding existing utility poles is an entirely different issue. He stated that new subdivisions are required to install underground utilities and none of those issues really come into play with what staff had contemplated.

Mayor pro Tem Bigstyck thought this is something they can contemplate in March when they talk about existing codes.

Planning Director Murdock agreed that this is part and parcel to any other local amendments that Council wants to consider, including reach codes for existing building, how to retrofit or underground existing utility poles, another universe of policy considerations that go beyond new buildings.

Mayor Bier stated she was okay with the exceptions here.

Councilmember Vaterlaus understands the reason for this, as it is an infill project and between two houses that have poles, yet we required undergrounding and it makes it a very complicated issue and was stopping someone from getting their project done because of it. She understands why they have this codified now. She asked if every other new building undergrounded as requested other than this one.

Planning Director Murdock stated, to his knowledge, they have.

Mayor Bier stated that they can move on.

Planning Director Murdock referred to a slide, refreshing Council’s memory that this issue came up during the General Plan update process, and there were members of the public that thought the city should require more comprehensive geotechnical hazard assessments beyond what is included in the California building code and California residential code which are very site specific and primarily focused on the design of the building being constructed. He stated that it was a reflection on the city’s experiences with past geotechnical hazards and the thought being that, if a more thoughtful assessment had been done on up slope and down slope hazards, perhaps other interventions could have protected life and property in those instances. He stated that this would take one step in that direction to require a broader assessment of potential geotechnical hazards and reflecting the legal limitations of the city’s authority, its inability to require and authorize property owners to allow others to enter their property to perform geotechnical assessments. He stated that it would be a supplement to other existing General Plan policies and California Environmental Quality Act, requirements to analyze geotechnical hazards that exist as part of the discretionary review process and would fill a gap that exists in the city’s processes currently.

Mayor pro Tem Bigstyck stated yes.

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Councilmember Vaterlaus asked if they were talking about specific degrees of up slope or down slope.

Planning Director Murdock thought the question came up on what was the triggering criteria for this expanded analysis. He stated that there was more than one way to go about it, one way that is able for the city and applicants to administer is whether it is in a state identified geotechnical hazard zone, either liquefaction or seismic induced landslide, and he thought those seem to be a good place to start. He stated other approaches, such as average slope of the property or something else would likely require some professional in the first instance to survey the property, determine the average slope and many more applicants would be incurring costs just to conclude they don’t have to do the analysis. He thought starting with the maps might be a good place.

Councilmember Vaterlaus stated it sounds good.

Mayor Bier stated that they had a public comment that stated it should be done during the planning review process and not the building permit review process and she asked for staff’s comment on that.

Planning Director Murdock stated that many but not all projects require something called a discretionary permit or discretionary review where a public hearing is required by Planning Commission and the city can impose conditions, consider hazards, etc., and in many cases undertake environmental review of those projects, all of which are opportunities for the city to apply General Plan policies, environmental review mitigations, etc., to address geotechnical hazards. He stated that most projects in Pacifica don’t go through that process and are known as ministerial projects and they only require a building permit with no public hearing and no ability for the city to condition the project or apply mitigations. He stated that, what this does is require a engineer for the project to consider these geotechnical hazards as part of their building design and the building code requires them that the project be designed to incorporate those recommendations from the appropriate design professional and this would fill a gap in the city’s process currently to require any geotechnical hazard consideration beyond the building design itself and require those design professionals to look up slope and down slope, determine how the site could be affected by other hazards or how this project could increase hazards to other property.

Mayor Bier thanked him and asked and confirmed Council was okay.

Planning Director Murdock stated that the last item was discussion of the reach codes for gray water. He stated that, at the September 27 study session, in response to public comments, Council wanted some preliminary analysis of options related to gray water. Portola Valley’s gray water ordinance was used as an example and they evaluated that ordinance and provided some analysis and recommendations related to those regulations adopted by Portola Valley and there may be other example ordinances but staff did not have the time or ability to go through and consider alternative approaches. He stated that there may be more and less intensive options to consider with respect to a gray water ordinance. If Council is interested, they could come back with something short of a fuller approach that Portola Valley has set out.

Mayor Bier understood.

Councilmember O’Neill stated that he brought this up and he didn’t think they can do it for the reach codes today and probably is something in March when they do the goal setting. He would

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also like to include capture of rain water. He stated that his gutters work even if they have a heavy fog and they would be getting something. He also knows that Commissioner Hauser is working with the Water District to get that plastic fog harvesting thing going. He thought it might be a bit much, but he encouraged Council to look at that for goals and work plan in March.

Mayor Bier asked Planning Director Murdock if it would be easier for his staff if they looked at it in the next work plan.

Planning Director Murdock admitted that deferring any additional analysis at this time would be very helpful, given their staffing situation in the planning department.

Councilmember Vaterlaus thought it sounded great.

Mayor pro Tem Bigstyck agreed.

Planning Director Murdock thought he heard a consensus by Council that they are interested and see if they can add in capture of rain water as well but evaluate that as part of a work item if decided by Council in March as part of goal setting.

Mayor Bier agreed.

Councilmember O’Neill thought it would be worthwhile, referring to what other cities are doing in new developments, such as pipes so recycled water could be pumped out to houses, if it was something they would want to put in the work plan. He stated that they are already doing that at Ingrid B. Lacey Field and another school, he thought Oceana.

Planning Director Murdock stated that was another option, and he thought there were more practical considerations for that, given the availability and cost of installing recycled water infrastructure. He stated that the Planning Commission did consider that in the Sharp Park Specific Plan and they have a policy that is supportive of including those connections where available, but as the system currently exists in Pacifica, there are some regularity issues as well in terms of metering and access for private parties. He stated that it would be a very specific undertaking of Council wanted to do that and the availability of that, given the infrastructure, is relatively limited today to the Sharp Park area.

Mayor Bier asked if he got everything he needed from Council.

Planning Director Murdock stated that he did.

City Manager Woodhouse stated that there were several references to things in March for goal setting and he wanted to clarify as they did in previous study session. He stated that they are not analyzing and preparing and assessing all these issues for goal setting.

Mayor Bier thanked him and called a break, then reconvened the meeting.

RESULT: NO VOTE REQUIRED

9. Rejection of Bids for the Pacifica Pier Handrail Repair Project & Award of Agreement with GHD, Inc. for structural inspection of Pacifica Pier PROPOSED ACTION: Move to Reject the Bid for the Pacifica Pier Handrail Repair, Authorize the City Manager to Award and Execute a Master Services Agreement and Task Order No. 1 with GHD, Inc. (Attachment A) in the amount not to exceed $167,252,

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and allocate $217,252 in budget for the pier structural assessment from the pier handrail repair project.

PW Director Petersen stated she was joined by Project Manager Marquez to make the presentation and consultants, Satish Chilka and Craig Lewis from GHD, were available to answer questions, and then opened the staff report.

Project Manager Marquez presented the staff report.

Mayor pro Tem Bigstyck asked if the last substantial structural assessment was 20 years ago.

Project Manager Marquez stated that was his understanding.

Mayor pro Tem Bigstyck appreciated the opportunity to learn more about how the pier physically works.

Mayor Bier asked if he could explain the fencing that will be placed on the L-shape and give them details.

Project Manager Marquez stated that they haven’t finalized the details and are looking for direction from Council for staff to finalize those details and look into it. He thought now they were looking at chain link fencing at the same height as what the railing is now and it would be safety rated and wouldn’t be a standard chain link they see in someone’s yard but thicker piping and bolted into the concrete deck and attached to the panels on both sides of the fallen pier.

The panel that is there would be removed and it would be cleaned up and safe to have people out there.

Mayor Bier stated that, if they do a full inspection, is there enough funding to create a strategic plan for repair, and how would it work. She was sure they would need a plan in place to get money.

Project Manager Marquez stated that they would and, within the structural assessment, there is some scope to come up with an opinion of costs and detail what those repairs might look like and it would be a mini-plan.

Councilmember Beckmeyer wondered if what they end up with would enable them to seek future grants for the different elements of the project that would need to be done, whatever they may be, based on the structural and analysis they are proposing.

Project Manager Marquez thought they have a good understanding of cost and scope of work they would need and they would be able to detail what type of funding they would need.

Councilmember Beckmeyer went back to the 2002 analysis, and she asked if that was the time the last significant repairs were done to the pier or prior to that.

Project Manager Marquez understands that there have been various repairs since that 2002 inspection on different elements and he thought the last major one was in 2013. There has been ongoing work every few years out there.

Councilmember Beckmeyer was wondering about the last funding source of significance which

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she thought was $5 million but she didn’t have the specifics but thought Councilmember O’Neill might remember.

Project Manager Marquez stated for the most part it was state, such as Coastal Conservancy, etc., and they have to keep that in mind and he can look it up. They have been keeping an eye on grants for this type of work because they have been trying to do this project. He stated that there are a few.

Mayor pro Tem Bigstyck asked about the pier abutment. He stated that, when they talk about the assessment work being done, he concluded he is talking about the concrete deck in the center of it and not about the outer edge visible in the picture he was looking at.

Project Manager Marquez responded that they were talking about the concrete surfacing that they walk on and not the wall portion.

Mayor Bier opened public comments.

Dep. City Clerk La introduced the call-in speaker.

Remi Tan, Pacifica, thanked Council and staff for looking at the pier. He expressed his concerns about the safety for the public and his hopes for the process.

Mayor Bier closed public comments.

Mayor Bier thought they have to have a full assessment of the pier before they do anything else as it wouldn’t be worth the money to do tiny repairs when they will know there are a lot of things that need to be done to the pier after doing the assessment and she felt they have to prepare for that. She thought they need to talk to our state legislators to get some funding. She agrees with staff’s recommendations.

Councilmember O’Neill agreed that they need a full assessment of the pier as, if they just keep pouring money into something that keeps rotting away, it doesn’t make much sense. He asked, once they get the money, whether it will require a coastal development permit and a year’s delay while sitting on the Coastal Commission’s desk.

Project Manager Marquez stated that it was tough to speak to that at this time without knowing the repairs. He stated that, for the most recent round, the hand rail replacement, they gave us a waiver and it was a matter of months and they have been working with them and understanding why the pier was closed and why they continued to have it closed with their ongoing work. He stated that the Coastal Commission does see the pier as a very good asset for the coastal access and he thinks it is in our best interest to continue to see it that way.

Councilmember O’Neill stated that he supports repairing the pier, but his concern is that they get a grant and construction inflation in the Bay Area in the recent past has been higher than the general inflation area. Because of the Coastal Commission delays as they take nine months to check the formatting, they will never be able to finish it. He asked if it was possible to apply for the grants and start from the get-go when they get a grant.

Project Manager Marquez stated that there was a possibility of doing design before getting grants, and another way to hedge against that is to consider a bigger contingency, knowing that the permitting and environmental is going to take some time and the construction price might go

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up during that time.

Councilmember O’Neill stated that it could be an endless cycle because, if it goes up, the grant doesn’t meet it and they have to apply for another grant.

PW Director Petersen stated what he was talking about was relevant and something they have been experiencing, especially recently with the construction cost index she mentioned and they will definitely be reaching out to the Coastal Commission ahead of time, as soon as they have direction from Council on how they are going to be pursuing it and moving forward and work with them in order to get some idea of how they can expedite this. She thought one good thing, which Project Manager Marquez could speak to it if needed, is that they have definitely heard from the Coastal Commission asking them when the pier was going to get opened and they are interested in the project, so she thinks they are getting energy from the community about the pier and they do realize it is a very beloved asset of the community. She thinks that is probably in their favor.

Councilmember O’Neill stated that, in his conversations with other councilmembers, they have looked at the pier as a regional asset and they tell him that they come over here and see more of their residents than they do in their downtown. He thinks, when they apply, they need to go to cities like South San Francisco and Daly City and get letters of support from their councils for this as it is looked at as a regional asset and even the Harbor Board looks at it as a regional asset. He thinks they need to exert all the pressure we can to get them to move because his biggest concern is that they get a grant and they have to return the grant because it’s not enough to fix it because of the construction price index.

PW Director Petersen thought that was a great idea.

Mayor pro Tem Bigstyck stated that, dove tailing off what Councilmember O’Neill was saying, he spends some regular time in Oakland, and when he tells them he is from Pacifica, they immediately refer to the pier and talk about how they spend time at the pier. He isn’t asking to get a letter from Oakland, but he felt the point is well taken that it is an extraordinary regional asset.

Councilmember O’Neill thought it was only about three or four of those types of piers in the Bay, one in Richmond, but we are the only one from San Francisco to Santa Cruz that is on the ocean as the rest are in the Bay.

Mayor Bier felt they definitely need to protect it any way they possibly can. She asked if they are all in agreement.

Councilmember Beckmeyer stated that they need to have a motion.

Mayor Bier asked if they have a motion.

Mayor pro Tem Bigstyck moved to Reject the Bid for the Pacifica Pier Handrail Repair, Authorize the City Manager to Award and Execute a Master Services Agreement and Task order No. 1 with GHD, Inc. (Attachment A) in the amount not to exceed $167,252, and allocate $217,252 in budget for the pier structural assessment from the pier handrail repair project; seconded by Councilmember Beckmeyer.

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Attachment: Attachment A: Minutes of City Council Regular Meeting on 10-24-2022 [Revision 1] (5180 : Approval of Minutes) City Council Regular Meeting 27 October 24, 2022
AGENDA ITEM #9:

RESULT: ADOPTED [UNANIMOUS]
MOVER: Tygarjas Bigstyck, Mayor Pro Tem
SECONDER: Sue Beckmeyer, Councilmember
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer

10. Appointments to the Parks, Beaches & Recreation Commission; Open Space & Parkland Advisory Committee; Emergency Preparedness & Safety Commission; and Economic Development Committee
PROPOSED ACTION:
1) Move to appoint applicant(s) to the Parks, Beaches & Recreation Commission for one full term to expire May 2026 and one partial term to expire May 2024; 2) Move to appoint applicant(s) to the Open Space & Parkland Advisory Committee for one full term to expire May 2026, one partial term to expire May 2024, and one partial term to expire May 2025;
3) Move to appoint applicant(s) to the Emergency Preparedness & Safety Commission for two full terms to expire October 2026;
4) Move to appoint applicant(s) to the Economic Development Committee for one full term to expire October 2026, one partial term to expire October 2023, two partial terms to expire October 2024, and one partial term to expire October 2025.

City Clerk Coffey presented the staff report.

Mayor Bier opened public comments.

Mayor Bier closed public comments.

City Clerk Coffey pointed out a written public comment received by one of the applicants today.

Lauren Goodmiller, who is an applicant for the Open Space and Parkland Advisory Committee, respectfully requested that she be appointed to the term that will end in May 2024.

Mayor pro Tem Bigstyck reminded them that he thought Ruby Tovar expressed an interest in either OSPAC or EDC, if not chosen for PB&R. He is bringing that up because they have two PB&R spaces and, of the five applicants who applied for PB&R, she was the one willing to fill either EDC or OSPAC if they don’t vote her to the PB&R.

Mayor Bier asked them to begin deliberation.

City Clerk Coffey stated that they can deliberate and come to a consensus for a nomination or a councilmember can make a nomination for the specific applicant. She suggested making nominations for each committee or commission separately and for PB&R, they can name the applicant for the full term and also an applicant for the partial term, and then someone can make that motion and a second and a vote.

Mayor Bier moved to appoint Stefanie Phillips for full term to expire May 2026 and Dahlia Rodriguez for partial term to expire May 2024 to the Parks, Beaches & Recreation Commission; seconded by Councilmember Beckmeyer.

Mayor pro Tem Bigstyck stated Stefanie Phillips was one of his top two and Dahlia Rodriguez was one of his top three.

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The Council discussed in further detail.

City Attorney Kenyon reminded them that they have a motion on the floor.

Councilmember O’Neill asked to amend the motion on the floor for Stefanie Phillips to expire May 2026 and Ruby Tovar to expire May 2024.

City Attorney Kenyon asked if the maker of the motion would agree with that.

Mayor Bier stated that she doesn’t agree with that.

Councilmember Beckmeyer stated that the motion stands as it was proposed.

Mayor Bier stated that it is because they had only a few other people who said that they would be okay with being on other committees and commissions and Ruby Tovar was one of those people. She stated that they have spaces they need to fill and not very many people said that they would be willing to fill other spaces. She appreciates the ones who did.

Mayor Bier stated that they can vote now on that motion.

Vote: 5-0

APPOINTMENTS TO PARKS, BEACHES & RECREATION COMMISSION
Stefanie Phillips (full term to expire May 2026), Dahlia Rodriguez (partial term to expire May 2024)
RESULT: ADOPTED [UNANIMOUS]
MOVER: Mary Bier, Mayor
SECONDER: Sue Beckmeyer, Councilmember
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer
Councilmember Vaterlaus moved to appoint Lauren Goodmiller for the partial term to expire May 2024 and Amanda Skaggs for the partial term to expire May 2025 and Ian McDermod for the full term to expire May 2026 to the Open Space & Parkland Advisory Committee; seconded by Mayor pro Tem Bigstyck.

Mayor pro Tem Bigstyck stated that he was going to reverse his second because Amanda Skaggs applied to OSPAC and Ian McDermod didn’t; he would feel more comfortable giving Amanda Skaggs the May 2026 and Ian McDermod the May 2025.

Councilmember Vaterlaus apologized and stated she will take back that motion and change it to his motion.

City Attorney stated for the amender of the motion read what the motion actually states now.

Mayor pro Tem Bigstyck stated that they move that Lauren Goodmiller has the partial term to expire May 2024, Amanda Skaggs has the full term to expire May 2026 and Ian McDermod has the partial term to expire May 2025.

City Attorney Kenyon asked if the maker of the motion accepts that amendment.

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Councilmember Vaterlaus agreed to accept the amendment.

City Attorney Kenyon asked if the seconder accepts that amendment.

Mayor pro Tem Bigstyck agreed to accept the amendment.

Vote: 5-0

APPOINTMENTS TO OPEN SPACE & PARKLAND ADVISORY COMMITTEE Lauren Goodmiller (partial term to expire May 2024), Amanda Skaggs (full term to expire May 2026), Ian McDermod (partial term to expire May 2025)
RESULT: ADOPTED AS AMENDED [UNANIMOUS]
MOVER: Sue Vaterlaus, Councilmember
SECONDER: Tygarjas Bigstyck, Mayor Pro Tem
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer
Councilmember Beckmeyer moved to appoint Gregor Blackburn and Anthony Guzzetta to the two full terms to expire October 2026 for Emergency Preparedness & Safety Commission; seconded by Councilmember Vaterlaus.

Vote: 5-0

APPOINTMENTS TO EMERGENCY PREPAREDNESS & SAFETY COMMISSION Gregor Blackburn and Anthony Guzzetta (full terms to expire October 2026) RESULT: ADOPTED [UNANIMOUS]
MOVER: Sue Beckmeyer, Councilmember
SECONDER: Sue Vaterlaus, Councilmember
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer
Councilmember Beckmeyer moved to appoint Matthew Dougherty for the full term to expire October 2026, Brendan Berman for the partial term to expire October 2025, Lauren Claire Smith for the partial term to expire October 2024 and Ruby Tovar for the partial term to expire October 2023 to the Economic Development Committee.

Mayor pro Tem Bigstyck seconded with a friendly amendment that they put Ruby Tovar on the other 2024 as there are two 2024.

Councilmember Beckmeyer clarified that they are basically leaving the October 2023 position vacant.

Mayor Bier asked if the maker agrees to that.

Councilmember Beckmeyer agreed to the amendment.

Mayor Bier asked if the seconder agrees.

Mayor pro Tem Bigstyck agreed to the amendment.

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Attachment: Attachment A: Minutes of City Council Regular Meeting on 10-24-2022 [Revision 1] (5180 : Approval of Minutes) City Council Regular Meeting 30 October 24, 2022
Vote: 5-0

APPOINTMENTS TO ECONOMIC DEVELOPMENT COMMITTEE
Matthew Dougherty (full term to expire October 2026), Brendan Berman ( partial term to expire October 2025), Lauren Claire Smith (partial term to expire October 2024) and Ruby Tovar ( partial term to expire October 2023)
RESULT: ADOPTED AS AMENDED [UNANIMOUS]
MOVER: Sue Beckmeyer, Councilmember
SECONDER: Tygarjas Bigstyck, Mayor Pro Tem
AYES: Bier, Bigstyck, O'Neill, Vaterlaus, Beckmeyer

ADJOURN
Mayor Bier adjourned the meeting at 10:39 p.m.

Transcribed by Barbara Medina, Public Meeting Stenographer.

Respectfully Submitted,
Sarah Coffey, City Clerk
__________________________
Mary Bier, Mayor

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Attachment: Attachment A: Minutes of City Council Regular Meeting on 10-24-2022 [Revision 1] (5180 : Approval of Minutes)

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Continuation of Proclamation of Local Emergency of the Pacifica Coastline from Westline Drive to the End of Beach Boulevard.

RECOMMENDED ACTION:

Accept report and make a determination that conditions of local emergency continue to exist within the Pacifica Coastline from Westline Drive to the end of Beach Boulevard.

STAFF CONTACT:

Lisa Petersen, P.E., Director of Public Works
650-738-3770
[email protected]
Sarah Coffey, City Clerk
650-738-7307
[email protected]
BACKGROUND/DISCUSSION:

On January 22, 2016, the Director of Emergency Services proclaimed the existence of a local emergency along the Pacifica coastline from Westline Drive to the end of Beach Boulevard due to El Nino storm activity. Extreme wave heights for extended periods of time caused top-of-bluff retreat at several locations along the Pacifica coast and damage to City infrastructure. Since this date, the Director of Emergency Services has proclaimed the existence of other local emergencies along this same stretch of coastline. These emergencies are described below:
• Failure of the sea wall and promenade on Beach Blvd. (in the vicinity of Santa Maria Avenue), which have been repaired, from the January 22, 2016 storm. • The 300 & 400 block of Esplanade experience episodic bluff erosion. In recent years (2016-2018), the bluff erosion has progressed to a point where the erosion is now threatening public infrastructure and utilities.
• Undermining of a seven-foot diameter storm drain outfall and concrete headwall for the discharge of Milagra Creek into the Pacific Ocean in the vicinity of 700 Palmetto Avenue from the January 22, 2016, storm. Construction is scheduled to restart in February of 2021 due to project delays.
• A failure of the seawall and promenade on Beach Blvd. in the vicinity of Santa Rosa Avenue and the Pier was discovered on December 16, 2020. Ocean waves, king tides, and high swells undermined a portion of the sea wall and created a large void (25’x25”) between the pier abutment seawall connection, affecting the sidewalk and promenade.

City staff and contractors stabilized and repaired the large void on January 22, 2021.

The sidewalk and promenade restoration were completed on February 22, 2021.

Monitoring of the repaired area is on-going.
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• On December 29, 2020, another failure of the seawall occurred approximately 150-200 feet north of the intersection of Beach Blvd. and Santa Rosa Avenue. A void, approximately 10’ deep by 15’ long, was found behind the seawall and was repaired with geotextiles and concrete slurry on January 5, 2021. Full restoration of this section was complete in February 2021. Monitoring of the repaired area is on-going. • On January 14, 2021, a combination of high tides and large waves damaged a forty-foot section of the Pacifica Municipal Pier’s west facing deck and concrete railing. Following this event, the Pier was closed due to safety concerns. City staff requested a structural engineering assessment of the above deck pier elements and a proposed repair and associated cost from a local engineering consultant. This information was provided to the City by the end of March 2021. The pier was reopened on April 2, 2021, but the damaged portion was fenced off for safety reasons. The City is currently moving forward with a repair project and is designing the repair. Construction will be funded by grant money provided through a Senate Bill 129. The City Council approved a resolution on December 13, 2021, to approve the application of the state grant funds for the repair of the pier and the application has been sent to the State Department of Parks and Recreation for processing. On May 13, 2022, the City received a Coastal Development Permit waiver from the California Coastal Commission to perform this work. A bid opening for the repair was held on June 9, 2022, and the City received one bid, which was $2 million above the project budget. Council rejected the bid and authorized the project to be rebid.

The City Council first ratified this proclamation (Attachment 1) at its regular meeting of January 25, 2016. Since that date, additional damage had occurred along Beach Boulevard and Esplanade Avenue as noted above.

Pursuant to Government Code section 8630(c), the City Council must review the need for continuing the local emergency at least every 60 days until the City Council terminates the local emergency. Conditions of local emergency still exist since the City Council first acted to declare a local emergency on January 25, 2016, and since that time staff has brought the continuance of Proclamation confirming the existence of local emergency exists within the Pacifica Coastline from Westline Drive to the end of Beach Boulevard every 30 days with October 10, 2022, being the most recent.

The City is using a combination of city staff, contractors, and consultants to manage the discussed emergency work. Staff will bring recommendations to the Council to end the emergency designation for projects on the list once conditions stabilize and the projects are no longer in need of the emergency designation.

The City Manager recommends that the City Council make a determination that conditions of local emergency continue to exist within the Pacifica Coastline from Westline Drive to the end of Beach Boulevard.

FISCAL IMPACT:

None.

ORIGINATED BY:

Public Works
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ATTACHMENT LIST:

Attachment for Proclamation for Beach Boulevard Local Emergency (PDF) 3 Packet Pg. 44
"ATTACHMENT 1"

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Attachment: Attachment for Proclamation for Beach Boulevard Local Emergency (5170 : Continuation of Proclamation of Local Emergency of "ATTACHMENT 1"

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Attachment: Attachment for Proclamation for Beach Boulevard Local Emergency (5170 : Continuation of Proclamation of Local Emergency of

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Continuation of Proclamation of Local Emergency at the Anza Pump Station.

RECOMMENDED ACTION:

Accept Report and Make a Determination that Conditions of Local Emergency Continue to Exist at the Anza Pump Station at the Pacifica State Beach.

STAFF CONTACT:

Lisa Petersen, P.E., Director of Public Works
(650) 738-3767
[email protected]
Nelson Schlater, P.E., Engineering Manager - Wastewater Public Works (650) 738-3767
[email protected]
BACKGROUND/DISCUSSION:

On Monday, March 16, 2020, the Department of Public Works received a report regarding a fire at the Anza Pump Station at Pacifica State Beach. After Public Works staff investigated the report, it was determined that the storm drain pumping system and roof/bathrooms were damaged during the fire. The engines were destroyed, and the pumps needed to be replaced.

The damage to the pump station threatened and continues to threaten the safety of persons and properties within the watershed due to the risk of flooding without an operational pump station.

The City of Pacifica’s Emergency Plan and Section 4-2.01 et seq. of the Pacifica Municipal Code empower the City Manager, acting as the Director of Emergency Services, to proclaim the existence of a local emergency when there is an actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and properties within this City.

The proclamation is subject to ratification by the City Council within 7 days, pursuant to the Pacifica Municipal Code. The proclamation of the existence of a local emergency further designates the City Manager or designated representative to act on behalf of the City for public assistance and for individual assistance for purpose of receipt, processing and coordination of all inquiries and requirements necessary to obtain available State and Federal assistance.

Additionally, pursuant to Section 3-15.09 (A) of the Pacifica Municipal Code, in cases of an emergency the City Manager is authorized to proceed at once to replace or repair any public facility without adopting plans, specifications, or working details, or giving notice for bids to let contracts. The City must comply with Public Contract Code Section 22050, which provides a process for City Council’s review of the emergency action if notice of bids to let contracts for public projects will not be given because of the emergency.

In this case, the City Manager has determined that the damaged pump station threatens the health and safety of persons and properties, including critical public infrastructure, which 4 Packet Pg. 47
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requires immediate attention and constitutes an emergency pursuant to Pacifica Municipal Code section 4-2.02 and Public Contract Code Section 1102.

Such conditions are, or are likely to be, beyond the handling capability of the City’s services, personnel, equipment, and facilities, requiring the use of outside contractors to conduct emergency design and repair pursuant to Pacifica Municipal Code section 3-15.09 without giving notice for bids to let contracts. Immediate action is, and continues to be necessary, due to the clear and imminent danger presented by any storm event that could occur during the time the storm water pump station is non-functional. Flooding could occur to areas upstream of the pump station, causing health and safety issues, as well as extensive property damage. As such, on April 8, 2020, the City Manager did proclaim the existence of a local emergency within the City and the need to continue the emergency action continues as the repair will take approximately 8-14 months or longer. The Proclamation of Local Emergency is attached to this staff report as Attachment 1.

City staff has contracted with the civil engineering firm of Schaaf & Wheeler of San Jose, California to assist the City with the rehabilitation of the pump station. In addition, the pump station has been cleared of any fire damaged debris and the damaged pumps/engines have been removed. On July 13, 2020, the City Council approved construction services agreement for rebuild and re-installation of a pump and gear drive, the renovation of bathrooms, purchase and installation of new stainless-steel doors, and repair pump station wet-well grates. As part of the on-going maintenance for the pump station, staff purchased a new pump which was approved by the Council at the August 9, 2020 City Council meeting. An emergency purchase agreement with Herc Rental for a temporary rental engine was also approved on September 1, 2020 and will remain in place until the pump station is operational. On October 12, 2020, temporary measures were completed to allow for a non-standard system of pumping at the Anza Pump Station until final repairs are completed. This work included a new pump, transfer switch, temporary roof, portable generator connections, and exterior double doors have been installed. Staff is continuing to evaluate and monitor storm water flows and purchased two new sump pumps to accommodate flows.

On May 10, 2021, City Council approved the purchase of two new Caterpillar engines utilizing the City’s established Sourcewell Cooperative Purchase Agreement. The rehabilitation plan is currently 100% completed, and staff has completed the engineering review. The roofing plan was approved by the Building Department. Staff has also completed selection of the Construction Management firm which was from the established On-Call Construction Management list. Staff is in the process of discussing permitting requirements for the overall project with the California Coastal Commission.

Staff completed the field portion of a topographic survey to support a PG&E application to reestablish natural gas service at the Anza Pump Station to supply the natural gas to run the prepurchased natural gas engines to drive the pumps. The City entered into an agreement with PG&E to tap the gas main and install a new gas meter. The City has also engaged a gas pipeline contractor for a quotation on installing the gas service line from the gas main to the gas meter. In addition, the City has submitted the Caltrans Encroachment Permit application required for gas service line construction on Highway 1 and has obtained a separate emergency Coastal Development Permit request with the California Coastal Commission for installation of the new gas line and a redundant pump/engine that was approved.

During a storm event on the morning of December 16, 2021, the City experienced some flooding in the lower Linda Mar area due to the temporary nonstandard pumping system that has been in use at Anza pump station due to the fire damaged pump station engines in March of 2020. This temporary system has been in place because the City has been working to reach 4 Packet Pg. 48
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agreement with the California Coastal Commission on the remaining permitting requirements for the permanent pumping system. The City faced several significant stormwater related events from October 2021 through December 2021 and will face more with the continuing storm season. Replacement of this temporary system is considered an emergency and staff is moving forward with construction of the permanent system. To further improve operations between now and when the Anza Pump Station Repair Project is completed, the City recently purchased a small diesel engine that will be used to drive one of the existing smaller stormwater pumps, thereby improving pump station resiliency in the interim. Staff issued a public request to prequalify bidders for the Anza Pump Station project in December 2021. Ultimately, two contractors were deemed qualified to bid on the project. Both contactors submitted bids for the project in February of 2022. The contractors specialize in pump stations.

As of May 1, 2022, the Anza Pump Station Repair Project’s General Contractor, DW Nicholson (DWN), has begun the work and is focusing on providing project equipment submittals and requests for information (RFIs). DWN is currently onsite and working. City consultant team members Schaaf and Wheeler (engineer of record providing construction support) and Ghirardelli and Associates (third-party construction manager) are working closely with City staff to process paperwork, respond to questions along with other issues as they arise, and manage the construction work. Active construction continues at the Anza Pump Station. Except for the roof hatches, the roof installation is complete. The Project continues to finalize electrical equipment submittals and continues coordination with the engine supplier, with the engine site delivery anticipated in mid to late November. Due to supply chain issues with electrical panels and components, the Project will most likely slip into early 2023 timeframe. In addition, the project to construct a new 2-inch gas service line for the new gas engines was awarded to Casey Construction. The portion of the new 2-inch gas service line in the parking lot east of the Anza Pump Station has been completed. The work in the Caltrans Right of Way which will tap into the main gas line, is schedule to occur in mid-December.

Pursuant to Government Code Section 8630(c), the City Council must review the need for continuing the local emergency at least every 60 days until the City Council terminates the local emergency. Conditions of local emergency still exist since the City Council first acted to declare a local emergency on April 13, 2020, and since that time staff has brought the continuance of Proclamation confirming the existence of local emergency at the Anza Pump Station every 30 days with October 10, 2022, being the most recent.

The City is using a combination of city staff, consultants, and contractors to manage the emergency work related to the Anza Pump Station repair project. The City Manager recommends that the City Council make a determination that conditions of local emergency continue to exist at the Anza Pump Station at the Pacifica State Beach. Staff will continue to update the Council on the progress of this emergency work monthly through the emergency declaration Council reports
FISCAL IMPACT:

There is no fiscal impact to continue this local emergency.

ORIGINATED BY:

Public Works - Wastewater Division
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ATTACHMENT LIST:

Attachment 1 - Resolution No. 19-2020 Ratifying Proclamation of Local Emergency at the Anza Pump Station (PDF)
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RESOLUTION NO. 19-2020

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA

RATIFYING THE PROCLAMATION OF THE EXISTENCE OF A LOCAL EMERGENCY AT THE

ANZA PUMP STATION AT THE PACIFICA STATE BEACH
______________________________________________________
WHEREAS, Section 4-2.05 of the City of Pacifica Municipal Code (“PMC”) designate the City Manager as the Director of Emergency Services; and
WHEREAS, Government Code section 8630 and PMC section 4-2.05(a) empower the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when said city is affected or likely to be affected by an emergency, subject to ratification by the City Council; and
WHEREAS, Section 4-2.02 of the PMC defines "emergency" as the “actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and property within this City caused by such conditions as earthquake, hazardous materials, plane crash, landslide, tsunami, epidemic, flood, riot, fire, or other conditions, including conditions resulting from a labor controversy, which conditions are or are likely to be beyond the capability of control of the services, personnel, equipment, and facilities of this City, requiring the combined forces of other political subdivisions to combat”; and
WHEREAS, Section 4-2.01 et seq. of the Pacifica Municipal Code empowers the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when the City Council is not in session, subject to confirmation by the City Council; and WHEREAS, the City Manager is the Director of Emergency Services of the City of Pacifica; and WHEREAS, on Monday, March 16, 2020, the Department of Public Works received a report regarding a fire at the Anza Pump Station at the Pacifica State Beach; and WHEREAS, after Public Works staff investigated the report, it was determined that the storm drain pumping system was damaged during the fire and that the engine and the motors would need to be replaced; and
WHEREAS, the damage to this pump station threatens the safety of persons and properties within the watershed due to the risk of flooding that can occur without an operational pump station; and WHEREAS, the City Manager has determined that the damaged pump station threatens the health and safety of persons and properties, including critical public infrastructure due to the risk of flooding and requires immediate attention and repair and as such constitutes an emergency pursuant to Pacifica Municipal Code section 4-2.02 and Public Contract Code section 1102; and WHEREAS, such conditions are beyond the handling capability of the City’s services, personnel, equipment, and facilities, requiring the use of outside contractors to conduct emergency repair pursuant to Pacifica Municipal Code section 3-15.09 without giving notice for bids to let contract, ATTACHMENT 1

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Attachment: Attachment 1 - Resolution No. 19-2020 Ratifying Proclamation of Local Emergency at the Anza Pump Station (5171 : Continuance pursuant to Public Contract Code 22050; and
WHEREAS, on April 8, 2020, the City Manager, in his capacity as Director of Emergency Services, proclaimed the existence of local emergency in the City of Pacifica, after determining that the damaged condition of the Anza Pump Station is likely to create conditions of disaster or extreme peril which will be beyond the services, personnel and equipment and facilities of the City; and WHEREAS, in accordance with Government Code section 8630 and PMC section 4-2.05(a) the City Council must take action to confirm the proclamation within 7 and in accordance with Public Contract Code section 22050 which requires confirmation by 2/3 of Council within 14 days of the emergency action.

NOW, THEREFORE, BE IT RESOLVED that said Proclamation of Existence of Local Emergency, as issued by said City Manager in his capacity as Director of Emergency Services, which is attached hereto as Attachment “A”, is hereby ratified and approved by the City of Pacifica City Council.

BE IT FURTHER RESOLVED that said local emergency is confirmed to exist and shall be deemed to continue to exist until its termination is proclaimed by the City Council of the City of Pacifica.

BE IT FURTHER RESOLVED that during the existence of this local emergency, the powers, functions and duties of the Director of Emergency Services, and the emergency organization of the City of Pacifica shall be those prescribed by state law, by the existing ordinances and resolutions of the City of Pacifica, as well as this resolution and any subsequent emergency orders of the City Council. • • • • •
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the 13th day of April 2020, by the following vote:

AYES, Councilmembers: Martin, Beckmeyer, Vaterlaus, Bier, O’Neill NOES, Councilmembers: None.

ABSENT, Councilmembers: None.

ABSTAIN, Councilmembers: None.

CITY OF PACIFICA
Deirdre Martin, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ ______________________________ Sarah Coffey, City Clerk Michelle Marchetta Kenyon, City Attorney

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Attachment: Attachment 1 - Resolution No. 19-2020 Ratifying Proclamation of Local Emergency at the Anza Pump Station (5171 : Continuance

PROCLAMATION OF LOCAL EMERGENCY
WHEREAS, Section 4-2.01 et seq. of the Pacifica Municipal Code empowers the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when the City Council is not in session, subject to confirmation by the City Council at the earliest possible time; and
WHEREAS, the City Manager is the Director of Emergency Services of the City of Pacifica; and WHEREAS, on Monday, March 16, 2020, the Department of Public Works received a call regarding a fire at the Anza Pump Station at the Pacifica State Beach; and WHEREAS, after Public Works staff investigated, and determined that the storm drain pumping system was damaged during the fire; and
WHEREAS, the damage to the pump system threatens the safety of persons and property, including critical public infrastructure; and
WHEREAS, such conditions are or are likely to be beyond the handling capabilities of the City’s services, personnel, equipment, and facilities, requiring the use of outside contractors to conduct emergency repair; and
WHEREAS, the City provides this written notification to the San Mateo County and State CalEMA’s Regional and Headquarter offices of a proclamation of local emergency; and WHEREAS, such proclamation shall be subject to confirmation by the Pacifica City Council at the earliest possible time.

NOW, THEREFORE, BE IT PROCLAIMED that, in accordance with State Law and the City of Pacifica Municipal Code, the Director of Emergency Services proclaims the existence of a local emergency for the Anza Pump Station.

DATED: April 8, 2020
By:_____________________________
Kevin Woodhouse
Director of Emergency Services
Attachment 1

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Attachment: Attachment 1 - Resolution No. 19-2020 Ratifying Proclamation of Local Emergency at the Anza Pump Station (5171 : Continuance

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Attachment: Attachment 1 - Resolution No. 19-2020 Ratifying Proclamation of Local Emergency at the Anza Pump Station (5171 : Continuance

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Continuation of Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”).

RECOMMENDED ACTION:

Accept report and make determination that conditions of local emergency continue to exist regarding Novel (new) Coronavirus ("COVID-19”).

STAFF CONTACT:

Kevin Woodhouse, City Manager
(650) 738-7409
[email protected]
BACKGROUND/DISCUSSION:

On March 16, 2020, the City Manager, acting in his capacity as Director of Emergency Services, proclaimed the existence of a local emergency pursuant to PMC 4-2.05(a) and executed the "Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19")" ("Proclamation"). On March 18, 2020, the City Council of the City of Pacifica adopted Resolution No. 18-2020 to ratify the Proclamation of local emergency due to COVID-19 (Attachment 1). The City’s Proclamation was sent to San Mateo County Offices of Emergency Services and the California Governor’s Office of Emergency Services (CalOES) and allows the City to seek state and federal funds relating to the emergency.

This proclamation of local emergency was based on the following findings.

BACKGROUND:

On January 30, 2020, the World Health Organization (“WHO”) declared the COVID-19 outbreak a public health emergency of international concern. On January 31, 2020, the U.S. Department of Health and Human Services declared a Public Health Emergency for the United States of America. The United States Centers for Disease Control and Prevention (“CDC”) determined the virus presents a serious public health threat, requiring coordination among state and local health departments to ensure readiness for potential health threats associated with the virus.

On March 3, 2020, both the Director of Emergency Services of the County of San Mateo and the San Mateo County Health Officer issued proclamations of local emergencies based on the imminent and proximate threat to public health from the introduction of COVID-19 in San Mateo County. The San Mateo County Board of Supervisors ratified both proclamations on March 10, 2020.
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On March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for broader spread of COVID-19.

On March 11, 2020, the WHO declared a global pandemic due to the significant spread of the virus and the increased numbers of confirmed cases worldwide.

On March 13, 2020, then President Donald J. Trump issued a Proclamation Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak finding that the COVID-19 outbreak in the United States constituted a national emergency, beginning as of March 1, 2020.

As of June 15, 2021, the California Governor terminated the Executive Orders that put into place the Stay Home Order and the Blueprint for a Safer Economy, and also phased out the majority of executive actions put in place since March 2020 as part of the pandemic response, leaving a subset of provisions in place that facilitate the ongoing recovery. Governor’s Orders currently in effect were N-07-21 and N-08-21, both adopted on June 11, 2021.

The California State Public Health Officer issued a new Order on June 11, 2021 to be effective June 15, 2021, which superseded all prior State health orders. Restrictions that ended on June 15, 2021 include: physical distancing, capacity limits on businesses and the County tier system.

Starting on June 15, 2021, California reopened the economy and the state moved beyond the Blueprint for a Safer Economy system. All sectors listed in the current Blueprint returned to usual operations based on general public health recommendations. Starting on June 15, capacity and distancing restrictions were lifted for most businesses and activities.

In March 2020, the City closed public access to many City facilities, consistent with the State and County health orders in effect at that time. City operations continued with adjusted programs and services, staffing levels and modified operations to support a predominantly remote work model in order to protect public safety and to limit the potential for exposure to the COVID-19 virus. The City has further modified its operations and guidelines based on the orders and guidelines that went into effect on June 15, 2021.

Governor’s Executive Order N-08-21 continued modifications of the Brown Act to allow for local legislative bodies to hold meetings via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, and supersedes the provisions previously set forth in Executive Order N-29-20, paragraph 3. These provisions of Executive Order N-08-21, subsection 42 applied though September 30, 2021.

On August 2, 2021, the Health Officer of the County of San Mateo issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions. This Order was issued due to evidence of the SARS-CoV-2 B.1.617.2 (Delta) variant circulating in San Mateo County. This variant is highly transmissible in indoor settings. San Mateo County Health Order No. C19-12 was ordered effective at 12:01 am on August 3, 2021 and will continue to be in effect until extended, rescinded, superseded, or amended in writing by the Health Officer.

On September 16, 2021, Assembly Bill 361 (AB 361) was signed by the Governor and went into effect immediately upon signature as urgency legislation (codified under Government Code § 54953). AB 361 amends the Brown Act to provide additional provisions that allow meetings of 5 Packet Pg. 56
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legislative bodies to be conducted via teleconference.

Order No. C19-12 issued on August 2, 2021, by the Health Officer of the County of San Mateo mandating the wearing of face coverings when indoors in workplaces and public settings remains in effect. The City's current practices at City facilities conform to the Health Order currently in effect.

In late November 2021, a new concerning COVID-19 variant was discovered and identified as the Omicron variant. The Omicron variant spreads rapidly even amongst some vaccinated individuals.

In December 2021, in response to the rapid spread of the Omicron variant, the California Department of Public Health issued guidance requiring masking indoors through January 15, 2022. This requirement was subsequently extended to February 15, 2022.

On January 8, 2022, the California Department of Public Health issued Updated Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public (Link). The guidance updated isolation and quarantine recommendations in alignment with recommendations from the Centers for Disease Control and Prevention (CDC), recommends additional mitigation measures to exit isolation and quarantine, and clarifies that fully-vaccinated persons who are booster-eligible, but have not yet received their booster dose are now recommended to quarantine per updated CDC recommendations.

With COVID-19 case rates subsiding in early February 2022, on February 9, 2022, the County of San Mateo Health Officer announced that San Mateo County would align with the state in lifting its indoor mask mandate for vaccinated persons beginning February 16, 2022.

Effective March 1, 2022, the State revised its mask mandate requirement such that unvaccinated individuals are no longer required to mask in indoor public settings; however, it is strongly recommended that all persons, regardless of vaccine status, continue indoor masking.

Universal masking shall remain required in specified high-risk settings such as public transportation; health care settings; congregate settings; long term care facilities; and in K-12 schools and childcare settings. As of March 11, 2022, the universal masking requirement for K12 and Childcare settings was terminated.

CURRENT ANALYSIS:

The following updates have occurred since the October 10, 2022 regular City Council meeting.

The state of emergency regarding COVID-19 issued by the Governor remains in place, as do the COVID-19 Community Levels (low, medium, and high) for masking recommendations. CDC recommendations continue to emphasize staying up to date with vaccination, improving ventilation, testing persons who are symptomatic and those who have been exposed, and isolating infected persons. Persons can use information about the current level of COVID-19 impact on their community to decide which prevention behaviors to use and when (at all times or at specific times), based on their own risk for severe illness and that of members of their household, their risk tolerance, and setting-specific factors. At the low CDC COVID-19 Community Level, the CDPH recommends that vulnerable people consider taking additional precautions, including wearing a mask in crowded indoor public places.

The number of reported cases and hospitalizations categorize San Mateo County in the CDC’s Low COVID-19 Community Level per the San Mateo County Health Officer’s update as of 5 Packet Pg. 57
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November 1, 2022. In San Mateo County the updated COVID-19 bivalent booster vaccines effective against the original strain of the virus and the Omicron variants are readily available at primary care practices and pharmacies across the county, and these updated boosters are recommended and currently available for those ages 5 and older (Pfizer Bivalent Booster) or ages 6 and older (Moderna Bivalent Booster) .

FISCAL IMPACT:

None by this action; however, continuation of the local emergency will facilitate the ability for the City to request resources including financial support and reimbursement from the State Office of Emergency Services (OES) and Federal Emergency Management Agency (FEMA) for costs incurred in preparation and/or response to the COVID-19 outbreak.

ORIGINATED BY:

City Clerk
ATTACHMENT LIST:

Attachment A: Resolution No 18-2020 - Ratifying Local Emergency Due to COVID-19 (PDF) 5 Packet Pg. 58

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Attachment: Attachment A: Resolution No 18-2020 - Ratifying Local Emergency Due to COVID-19 (5172 : Continuation of Proclamation of Local

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Attachment: Attachment A: Resolution No 18-2020 - Ratifying Local Emergency Due to COVID-19 (5172 : Continuation of Proclamation of Local

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Consideration of a Resolution Making Findings as Required by AB 361 to Continue to Permit the City Council and City Commissions and Committees to Conduct Teleconferenced Meetings Due to Health and Safety Concerns Relating to COVID-19
RECOMMENDED ACTION:

Move to adopt a Resolution making findings pursuant to AB 361 to authorize the City Council and City Commissions and Committees to conduct teleconferenced meetings due to health and safety concerns relating to COVID-19.

STAFF CONTACT:

Kevin Woodhouse, City Manager
650-738-7409
[email protected]
Sarah Coffey, City Clerk
650-738-7307
[email protected]
BACKGROUND:

On March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for broader spread of COVID-19. On March 16, 2020, the City Manager, acting in his capacity as Director of Emergency Services, proclaimed the existence of a local emergency pursuant to PMC 4-2.05(a) and executed the "Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19")" ("Proclamation"). On March 18, 2020, the City Council of the City of Pacifica adopted Resolution No. 18-2020 to ratify the Proclamation of local emergency due to COVID-19 and continues to affirm the existence of the local emergency.

From the Special City Council Meeting held on March 18, 2020, for the purpose of adopting Resolution No. 18-2020 ratifying the City Manager’s Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus (“COVID-19”), through the Special City Council Meeting held on October 10, 2022, all City Council, Committee and Commission meetings were held via videoconference using a Zoom Meeting or Zoom Webinar platform with no physical meeting location open to the public. The Governor’s Executive Orders N-25-20 and N-29-20 suspended certain requirements of the Brown Act to allow for public meetings to be held via teleconferenced meetings, either via audio or video or both, for all members of the body to participate from remote locations with no physical meeting location open to the public. 6 Packet Pg. 65
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The Governor’s Executive Order N-08-21 issued on June 11, 2021 provided local jurisdictions a basis upon which to continue conducting public meetings via videoconference without a physical location open to the public under the relaxed provisions of the Brown Act until September 30, 2021.

Assembly Bill 361 (AB 361) was signed by the Governor on September 16, 2021 and went into effect immediately upon signature as urgency legislation (codified under Government Code § 54953). AB 361 amends the Brown Act to provide additional provisions that allow meetings of legislative bodies to be conducted via teleconference. Its provisions allow a local agency legislative body to meet without complying with the standard teleconferencing requirements of the Brown Act if the Governor has proclaimed a State of Emergency and any of the following occurs:
1) State or local officials have imposed or recommended measures to promote social distancing,
2) the meeting is being held for the purposes of determining, by a majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health and safety of attendees;
3) the legislative body has determined that as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

In addition, AB 361 adds new procedures and clarifies the requirements for conducting remote meetings, including the following:
• Public Comment Opportunities in Real Time - a legislative body that meets remotely pursuant to AB 361 must allow members of the public to access the meeting via a call-in option or an internet-based service option, and the agenda for the remote meeting must provide an opportunity for members of the public to directly address the body in real time. A legislative body cannot require public comments to be submitted in advance of the meeting.
• No Action During Disruptions - in the event of a disruption that prevents the local agency from broadcasting the remote meeting, or in the event of a disruption within the local agency’s control that prevents members of the public from offering public comments using the call-in option or internet-based service option, AB 361 prohibits the legislative body from taking any further action on items appearing on the meeting agenda until public access is restored.
• Periodic Findings - Government Code § 54953(e)(B) requires the legislative body to hold a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present 6 Packet Pg. 66
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imminent risk to the health or safety of attendees.

AB 361 will sunset on January 1, 2024.

DISCUSSION:

At the regular meeting of the City Council held on October 11, 2021, the City Council adopted Resolution No. 63-2021 making findings as required by AB 361 to permit the City Council and City Committees and Commissions to conduct teleconferenced meetings due to the health and safety concerns relating to COVID-19. The resolution also directed staff to agendize for Council consideration no less than every 30 days the need to continue to utilize teleconferenced meetings pursuant to AB 361. The City Council subsequently adopted the following resolution numbers, re-affirming the findings required by AB 361 to continue to conduct teleconferenced public meetings due to COVID-19 risk:
• Resolution No. 63-2021 on October 11, 2021
• Resolution No. 69-2021 on November 8, 2021
• Resolution No. 80-2021 on December 13, 2021
• Resolution No. 01-2022 on January 10, 2022
• Resolution No. 07-2022 on February 14, 2022
With the COVID-19 update provided at the City Council meeting held on February 28, 2022, it was reported that although the Omicron variant spread rapidly during and after the December 2021 holiday season, with positive case rates spiking in mid-January 2022, there had been a dramatic decrease in positive cases in the third week of February, the health effects of the Omicron variant generally much less severe for vaccinated persons, and San Mateo County has a 93.9% vaccination rate for 5+ age. Effective February 16, 2022, the County of San Mateo Health Officer announced that Health Officer Order No. c19-12 (For The Wearing of Face Coverings In Workplaces And Public Settings issued on August 2, 2021) was rescinded in full.

As a result of the decrease in case rates, lower health risks and higher vaccination rates, at the City Council meeting held on February 28, 2022, the City Manager had recommended the return to in-person City Council and City Committee and Commission meetings beginning March 14, 2022. The City Council approved of the return to in-person meetings beginning March 14, 2022 by majority vote at the February 28, 2022 City Council meeting.

At the City Council meeting held on May 23, 2022, with the increase in COVID-19 incidence and transmission and the vulnerability of certain segments of the population, the City Council authorized public meetings of the City Council and City Commissions and Committees to return to teleconferenced meetings with no physical location open to the public due to the health and safety concerns relating to COVID-19. The City Council subsequently adopted the following resolution numbers, re-affirming the findings required by AB 361 to continue to conduct teleconferenced public meetings due to COVID-19 risk:
• Resolution No. 23-2022 on May 23, 2022
• Resolution No. 26-2022 on June 13, 2022
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• Resolution No. 41-2022 on July 11, 2022
• Resolution No. 46-2022 on August 8, 2022
• Resolution No. 56-2022 on September 12, 2022
• Resolution No. 66-2022 on October 10, 2022
Current Analysis:

The following updates have occurred since the October 10, 2022 regular City Council meeting.

The number of reported cases and hospitalizations categorize San Mateo County in the CDC’s Low COVID-19 Community Level per the San Mateo County Health Officer’s update as of November 1, 2022. In San Mateo County the updated COVID-19 bivalent booster vaccines effective against the original strain of the virus and the Omicron variants are readily available at primary care practices and pharmacies across the county, and these updated boosters are recommended and currently available for those ages 5 and older (Pfizer Bivalent Booster) or ages 6 and older (Moderna Bivalent Booster) .

The enclosed Resolution continues to make the required findings under AB 361, and if adopted, it will allow the City the option to continue to conduct City Council and City Commission and Committee meetings via teleconference with no physical location open to the public, to help mitigate the spread of COVID-19, as well as during other state-proclaimed emergencies, such as earthquakes or wildfires, where physical attendance may present a risk.

The resolution also directs staff to agendize for Council consideration no less than every 30 days the need to continue to utilize teleconferenced meetings pursuant to AB 361 if found that there is a continued risk to public health and safety.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
“An Engaged Community” - includes taking actions to restore trust in city government, expanding communication, and building community.
“Maintaining a Safe Community” - includes support our first responders (police, fire, public works), responding to emergencies, protecting people, property, businesses, and our infrastructure (streets, sidewalks, storm and waste water), and engaging in emergency 6 Packet Pg. 68
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preparedness and prevention activities.

FISCAL IMPACT:

There is no fiscal impact associated with this action.

ORIGINATED BY:

City Clerk
ATTACHMENT LIST:

Attachment A: Full text of AB 361 (PDF)
Attachment B: Resolution No. 18-2020 - Ratifying Local Emergency Due to COVID-19 (PDF) 6 Packet Pg. 69
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RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA MAKING FINDINGS AS REQUIRED BY AB 361 TO PERMIT THE CITY COUNCIL AND CITY

COMMITTEES AND COMMISSIONS ESTABLISHED BY THE COUNCIL TO CONDUCT

TELECONFERENCED MEETINGS DUE TO THE HEALTH AND SAFETY CONCERNS RELATING TO COVID-19
WHEREAS, on March 4, 2020, as part of the State of California’s response to address the global COVID-19 outbreak, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for broader spread of COVID-19; and
WHEREAS, on March 16, 2020, at 12:11 p.m., the City Manager, in his capacity as Director of Emergency Services, proclaimed the existence of local emergency in the City of Pacifica, after determining that the rapidly widespread of COVID-19 is likely to create conditions of disaster or extreme peril which will be beyond the services, personnel and equipment and facilities of the City and executed the “Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”)” (“Proclamation”); and WHEREAS, on March 18, 2020, the City Council of the City of Pacifica adopted Resolution No. 18-2020 ratifying the “Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”)”, which continues to remain in place; and WHEREAS, on March 17, 2020, the Governor of California executed Executive Order N-29-20 which suspended and modified specified provisions in the Ralph M. Brown Act (Government Code Section § 54950 et seq.) and authorized local legislative bodies to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and address the local legislative body; and
WHEREAS, on August 2, 2021, the Health Officer of the County of San Mateo issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions due to the COVID-19 Delta variant circulating in San Mateo County and evidence of the Delta variant being highly transmissible in indoor settings; and
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WHEREAS, on June 11, 2021, the Governor of California executed Executive Order N-08-21 which extended the provisions of Executive Order N-29-20 concerning teleconference accommodations for public meetings through September 30, 2021; and WHEREAS, on September 16, 2021, the Governor of California signed into law Assembly Bill 361 (AB 361, Rivas) (Stats. 2021, ch. 165) amending Government Code § 54953 and providing alternative teleconferencing requirements to conduct public meetings during a proclaimed state of emergency; and
WHEREAS, the City of Pacifica has conducted public meetings of City Council and City Committees and Commissions via teleconference from March 18, 2020 through October 10, 2022, under the modified provisions of the Brown Act as allowed for by Governor’s Orders N-29-20, N-08-21 and/or N-15-21 in effect at the time; and WHEREAS, AB 361 (Stats. 2021, ch. 165) imposes requirements to ensure members of the public are able to attend and participate in public meetings conducted via teleconference, including:
• Notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option;
• The legislative body shall take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored; • Prohibits the legislative body from requiring public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for members of the public to address the legislative body and offer comments in real time;
• Prohibits the legislative body from closing the public comment period until the public comment period has elapsed or until a reasonable amount of time has elapsed; and WHEREAS, the City has already implemented and is in full compliance with the requirements listed above when conducting public meetings via teleconference, which are now codified in Government Code § 54953(e)(2)(B-G); and WHEREAS, pursuant to Government Code § 54953(e)(B), the legislative body shall hold a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health and safety of attendees. The City Council must make these findings no later than 30 days after the first teleconferenced meeting is held pursuant to AB 361 (Stats. 2021, ch. 165) after September 30, 2021, and must also make these findings 6 Packet Pg. 71
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every 30 days thereafter, in order to continue to allow teleconference accessibility for conducing public meetings; and
WHEREAS, on August 2, 2021, the Health Officer of the County of San Mateo issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions. This Order was issued due to evidence of the SARS-CoV-2 B.1.617.2 (Delta) variant circulating in San Mateo County.

This variant is highly transmissible in indoor settings. San Mateo County Health Order No.

C19-12 was ordered effective at 12:01 am on August 3, 2021; and WHEREAS, in December 2021 and January 2022 the COVID-19 Omicron variant has been observed by scientists and medical professionals to spread rapidly even amongst some vaccinated individuals and continues to present a health and safety risk to the general public; and
WHEREAS, effective February 16, 2022 the County of San Mateo Health Officer announced that Health Officer Order No. c19-12 (For The Wearing of Face Coverings In Workplaces And Public Settings issued on August 2, 2021) was rescinded in full); and WHEREAS, to the County of San Mateo Health Officer strongly recommends getting vaccinated or boosters for COVID-19, improve ventilation throughout indoor spaces as much as possible, wear a well-fitting mask in crowded indoor public places, and continue to follow State isolation and quarantine guidance to prevent the spread of COVID-19; and WHEREAS, as of the week of September 5, 2022, the County of San Mateo Health Officer and the Centers for Disease Control (CDC) continue to strongly recommend that all persons, regardless of vaccine status, continue to mask in indoor public settings; and WHEREAS, the Centers for Disease Control (CDC) has cautioned that some people and communities, such as our oldest citizens, people who are immunocompromised, and people with disabilities, are at higher risk for serious illness due to COVID-19 and should take additional precautions such as avoiding crowded indoor activities with poor ventilation; and
WHEREAS, on May 23, 2022; June 13, 2022; July 11, 2022; August 8, 2022; September 12, 2022; and October 10, 2022; the City Council of the City of Pacifica adopted Resolution Nos. 23-2022, 26-2022, 41-2022, 46-2022, 56-2022, and 66-2022, respectively, making findings as required by AB 361 to permit the City Council and City Committees and Commissions to conduct teleconferenced meetings to due to public health and safety concerns related to COVID-19; and
WHEREAS, the City cannot ensure that social distancing can be maintained by Councilmembers, Commissioners, Committee members and/or members of the public in Council Chambers or at other locations where City Committees and Commissions regularly 6 Packet Pg. 72
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meet for the duration of meetings in order to safeguard the most vulnerable populations, and COVID-19 variants when transmission rates pose an imminent and serious risk to public health.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Pacifica, California, as follows:

SECTION 1. The City Council hereby declares that the recitals set forth above are true and correct, and incorporated into this resolution as findings of the City Council.

SECTION 2. The City Council hereby declares that a state of emergency as a result of the threat of COVID-19 still exists and continues to impact the ability of members of the public, the City Council, Council appointed Commissions and Committees, City staff and consultants to meet safely in person and would present imminent risks to the health and safety of attendees.

SECTION 3. The State of California and the City of Pacifica continue to follow safety measures in response to COVID-19 as ordered or recommended by the Centers for Disease Control and Prevention (CDC), California Department of Public Health (DPH), and/or County of San Mateo, as applicable, including facial coverings when required. Based upon that guidance, in person attendance indoors at public meetings continues to present a health risk for certain segments of the population, necessitating teleconferencing to allow for meaningful public participation options for all Pacifica constituents.

SECTION 4. The City Council hereby declares that, pursuant to the findings listed in this Resolution, the City Council and Council appointed Commissions and Committees are authorized to utilize teleconferencing to conduct public meetings pursuant to AB 361 and Government Code § 54953, as amended thereby.

SECTION 5. The City Council determines that, every 30 days, it will reconsider the circumstances of the emergency and review whether it continues to directly impact the ability of the Council and appointed Committees and Commissions members to meet safely in person.

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

SECTION 7. Effective Date: This Resolution shall become effective immediately upon adoption.
• • • • •
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Pacifica City Council 10 November 14, 2022
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the 14th day of November, 2022, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:

Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ ______________________________ Sarah Coffey, City Clerk Michelle Kenyon, City Attorney 6 Packet Pg. 74
Assembly Bill No. 361
CHAPTER 165
An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately.
[Approved by Governor September 16, 2021. Filed with
Secretary of State September 16, 2021.]
legislative counsel
’
s digest
AB 361, Robert Rivas. Open meetings: state and local agencies:
teleconferences.
(1) Existing law, the Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act contains specified provisions regarding the timelines for posting an agenda and providing for the ability of the public to directly address the legislative body on any item of interest to the public.

The act generally requires all regular and special meetings of the legislative body be held within the boundaries of the territory over which the local agency exercises jurisdiction, subject to certain exceptions. The act allows for meetings to occur via teleconferencing subject to certain requirements, particularly that the legislative body notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, that members of the public be allowed to address the legislative body at each teleconference location, that the legislative body post an agenda at each teleconference location, and that at least a quorum of the legislative body participate from locations within the boundaries of the local agency’s jurisdiction. The act provides an exemption to the jurisdictional requirement for health authorities, as defined. The act authorizes the district attorney or any interested person, subject to certain provisions, to commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that specified actions taken by a legislative body are null and void.

Existing law, the California Emergency Services Act, authorizes the Governor, or the Director of Emergency Services when the governor is inaccessible, to proclaim a state of emergency under specified circumstances.

Executive Order No. N-29-20 suspends the Ralph M. Brown Act’s requirements for teleconferencing during the COVID-19 pandemic provided that notice and accessibility requirements are met, the public members are allowed to observe and address the legislative body at the meeting, and that a legislative body of a local agency has a procedure for receiving and swiftly

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) resolving requests for reasonable accommodation for individuals with disabilities, as specified.

This bill, until January 1, 2024, would authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees, as provided.

This bill would require legislative bodies that hold teleconferenced meetings under these abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body. The bill would require the legislative body to take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored. The bill would specify that actions taken during the disruption are subject to challenge proceedings, as specified.

This bill would prohibit the legislative body from requiring public comments to be submitted in advance of the meeting and would specify that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time. The bill would prohibit the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified. When there is a continuing state of emergency, or when state or local officials have imposed or recommended measures to promote social distancing, the bill would require a legislative body to make specified findings not later than 30 days after the first teleconferenced meeting pursuant to these provisions, and to make those findings every 30 days thereafter, in order to continue to meet under these abbreviated teleconferencing procedures.

Existing law prohibits a legislative body from requiring, as a condition to attend a meeting, a person to register the person’s name, or to provide other information, or to fulfill any condition precedent to the person’s attendance.
92 Ch. 165 — 2 —

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) This bill would exclude from that prohibition, a registration requirement imposed by a third-party internet website or other online platform not under the control of the legislative body.
(2) Existing law, the Bagley-Keene Open Meeting Act, requires, with specified exceptions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body. The act requires at least one member of the state body to be physically present at the location specified in the notice of the meeting.

The Governor’s Executive Order No. N-29-20 suspends the requirements of the Bagley-Keene Open Meeting Act for teleconferencing during the COVID-19 pandemic, provided that notice and accessibility requirements are met, the public members are allowed to observe and address the state body at the meeting, and that a state body has a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, as specified.

This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a state body to hold public meetings through teleconferencing and to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body. With respect to a state body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the state body at each teleconference location. Under the bill, a state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the state body allow members of the public to attend the meeting and offer public comment. The bill would require that each state body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge state bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(3) Existing law establishes the various campuses of the California State University under the administration of the Trustees of the California State University, and authorizes the establishment of student body organizations in connection with the operations of California State University campuses.

The Gloria Romero Open Meetings Act of 2000 generally requires a legislative body, as defined, of a student body organization to conduct its business in a meeting that is open and public. The act authorizes the legislative body to use teleconferencing, as defined, for the benefit of the public and the legislative body in connection with any meeting or proceeding authorized by law.

This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a legislative body, as defined for purposes of the act, to hold public meetings through teleconferencing and 92 — 3 — Ch. 165

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body. With respect to a legislative body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the legislative body at each teleconference location.

Under the bill, a legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. The bill would require that each legislative body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge legislative bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(4)  This bill would declare the Legislature’s intent, consistent with the Governor’s Executive Order No. N-29-20, to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future emergencies by allowing broader access through teleconferencing options.
(5)  This bill would incorporate additional changes to Section 54953 of the Government Code proposed by AB 339 to be operative only if this bill and AB 339 are enacted and this bill is enacted last.
(6)  The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect. (7) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect. (8) This bill would declare that it is to take effect immediately as an urgency statute.

The people of the State of California do enact as follows:

SECTION 1. Section 89305.6 is added to the Education Code, to read:
89305.6. (a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a legislative body may hold public meetings through teleconferencing 92 Ch. 165 — 4 —

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body.
(b)  (1)  For a legislative body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the legislative body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2)  For a legislative body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A)  Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B)  Each teleconference location be accessible to the public. (C)  Members of the public may address the legislative body at each teleconference conference location.
(D)  Post agendas at all teleconference locations.
(E)  At least one member of the legislative body be physically present at the location specified in the notice of the meeting.
(c)  A legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. A legislative body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d)  If a legislative body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the legislative body shall also do both of the following:
(1)  Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2)  Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e)  Except to the extent this section provides otherwise, each legislative body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1)  Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
92 — 5 — Ch. 165

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) (2)  In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a legislative body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the legislative body’s internet website.
(f)  All legislative bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to legislative body meetings.
(g)  This section shall remain in effect only until January 31, 2022, and as of that date is repealed.

SEC. 2. Section 11133 is added to the Government Code, to read:
11133. (a)  Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a state body may hold public meetings through teleconferencing and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body.
(b)  (1)  For a state body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the state body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2)  For a state body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A)  Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B)  Each teleconference location be accessible to the public. (C)  Members of the public may address the state body at each teleconference conference location.
(D)  Post agendas at all teleconference locations.
(E)  At least one member of the state body be physically present at the location specified in the notice of the meeting.
(c)  A state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically 92 Ch. 165 — 6 —

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the state body allow members of the public to attend the meeting and offer public comment. A state body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d)  If a state body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the state body shall also do both of the following:
(1)  Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2)  Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e)  Except to the extent this section provides otherwise, each state body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1)  Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
(2)  In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a state body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the state body’s internet website.
(f)  All state bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to state body meetings.
(g)  This section shall remain in effect only until January 31, 2022, and as of that date is repealed.

SEC. 3. Section 54953 of the Government Code is amended to read:
92 — 7 — Ch. 165

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) 54953. (a)  All meetings of the legislati
ve body of a local agency shall
be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.
(b)  (1)  Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2)  Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3)  If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4)  For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) (d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter

2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e)  (1)  A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A)  The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B)  The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C)  The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2)  A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A)  The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B)  The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. 92 — 9 — Ch. 165

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time.

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Attachment: Attachment A: Full text of AB 361 (5173 : Resolution - AB 361 to Permit Teleconferenced Meetings due to COVID-19) (3)  If a state of emergency remains acti
ve, or state or local officials have
imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A)  The legislative body has reconsidered the circumstances of the state of emergency.
(B)  Any of the following circumstances exist:
(i)  The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii)  State or local officials continue to impose or recommend measures to promote social distancing.
(4)  For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f)  This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 3.1. Section 54953 of the Government Code is amended to read:
54953. (a)  All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency in person, except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b)  (1)  Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2)  Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3)  If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body 92 — 11 — Ch. 165

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which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.

Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c)  (1)  No legislative body shall take action by secret ballot, whether preliminary or final.
(2)  The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3)  Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d)  (1)  Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2)  Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3)  For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 92 Ch. 165 — 12 —

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In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for 92 — 13 — Ch. 165

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ve body and offer comment in real time.

This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F)  Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G)  (i)  A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii)  A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii)  A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. (3)  If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A)  The legislative body has reconsidered the circumstances of the state of emergency.
(B)  Any of the following circumstances exist:
(i)  The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii)  State or local officials continue to impose or recommend measures to promote social distancing.
(4)  For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f)  This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 4. Section 54953 is added to the Government Code, to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting 92 Ch. 165 — 14 —

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ve body of a local agency, except as otherwise provided in this chapter.
(b)  (1)  Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2)  Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3)  If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4)  For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.

Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations
(c)  (1)  No legislative body shall take action by secret ballot, whether preliminary or final.
(2)  The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3)  Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d)  (1)  Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, 92 — 15 — Ch. 165

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(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter

2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.

SEC. 4.1. Section 54953 is added to the Government Code, to read:
54953. (a)  All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, in person except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b)  (1)  Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2)  Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3)  If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the 92 Ch. 165 — 16 —

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ve body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.

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2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.

SEC. 5. Sections 3.1 and 4.1 of this bill incorporate amendments to Section 54953 of the Government Code proposed by both this bill and Assembly Bill 339. Those sections of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2022, but this bill becomes operative first, (2) each bill amends Section 54953 of the Government Code, and (3) this bill is enacted after Assembly Bill 339, in which case Section 54953 of the Government Code, as amended by Sections 3 and 4 of this bill, shall remain operative only until the operative date of Assembly Bill 339, at which time Sections 3.1 and 4.1 of this bill shall become operative.

SEC. 6. It is the intent of the Legislature in enacting this act to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future applicable emergencies, by allowing broader access through teleconferencing options consistent with the Governor’s Executive Order No. N-29-20 dated March 17, 2020, permitting expanded use of teleconferencing during the COVID-19 pandemic.

SEC. 7. The Legislature finds and declares that Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, further, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

This act is necessary to ensure minimum standards for public participation and notice requirements allowing for greater public participation in teleconference meetings during applicable emergencies.

SEC. 8. (a) The Legislature finds and declares that during the COVID-19 public health emergency, certain requirements of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) were suspended by Executive Order N-29-20. Audio and video teleconference were widely used to conduct public meetings in lieu of physical location meetings, and public meetings conducted by teleconference during the COVID-19 public health emergency have been productive, have increased public participation by all members of the public regardless of their location in the state and ability to travel to physical meeting locations, have protected the health and safety of civil servants and the public, and have reduced travel costs incurred by members of state bodies and reduced work hours spent traveling to and from meetings.
92 Ch. 165 — 18 —

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(1) By removing the requirement that public meetings be conducted at a primary physical location with a quorum of members present, this act protects the health and safety of civil servants and the public and does not preference the experience of members of the public who might be able to attend a meeting in a physical location over members of the public who cannot travel or attend that meeting in a physical location. (2) By removing the requirement for agendas to be placed at the location of each public official participating in a public meeting remotely, including from the member’s private home or hotel room, this act protects the personal, private information of public officials and their families while preserving the public’s right to access information concerning the conduct of the people’s business.

SEC. 9. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect.

The facts constituting the necessity are:

In order to ensure that state and local agencies can continue holding public meetings while providing essential services like water, power, and fire protection to their constituents during public health, wildfire, or other states of emergencies, it is necessary that this act take effect immediately.

O
92 — 19 — Ch. 165

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CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Side letter agreement between the City of Pacifica and the Pacifica Police Officer's Association (PPOA) regarding compensation adjustment for Police Officer Trainee classification.

RECOMMENDED ACTION:

Adopt a resolution authorizing the City Manager to enter into a side letter agreement between the City of Pacifica and PPOA to amend the salary structure for the Police Officer Trainee classification to bring compensation for this position closer to market and make it more attractive for future recruitments.

STAFF CONTACT:

Yulia Carter, Assistant City Manager
650-740-2604
[email protected] <mailto:[email protected]>
Irene P. Camarena, Human Resources Manager
650-738-7303
[email protected] <mailto:[email protected]>
BACKGROUND/DISCUSSION:

Like many Bay Area agencies, the City has been experiencing critical recruitment and retention challenges, having to conduct multiple recruitments citywide. The current salary for the City's Police Trainee classification is much lower than in comparable cities. The Police Department has recently lost an applicant to a nearby city with a more generous compensation package. The most current applicant pool produced no qualified applicants to fill two (2) vacant positions, not including an upcoming retirement in November.

Due to recent failed recruitment efforts and in preparation for the restart of this ongoing recruitment, staff recommends setting the Police Trainee classification's salary at 5% below the Police Officer's classification beginning base salary. This action may help attract candidates to join the Pacifica Police department to fill vacancies due to retirements and medical leaves, which in turn helps improve department morale by reducing the amount of overtime required of officers and provides stability in the Police Department.

In compliance with the Meyers-Milias-Brown Act (MMBA) that regulates labor-management relations in California local government, staff has met and conferred in good faith with the PPOA to develop a Side Letter Agreement to memorialize the classification change as it relates to compensation for Police Trainee class. The proposed side letter is in recognition of the essential nature of services provided by this classification and to coincide with the City's efforts of bringing consistencies and internal alignment in compensation structure within all labor groups. In addition, adjusting the salary for this Police Trainee classification will bring the compensation level closer to comparable positions in the market and make upcoming recruitment more competitive.
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ALTERNATIVE ACTION:

Do not approve the recommended action and/or provide alternative direction to staff. Not approving this side letter will create operational hardship within the police department and present future recruitment challenges.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

The recommended action is consistent with the following Council goal:
"A Strong City Workforce Infrastructure" includes strategies to address employee retention and attraction challenges, engaging staff in decision-making, and recognizing staff.

FISCAL IMPACT:

The fully-burdened budget impact of adjusting the Police Trainee classification from $5,799 to $7,180 per month (5% below the beginning salary step of the Police Officer classification of $7,539) is approximately $40,000 for a full year for two vacancies. However, the FY 2022-23 impact is projected to be marginal due to the timing of these recruitments and the Police Academy schedule and will be absorbed by current salary savings in the Police Department's budget, so no budget amendment is being requested at this time. If approved, this cost will be factored into the salary and benefits projections for the FY 2023-24 Base Budget.

ORIGINATED BY:

City Manager's Office
ATTACHMENT LIST:

Side Letter Agreement with PPOA & City - Police Trainee Compensation Final (DOCX) 7 Packet Pg. 101
Pacifica City Council 3
November 14, 2022
RESOLUTION NO. -2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA AUTHORIZING

THE CITY MANAGER TO ENTER IN A SIDE LETTER BETWEEN THE CITY OF

PACIFICA AND THE PACIFICA POLICE OFFICER'S ASSOCIATION REGARDING ADJUSTING COMPENSATION FOR POLICE OFFICER TRAINEE CLASSIFICATION.

WHEREAS, on September 27, 2021, the City Council authorized the City Manager to execute Memoranda of Understanding with Pacifica Police Officers Association for agreements effective from July 1, 2021 to June 30, 2023; and WHEREAS, the Memoranda of Understanding terms include a description of classifications represented by each labor group and salaries paid to each group's respective classifications; and
WHEREAS, said side letter agreement between the City of Pacifica and the Pacifica Police Officer's Association is detailed in Exhibit A, attached; and WHEREAS, it is the City's desire to maintain equity within the Police Department and attract and retain highly qualified employees to staff public safety services; and WHEREAS, City Manager recommends that the City Council approve the compensation adjustment for Police Trainee classifications effective after City Council approval November 14, 2022; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Pacifica to authorize the City Manager to enter into a side letter providing compensation adjustment to the Police Trainee classification with an effective date of November 14, 2022. • • • • •
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on November 14, 2022, by the following vote:

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:
_________________________________
_
Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ _________________________________ Sarah Coffey, City Clerk Michelle Marchetta Kenyon, City Attorney 7 Packet Pg. 102
The City of Pacifica and Pacifica Police Officer’s Association Side Letter Agreement to the
2021-2023 MOU
The Pacifica Police Officer’s Association (PPOA) (“Union) and representatives of the City of Pacifica (“City) have met and conferred in good faith pursuant to the requirements of the Meyers-Milias-Brown Act (Government Code Sections 3500, et seq.) to amend provisions of their Memorandum of Understanding (“MOU”), with a current term of July 1, 2021, through June 30, 2023. This Side Letter of Agreement describes the parties’ full and complete Agreement regarding wages for the “Police Trainee” classification.

This side letter confirms the proposal and that both parties have endeavored to reach an agreement related to this matter for the “Police Trainee” classification and compensation.

This Memorandum of Understanding shall be presented to the City Council as the joint recommendations of the undersigned for salary adjustments commencing upon City Council approval.

Appendix A-2 – 2022-23 Salary Schedule
All Parties agree to a compensation adjustment and to add the following language to Appendix A-2:

Effective November 7, 2022: Wages for “Police Trainee” for this represented unit members covered by this Agreement shall be increased from $5,799 to $7,180 or 5% below the beginning step of the Police Officer’s compensation.

The above sections and language revisions are the only amendments to the current Memorandum of Understanding (MOU). This Side Letter Agreement does not change, modify, or otherwise alter any other terms or conditions of the current MOU between the City of Pacifica and the Pacifica Police Officer’s Association (PPOA) unit. Except as modified in this Side Letter Agreement, all other provisions of the MOU remain in full force and effect.

FOR Police Officer’s Association (PPOA) FOR City of Pacifica Date: ______________________ Date: ____________________ ___________________________ __________________________
Joe Gomez, President (PPOA) Kevin Woodhouse, City Manager ___________________________
Richard Lechleitner, Vice President (PPOA)

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CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Authorization to extend contract with HdL to provide cannabis inspections/audit services.

RECOMMENDED ACTION:

Move to authorize the City Manager to sign a contract extension with Hinderliter, de Llamas and Associates (HdL), and additional (2) years to provide cannabis inspection compliance and financial audit services.

STAFF CONTACT:

Bill Glasgo, Police Captain
(650) 738-7314
[email protected]
Yulia Carter, Assistant City Manager
(650) 738-7402
[email protected]
BACKGROUND/DISCUSSION:

In November 2017, Article 48 of Chapter 4 of Title 9 of the Pacifica Municipal Code was enacted regarding the regulation of cannabis business operations in the City of Pacifica. The complexity and uniqueness of cannabis business operations were understood by staff and City Council, with the understanding that inspections to assure compliance with state and local law, as well as fiscal audits were desired. The following municipal code section allows for these activities to occur:

Pacifica Municipal Code Sec. 9-4.4803. - Cannabis operations-General provisions. e) City access to and inspection of required records. A duly designated City Police Department or Finance Division representative may enter and shall be allowed to inspect the premises of every cannabis operation as well as the financial and membership records of the cannabis operation required by this article at any time during the cannabis operation's designated business hours, or at any appropriate time to ensure compliance and enforcement of the provisions of this article. It shall be unlawful for any owner, operator, or any other person having any responsibility over the operation of the cannabis operation to refuse to allow, impede, obstruct or interfere with an inspection of the cannabis operation or the required records thereof. A cannabis operation shall not conceal, destroy, deface, damage, or falsify any records, recordings or other documents required to be maintained by a cannabis operation under this article.

Also in November 2017, Chapter 18 of Title 3 of the Pacifica Municipal Code was enacted relating to cannabis business operation tax. The following section relates to the enforcement component of the cannabis business operation tax:

Sec. 3-18.13. - Enforcement
(b) The City Manager shall have the power to examine and audit all financial and operational records of cannabis operations as well as persons engaged in the retailer of a cannabis 8 Packet Pg. 104
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November 14, 2022
operation, including both state and federal income tax returns, California sales tax returns, or other evidence documenting the gross receipts of a cannabis operation or persons engaged in the operation of a cannabis operation, for the purpose of ascertaining the amount of tax, if any, required to be paid by the provisions of this chapter, and for the purpose of verifying any statements or any item thereof when filed by any person pursuant to the provisions of this chapter. If such cannabis operation or person, after written demand by the City Manager, refuses to make available for audit, examination or verification such books, records, or equipment as the City Manager requests, the City Manager may, after full consideration of all information within the City Manager's knowledge concerning the cannabis operation and its business and activities of the person so refusing, make a determination of the tax due using the procedures set forth in this chapter. Said assessment shall include the reasonable costs and expenses borne by the City in conducting an audit and examination pursuant to this section.

Currently, the City contracts with HdL for services related to sales tax, business license and transient occupancy taxes. Hdl was also utilized as a consultant for the City during the creation of cannabis business ordinances.

The HdL cannabis services team has experience implementing medicinal and adult use cannabis regulatory programs including land-use regulations and permit processes, developing regulatory ordinances, staffing plans, cost recovery fees, business tax fees, and audit programs to ensure businesses are maintaining regulatory and tax compliance. Hdl has conducted over 10,000 cannabis compliance inspections and investigations in California, Colorado and Nevada.

Under the proposed amendment, HdL will conduct two on-site compliance inspections annually for each permitted cannabis business to determine compliance with State and/or local laws, including but not limited to PMC 4.4803 (e) and recognized best practices. In addition, HdL will conduct an annual financial audit of each permitted cannabis business as directed by the City Manager, or his designee, pursuant to PMC 3-18.13 (B) to verify the accuracy of the revenue reported to the City during the review period and will recommend a tax/fee assessment should the audit reveal any unreported revenue.

ALTERNATIVE ACTION:

There is no reasonable alternative to this action as the City staff has no capacity to provide these services in-house. Also, finding an alternative service provider will result in operational delays in conducting annual audits of the cannabis businesses that are currently underway.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

Contracting for compliance inspection and fiscal audits of cannabis business operations supports the City Council goals of maintaining a Healthy and Compassionate Community and Fiscal Sustainability.

FISCAL IMPACT:

The maximum yearly expenditure under this contract is $84,000. For FY 2022-23, staff anticipates only $70,000 will be expended from this contract, given that only five of the City’s six cannabis business licensees are actually open. These contract expenditures will be offset by the $23,000 per business cannabis public safety licensing fees the City will receive during FY 2022-

23. ORIGINATED BY:
8 Packet Pg. 105
Pacifica City Council 3
November 14, 2022
Police
Assistant City Manager
Police
ATTACHMENT LIST:

Attachment A: Second Amendment to Agreement - Hinderliter, De Llamas and Associates (HdL) (PDF)
8 Packet Pg. 106

SECOND AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE CITY OF PACIFICA

AND HINDERLITER, DE LLAMAS AND ASSOCIATES
THIS AMENDMENT to the existing Agreement, originally entered into November 12, 2019 (“Second Amendment”), is made and entered into this ___ day of _____________, 2022, by and between THE CITY OF PACIFICA, a municipal corporation, hereinafter called “CITY”, and HINDERLITER, DE LLAMAS AND ASSOCIATES, a California Corporation hereinafter called “CONSULTANT” or “HdL.” RECITALS:

WHEREAS, on November 12, 2019 the parties entered into an Agreement for the provision of Cannabis Management Services, for a term commencing November 12, 2019 through November 12, 2020 (“AGREEMENT”); and
WHEREAS, the parties subsequently amended the Agreement to extend the term for an additional two (2) years for a total term expiring three (3) years from the Effective Date of the Agreement; and WHEREAS, the CITY and CONSULTANT desire to do the following:

1. Extend the AGREEMENT term for an additional two (2) years for a total term of five (5) years

2. Provide a necessary price adjustment for successive years of the agreement

3. All other Terms and Conditions of the AGREEMENT are to remain the same.

NOW, THEREFORE, the parties agree to amend the AGREEMENT as follows; SECTION 1. Section 2 of the AGREEMENT, entitled “TERM” shall be replaced in its entirety to read as follows:
“2. TERM. The Agreement term will commence on the Effective Date and expire five (5) years from the Effective Date unless the Agreement term is amended to extend beyond the five (5) year term of the Agreement or the Agreement is terminated in accordance with its terms.” SECTION 2. Exhibit B “COMPENSATION” shall be replaced with the updated exhibit attached herein.

SECTION 3. All of the terms and conditions of the original AGREEMENT, except those specifically modified and amended herein in this Second Amendment, shall remain in full force and effect.

DocuSign Envelope ID: 84F5CFEA-AE2C-4CA4-8E4C-1ABD8C1B615C

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Packet Pg. 107 Attachment: Attachment A: Second Amendment to Agreement - Hinderliter, De Llamas and Associates (HdL) (5177 : Extend HdL contract to WITNESS THE EXECUTION HEREOF the day and year first hereinabove written.

Consultant
HINDERLITER, DE LLAMAS & ASSOCIATES City of PACIFICA
A California corporation A municipal corporation
By ______________________________ By_____________________________ ANDREW NICKERSON President KEVIN WOODHOUSE, City Manager ATTEST:
___________________________
Sarah Coffey, City Clerk
APPROVED AS TO FORM:
_____________________________
Michelle Marchetta Kenyon, City Attorney
DocuSign Envelope ID: 84F5CFEA-AE2C-4CA4-8E4C-1ABD8C1B615C

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Packet Pg. 108 Attachment: Attachment A: Second Amendment to Agreement - Hinderliter, De Llamas and Associates (HdL) (5177 : Extend HdL contract to

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Consideration of an appeal of the Planning Commission's approval of Site Development Permit PSD-811-16, Use Permit UP-76-16, Tentative Subdivision Map SUB-233-16, Sign Permit S129-19, Parking Exception PE-183-19, and Heritage Tree Removal Authorization, and Recommendation for City Council approval of General Plan Amendment GPA-96-19, Rezoning RZ-194-16, Zoning Text Amendment TA-116-19, and Development Agreement DA-4-21, filed by Brendan and Eamon Murphy, for construction of a three-building mixed-use project with 3,165-square feet (sf) of commercial floor area and 19 residential units, and associated condominium subdivision, at 570 Crespi Drive (APN 022-162-310) and a portion of 540 Crespi Drive (APN 022-162-420). The proposed General Plan amendment and zoning text amendment would have city-wide applicability and allow residential uses to be established either in the same building as a commercial use above the ground floor or in residential-only buildings on a site that also contains a commercial use (horizontal mixed-use) with approval of a use permit.

RECOMMENDED ACTION:

Move to adopt the attached Resolution to refer the subject project back to the Planning Commission for reconsideration following the preparation of an environmental impact report (EIR) as provided in PMC section 9-4.3208(b)(2).

STAFF CONTACT:

Christian Murdock, AICP, Planning Director
(650) 738-7341
[email protected]
BACKGROUND/DISCUSSION:

The following section provides the relevant background of the project as well as discussion of the appeal.

A. BACKGROUND
Brendan and Eamon Murphy (“Applicant”) have submitted an application for construction of a 43,696-square foot (sf) mixed-use development including one two-story mixed-use building with three residential units and 3,165 sf of commercial space, two three-story residential buildings behind the street-facing mixed-use building consisting of 16 townhouse residential units; construction of a freestanding sign; merger of two parcels located at 540 and 570 Crespi Drive (APNs 022-162-420 and 022-162-310); removal of five heritage trees; a condominium subdivision; construction of off-site parking, circulation and landscaping improvements at 540 Crespi Drive (the Pacifica Community Center); construction of a wetlands interpretive sign; a development agreement with certain public and developer benefits; a General Plan amendment to revise the “Commercial” land use designation; a zoning text amendment to revise the list of 9 Packet Pg. 109
Pacifica City Council 2
November 14, 2022
conditional uses in the C-2 (Community Commercial) zoning district; and a rezoning to change the zoning classification to the C-2 zoning district (“Project”).

On March 7, 2022, the Planning Commission adopted Resolution No. 2022-006 by a vote of 6-0 with one abstention to approve Site Development Permit PSD-811-16, Use Permit UP-76-16, Tentative Subdivision Map SUB-233-16, Sign Permit S-129-19, Parking Exception PE-183-19, and Heritage Tree Removal Authorization to approve the Project (collectively the “Development Permits”; to recommend City Council approval of General Plan Amendment GPA-96-19; and, to initiate and recommend City Council approval of Rezoning RZ-194-16, Zoning Text Amendment TA-116-19, and Development Agreement DA-4-21 necessary to enable construction of the Project (collectively the “Legislative Items”).

The Planning Commission also adopted an Initial Study/Mitigated Negative Declaration (“IS/MND”) and Mitigation Monitoring and Reporting Program (“MMRP”) for the Project to comply with the California Environmental Quality Act (“CEQA”). The City received no public comments on the IS/MND during the public comment period; therefore, the City has not prepared a response to comments document.

B. APPEAL OF PLANNING COMMISSION ACTION
On March 17, 2022, Margaret Goodale (hereafter “Appellant”) submitted a City of Pacifica Appeal Form stating several bases for appeal (“Appeal”), and submitted the applicable fee to the City Clerk’s office, to appeal the Planning Commission’s approval of the Project (Attachment B). Appellant stated a number of reasons for the Appeal in the Appeal Form. The Appellant has expressed opposition to approval of the Project and adoption of the IS/MND prepared for the Project to comply with the California Environmental Quality Act (“CEQA”).

The City Council was first scheduled to hear the Appeal on May 9, 2022. However, prior to the hearing, the Applicant submitted a project revision to relocate an emergency stormwater overflow inlet and pipe that required further analysis of potential wetlands impacts from the Project. As a result, the City Council continued the public hearing to June 27, 2022.

Following publication of the agenda packet for the June 27 continued public hearing, the Appellant submitted a memorandum prepared by a coastal ecologist and botanist on June 24, 2022, that described potential impacts to the California red-legged frog (CRLF) that could result from the Project and alleging that the IS/MND prepared by the City did not adequately assess the potential for occurrence of CRLF on the Project site. The City was unable to consider the new information submitted by the Appellant prior to the June 27 public hearing and, as a result, the City Council continued the public hearing to a date to be determined following completion of the City’s analysis.

C. APPLICANT DECISION TO CONDUCT FURTHER ENVIRONMENTAL REVIEW The Applicant has considered its options to proceed with City consideration of the Project and has requested the City to prepare an environmental impact report (EIR) pursuant to the California Environmental Quality Act (CEQA). Preparation of an EIR will require several months and must also be considered by the Planning Commission prior to City Council action on the Project. Accordingly, as a result of Applicant’s request, the Project should be referred back to the Planning Commission.

D. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) REVIEW
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As noted above, the Applicant has requested the City to prepare an EIR to comply with CEQA.

The EIR will be presented to the Planning Commission and City Council for certification prior to their respective future actions on the Project.

E. PUBLIC COMMENT
Public comments received prior to agenda packet publication are included as Attachment C.

ALTERNATIVE ACTION:

Staff has not identified an alternative action because an EIR must be prepared before the City Council can act on the Project.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

The proposed project is not directly associated with an item on the City Council’s Work Plan. It is the City Council’s normal governance process to hear and determine appeals of Planning Commission actions under the Pacifica Municipal Code.

FISCAL IMPACT:

No direct impact since all costs would be borne by the project Applicant.

ORIGINATED BY:

Planning Department
ATTACHMENT LIST:

Attachment A - Draft Resolution to Refer the Project Back to the Planning Commission (DOCX)
Attachment B - Appeal Form (PDF)
Attachment C - Public Comments (PDF)
9 Packet Pg. 111
RESOLUTION NO. ____________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA REFERRING THE

PROJECT BACK TO THE PLANNING COMMISSION FOR RECONSIDERATION

FOLLOWING THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT (EIR) IN ACCORDANCE WITH SECTION 9-4.3208(b)(2) OF THE PACIFICA MUNICIPAL CODE FOR GENERAL PLAN AMENDMENT GPA-96-19, REZONING RZ-194-16, ZONING TEXT AMENDMENT TA-116-19, DEVELOPMENT AGREEMENT DA-4-21, SITE DEVELOPMENT PERMIT PSD-811-16, USE PERMIT UP-76-16, PARKING EXCEPTION PE-183-19, SIGN PERMIT S-129-19, VESTING TENTATIVE SUBDIVISION MAP SUB-233-16, AND HERITAGE

TREE REMOVAL AUTHORIZATION, THAT WOULD AUTHORIZE CONSTRUCTION OF A MIXED-USE COMMERCIAL AND RESIDENTIAL PROJECT CONSISTING OF 3,165 SQUARE FEET OF COMMERCIAL AREA AND 19 RESIDENTIAL CONDOMINIUMS AT 570 CRESPI DRIVE (APN 022-162-310) AND CERTAIN OFF-SITE IMPROVEMENTS AT 540 CRESPI DRIVE (APN 022-162-420).
________________________________________________________________ WHEREAS, an application has been submitted for construction of a 43,696-square foot (sf) mixeduse development including one two-story mixed-use building with three residential units and 3,165 sf of commercial space, two three-story residential buildings behind the street-facing mixed-use building consisting of 16 townhouse residential units; construction of a freestanding sign; merger of two parcels located at 540 and 570 Crespi Drive (APNs 022-162-420 and 022-162-310); removal of five heritage trees; a condominium subdivision; construction of off-site parking, circulation and landscaping improvements at 540 Crespi Drive; construction of a wetlands interpretive sign; a development agreement with certain public and developer benefits; a General Plan amendment to revise the “Commercial” land use designation; a zoning text amendment to revise the list of conditional uses in the C-2 (Community Commercial) zoning district; and a rezoning to change the zoning classification to the C-2 zoning district (“Project”); and WHEREAS, pursuant to Public Resources Code Section 21080.1 and Section 15063 of the California Environmental Quality Act (“CEQA”) Guidelines located in Title 14, California Code of Regulations, the City, as CEQA lead agency, determined that prior to considering the approval of the Project that an Initial Study and Mitigated Negative Declaration should be prepared in accordance with CEQA and the CEQA Guidelines; and
WHEREAS, the City prepared an Initial Study/Mitigated Negative Declaration (IS/MND) dated December 2021 to consider, identify and analyze all potential environmental impacts of the proposed Project (State Clearinghouse No. 2021120126), which concluded that the Project could result in potentially significant impacts to Biological Resources, Cultural Resources, Geology and Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Noise, Transportation, and Tribal Cultural Resources, and that all the potentially significant impacts of the Project can be avoided or reduced to insignificance with implementation of mitigation measures; and
WHEREAS, the City provided notice of the availability of the IS/MND and its intent to adopt a mitigated negative declaration to and sought comments from all interested individuals and agencies on the IS/MND as required by CEQA by (i) Publishing “Notice of Intent to Adopt a Mitigated Negative Declaration for the 570 Crespi Drive Project in the City of Pacifica” (“NOI”) in the Pacifica Tribune newspaper on December 8, 2021; (ii) Submission of the NOI to the County Clerk of the County of San Mateo for posting; (iii) Provision of copies of the NOI to individuals and organizations that previously submitted written requests for the notice; (iv) Publication of a Notice of Completion with the State Clearinghouse, State Clearinghouse No. 2021120126; and, (v) Posting of the draft IS/MND on the City of

9.a
Packet Pg. 112 Attachment: Attachment A - Draft Resolution to Refer the Project Back to the Planning Commission (5179 : Appeal of Planning Commission Pacifica Planning Department webpage; and
WHEREAS, pursuant to the above-described notices provided, the City made the IS/MND available for a 30-day review and comment period that ran from December 8, 2021, to January 10, 2022; and
WHEREAS, the City received no public or agency comment letters on the IS/MND during the 30- day public comment period; because no comments were received during the public comment period, the City has not prepared a Response to Comments (“RTC”) document to respond to comment letters received on the IS/MND; and
WHEREAS, the City prepared a Final IS/MND consisting of the IS/MND and a Mitigation Monitoring and Reporting Program (“MMRP”) which includes all of the mitigation measures identified in the IS/MND, along with the party responsible for monitoring implementation of the mitigation measures, the milestones for implementation and monitoring, and a sign-off that the mitigation measure has been implemented; and
WHEREAS, the Planning Commission held a duly noticed public hearing on March 7, 2022, at which time it considered all oral and documentary evidence presented, and incorporated all testimony and documents into the record by reference, and adopted Resolution No. 2022-006 by a vote of 6-0 with one abstention to approve Site Development Permit PSD-811-16, Use Permit UP-76-16, Tentative Subdivision Map SUB-233-16, Sign Permit S-129-19, Parking Exception PE-183-19, and Heritage Tree Removal Authorization to approve the Project, and to initiate and recommend City Council approval of General Plan Amendment GPA-96-19, Rezoning RZ-194-16, Zoning Text Amendment TA-116-19, and Development Agreement DA-4-21; and
WHEREAS, a timely appeal of the Planning Commission’s adoption of Resolution No. 2022- 006 was filed on March 17, 2022 (“Appeal”); and
WHEREAS, on May 9, 2022, the City Council continued the public hearing to consider the Appeal to June 27, 2022, in order to allow City staff additional time to review a proposed Project revision submitted by applicants Brendan and Eamon Murphy (“Applicant”); and WHEREAS, on June 27, 2022, the City Council again continued the public hearing to consider the Appeal to a future date to be determined in order to allow City staff additional time to review information submitted by the Appellant; and
WHEREAS, on October 19, 2022, the Applicant requested that the City of Pacifica prepare an environmental impact report (EIR) in accordance with the CEQA; and WHEREAS, the Planning Commission must consider the EIR prior to City Council consideration of the Project, and therefore, the City Council of the City of Pacifica cannot consider the Appeal or approval of the Project until the EIR has been prepared; and
WHEREAS, Section 9-4.3208(b) of the Pacifica Municipal Code (PMC) provides that the City Council may consider an appeal either by holding a public hearing, using the same procedures as set forth in Section 9-4.3302 of the PMC; or, by referral back to the Planning Commission for reconsideration; and WHEREAS, the City Council held a duly noticed public hearing on November 14, 2022, to consider the Appeal, at which time it considered all oral and documentary evidence presented, and incorporated all testimony and documents into the record by reference.

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Packet Pg. 113 Attachment: Attachment A - Draft Resolution to Refer the Project Back to the Planning Commission (5179 : Appeal of Planning Commission NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Pacifica as follows:

1. The above recitals are true and correct and material to this Resolution.

2. In making its findings, the City Council relied upon and hereby incorporates by reference all correspondence, staff reports and other related materials and oral and written testimony at the hearing.

BE IT FURTHER RESOLVED that the City Council of the City of Pacifica does hereby refer the Project back to the Planning Commission for reconsideration after preparation of an EIR in compliance with CEQA, in accordance with Section 9-4.3208(b)(2) of the PMC. * * * * *
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the 14th day of November, 2022.

AYES, Councilmembers:

NOES, Councilmembers:

ABSENT, Councilmembers:

ABSTAIN, Councilmembers:
_____________________________
Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ _____________________________ Sarah Coffey, City Clerk Michelle Marchetta Kenyon, City Attorney

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Packet Pg. 114 Attachment: Attachment A - Draft Resolution to Refer the Project Back to the Planning Commission (5179 : Appeal of Planning Commission

9.b
Packet Pg. 115
Attachment: Attachment B - Appeal Form (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 1 Shawn Smallwood, PhD
Christian Murdock, Deputy Planning Director
City of Pacifica
Planning Department
540 Crespi Drive
Pacifica, CA 94044 7 November 2022
[email protected]
Via Email
RE: 570 Crespi Drive Project
Dear Mr. Murdock,
I write to comment on potential biological impacts of a proposed mixed-use, largely residential development described in biological resources reports (Monk & Associates 2014, Wood Biological Consulting 2020) and an Initial Study / Mitigated Negative Declaration (“IS/MND”) prepared for the site at 540 and 570 Crespi Drive, Pacifica (City of Pacifica 2021). I understand the site is 1.68 acres, where natural vegetation and supporting soils would be replaced by three buildings 2 to 3 stories tall. To prepare my comments, I also consulted eBird -- an online database of bird observations managed by the Cornell Lab of Ornithology, and iNaturalist -- another online data base of animal and plant observations. I also visited the site of the proposed project.

My qualifications for preparing expert comments are the following. I hold a Ph.D. degree in Ecology from University of California at Davis, where I also worked as a postgraduate researcher in the Department of Agronomy and Range Sciences. My research has been on animal density and distribution, habitat selection, wildlife interactions with the anthrosphere, and conservation of rare and endangered species. I have authored many papers on these and other topics. I served as Chair of the Conservation Affairs Committee for The Wildlife Society – Western Section. I am a member of The Wildlife Society and Raptor Research Foundation, and I’ve lectured part-time at California State University, Sacramento. I was Associate Editor of wildlife biology’s premier scientific journal, The Journal of Wildlife Management, as well as of Biological Conservation, and I was on the Editorial Board of Environmental Management. I have performed wildlife surveys in California for thirty-seven years. My CV is attached.

SITE VISIT
I visited the site of the proposed project to perform a visual-scan survey on 27 July 2022, starting at 06:00 hours and lasting 3 hours 5 minutes. Conditions were initially foggy, but the fog lifted. Temperatures ranged 53° F to 57° F. The site is covered by an

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Packet Pg. 116 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 2 extensive, dense willow thicket, marsh vegetation, annual grassland and Monterey cypress (Photos 1 ― 3).

The site supports fossorial mammals such as California voles and Botta’s pocket gophers (Photo 4), which are keystone species that provision many other species with forage and burrow refugia. In fact, during my brief survey, I detected 28 species of vertebrate wildlife on, over and next to the project site (Table 1), including 7 special-status species.

Special-status species composing 25% of the species I detect is unusually high, and is indicative of a project area that is naturally rich in wildlife species.

Photos 1 and 2. Views of project site, 27 July 2022.

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Packet Pg. 117 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 3 Photo 3. Another view of project site, 27 July 2022.

Photo 4. Pocket
gopher burrows
covered the site’s
annual grassland,
and from which I
watched 2 red-
shouldered hawks
pluck several
gophers and voles,
which the hawks
consumed on the
site’s Monterey
cypress and on the
roof of The Crespi
Center, 27 July
2022.

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Packet Pg. 118 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 4 Table 1. Species of wildlife I observed at the proposed project site on 27 July 2022.

Species Scientific name Status1 Notes
Mourning dove Zenaida macroura Flyover
Rock pigeon Columba livia Non-native Flyover
Band-tailed pigeon Patagioenus fasciata Flyover
Anna's hummingbird Calypte anna territory defence
California gull Larus californicus BCC, TWL Flyover
Western gull Larus occidentalis BCC Flyover
Double-crested cormorant Nannopterum auritum TWL flight Turkey vulture Cathartes aura BOP Foraging
Osprey Pandion haliaetus TWL, BOP Flyover
Red-shouldered hawk Buteo lineatus BOP Fledgling
Black phoebe Sayornis nigricans Foraging
European starling Sturnus vulgaris Non-native
Common raven Corvus corax Foraging
American crow Corvus brachyrhynchos
Bewick's wren Thryomanes bewickii Fledgling
Oak titmouse Baeolophus inornatus BCC
Chestnut-backed chickadee Poecile rufescens
Barn swallow Hirundo rustica Flyover
American goldfinch Spinus tristis Flyover
House finch Haemorphous mexicanus Territory vigilance
California towhee Melozone crissalis Territory vigilance Spotted towhee Pipilo maculatus
Song sparrow Melospiza melodia Territory vigilance
Lincoln's sparrow Melospiza lincolnii
Wilson's warbler Wilsonia pusilla Foraging
California vole Microtus californicus
Botta's pocket gopher Thomomys bottae
Black-tailed deer Odocoileus hemionus Foraging
1 Listed as BCC = U.S. Fish Bird Species of Conservation Concern, California Department of Fish and Wildlife Service’s TWL = Taxa to Watch List (Shuford and Gardali 2008), BOP = Birds of Prey (California Fish and Game Code 3503.5).

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Packet Pg. 119 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 5 Photo 5. Red-shouldered hawk on the fence between the project applicant’s property and the City’s property, early morning, 27 July 2022.

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Packet Pg. 120 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 6 Photos 6 and 7.

A very young male
red-shouldered
hawk seeks the
comfort of his
mother on The
Crespi Center,
adjacent to the
project site, 27 July
2022. These two
hawks foraged on
the project site all
morning. Their
center of activity
was a Monterey
cypress on the
north end of the
site.

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Packet Pg. 121 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 7 Photo 8. Black
phoebe on the
project site, 27
July 2022.

Photos 9 and 10. Lincoln’s sparrow (left) and Anna’s hummingbird (right) on the project site, 27 July 2022.

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Packet Pg. 122 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 8 Photo 11. Bewick’s
wren on the project
site, 27 July 2022.

This wren was
constantly pursued by
a fledgling.

Photo 12. Wilson’s warbler on
the project site, 27 July 2022.

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Packet Pg. 123 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 9 Photos 13―15. California towhee (top), purple finch (left) and song sparrow (right) on the project site, 27 July 2022.

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Packet Pg. 124 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 10 Photo 16. Black-tailed deer on the project site, 27 July 2022.

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Packet Pg. 125 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 11 Photos 17 and 18. Part
of a flock of double-crested
cormorants (top) and an
osprey (bottom) returning
along the route it had
headed out to catch a fish,
selectively flying over the
project site, 27 July 2022.

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Packet Pg. 126 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 12 CURRENT ENVIRONMENTAL SETTING
The first step in analysis of potential project impacts to biological resources is to accurately characterize the existing environmental setting, including the biological species that use the site, their relative abundances, how they use the site, key ecological relationships, and known and ongoing threats to those species with special status. A reasonably accurate characterization of the environmental setting can provide the basis for determining whether and to what degree the site holds habitat value to wildlife, as well as a baseline against which to analyze potential project impacts. For these reasons, characterization of the environmental setting, including the project’s site’s regional setting, is one of CEQA’s essential analytical steps (CEQA Guideline §15125). Methods to achieve this first step typically include (1) surveys of the site for biological resources, and (2) reviews of literature, databases and local experts for documented occurrences of special-status species. In the case of this project, these essential steps remain incomplete and conclusions stemming from them are pseudoscientific.

Biological Setting informed by Field Surveys
Ideally, the purpose of a field survey in support of environmental review is to identify which species use a project site, how they use it, and in what numbers. Identifying the presence of certain species – special-status species – is more important than the presence of others. Analysts need this information to identify the environmental baseline, and as a basis for opining on (predicting) potential project impacts to biological resources. In reality, a biological survey to inventory species is costly in time and effort, and its product uncertain. Some species are large or loud, and can be seen during diurnal surveys, whereas others are tiny and quiet and are detectable only by night, by trapping or by remote-sensing technology. Membership on an inventory can also carry different meanings based on how each species occurs at the site. Whereas some species are resident year-round, others can be seasonal or ephemeral in their occurrences at a site. Should a species be included on an inventory depends on the investigator’s standard of what counts as presence. Does a single 5-minute occurrence over a decade qualify a species as present? And if such a record was made, who can know whether many other brief occurrences truly occurred without having been documented?
The dilemma is that environmental review really needs species inventory, but biologists are imperfect observers of wildlife at any given site. Obtaining a true species inventory is unlikely, given the brief windows of time and budget that project applicants and their permitting authorities allow for biologists to surveil the site. The wildlife species that are detected by reconnaissance-level survey represent only a sampling of the species that truly use the site. This is because biologists vary in their skill at detecting wildlife species, and because species of wildlife vary in their detection probabilities during a typical reconnaissance-level survey, ranging from near 0% among rare or nocturnal species to 100% among species that consulting biologists often refer to as “common.” In truth, “common” species can number fewer than the “rare” or cryptic species that are more difficult to detect. Rare or cryptic species often require specialized survey

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Packet Pg. 127 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 13 methods, begging the question of whether reconnaissance-level surveys can reveal any reliable information to readers of the environmental review.

Reconnaissance-level surveys occasionally reveal the presence of special-status species, sometimes due to the skill of the observer but often due to luck of survey timing. What these surveys cannot reveal is the absences of any species whose geographic ranges overlap the site and whose habitat associations at all resemble conditions of the site.

And it is habitat associations that consulting biologists often rely upon to determine likelihoods of occurrence of special-status species. Unfortunately, habitat associations often poorly comport with the habitat concept, which is that habitat is that part of the environment that is used by a species (Hall et al. 1997), and which is described by scientists through measurement (Smallwood 2002). Habitat associations defined by consulting biologists typically lack foundation in actual measurements of habitat use, and are therefore speculative and prone to error. One source of error is to map vegetation complexes as habitat types, to which consulting biologists assign species by association without concern for the unrealistically hard boundaries that divide the mapped habitat types. Another source of error is to pigeon-hole species into unrealistically narrow portions of the environment, which can then be said not to exist on the project site. A third source of error is to assign functions to habitat for the purpose of dividing habitat into unrealistic functional parts, such as between breeding habitat versus foraging habitat. Primacy is assigned to breeding habitat, which often can be said not to exist on the project site. In reality, all parts of an animal’s habitat are essential to breeding success, regardless of where breeding opportunities occur.1 Given the true cost of species inventory, the temptation to shortcut the analysis of occurrence likelihoods is understandable. In the spirit and intent of CEQA, a reasonably feasible species inventory should be the first objective of reconnaissance-level surveys.

But a reasonably feasible inventory is only a sampling of the inventory and not a true inventory. What, then, is the appropriate approach for informing a CEQA review with a reconnaissance-level biological survey? One is to commit to a survey effort that results in the detection of a sufficient number of species to accurately estimate the number of species yet to be detected. Another is to honestly report the uncertainties of the characterizations of the species inventory and of the likelihoods of occurrence of specialstatus species. The analyst can also assume species are present until suitable evidence is acquired in support of an absence determination. This last approach would be consistent with the precautionary principle of risk analysis directed toward rare and precious resources (National Research Council 1986).
1 Animals unable to find sufficient forage, refugia, or travel opportunities are just as unable to reproduce as those unable to find sufficient nest-site opportunities. Per the precautionary principle of risk analysis and consistent with the habitat concept, CEQA review should be based on the broadest of available habitat characterizations, which should be interpreted on the whole rather than contrived functional parts. Any detections of a species on or over a site, regardless of time of year, should be interpreted as that species’ use of habitat, any part of which is critical to breeding success.

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Packet Pg. 128 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 14 How did the consulting biologists address the wildlife species inventory and special-status species occurrence likelihoods at the project site? Geoff Monk visited the project site on 17 September 2014 “to evaluate biological resources on the project site and to determine if proposed development of the project site would affect special-status species” (Monk & Associates 2014). Although his stated objectives are vague, it would seem that Mr. Monk intended to rely on habitat associations. No report is provided of what time Mr. Monk began his survey, how long his survey lasted, under what conditions he surveyed, nor which species of wildlife he saw. Monk & Associates (2014) fail to report the most fundamental methodological attributes and survey results needed to assess whether the survey met the stated objectives. Monk & Associates (2014) reported no data that could inform a species inventory or the likelihoods of occurrence of special-status species.

Chris Rogers of Wood Biological Consulting visited the project site on 19 July 2020 to observe “habitats plant and wildlife species [sic].” The objectives, though poorly worded, appear directed toward the preparation of a species inventory. However, Wood Biological Consulting (2020) repeats the gross reporting shortfalls of Monk & Associates (2014) by not reporting when the survey started, how long it lasted, under what conditions it was performed, and which species of wildlife were seen or heard. The survey and its reporting are uninformative of the wildlife species inventory and of the occurrence likelihoods of special-status species.

Neither Monk & Associates (2014) nor Wood Biological Consulting (2020) describe standards of field assessment intended for determining occurrence likelihoods, but instead imply a level of understanding of wildlife habitat that biologists lack. The most reliable indicator of habitat occupancy is detection of the species at the site, which is why species experts have painstakingly formulated protocol-level detection surveys for each of multiple special-status species. These detection surveys are formulated to give survey personnel high likelihoods of detecting the species if the species are indeed present, and otherwise to support absence determinations if the species are not detected despite full implementation of the detection surveys. Neither Monk & Associates (2014) nor Wood Biological Consulting (2020) made use of these detection surveys, and furthermore committed only brief reconnaissance-level survey efforts that were not up to the tasks of species inventory nor determining occurrence likelihoods. Monk & Associates (2014) and Wood Biological Consulting (2020) leave readers of the IS/MND ill-informed about the baseline conditions of the project site’s wildlife community.

Without appropriate surveys for special-status species, the appropriate determinations in most cases would be to assume presence, consistent with the precautionary principle in risk analysis directed towards rare and precious resources (National Research Council 1986). Monk & Associates (2014), Wood Biological Consulting (2020), and the IS/MND do not do this, however, and instead they most often assume absence. Determining absence without the support of detection surveys is inappropriate.

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Packet Pg. 129 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 15 As discussed earlier, a reconnaissance-level survey can be useful for confirming presence of species that were detected, but it can also be useful for estimating the number of species that were not detected. One can model the pattern in species detections during a survey as a means to estimate the number of species that used the site but were undetected during the survey. To support such a modeling effort, the observer needs to record the times into the survey when each species was first detected.

The cumulative number of species’ detections increases with increasing survey time, but eventually with diminishing returns (Figure 1). In the case of my survey, the pattern in the data (Figure 1) predicts that had I spent more time on site, or had I help from additional biologists, I would have detected 47 species of vertebrate wildlife during the morning of 27 July 2022. The site supports plenty of species of wildlife, and there can be no doubt that it provides ample habitat value to wildlife – more than this model can predict, because the model is based on one survey of one morning. However, although this modeling approach is useful for more realistically representing the species richness of the site at the time of a survey, it cannot represent the species richness throughout the year or across multiple years because many species are seasonal or even multi-annual in their movement patterns and in their occupancy of habitat.

Figure 1. Actual (red
circles) and predicted (red
line) relationships between
the number of vertebrate
wildlife species detected and
the elapsed survey time
based on my visual-scan
survey on 27 July 2022 of
the 540 and 570 Crespi
Drive Project site. Note that
the relationship would differ
if the survey was based on
another method or during
another season.

By use of an analytical bridge, a modeling effort applied to data collected elsewhere can predict the number of vertebrate wildlife species likely making use of the site over the longer term. As part of my prior research, I completed a much larger survey effort across 167 km2 of annual grasslands of the Altamont Pass Wind Resource Area (APWRA), where from 2015 through 2019 I performed 721 1-hour visual-scan surveys, or 721 hours of surveys, at 46 stations in the APWRA. I used binoculars and otherwise 0 100 200 300 400 500 600
0 5
10 15
20 25
30 35
40 Y
Model r
2 = 0.99, loss = 18
Species count,
Minutes into survey
Cumulative number of wildlife species detected

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Packet Pg. 130 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 16 the methods were the same as the methods I and other consulting biologists use for surveys at proposed project sites. At each of the 46 survey stations, I tallied new species detected with each sequential survey at that station, and then related the cumulative species detected to the hours (number of surveys, as each survey lasted 1 hour) used to accumulate my counts of species detected. I used combined quadratic and simplex methods of estimation in Statistica to estimate least-squares, best-fit nonlinear models of the number of cumulative species detected regressed on hours of survey (number of surveys) at the station: 𝑅̂ =
1 1⁄𝑎+𝑏×(𝐻𝑜𝑢𝑟𝑠)
𝑐
, where 𝑅̂ represented cumulative species
richness detected. The coefficients of determination, r 2, of the models ranged 0.88 to

1.00, with a mean of 0.97 (95% CI: 0.96, 0.98); or in other words, the models were excellent fits to the data.

I projected the predictions of each model to thousands of hours to find predicted asymptotes of wildlife species richness detectable by day in the APWRA. The mean model-predicted asymptote of species richness was 57 after 11,857 hours of visual-scan surveys among the 46 stations. I also averaged model predictions of species richness at each incremental increase of number of surveys, i.e., number of hours (Figure 2). On average I detected 12.72 species over the first 3 hours of surveys in the APWRA (3 hours to match the number of hours I surveyed at the project site), which composed 22.3% of the total predicted species I would detect with a much larger survey effort. Given the example illustrated in Figure 2, the 28 species I detected after my 3 hours of survey at the project site likely represented 22.3% of the species to be detected after many more visual-scan surveys over another year or longer. With many more repeat surveys through the year, I would likely detect 28

0.223 ⁄ = 126 species of vertebrate wildlife at
the 540 and 570 Crespi Drive project site.

Again, however, my prediction of 126 species of vertebrate wildlife is derived from visual-scan surveys during the daytime, and would not detect nocturnal mammals. The true number of species composing the wildlife community of the site must be larger. A reconnaissance-level survey should serve only as a starting point toward characterization of a site’s wildlife community, but it certainly cannot alone inform of the inventory of species that use the site. Without careful interpretation, the outcomes of the IS/MND’s supporting surveys should not represent baseline conditions, because there were truly many more species that used the site at the time of the surveys than whatever numbers of species were detected by Monk & Associates (2014) and Wood Biological Consulting (2020).

Additionally, the likelihood of detecting special-status species is typically lower than that of more common species. This difference can be explained by the fact that specialstatus species tend to be rarer and thus less detectable than common species. Specialstatus species also tend to be more cryptic, fossorial, or active during nocturnal periods when reconnaissance surveys are not performed. Another useful relationship from careful recording of species detections and subsequent comparative analysis is the probability of detection of listed species as a function of an increasing number of vertebrate wildlife species detected (Figure 3). (Note that listed species number fewer

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Packet Pg. 131 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 17 than special-status species, which are inclusive of listed species. Also note that I include California Fully Protected species and federal Candidate species as “listed” species.) Figure 2. Mean (95% CI)
predicted wildlife species
richness, 𝑅̂, as a nonlinear
function of hour-long
survey increments across
46 visual-scan survey
stations across the
Altamont Pass Wind
Resource Area, Alameda
and Contra Costa
Counties, 2015‒2019.

Figure 3. Probability of
detecting ≥1 Candidate,
Threatened or Endangered
Species of wildlife listed under
California or federal Endangered
Species Acts, based on survey
outcomes logit-regressed on the
number of wildlife species Noriko
Smallwood (who has completed
many surveys for me) and I
detected during surveys at 199
project sites in California, 1999-
2022. The solid vertical line
represents the number of species
Noriko and I detected, and the
dashed vertical line represents
the number of species predicted
by my model in Figure 2 had I the
opportunity to repeatedly survey
the site over a year or longer.
0 20 40 60 80 100
0 10
20 30
40 50
Cumulative number of surveys (hours)
(95% CI)
0 20 40 60 80 100 120

0.0 0.2

0.4 0.6

0.8 1.0
Number of species detected
Probability of detecting Fully Protected,
Candidate, Threatened or Endangered Species
Hosmer Lemeshow =3.48, P = 0.90
95% CI
199 sites

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Packet Pg. 132 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 18 As demonstrated in Figures 1 and 2, the number of species detected is largely a function of survey effort. Greater survey effort also increases the likelihood that listed species will be detected (which is the first tenet of detection surveys for special-status species).

Based on the outcomes of surveys earlier completed at 199 project sites, my survey effort at the 540 and 570 Crespi Drive project site carried an 35% chance of detecting a listed species, whereas the survey effort needed to achieve my Figure 2 model prediction of detecting 126 species carried a 100% chance of detecting a listed species. Listed species of vertebrate wildlife likely use the site, but conclusively documenting their use would take more survey effort to achieve a reasonable likelihood of detection. No reconnaissance-level survey is capable of detecting enough of the wildlife species that occur at a site to realistically characterize the site’s wildlife community, including the site’s special-status species. Based on these facts and reasonable inferences therefrom, I believe any environmental review of the proposed project should have been based on sufficient wildlife surveys to support wildlife absence determinations or a general assumption of species’ presence in the absence of supporting detection surveys.

Biological Setting informed by Data Base Review
The purpose of literature and database review, and of consulting with local experts, is to inform the reconnaissance-level survey, to augment it, and to help determine which protocol-level detection surveys should be implemented. Analysts need this information to identify which species are known to have occurred at or near the project site, and to identify which other special-status species could conceivably occur at the site due to geographic range overlap and site conditions. This step is important because the reconnaissance-level survey is not going to detect all of the species of wildlife that make use of the site. This step can identity those species yet to be detected at the site but which have been documented to occur nearby or whose available habitat associations are consistent with site conditions. Some special-status species can be ruled out of further analysis, but only if compelling evidence is available in support of such determinations (see below).

The IS/MND is inadequately informed by a literature and data base review. The IS/MND inappropriately uses the California Natural Diversity Data Base (CNDDB) to determine which species have potential to occur in the project area. By including only species whose documented occurrences within 5 miles of the project site can be found in the CNDDB, the IS/MND screens out many special-status species from further consideration in its characterization of the wildlife community as a component of the baseline biological setting. The CNDDB was not designed to support absence determinations or to screen out species from characterization of a site’s wildlife community. The IS/MND misuses the CNDDB.

The CNDDB relies entirely on volunteer reporting from biologists who were allowed access to whatever properties they report from. Many properties have never been surveyed by biologists. Many properties have been surveyed, but the survey outcomes never reported to the CNDDB. Many properties have been surveyed multiple times, but

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Packet Pg. 133 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 19 not all survey outcomes have been reported to the CNDDB. Furthermore, the CNDDB is interested only in the findings of special-status species, which means that species more recently assigned special status will have been reported many fewer times to the CNDDB than were species assigned special status since the inception of the CNDDB. For example, because wrentit and Bullock’s oriole and multiple other species were not assigned special status until 2021, these species would have lacked records in the CNDDB when Monk & Associates prepared their assessment for the City. This lack of CNDDB records had nothing to do with true geographic distributions. And because negative findings are not reported to the CNDDB, the CNDDB cannot provide the basis for estimating occurrence likelihoods, either.

Negative findings from the CNDDB queries are inappropriate as a basis for narrowing a list of potentially occurring species. The limitations of the CNDDB are well-known, and summarized by the California Department of Fish and Wildlife in a warning presented on its CNDDB web site (https://wildlife.ca.gov/Data/CNDDB/Maps-and-Data):
“CNDDB staff work very hard to keep the database as current and up-to-date as possible given our capabilities and resources. However, we cannot and do not portray the CNDDB as an exhaustive and comprehensive inventory of all rare species statewide. Field verification for the presence or absence of sensitive species will always be an important obligation of our users.” And according to the CNDDB Data Use Guidelines, “The CNDDB is a positive sighting database. It does not predict where something may be found. We map occurrences only where we have documentation that the species was found at the site. There are many areas of the state where no surveys have been conducted and therefore there is nothing on the map. That does not mean that there are no special status species present.” The IS/MND’s use of CNDDB records to filter out species from its characterization of the baseline biological setting is therefore inconsistent with the CNDDB’s purpose. If the CNDDB was appropriate to the task to which the IS/MND applies it, then there would be no need for implementation of protocol-level detection surveys for special-status species. But this is not the case. For the above-stated reasons, the IS/MND’s list of special-status species assessed for occurrence likelihoods is misleading. Assuming absence of any special-status species based on absence of CNDDB records is inappropriate.

Had the IS/MND applied the CNDDB as CDFW intended, and had the IS/MND also made use of other occurrence data bases, then the list of potentially occurring specialstatus species of wildlife would have been much larger than 16. My review of eBird and iNaturalist revealed nearby occurrence records of 119 special-status species of wildlife, including 7 on the project site, 59 within 1.5 miles, another 12 within 1.5 and 4 miles, and 38 within 4 and 30 miles of the project site (Table 2). Two-thirds (78) of the 119 species in Table 2 have been recorded within only 4 miles from the project site, which means the site carries a lot of potential for supporting special-status species of wildlife.

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Packet Pg. 134 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 20 Table 2. Occurrence likelihoods of special-status bird species at or near the proposed project site, according to eBird/iNaturalist records (https://eBird.org, https://www.inaturalist.org) and on-site survey findings. ‘Very close’ indicates within 1.5 miles of the site, “nearby” indicates within 1.5 and 4 miles, and “in region” indicates within 4 and 30 miles, and bold font denotes species I detected on 27 July 2022.

Common name Species name Status1 IS/MND
Data base
records,
Site visits
Monarch Danaus plexippus FC None Very close
San Bruno elfin butterfly Callophrys mossii bayensis FE None Very close Myrtle's silverspot butterfly Speyeria zerene myrtleae FE None In region California tiger salamander Ambystoma californiense FT, CT, WL In region California giant salamander Dicamptodon ensatus SSC In region Red-bellied newt Taricha rivularis SSC In region
Santa Cruz black salamander Aneides niger SSC In region Foothill yellow-legged frog Rana boylii CE, SSC No habitat In region California red-legged frog Rana draytonii FT, SSC None Very close Western pond turtle Emys marmorata SSC Nearby
San Francisco garter snake Thamnophis sirtalis tetrataenia FE, CE, CFP None Very close Brant Branta bernicla SSC2 Very close
Cackling goose (Aleutian) Branta hutchinsii leucopareia WL Very close Redhead Aythya americana SSC3 Very close
Harlequin duck Histrionicus histrionicus SSC Very close Barrow’s goldeneye Bucephala islandica SSC In region
Western grebe Aechmophorus occidentalis BCC Very close
Clark’s grebe Aechmophorus clarkii BCC Very close
Western yellow-billed cuckoo Coccyzus americanus occidentalis FT, CE, BCC In region Black swift Cypseloides niger SSC, BCC Nearby
Vaux’s swift Chaetura vauxi SSC2 Very close
Costa’s hummingbird Calypte costae BCC Very close
Rufous hummingbird Selasphorus rufus BCC Very close
Allen’s hummingbird Selasphorus sasin BCC Very close

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Packet Pg. 135 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 21 Common name Species name Status
1 IS/MND
Data base
records,
Site visits
Mountain plover Charadrius montanus SSC, BCC In region
Snowy plover Charadrius nivosus BCC Very close
Western snowy plover Charadrius nivosus nivosus FT, SSC, BCC In region Whimbrel Numenius phaeopus BCC Very close
Long-billed curlew Numenius americanus BCC, WL Very close Marbled godwit Limosa fedoa BCC Very close
Red knot (Pacific) Calidris canutus BCC Very close
Short-billed dowitcher Limnodromus griseus BCC On site
Willet Tringa semipalmata BCC Very close
Marbled murrelet Brachyramphus marmoratus FT, CE Very close Laughing gull Leucophaeus atricilla WL In region
Heermann’s gull Larus heermanni BCC Very close
Western gull Larus occidentalis BCC On site
California gull Larus californicus WL, BCC On site
California least tern Sternula antillarum browni FE, CE, FP In region Caspian tern Hydroprogne caspia BCC Very close
Black tern Chlidonias niger SSC, BCC In region
Elegant tern Thalasseus elegans WL, BCC Very close
Black skimmer Rynchops niger SSC, BCC Nearby
Common loon Gavia immer SSC Very close
Brandt’s cormorant Urile penicillatus BCC Very close
Double-crested cormorant Phalacrocorax auritus WL Very close American white pelican Pelacanus erythrorhynchos SSC1 In region California brown pelican Pelecanus occidentalis californicus FP Very close Least bittern Ixobrychus exilis SSC, BCC In region
White-faced ibis Plegadis chihi WL Nearby
Turkey vulture Cathartes aura BOP On site
Osprey Pandion haliaetus WL, BOP On site

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Packet Pg. 136 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 22 Common name Species name Status
1 IS/MND
Data base
records,
Site visits
White-tailed kite Elanus luecurus CFP, BOP Very close
Golden eagle Aquila chrysaetos BGEPA, BOP, BCC,
CFP
Very close
Northern harrier Circus cyaneus SSC3, BOP Very close
Sharp-shinned hawk Accipiter striatus WL, BOP Very close Cooper’s hawk Accipiter cooperii WL, BOP Very close
Northern goshawk Accipiter gentilis SSC In region
Bald eagle Haliaeetus leucocephalus BGEPA, BCC, CFP Very close Red-shouldered hawk Buteo lineatus BOP On site
Swainson’s hawk Buteo swainsoni CT, BCC, BOP Nearby
Red-tailed hawk Buteo jamaicensis BOP Very close
Rough-legged hawk Buteo regalis BOP In region
Ferruginous hawk Buteo regalis WL, BOP Nearby
Barn owl Tyto alba BOP Very close
Western screech-owl Megascops kennicotti BOP Nearby
Great horned owl Bubo virginianus BOP Very close
Burrowing owl Athene cunicularia BCC, SSC2, BOP Very close Long-eared owl Asio Otis SSC3, BCC, BOP Very close
Short-eared owl Asia flammeus SSC3, BOP Very close
Lewis’s woodpecker Melanerpes lewis BCC In region
Nuttall’s woodpecker Picoides nuttallii BCC Very close
American kestrel Falco sparverius BOP Very close
Merlin Falco columbarius WL, BOP None Very close
Peregrine falcon Falco peregrinus CFP, BOP, BCC Very close Prairie falcon Falco mexicanus BCC, WL, BOP In region
Olive-sided flycatcher Contopus cooperi BCC, SSC2 Very close Willow flycatcher Empidonax trailii CE, BCC Very close
Vermilion flycatcher Pyrocephalus rubinus SSC2 In region

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Packet Pg. 137 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 23 Common name Species name Status1 IS/MND
Data base
records,
Site visits
Loggerhead shrike Lanius ludovicianus BCC, SSC2 Very close Yellow-billed magpie Pica nuttalli BCC In region
Oak titmouse Baeolophus inornatus BCC On site
California horned lark Eremophila alpestris actia WL Nearby Bank swallow Riparia riparia CT Very close
Purple martin Progne subis SSC2 Very close
Wrentit Chamaea fasciata BCC Very close
California thrasher Toxostoma redivivum BCC Very close
Cassin’s finch Haemorhous cassinii BCC In region
Lawrence’s goldfinch Spinus lawrencei BCC In region
Grasshopper sparrow Ammodramus savannarum SSC2 In region Black-chinned sparrow Spizella atrogularis BCC In region Brewer’s sparrow Spizella breweri BCC Very close
Bell’s sparrow Amphispiza b. belli WL, BCC Nearby
Oregon vesper sparrow Pooecetes gramineus affinis SSC2, BCC In region Alameda song sparrow Melospiza melodia pusillula SSC, BCC No habitat In region Large-billed savannah sparrow 2 Passerculus sandwichensis rostratus SSC2 In region Yellow-breasted chat Icteria virens SSC3 Very close
Yellow-headed blackbird Xanthocephalus xanthocephalus SSC3 In region Bullock’s oriole Icterus bullockii BCC Very close
Tricolored blackbird Agelaius tricolor CT, BCC, SSC Very close Lucy’s warbler Leiothlypis luciae SSC, BCC Very close
Virginia’s warbler Leiothlypis virginiae WL, BCC In region San Francisco common
yellowthroat
Geothlypis trichas sinuosa SSC3, BCC Unlikely In region Yellow warbler Dendroica petechia BCC, SSC2 Very close
Summer tanager Piranga rubra SSC1 Nearby
Pallid bat Antrozous pallidus SSC, WBWG H In region

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Packet Pg. 138 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 24 Common name Species name Status1 IS/MND
Data base
records,
Site visits
Townsend’s big-eared bat Corynorhinus townsendii SSC, WBWG H No habitat In region Western red bat Lasiurus blossevillii SSC, WBWG H In region Hoary bat Lasiurus cinereus WBWG M Unlikely not
expected
In region
Western small-footed myotis Myotis cililabrum WBWG: M In range Miller’s myotis Myotis evotis WBWG: M In region
Fringed myotis Myotis thysanodes WBWG: H No habitat In range Long-legged myotis Myotis volans WBWG: H In range
Yuma myotis Myotis yumanensis WBWG: LM In region
San Francisco dusky-footed
woodrat
Neotoma fuscipes annectens SSC Very close
Ringtail Bassariscus astutus CFP Nearby
Salt-marsh harvest mouse Reithrodontomys raviventris FE, CE, FP In region American badger Taxidea taxus SSC No habitat Nearby
Mountain lion Puma concolor CCT Very close
1 Listed as FT & FE = federal threatened & endangered, FC = federal candidate for listing, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern, CT & CE = California threatened & endangered, CCE & CCT = Candidate California Endangered & Threatened, CFP = California Fully Protected (CDFG Code 3511), SSC = California species of special concern (not threatened with extinction, but rare, very restricted in range, declining throughout range, peripheral portion of species' range, associated with habitat that is declining in extent), SSC1, SSC2 and SSC3 = California Bird Species of Special Concern priorities 1, 2 and 3, respectively (Shuford and Gardali 2008), WL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (California Fish and Game Code 3503.5), and WBWG = Western Bat Working Group with priority rankings, of low, moderate, and high.

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Packet Pg. 139 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 25 The IS/MND addresses only 13 (11%) of the special-status species listed in my Table 2, supra.
2 The IS/MND determines all 13 of the species as unlikely or to have no likelihood of occurrence. Of these, 5 species have been recorded within 1.5 miles of the site, and another has been documented within 1.5 and 4 miles of the site. Six of the other 7 species have been documented within 30 miles of the site. The IS/MND’s occurrence likelihood determinations fail to comport with occurrence records, nor does the IS/MND’s explanations for their absence determinations comport with sound analytical practice. According to the IS/MND (p. 42), “Of the 16 special-status wildlife species that have been documented within the five-mile radius of the project site, only one was identified to have the potential to occur on the project site: a bird protected under the MBTA, the Saltmarsh common yellowthroat (SCY). The remaining species are considered to be unlikely or not possible to occur on the project site based on habitat features, such as the location of the site outside of the species’ historical range, the lack of suitable aquatic habitat, lack of suitable foraging or nesting habitat, and lack of a den or cave development area.”
Wood Biological Consulting (2020) describes winter habitat of Monarch as “tall trees along the coast. Prefers eucalyptus, Monterey pine and Monterey cypress.” Wood Biological Consulting (2020) determines this species has no likelihood of occurrence because “Migration and overwintering roosts are highly visible and well-documented.” Some migration and overwintering roosts are indeed highly visible, but much remains to be learned about overwintering and migration patterns of Monarchs (Xerces Society, www.xerces.org). The reason given by Wood Biological Consulting (2020) is insufficiently founded in evidence. Neither Monk & Associates (2014) nor Wood Biological Consulting (2020) visited the site when overwintering Monarchs would have been present, so they did not even look for the species during the appropriate season, if ever. The site includes trees of the species known to be used by Monarch, and it is near the coast and very close to documented over-wintering roost sites. The appropriate determination is high likelihood of occurrence of overwintering Monarchs at one time or another.

Wood Biological Consulting (2020) describes habitat of California red-legged frog as “lowlands and foothills in pools and streams, usually with emergent wetland vegetation.

Requires 11-20 weeks of permanent water for larval development.” Wood Biological Consulting (2020) determines this species has no likelihood of occurrence because “Wetland in study area dries in late spring or early summer...therefore not suitable breeding habitat. This urban infill site is isolated from nearest population, with no migration potential.” However, contrary to the Wood habitat description, permanent water is not required for California red-legged frog habitat. The species needs pools that remain inundated long enough for larvae to mature, but otherwise I have found California red-legged frogs at vegetated and unvegetated stock ponds, wells, streams, 2 The IS/MND addresses 16 special-status species, of which I included only 13 in my Table 2. I do not include steelhead, big free-tailed bat and North American porcupine. Steelhead would require a stream, which does not exist on the project site. Big free-tailed bat is known to occur in extreme southern California, but not in the project area. Porcupine lacks special status according to state and federal statutes and agency designations.

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Packet Pg. 140 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 26 upland areas far from water pools, and even on road culverts. Last year I found California red-legged frogs on a road culvert on Higgins Way in Pacifica, only 0.9 miles from the project site. The project is only 0.29 miles from the outfall of San Pedro Creek, and only one to two roadways separate natural cover between San Pedro Creek and the project site. The project site includes fossorial mammal burrows that are useable as California red-legged frog refugia, and a large portion of the site is obviously inundated at times. I disagree with the IS/MND that there is no occurrence potential for California red-legged frog, and I agree with Dr. Peter Baye that California red-legged frogs are perfectly capable of moving between San Pedro Creek and the proposed project site, and that protocol-level detection surveys are needed to better inform the CEQA review (15 June 2022 memo from Peter R. Baye to Margaret Goodale, Pacifica).

Wood Biological Consulting (2020) describes habitat of merlin as “Seacoast, tidal estuaries, open woodlands, savannahs, edges of grasslands...clumps of trees are required for roosting in open country.” Wood Biological Consulting (2020) determines this species has no likelihood of occurrence because it “Does not nest in California.

Migrating birds would not be affected by proposed project.” I do not know where Wood Biological Consulting (2020) obtained their habitat description, but I have found merlin in various environmental settings, and would not rule out the project site. Since 2018, I found one merlin in scrub vegetation near a wetlands in Hayward, on a vacant lot in Hayward, on a nearly barren lot with ruderal vegetation and a tree-row border in San Bernardino, on a grassland/vernal pool complex in Placer County, on grassland that had been recently disked in Bakersfield (no trees nearby), on scrub next to a disked field in Oxnard, on a wheat field in Modesto, on alfalfa next to a strip of dense shrubs in Brawley, in an almond orchard in Visalia, on successional scrub in Thousand Oaks, on a disked field in Fresno (no trees nearby), and on wetlands and a wheat field in Davis.

Merlin are not as constrained as Wood Biological Consulting (2020) claims, nor is roosting opportunities in trees required. This said, the project site offers ample roosting opportunities for merlin. And the fact that merlin does not nest in California is irrelevant, because merlin that cannot find sufficient forage during migration will not breed successfully in spring. Merlin is one of multiple species that were designated with special status with full awareness that they do not breed here.

Wood Biological Consulting (2020) describes habitat of San Francisco common yellowthroat as “freshwater and saltwater marshes in the SF Bay Region. Requires dense continuous cover for foraging and tall grasses, tules or willows for nesting.” This habitat description resembles conditions on the project site. Nevertheless, Wood Biological Consulting (2020) determines this species is not expected to nest because the species was “Observed during 2017-2018. Willow scrub in study area could provide migration habitat, but is only a small, limited area of suitable habitat in an urban setting.” In this case, the species has been detected on the project site, and still Wood Biological Consulting (2020) contrives an argument for concluding the species does not nest there.

The IS/MND needs a stronger argument than this. It needs to present evidence that the site is too small, as alleged. It needs to present evidence that the urban setting would prevent nesting by San Francisco common yellowthroat, and it needs to explain why it is

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Packet Pg. 141 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 27 that the species would be harmed only if nesting opportunities are destroyed by the project.

Wood Biological Consulting (2020) describes only roosting habitat of each bat species, thereby implying that foraging habitat is unimportant. The occurrence likelihood of each species is dismissed for lack of roosting habitat. However, bat roosts are more varied than described by Wood Biological Consulting (2020) (see Kunz and Lumsden 2003). Roosting opportunities are available to bats at the project site, but if the IS/MND is intent on concluding they are not, then a qualified bat biologist ought to have surveyed the site.

IMPACTS TO BIOLOGICAL RESOURCES
Determination of occurrence likelihoods of special-status species is not, in and of itself, an analysis of potential project impacts. But this is where the IS/MND left the analysis.

No mention was made of the habitat loss that would result from replacement of natural vegetation cover with buildings and driveway. None of the available literature on these impacts is cited. A proper impacts analysis should consider whether and how a proposed project would affect members of a species, larger demographic units of the species, or the whole of a species. In the following, I analyze several types of impacts likely to result from the project, none of which are analyzed in the IS/MND.

WILDLIFE MOVEMENT
According to the IS/MND, the project site does not occur within a wildlife movement corridor. However, the IS/MND’s conclusion is not based on any collection or analysis of data needed to characterize wildlife movement patterns. Regardless of whether the site is situated within a wildlife movement corridor, the IS/MND employs a standard of analysis that does not exist in CEQA. The CEQA standard is whether a project will “Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors…” The primary phrase of the standard goes to wildlife movement regardless of whether the movement is channeled by a corridor or a linkage. In addition, corridors are typically regarded in science as human-created landscape structures intended to reduce the effects of habitat fragmentation, and only infrequently as a channelization of wildlife movement caused by landscape structure (Smallwood 2015). Wildlife movement in a region is often diffuse rather than channeled (Runge et al. 2014, Taylor et al. 2011) unless anthropogenic changes have forced channeling or targeting of “island” patches of habitat (Smallwood 2015).

According to the IS/MND (p. 46), “The project site is surrounded by existing development and does not connect to any existing habitat areas, which eliminates the possibility that the site could act as a wildlife movement corridor.” However, this conclusion regarding wildlife corridor ignores that many species of wildlife have wings, and so can fly to or away from the project site without encountering the same barriers as non-volant wildlife. Wildlife movement must include stopover opportunities for birds

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Packet Pg. 142 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 28 and bats (Taylor et al. 2011), and staging opportunities (Warnock 2010) during dispersal, migration or home range patrol. The project, with its buildings, would cut wildlife off from stopover and staging opportunities, and would lengthen the distances that wildlife must travel before finding alternate stopover opportunities. Therefore, it is my expert opinion based on what I saw of wildlife movement at the project site that the project would result in a potentially significant impact due to its interference with wildlife movement in the region.

HABITAT LOSS
The IS/MND does not address the loss of wildlife that would result from habitat loss caused by the project. No mention is made of the project site’s role as stopover and staging opportunities for migratory wildlife. An EIR should be prepared to more clearly explain the magnitude of the losses of habitat to wildlife and for how long those losses would persist.

Habitat loss not only results in the immediate numerical decline of wildlife, but also in permanent loss of productive capacity (Smallwood 2015). For example, two study sites in grassland/wetland/woodland complexes had total bird nesting densities of 32.8 and

35.8 nests per acre (Young 1948, Yahner 1982) for an average 34.3 nests per acre.

Assuming the nest density at the project site is equal to the average of the two study sites I cited, 34.3 nests/acre multiplied against 1.68 acres would predict a loss of 58 bird nests. The average number of fledglings per nest in Young’s (1948) study was 2.9.

Assuming Young’s (1948) study site typifies bird productivity, then the project’s removal of nest opportunities would prevent the production of 168 fledglings per year. After 100 years and assuming an average generation time of 5 years, the lost capacity of both breeders and annual fledgling production can be estimated from the following formula:
{(nests/year × chicks/nest × number of years) + ((2 adults/nest × nests/year) × (number of years ÷ years/generation))}. In the case of this project, and given my stated assumptions, this formula predicts the project would deny California 19,120 birds over the 100 years due solely to loss of terrestrial habitat. This predicted loss of 191 birds/year would be substantial, and therefore it is my expert opinion based on the facts and reasonable assumption that the project would result in a potentially significant impact from habitat loss, even with the proposed mitigations, that has not been addressed in the IS/MND.

BIRD-WINDOW COLLISIONS
The IS/MND neglects a large portion of habitat that is essential to many species. To understand this part of their habitat, one must consider the definition of habitat, which is a species’ use of the environment (Hall et al. 1997, Morrison et al. 1998, Smallwood 2002). Every species on Earth is morphologically adapted through thousands of generations of life and death to exist within an environmental medium. The gaseous atmosphere is a principal medium of life to volant animals such as birds (Davy et al. 2017, Diehl et al. 2017). The aerosphere is where birds and bats and other volant animals with wings migrate, disperse, forage, perform courtship and where some of

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Packet Pg. 143 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 29 them mate. Birds are some of the many types of animals that evolved wings as a morphological adaptation to thrive by moving through the medium of the aerosphere.

The aerosphere is habitat. Indeed, an entire discipline of ecology has emerged to study this essential aspect of habitat – the discipline of aeroecology (Kunz et al. 2008).

Many special-status species of birds have been recorded at or near the aerosphere of the project site. My database review and site visits indicate there are 94 special-status species of birds with potential to use the site’s aerosphere (Table 2). Of these, 7 have been recorded over or adjacent to the project site, 53 within 1.5 miles of the site (‘Very close’), 9 within 1.5 and 4 miles (‘Nearby’), and another 25 within 4 to 30 miles (‘In region’). The birds reported within all these distance domains from the project site can quickly fly those distances, so they would all be within short flights of the proposed project’s windows.

Window collisions are often characterized as either the second or third largest source or human-caused bird mortality. The numbers behind these characterizations are often attributed to Klem’s (1990) and Dunn’s (1993) estimates of about 100 million to 1 billion bird fatalities in the USA, or more recently by Loss et al.’s (2014) estimate of 365-988 million bird fatalities in the USA or Calvert et al.’s (2013) and Machtans et al.’s (2013) estimates of 22.4 million and 25 million bird fatalities in Canada, respectively. The proposed project would impose windows in the airspace normally used by birds.

Glass-façades of buildings intercept and kill many birds, but these façades are differentially hazardous to birds based on spatial extent, contiguity, orientation, and other factors. At Washington State University, Johnson and Hudson (1976) found 266 bird fatalities of 41 species within 73 months of monitoring of a three-story glass walkway (no fatality adjustments attempted). Prior to marking the windows to warn birds of the collision hazard, the collision rate was 84.7 per year. At that rate, and not attempting to adjust the fatality estimate for the proportion of fatalities not found, 4,574 birds were likely killed over the 54 years since the start of their study, and that’s at a relatively small building façade. Accounting for the proportion of fatalities not found, the number of birds killed by this walkway over the last 54 years would have been about 14,270. And this is just for one 3-story, glass-sided walkway between two college campus buildings.

Klem’s (1990) estimate was based on speculation that 1 to 10 birds are killed per building per year, and this speculated range was extended to the number of buildings estimated by the US Census Bureau in 1986. Klem’s speculation was supported by fatality monitoring at only two houses, one in Illinois and the other in New York. Also, the basis of his fatality rate extension has changed greatly since 1986. Whereas his estimate served the need to alert the public of the possible magnitude of the birdwindow collision issue, it was highly uncertain at the time and undoubtedly outdated more than three decades hence. Indeed, by 2010 Klem (2010) characterized the upper end of his estimated range – 1 billion bird fatalities – as conservative. Furthermore, the estimate lumped species together as if all birds are the same and the loss of all birds to windows has the same level of impact.

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Packet Pg. 144 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 30 By the time Loss et al. (2014) performed their effort to estimate annual USA birdwindow fatalities, many more fatality monitoring studies had been reported or were underway. Loss et al. (2014) incorporated many more fatality rates based on scientific monitoring, and they were more careful about which fatality rates to include. However, they included estimates based on fatality monitoring by homeowners, which in one study were found to detect only 38% of the available window fatalities (Bracey et al. 2016). Loss et al. (2014) excluded all fatality records lacking a dead bird in hand, such as injured birds or feather or blood spots on windows. Loss et al.’s (2014) fatality metric was the number of fatalities per building (where in this context a building can include a house, low-rise, or high-rise structure), but they assumed that this metric was based on window collisions. Because most of the bird-window collision studies were limited to migration seasons, Loss et al. (2014) developed an admittedly assumption-laden correction factor for making annual estimates. Also, only 2 of the studies included adjustments for carcass persistence and searcher detection error, and it was unclear how and to what degree fatality rates were adjusted for these factors. Although Loss et al. (2014) attempted to account for some biases as well as for large sources of uncertainty mostly resulting from an opportunistic rather than systematic sampling data source, their estimated annual fatality rate across the USA was highly uncertain and vulnerable to multiple biases, most of which would have resulted in fatality estimates biased low.

In my review of bird-window collision monitoring, I found that the search radius around homes and buildings was very narrow, usually 2 meters. Based on my experience with bird collisions in other contexts, I would expect that a large portion of bird-window collision victims would end up farther than 2 m from the windows, especially when the windows are higher up on tall buildings. In my experience, searcher detection rates tend to be low for small birds deposited on ground with vegetation cover or woodchips or other types of organic matter. Also, vertebrate scavengers entrain on anthropogenic sources of mortality and quickly remove many of the carcasses, thereby preventing the fatality searcher from detecting these fatalities. Adjusting fatality rates for these factors – search radius bias, searcher detection error, and carcass persistence rates – would greatly increase nationwide estimates of bird-window collision fatalities.

Buildings can intercept many nocturnal migrants as well as birds flying in daylight. As mentioned above, Johnson and Hudson (1976) found 266 bird fatalities of 41 species within 73 months of monitoring of a four-story glass walkway at Washington State University (no adjustments attempted for undetected fatalities). Somerlot (2003) found 21 bird fatalities among 13 buildings on a university campus within only 61 days.

Monitoring twice per week, Hager at al. (2008) found 215 bird fatalities of 48 species, or 55 birds/building/year, and at another site they found 142 bird fatalities of 37 species for 24 birds/building/year. Gelb and Delacretaz (2009) recorded 5,400 bird fatalities under buildings in New York City, based on a decade of monitoring only during migration periods, and some of the high-rises were associated with hundreds of fatalities each. Klem et al. (2009) monitored 73 building façades in New York City during 114 days of two migratory periods, tallying 549 collision victims, nearly 5 birds per day. Borden et al. (2010) surveyed a 1.8 km route 3 times per week during 12-month

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Packet Pg. 145 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 31 period and found 271 bird fatalities of 50 species. Parkins et al. (2015) found 35 bird fatalities of 16 species within only 45 days of monitoring under 4 building façades. From 24 days of survey over a 48-day span, Porter and Huang (2015) found 47 fatalities under 8 buildings on a university campus. Sabo et al. (2016) found 27 bird fatalities over 61 days of searches under 31 windows. In San Francisco, Kahle et al. (2016) found 355 collision victims within 1,762 days under a 5-story building. Ocampo-Peñuela et al. (2016) searched the perimeters of 6 buildings on a university campus, finding 86 fatalities after 63 days of surveys. One of these buildings produced 61 of the 86 fatalities, and another building with collision-deterrent glass caused only 2 of the fatalities, thereby indicating a wide range in impacts likely influenced by various factors.

There is ample evidence available to support my prediction that the proposed project would result in many collision fatalities of birds.

Project Impact Prediction
By the time of these comments, I had reviewed and processed results of bird collision monitoring at 213 buildings and façades for which bird collisions per m2 of glass per year could be calculated and averaged (Johnson and Hudson 1976, O’Connell 2001, Somerlot 2003, Hager et al. 2008, Borden et al. 2010, Hager et al. 2013, Porter and Huang 2015, Parkins et al. 2015, Kahle et al. 2016, Ocampo-Peñuela et al. 2016, Sabo et al. 2016, Barton et al. 2017, Gomez-Moreno et al. 2018, Schneider et al. 2018, Loss et al. 2019, Brown et al. 2020, City of Portland Bureau of Environmental Services and Portland Audubon 2020, Riding et al. 2020). These study results averaged 0.073 bird deaths per m2 of glass per year (95% CI: 0.042-0.102). This average and its 95% confidence interval provide a robust basis for predicting fatality rates at a proposed new project.

The IS/MND depicts windows on the proposed new buildings. Judging from the IS/MND’s depiction, I estimate the new glass windows added by the project would total about 363 m2.

Applying the mean fatality rate (above) to my estimate of 363 m2 of glass on the façades of the project’s buildings predicts 27 bird deaths per year (95% CI: 16‒37). The 100-year toll from this average annual fatality rate would be 2,654 bird deaths (95% CI:
1,575‒3,732), which would continue until the structures are either renovated to reduce bird collisions or they come down. The vast majority of these deaths would be of birds protected under the Migratory Bird Treaty Act and under the recently revised California Fish and Game Code §3513, thus causing significant unmitigated impacts. Given the predicted level of bird-window collision mortality, and the lack of any proposed mitigation, it is my opinion that the proposed project would result in potentially significant adverse biological impacts.

HOUSE CATS
Considering that the IS/MND is silent on whether ownership of house cats would be allowed in the project, it is safe to assume that house cats would be introduced to the

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Packet Pg. 146 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 32 project site by residents of the proposed residential units. However, the IS/MND does not address the impacts of house cats on wildlife. House cats serve as one of the largest sources of avian mortality in North America (Dauphiné and Cooper 2009, Blancher 2013, Loss et al. 2013, Loyd et al. 2017). Loss et al. (2013) estimated 139 million cats in the USA in 2013 (range 114 to 164 million), which killed an estimated 16.95 billion vertebrate wildlife annually (range 7.6 to 26.3 billion). In 2012 there were 0.44 house cats per human, and 122 vertebrate animals were killed per cat, free-ranging members of which killed disproportionately larger numbers of vertebrate wildlife. According to the IS/MND, the proposed project would add 53 new residents. The above rates applied to this number of new residents would add 23 cats, which could potentially kill 2,806 vertebrate wildlife per year. Over 100 years, the toll from the project’s house cats would be 280,600 wild animal deaths. This outcome easily qualifies as an unmitigated significant impact to wildlife that has not been analyzed in the IS/MND.

Based on this, it is my expert opinion that the project, even with the proposed mitigations, would result in a potentially significant biological impact to wildlife from free-ranging house cats resulting from the project.

CUMULATIVE IMPACTS
The IS/MND’s cumulative impacts analysis is flawed in several ways. The analysis is not directed toward biological resources, and in fact makes no mention of biological resources. It also only vaguely implies the City’s General Plan policies from 1980 would somehow prevent cumulative impacts, which the IS/MND further implies would not be realized due to project-specific mitigation for project-specific impacts. According to the IS/MND (p. 106), “Applicable policies from the General Plan would be implemented as part of the proposed project, as well as the project-specific mitigation measures included in this IS/MND, to ensure any potential impacts of the proposed project would be individually limited and not cumulatively considerable. As demonstrated in this IS/MND, all potential environmental impacts that could occur as a result of project implementation would be reduced to less-than-significant.” However, according to CEQA Guidelines §15064(h)(3), “a project’s incremental contribution to a cumulative impact can be found not cumulatively considerable if the project would comply with an approved plan or mitigation program that provides specific requirements that would avoid or substantially lessen the cumulative problem within the geographic area of the project.” And “When relying on a plan, regulation or program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable.” The IS/MND’s analysis provides no specifics on how specific policies of the 1980 General Plan would mitigate project impacts to biological resources.

The cumulative effects analysis also relies on a false standard for determining whether a project’s impacts will be cumulatively considerable. The IS/MND implies that a given project impact is cumulatively considerable only when it has not been fully mitigated.

In essence, the IS/MND implies that cumulative impacts are really residual impacts left

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Packet Pg. 147 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 33 over by inadequate mitigation of project impacts. This notion of residual impacts being the source of cumulative impacts is inconsistent with CEQA’s definition of cumulative effects. Individually mitigated projects do not negate the significance of cumulative impacts. If they did, then CEQA would not require a cumulative effects analysis. To summarize, the IS/MND provides no cumulative effects analysis as defined in two ways by CEQA.

MITIGATION MEASURES
IV-1. Construction Timing or Preconstruction Survey to Avoid Take of Nesting Birds
I concur that this measure should be implemented, but I must add that preconstruction surveys typically detect small fractions of the animals targeted. Nesting birds are highly adept at concealment to avoid predation. The notion that more than a few nests would be detected in willow scrub, cattails, and large Monterey Cypress would be fantasy.

Furthermore, preconstruction, take-avoidance surveys ultimately fail to prevent the impacts of habitat loss, resulting in the loss of productive capacity of the site.

Preconstruction surveys should not be performed without first having performed detection surveys. Preconstruction surveys are no substitute for detection surveys.

RECOMMENDED MEASURES
Protocol-level Detection Surveys: If the project goes forward, species detection surveys are needed to (1) support negative findings of species when appropriate, (2) inform preconstruction surveys to improve their efficacy, (3) estimate project impacts, and (4) inform compensatory mitigation and other forms of mitigation. Detection survey protocols and guidelines are available from resource agencies for most specialstatus species. Otherwise, professional standards can be learned from the scientific literature and species’ experts.

Detection Surveys for Bats: Multiple special-status species of bats likely occur on the project site. A qualified bat biologist should be tasked with completing protocollevel detection surveys for bats.

Construction Monitoring: If the project goes forward, one or more qualified biologists need to serve as construction monitors. They should have the authority to stop construction when construction poses a threat to wildlife, and they should have the authority to rectify situations that pose threats to wildlife. The events associated with construction monitoring, such as efforts to avoid impacts and findings of dead and injured wildlife, need to be summarized in a report that is subsequently made available to the public.

Habitat Loss: If the project goes forward, compensatory mitigation would be warranted for habitat loss. An equal area of open space should be protected in perpetuity as close to the project site as possible. The impacts of interference with

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Packet Pg. 148 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 34 wildlife movement by the security fence should be minimized by reducing the length of fence and using a different type of fencing that increases opacity and minimizes the risk of entanglement. The fence should also include gaps to enable non-volant wildlife to pass through. Elimination of the fence from the project would be optimal.

Guidelines on Building Design to Minimize Bird-Window Collisions If the project goes forward, it should at a minimum adhere to available Bird-Safe Guidelines, such as those prepared by American Bird Conservancy and New York and San Francisco. The American Bird Conservancy (ABC) produced an excellent set of guidelines recommending actions to: (1) Minimize use of glass; (2) Placing glass behind some type of screening (grilles, shutters, exterior shades); (3) Using glass with inherent properties to reduce collisions, such as patterns, window films, decals or tape; and (4) Turning off lights during migration seasons (Sheppard and Phillips 2015). The City of San Francisco (San Francisco Planning Department 2011) also has a set of building design guidelines, based on the excellent guidelines produced by the New York City Audubon Society (Orff et al. 2007). The ABC document and both the New York and San Francisco documents provide excellent alerting of potential bird-collision hazards as well as many visual examples. The San Francisco Planning Department’s (2011) building design guidelines are more comprehensive than those of New York City, but they could have gone further. For example, the San Francisco guidelines probably should have also covered scientific monitoring of impacts as well as compensatory mitigation for impacts that could not be avoided, minimized or reduced.

New research results inform of the efficacy of marking windows. Whereas Klem (1990) found no deterrent effect from decals on windows, Johnson and Hudson (1976) reported a fatality reduction of about 69% after placing decals on windows. In an experiment of opportunity, Ocampo-Peñuela et al. (2016) found only 2 of 86 fatalities at one of 6 buildings – the only building with windows treated with a bird deterrent film. At the building with fritted glass, bird collisions were 82% lower than at other buildings with untreated windows. Kahle et al. (2016) added external window shades to some windowed façades to reduce fatalities 82% and 95%. Brown et al. (2020) reported an 84% lower collision probability among fritted glass windows and windows treated with ORNILUX R UV. City of Portland Bureau of Environmental Services and Portland Audubon (2020) reduced bird collision fatalities 94% by affixing marked Solyx window film to existing glass panels of Portland’s Columbia Building. Many external and internal glass markers have been tested experimentally, some showing no effect and some showing strong deterrent effects (Klem 1989, 1990, 2009, 2011; Klem and Saenger 2013; Rössler et al. 2015).

Monitoring and the use of compensatory mitigation should be incorporated at any new building project because the measures recommended in the available guidelines remain of uncertain efficacy, and even if these measures are effective, they will not reduce collision fatalities to zero. The only way to assess mitigation efficacy and to quantify post-construction fatalities is to monitor the project for fatalities, including at residential dwelling units.

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Packet Pg. 150 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 36 Brown, B. B., L. Hunter, and S. Santos. 2020. Bird-window collisions: different fall and winter risk and protective factors. PeerJ 8:e9401 http://doi.org/10.7717/peerj.9401 Calvert, A. M., C. A. Bishop, R. D. Elliot, E. A. Krebs, T. M. Kydd, C. S. Machtans, and G.

J. Robertson. 2013. A synthesis of human-related avian mortality in Canada.

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10.1371/journal.pone.0144600.

Klem, D., Jr. 1989. Bird-window collisions. Wilson Bulletin 101:606-620.

Klem, D., Jr. 1990. Collisions between birds and windows: mortality and prevention.

Journal of Field Ornithology 61:120-128.

Klem, D., Jr. 2009. Preventing bird-window collisions. The Wilson Journal of Ornithology 121:314-321.

Klem, D., Jr. 2011. Evaluating the effectiveness of Acopian Birdsavers to deter or prevent bird-glass collisions. Unpublished report.

Klem, D., Jr. and P. G. Saenger. 2013. Evaluating the effectiveness of select visual signals to prevent bird-window collisions. The Wilson Journal of Ornithology 125:406–411.

Kunz, T. H., and L. F. Lumsden. 2003. Ecology of cavity and foliage roosting bats. Pages 3–89 in T. H. Kunz and M. B. Fenton, Eds., Bat ecology. The University of Chicago Press, Chicago.

Kunz, T. H., S. A. Gauthreaux Jr., N. I. Hristov, J. W. Horn, G. Jones, E. K. V. Kalko, R.

P. Larkin, G. F. McCracken, S. M. Swartz, R. B. Srygley, R. Dudley, J. K. Westbrook, and M. Wikelski. 2008. Aeroecology: probing and modelling the aerosphere.

Integrative and Comparative Biology 48:1-11. doi:10.1093/icb/icn037 Loss, S. R., T. Will, and P. P. Marra. 2013. The impact of free-ranging domestic cats on wildlife of the United States. Nature Communications 2380. DOI:

10.1038/ncomms2380
Loss, S. R., T. Will, S. S. Loss, and P. P. Marra. 2014. Bird–building collisions in the United States: Estimates of annual mortality and species vulnerability. The Condor: Ornithological Applications 116:8-23. DOI: 10.1650/CONDOR-13-090.1 Loss, S. R., S. Lao, J. W. Eckles, A. W. Anderson, R. B. Blair, and R. J. Turner. 2019.

Factors influencing bird-building collisions in the downtown area of a major North American city. PLoS ONE 14(11): e0224164. https://doi.org/10.1371/journal. pone.0224164

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Packet Pg. 152 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 38 Loyd, K. A. T., S. M. Hernandez, and D. L. McRuer. 2017. The role of domestic cats in the admission of injured wildlife at rehabilitation and rescue centers. Wildlife Society Bulletin 41:55-61.

Machtans, C. S., C. H. R. Wedeles, and E. M. Bayne. 2013. A first estimate for Canada of the number of birds killed by colliding with building windows. Avian Conservation and Ecology 8(2):6. http://dx.doi.org/10.5751/ACE-00568-080206 Mendelsohn, M., W. Dexter, E. Olson, and S. Weber. 2009. Vasco Road wildlife movement study report. Report to Contra Costa County Public Works Department, Martinez, California.

Monk and Associates. 2014. Biological Constraints Analysis 570 Crespi Drive, City of Pacifica.

Morrison, M. L., B. G. Marcot, and R. W. Mannan. 1998. Wildlife-Habitat Relationships:

Concepts and Applications. 2nd edition. University of Wisconsin Press Madison, WI.

National Research Council. 1986. Ecological knowledge and environmental problemsolving: concepts and case studies. National Academy Press, Washington, D.C.

Ocampo-Peñuela, N., R. S. Winton, C. J. Wu, E. Zambello, T. W. Wittig and N. L. Cagle . 2016. Patterns of bird-window collisions inform mitigation on a university campus.

PeerJ4:e1652;DOI10.7717/peerj.1652
O’Connell, T. J. 2001. Avian window strike mortality at a suburban office park. The Raven 72:141-149.

Orff, K., H. Brown, S. Caputo, E. J. McAdams, M. Fowle, G. Phillips, C. DeWitt, and Y.

Gelb. 2007. Bird-safe buildings guidelines. New York City Audubon, New York.

Parkins, K. L., S. B. Elbin, and E. Barnes. 2015. Light, glass, and bird–building collisions in an urban park. Northeastern Naturalist 22:84-94.

Porter, A., and A. Huang. 2015. Bird collisions with glass: UBC pilot project to assess bird collision rates in Western North America. UBC Social Ecological Economic Development Studies (SEEDS) Student Report. Report to Environment Canada, UBC SEEDS and UBC BRITE.

Riding, C. S., T. J. O’Connell, and S. R. Loss. 2020. Building façade-level correlates of bird–window collisions in a small urban area. The Condor: Ornithological Applications 122:1–14.

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Packet Pg. 153 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 39 Rössler, M., E. Nemeth, and A. Bruckner. 2015. Glass pane markings to prevent birdwindow collisions: less can be more. Biologia 70: 535—541. DOI: 10.1515/biolog2015-0057 Runge, C. A., T. G. Martin, H. P. Possingham, S. G. Willis, and R. A. Fuller. 2014.

Conserving mobile species. Frontiers in Ecology and Environment 12(7): 395–402, doi:10.1890/130237.

Sabo, A. M., N. D. G. Hagemeyer, A. S. Lahey, and E. L. Walters. 2016. Local avian density influences risk of mortality from window strikes. PeerJ 4:e2170; DOI

10.7717/peerj.2170
San Francisco Planning Department. 2011. Standards for bird-safe buildings. San Francisco Planning Department, City and County of San Francisco, California.

Schneider, R. M., C. M. Barton, K. W. Zirkle, C. F. Greene, and K. B. Newman. 2018.

Year-round monitoring reveals prevalence of fatal bird-window collisions at the Virginia Tech Corporate Research Center. PeerJ 6:e4562 https://doi.org/10.7717/ peerj.4562
Sheppard, C., and G. Phillips. 2015. Bird-friendly building design, 2nd Ed., American Bird Conservancy, The Plains, Virginia.

Shuford, W. D., and T. Gardali, [eds.]. 2008. California bird species of special concern: a ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California.

Smallwood, K.S. 2002. Habitat models based on numerical comparisons. Pages 83-95 in Predicting species occurrences: Issues of scale and accuracy, J. M. Scott, P. J.

Heglund, M. Morrison, M. Raphael, J. Haufler, and B. Wall, editors. Island Press, Covello, California.

Smallwood, K. S. 2015. Habitat fragmentation and corridors. Pages 84-101 in M. L.

Morrison and H. A. Mathewson, Eds., Wildlife habitat conservation: concepts, challenges, and solutions. John Hopkins University Press, Baltimore, Maryland, USA.

Somerlot, K. E. 2003. Survey of songbird mortality due to window collisions on the Murray State University campus. Journal of Service Learning in Conservation Biology 1:1–19.

Taylor, P. D., S. A. Mackenzie, B. G. Thurber, A. M. Calvert, A. M. Mills, L. P. McGuire, and C. G. Guglielmo. 2011. Landscape movements of migratory birds and bats reveal an expanded scale of stopover. PlosOne 6(11): e27054. doi:10.1371/journal.pone.0027054.

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Packet Pg. 154 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 40 Warnock, N. 2010. Stopping vs. staging: the difference between a hop and a jump.

Journal of Avian Biology 41:621-626.

Wood Biological Consulting. 2020. Biological Constraints Analysis – Update 540 and 570 Crespi Drive, Pacifica CA.

Yahner, R. H. 1982. Avian nest densities and nest-site selection in farmstead shelterbelts. The Wilson Bulletin 94:156-175.

Young, H. 1948. A comparative study of nesting birds in a five-acre park. The Wilson Bulletin 61:36-47.

Photos 23 and 24. Wilson’s warbler and black phoebe on the project site, 27 July 2022.

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Packet Pg. 155 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 1 LAW OFFICES OF BRIAN GAFFNEY, A Professional Corporation 2370 Market Street, Suite 103-318
San Francisco, CA 94114
(650) 219 3187 Phone
[email protected]
Via Email
November 8, 2022
Mayor Bier
Pacifica City Council
Pacifica Acting Planning Director
[email protected]
[email protected]
RE: 570 Crespi Drive Project – Violations of CEQA and the Endangered Species Act Pacifica File No. 2016-004
Dear Mayor Bier, Councilmembers and Director Murdock,
This comment is submitted on behalf of Ms. Margaret Goodale and in support of the appeal she filed March 17, 2022 regarding the proposed 570 Crespi Drive Project. For the reasons provided below, Ms. Goodale urges the City of Pacifica to prepare an Environmental Impact Report (EIR) on this proposed project, and to correct the legal issues identified below.

There Is Substantial Evidence of Potentially Significant Adverse Project Impacts, and Thus An EIR Must Be Prepared Prior to Project Approval
There is substantial evidence before the City that the proposed 570 Crespi Drive project will have potentially significant adverse biological effects even with the proposed mitigation measures.

An EIR “shall” be prepared where, as here, “there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment.” (Pub. Res. Code § 21080(d), emphasis added. If there is substantial evidence supporting a “fair argument” that a project “may” have a significant environmental effect, the lead agency “shall” prepare an EIR. (CEQA Guideline15064(a)(1); Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 112, 1135.) The fair argument standard provides a “low threshold” for requiring the preparation of an EIR, with a preference for resolving doubts in favor of an EIR. (No Oil, Inc. v. City of Los Angeles

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Packet Pg. 156 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 2 (1974) 13 Cal.3d 68, 84; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App. 4th 1095, 1110.)
“Substantial evidence” is “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (CEQA Guideline 15384(a).) Notably, where some experts conclude there may be a potentially adverse impact, and other experts disagree, an EIR must still be prepared. (CEQA Guidelines 15064, subd. (g); Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th 903, 928.)
Dr. Peter Baye
Coastal ecologist Dr. Peter Baye on June 15, 2022 provided the City with his expert assessment of outstanding wetland and endangered species impacts associated with the proposed 570 Crespi Drive project.1 Dr. Baye concludes that the failure to accurately assess potential occurrence of California red-legged frogs (CRLF) at the project site would be significant, unmitigated impacts, which the Initial Study / Mitigated Negative Declaration inadequately assessed under CEQA.

Dr. Baye’s expert conclusion is based on the following facts: (1) the Project site is “suitable habitat” for CRLF, (2) there is a large nearby breeding population of CRLF in wetlands and pools of the mouth of San Pedro Creek, less than 1500 feet radius away from the Project site, (3) the Project site is within the known upland nocturnal dispersal distances of California red-legged frogs, (4) the nearby Highway 1 roadside seasonal wetland swale/ditch, adjacent to the Pacifica State Beach parking lot, provides a nearly continuous dispersal and foraging (feeding) corridor with moisture and cover for red-legged frog nocturnal movement, (5) adult California red-legged frogs have the ability to make long-distance overland forays into and across upland areas at night, and (6) Highway 1 does not act as a dispersal barrier to adult red-legged frogs during low-traffic periods in early morning and late night hours reaching the Project site.

So too, Woods Biological Consulting concluded that, based on observations of the emergent wetlands in the study area in July 2020 and conversations with the biologist Patrick Kobernus who monitored the construction of the City’s Wet-Weather Equalization Basin, the project site provides “suitable breeding or dispersal habitat” for the California red-legged frog. 1 Dr. Baye’s Statement of Qualifications is attached.

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Packet Pg. 157 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 3 Dr. Shawn Smallwood
Dr. Smallwood has concluded that the proposed project would result in potentially significant impacts due to (1) its interference with wildlife movement in the region, (2) habitat loss, even with the proposed mitigations, (3) bird-window collision mortality, and (4) free-ranging house cats related to the project.

Dr. Smallwood is a well-qualified expert, having received a Ph.D. in Ecology from the University of California at Davis in 1990, and authoring over 485 professional publications and over 370 reports. Dr. Smallwood based his comments on his first-hand, eye-witness observations from a personal visit to the site; review of the Initial Study; the Monk & Associates 2014 Report; the Wood Biological Consulting 2020 Report; and records maintained by the Cornell Lab of Ornithology and the online database iNaturalist.

The Initial Study and Any EIR Need to Properly Analyze Baseline Conditions of California Red-legged Frogs on Site and Nearby the Project
The fundamental goal of CEQA is to inform decision makers and the public of any potentially significant adverse effects of a project. To make such an assessment, the agency must delineate environmental conditions prevailing absent the project, defining a “baseline” against which predicted effects can be described and quantified. (Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth. (2013) 57 Cal. 4th 439, 447.) This baseline for CEQA analysis must be the “existing physical conditions in the affected area.” The California Supreme Court has made clear that this requirement applies to an initial study or negative declaration. (Communities for a Better Env't v. S. Coast Air Quality Mgmt. Dist. (2010) 48 Cal. 4th 310, 321.) The Initial Study for this project and the reports on which it is based, as Dr. Baye points out, fail to discuss either (1) the large nearby population of CRLF in wetlands and pools of the mouth of San Pedro Creek less than 1500 feet radius away from the Project site or (2) the dispersal and foraging corridor for red-legged frog nocturnal movement. In addition, the City has failed to conduct or require an assessment of CRLF population and individual presence at the Project site.

In addition, the Initial Study fails to analyze the existing baseline of the project site in regards to nesting birds, wetlands and heritage trees. “Further evaluation is required in order to identify if any other individual trees are protected under the City’s Preservation of Heritage Trees ordinance.” Initial Study, p 46.

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Packet Pg. 158 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 4 So too, as Dr. Smallwood comments, the reports by Monk & Associates (2014) and Wood Biological Consulting (2020) leave readers of the Initial Study ill-informed about the baseline conditions of the project site’s wildlife community. The Initial Study is inadequately informed by a literature and data base review. The Initial Study inappropriately uses the California Natural Diversity Data Base (CNDDB) to determine which species have potential to occur in the project area. By including only species whose documented occurrences within 5 miles of the project site can be found in the CNDDB, the Initial Study screens out many special-status species from further consideration in its characterization of the wildlife community as a component of the baseline biological setting. The CNDDB was not designed to support absence determinations or to screen out species from characterization of a site’s wildlife community. The Initial Study misuses the CNDDB.

The City’s certification of a Mitigated Negative Declaration or an EIR based on this inadequate Initial Study, without a proper baseline analysis, would violate CEQA. This is particularly troubling given that the error occurs in relation to a federally threatened species.

The Initial Study and Any EIR Must Not Defer Analysis of Project Biological Resource Impacts Until After Project Approval.

The purpose of CEQA is to inform the public and public officials of the environmental consequences of decisions before they are made. (Citizens of Goleta Valley v. Board of Supervisors of Santa Barbara County (1990) 52 Cal.3d 553, 564.) Public agencies must comply with CEQA before approving a project. (CEQA Guideline 15004(a).) This Initial Study improperly defers the required analysis of Project impacts to nesting birds, wetlands and heritage trees until after project approval. Mitigation Measure IV-1 will defer analysis of nesting birds to a post-approval “preconstruction nesting bird survey.” Mitigation Measure IV-3 will defer analysis of the impact of the project on waters of the U.S until after project approval.” Mitigation Measure IV-5 will defer analysis of impacts to heritage trees until after project approval.

The City’s certification of a Mitigated Negative Declaration or an EIR based on this inadequate Initial Study, which defers the analysis of Project impacts to nesting birds, wetlands and heritage trees until after project approval, would violate CEQA.

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Packet Pg. 159 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project) 5 The Initial Study and Any EIR Must Analyze Cumulative Biological Impacts There is no analysis of cumulative biological impacts in the Initial Study.

Further, the cumulative impact discussion at Initial Study p. 105 does not explain how specific policies of the 1980 General Plan would mitigate project impacts to biological resources.

The City’s certification of a Mitigated Negative Declaration or an EIR based on this inadequate Initial Study, which omits a robust analysis of cumulative biological impacts, would violate CEQA.

Take of Endangered Species is a Violation of the Federal Endangered Species Act.

California red-legged frog, a federally listed threatened species, may be present at the site. Any take of a single individual of such species is prohibited under federal law. (16 U.S.C. § 1538.) “Take” includes harass or harm. "Harm" includes any act which actually kills or injures fish or wildlife, including significant habitat modification or degradation that significantly impairs essential behavioral patterns. “Harass” includes an intentional or negligent act which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.

The courts have held that State and local agencies may be held liable for licensing an activity that is likely to result in a violation of the federal Endangered Species Act. (See Strahan v. Coxe, 127 F.3d 155, 162-163 (1st Cir. 1997); see also Strahan v. Sec'y, Massachusetts Exec.

Off. of Energy & Env't Affs., 458 F. Supp. 3d 76, 89–90 (D. Mass. 2020).) Conclusion
The City has before it expert opinions supported by fact that the 570 Crespi Drive project will have potentially significant adverse biological impacts. (CEQA Guideline 15384(b).) A negative declaration is only permitted if there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment.

By law, the City is required to have an EIR prepared for this proposed project in order that the public and City decision makers are fully informed of project impacts, mitigations and alternatives prior to project approval. Any such EIR must not repeat the CEQA errors noted above.

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Packet Pg. 160 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project)

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Packet Pg. 161 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project)

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Packet Pg. 162 Attachment: Attachment C - Public Comments (5179 : Appeal of Planning Commission approval of 570 Crespi Mixed-use Project)

CITY OF PACIFICA

COUNCIL AGENDA SUMMARY REPORT
11/14/2022
1 SUBJECT:

Council call-up and consideration of an appeal of the Planning Commission’s revocation of Cannabis Activity Permit CAP-8-18 which authorizes the operation of a cannabis retail operation known as Seaweed Holistics, LLC at 450 Dondee Way, Suite 2 (APN 022-021-640), for the sale of medicinal and adult use cannabis.

RECOMMENDED ACTION:

Move to adopt the attached Resolution to DENY the appeal and UPHOLD the Planning Commission’s revocation of Cannabis Activity Permit CAP-8-18 (File Nos. 2018-029 and 2020- 020), which authorizes operation of a cannabis retail operation known as Seaweed Holistics at 450 Dondee Way, Suite 2 (APN 022-021-640), and finding the project exempt from the California Environmental Quality Act (CEQA) by adopting the resolution included as Attachment A.

STAFF CONTACT:

Bonny O’Connor, AICP, Senior Planner
(650) 738-7341
[email protected]
BACKGROUND:

The City of Pacifica’s “Cannabis Regulations” are contained in Article 48 of Chapter 4 of Title 9 of the
Pacifica Municipal Code (PMC)1. The Cannabis Public Safety License (CPSL) requirements are contained in Chapter 16 of Title 4 of the PMC.2 As the City processed applications for cannabis retail operations, all operators have been required to comply with the standards set forth in those Cannabis Regulations.

A. INITIAL APPROVAL OF CAP-8-18
On September 16, 2019, the Planning Commission approved Cannabis Activity Permit CAP-8- 18 with the adoption of Planning Commission Resolution No. 2019-031 (Attachment B) to authorize Seaweed Holistics, LLC (“Permittee”) to establish and operate a Cannabis Retail Operation (“CRO”) with adult use and medicinal cannabis sales at 450 Dondee Way, Suite 2 (File No. 2018-029). Exhibit A to Resolution No. 2019-031 included conditions of the approval (“COAs”) applicable to CAP-8-18. Many of these COAs were required to be met prior to the commencement of operations. The Permittee did not contest or appeal any of the COAs imposed as part of CAP-8-18.
1 City of Pacifica Cannabis Regulations:
https://library.municode.com/ca/pacifica/codes/code_of_ordinances?nodeId=TIT9PLZO_CH4ZO_ART48CARE 2 City of Pacifica Cannabis Public Safety License Requirements:
https://library.municode.com/ca/pacifica/codes/code_of_ordinances?nodeId=TIT4PUSA_CH16CAPUSALI 10 Packet Pg. 163
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While the Permittee made progress towards completion of some of the COAs, the Permittee indicated that two COAs were infeasible to satisfy prior to commencement of operations. Those two COAs primarily at issue are the following:
• COA No. 9 - “Prior to commencement of operations, the Permittee shall obtain a building permit to modify the first floor storefront to increase the horizontal and overall measurements of the glass on the first floor storefront to meet or exceed the requirements of PMC Section 4-16.03(c)(1)(ii), to the satisfaction of the Planning Director. New windows or doors proposed on the storefront shall be architectural compatible with the remainder of the building, to the satisfaction of the Planning Director.”
• COA No. 18 - “All outstanding and applicable fees associated with the processing of this project shall be paid within 30 days of the approval of Cannabis Use Permit CAP-8-18.

The Cannabis Retail Operation shall not commence operations until such fees are paid.” The Permittee explained that they had to commence operations in order to generate revenue through cannabis retail sales to be able to satisfy COA No. 9 (requirement to implement storefront window modification to meet Pacifica Municipal Code (“PMC”) sec. 4-16.03(c)(1)(ii)) and COA No. 18 (payment of outstanding fees) and requested that those COAs be modified to allow commencement of operations before compliance with COA No. 9 and COA No. 18.

B. DEFERRAL AGREEMENT AND AMENDMENT TO CAP-8-18
Given the Permittee’s request, the City temporarily deferred compliance with COA No. 9 and COA No. 18 through the Agreement Regarding Deferral of Specified Conditions of Approval Relating to the Operation of Seaweed Holistics (“Deferral Agreement”) executed on September 21, 2020 (Attachment C), to allow the Permittee to commence operations to generate the revenue necessary to satisfy COA No. 9 and COA No. 18 provided that the Permittee expeditiously process an application to modify these COAs. The Agreement also provided that the Permittee was responsible for paying for City costs associated with preparing and processing the Deferral Agreement and modifying the COAs. The Permittee agreed to the terms of the Deferral Agreement.

On February 16, 2021, the Planning Commission approved Resolution No. 2021-001 which amended COA No. 9 and COA No. 18 of CAP-8-18 to defer the timing of compliance with those conditions until after commencement of operations (File No. 2020-020), consistent with the aforementioned Deferral Agreement (Attachment D).

C. ANNUAL REPORT TO PLANNING COMMISSION
In accordance with PMC Sec 9-4.4806(e) and COA No. 19 of Resolution No. 2019-031 (Attachment B), the Planning Commission conducted an annual review of the CRO at its meeting on August 15, 2022. As part of the annual review, staff reported that the Permittee was still not in compliance with COA No. 9 and No. 18. Additionally, because the Permittee had not complied with the COAs imposed by the Planning Commission, the Permittee was also out of compliance with PMC sec. 9-4.4803(d)(5) and Conditions of Approval No. 1, No. 5, and No. 6, which are summarized as follows:
• COA No. 1 - This condition requires the development to be substantially in accordance with the approved plans modified by the conditions of approval. As further discussed below for COA No. 9, the Permittee has not complied with COA No. 9 which requires the modification of the storefront window. Therefore, the development is out of compliance 10 Packet Pg. 164
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COA No. 1.
• COA No. 5 - This condition incorporates all the requirements of Article 48 of Chapter 4 of Title 9 of the PMC applicable to the cannabis retail operation. PMC Section 9-

4.4803(d)(5) states, “The Planning Commission may impose additional conditions which it deems necessary to ensure that operation of the cannabis operation will be in accordance with the findings provided in Section 9-4.4805(a) and with the standards and regulations provided in this article and applicable state laws.” As further discussed below for COA No. 9, and No. 18, the Permittee has not complied with these conditions imposed by the Planning Commission and therefore is out of compliance with PMC Section 9-4.4803(d)(5) and, therefore, COA No. 5.
• COA No. 6 - This condition prohibits the operation of the cannabis retail operation from creating a public nuisance. As established in PMC sec 9-4.4807, “[a]ny use or condition caused or permitted to exist in violation of any provision of this article shall be and hereby is declared a public nuisance and may be summarily abated by the City pursuant to Code of Civil Procedure, section 731 or any other remedy available to the City.” The cannabis retail operation is in violation of provision of Article 48 as demonstrated in this annual report because there are Conditions of Approval that have not been complied with and, as a result, the cannabis retail operation is considered a public nuisance, as defined in the PMC. Therefore, the Permittee is not in compliance with COA No. 6.

After receiving a report prepared by staff and testimony, the Planning Commission adopted Resolution No. 2022-016, finding that operation of Seaweed Holistics is being conducted in a manner that is not in compliance the requirements of Article 48 of Title 9, Chapter 4 of the PMC and the requirements of Planning Commission Resolution Nos. 2019-031 and 2021-001 and therefore constitutes a public nuisance in accordance with PMC sec. 9-4.4806 and PMC sec. 9-

4.4807 (Attachment E). The Planning Commission also directed staff to schedule a public hearing within 60 days to consider suspension or revocation of Cannabis Activity Permit CAP-8- 18 in accordance with PMC sec. 9-4.4806. The Planning Commission staff report for August 15, 2022, is included in this staff report as Attachment F3.

D. PLANNING COMMISSION CONSIDERATION OF REVOCATION OR SUSPENSION During the Planning Commission’s regular meeting on October 3, 2022, the Planning Commission reviewed the compliance status of the operation of Seaweed Holistics and considered the criteria for suspension or revocation pursuant to PMC sec. 9-4.4806.

PMC sec. 9-4.4806 provides that the Planning Commission may suspend or revoke a Cannabis Activity Permit. Although there are no specific requirements regarding when a suspension should be utilized rather than revocation, staff explained to the Planning Commission that generally suspensions are used when a suspension is likely to allow the permittee time to achieve compliance in a particular case.

Ultimately, a majority of the Planning Commission supported revocation rather than suspension.

The Planning Commission adopted Resolution No. 2022-021, finding the cannabis retail operation authorized by CAP-8-18 was out of compliance with COA No. 9 (requirement to implement storefront window modification) and COA No. 18 (payment of outstanding fees), as well as COA No. 1 (requiring development to be substantially in accordance with approved plans modified by the conditions of approval), COA No. 5 (requiring compliance with all 3 A recording of the August 15, 2022 Planning Commission Meeting is available online here:
https://youtu.be/fI5mI-4fv0Q?t=704
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conditions of approval and all standards), and COA No. 6 (prohibits the operation of the CRO from creating a public nuisance) and approved revocation of Cannabis Activity Permit CAP-8-18 by a vote of 3 to 2 with two absences (Attachment G). The Planning Commission staff report for October 3, 2022, is included as Attachment H 4.

DISCUSSION:

A. CITY COUNCIL CALL-UP
On October 10, 2022, the City Clerk received a written request from Councilmember O’Neill to call up the Planning Commission’s action on the subject item for City Council review pursuant to PMC sec. 2-1.105, which does not require a Councilmember to cite the basis for the call-up.

B. APPEAL BY ANA LEAÑO-WILLIAMS OF SEAWEED HOLISTICS
On October 13, Ana Leaño-Williams of Seaweed Holistics (hereafter “Appellant”) timely submitted a City of Pacifica Appeal form and applicable fee to the City Clerk’s office to appeal the Planning Commission’s revocation of the CAP for the Project (Attachment I). The Appellant cited two reasons for the appeal in the appeal form, which are summarized and addressed below.

Basis 1. “[D]ecision to revoke the Cannabis Activity Permit was based on a misapplication of the City’s storefront window glazing ordinance/requirements.

The project’s existing window glazing is compliant with the ordinance.” Staff Response: Staff disagrees with this basis. PMC Section 4-16.03(c)(1)(ii) details a quantitative standard CPSL condition for cannabis operations, which states, “Windows and window coverings. Storefronts (front facade of the cannabis operation) shall be primarily glass with glass occupying at least forty-five (45%) percent of the entire store front and sixty (60%) percent of the horizontal length of the store. Window and door areas shall not be covered, tinted, or made opaque in any way, or obscured in any way by landscaping, floor displays, equipment, or the like.” This window provision of the CPSL is a provision that was included in the initial adoption of the CPSL ordinance in 2017 5. This requirement was included in the Conditions of Operation for requirements for cannabis operations to address the Police Department’s concerns at the time that CROs are largely a cash-based business and are a high potential target for robbery. The window provisions ensure a consistent means of visibility into a CRO from the front exterior. This provision was also in effect when the Appellant submitted an application for a CAP for this commercial space in 2018.

In the September 16, 2019 Planning Commission staff report for the initial consideration of the approval of CAP-8-18, the storefront elevation was analyzed based on the Appellant’s provided project plans and dimensions (see Figure 1).
4 A recording of the October 3, 2022 Planning Commission Meeting is available online here:
https://youtu.be/5tAlcBy_Vo8?t=499
5 City of Pacifica Ordinance No. 818-C.S., adopted July 2017. Initially adopted with the title “Marijuana Public Safety Licenses”, which was subsequently changed to “Cannabis Public Safety Licenses” in City of Pacifica Ordinance No. 843-C.S., adopted in May 2019.
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Figure 1. Excerpt of Attachment C – Project Plans from the September 16, 2019 Planning Commission Staff Report
Staff identified that the existing windows along the front facade did not meet the window requirements of PMC sec. 4-16.03(c)(1)(ii). Furthermore, staff’s recommended findings for approval of CAP-8-18 identified the use of the second floor as only for employee access and therefore recommended that the second-story portion of the front elevation not be calculated as part of the storefront for the purposes of calculating the window requirements of PMC sec. 4-

16.03(c)(1)(ii). While “storefront” is not defined in the PMC, staff recognized a reasonable interpretation of storefront to include only the retail space along the front facade as “office” or “employee only” space is not typically located along the storefront. Staff also recognized that this interpretation would be beneficial to the Appellant as it would reduce the scale of window modifications that would be necessary to meet PMC sec. 4-16.03(c)(1)(ii).

The recommended Planning Commission findings for Resolution No. 2019-031 found that the existing windows along the first floor of the storefront did not meet PMC sec. 4-16.03(c)(1)(ii).

However, with the inclusion of COA No. 9, which required modification of the front window to comply with PMC Section 4-16.03(c)(1)(ii), staff recommended approval of the CAP-8-18 6. The 6 Planning Commission’s findings in Resolution No. 2019-031 (Attachment B) state: “The first floor of the proposed storefront is 24’ wide and 8‘ high for a total of 192 sf. The first floor of the existing storefront currently has a 10’ by 6’ window and a door with a 2’ by 5’-6” glass panel for a total of 71 sf of glass. Therefore, the existing glass along the first story storefront does not occupy at least 45 percent (86.4 sf minimum) of the storefront nor does the 10’ wide window plus the 2’ wide glass panel door meet the 60 percent of horizontal length of the store (14’-3” minimum). A COA would require modification of the front window to comply with the Security Plan standards of PMC Section 4-16.03(c)(1)(ii).”
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Planning Commission adopted the staff’s recommended findings in Resolution No. 2019-031.

No appeal was filed to challenge this action.

During execution of the Deferral Agreement to defer COA No. 9 and the processing of the amendment of CAP-8-18 to incorporate the deferral amendments to COA No. 9 (File No. 2020- 020, Resolution No. 2021-001), the Appellant did not present any position that there was a misapplication of the City’s storefront window glazing ordinance or requirements and no timely appeal was filed on Planning Commission’s action.

Since no window modifications have been made to the first-story storefront, staff and the Planning Commission 7finds that Seaweed Holistics storefront remains out of compliance with PMC sec. 4-16.03(c)(1)(ii) and with COA No. 9 as revised by Resolution No. 2021-001, which sets a schedule to defer the installation of the window modification after commencement of operation of the CRO in accordance with the Deferral Agreement. Table 1 in Attachment H details the Appellant’s progress with this condition.

Finally, the Appellant did not provide additional details supporting their claim that the project’s existing window glazing is compliant with the ordinance in their appeal materials. However, as part of the Appellant’s presentation to Planning Commission at the October 3, 2022 public hearing, the Appellant claimed that the City miscalculated the storefront area. The Appellant’s presentation suggested that a portion of the first-story storefront should not be counted as storefront because the stairs that lead to the second floor are not a part of the customer area.

Additionally, the Appellant claimed that the width of the perpendicular walls against the front façade should also be removed from the storefront area calculation. Staff would not be supportive of this new and different interpretation of the calculation of the “storefront” area for the following reasons:

1. Based on August 1, 2022 staff site visit, staff understands that there is an ATM for customer use in front of the stairs as well as an area at the stairway landing that is accessible to customers. Therefore, the claim that first-story storefront area in front of the stairs is an employee only area is not accurate as it may be accessed by customers who wish to use the ATM.

2. The reduction of the storefront based on perpendicular wall area is also not consistent with the Code nor is it consistent with the plain meaning of the words in the Code. PMC sec. 4-16.03(c)(1)(ii) clarifies the term “Storefronts” by including in parenthesis “front facade of the cannabis operation”; therefore it is appropriate to use measurements from the exterior side of the wall which is considered the front façade rather than the interior area along the storefront. Furthermore, The City has not reduced the storefront area in any CAP application instance due to wall width as the front. Additionally, based on the figures provided by the Appellant the northern wall width is not counted as part of the current storefront as that wall continues past the storefront as part of the project perpendicular wall.

3. The interpretation that was suggested by the Appellant is not consistent with the manner that staff interpreted the requirement for other cannabis operations. Other cannabis operations have made modifications to their storefront to meet this requirement in the manner interpreted by staff. Furthermore, the only other two-story cannabis retailer (403 Dondee) has included areas where stairs/elevators occur along their front elevation as part of their storefront even though the second story is non-customer area as well as included the second story of the front elevation as “storefront.” For all the reasons provided above, staff recommends that the Council deny this basis of the appeal.
7 See Planning Commission Resolution Nos. 2022-016 and 2022-021 (Attachments E and G, respectively) 10 Packet Pg. 168
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Basis 2. “Disputes the $25,962.89 in assessed fees largely and inappropriately incurred by the City to address the window glazing non-issue” Staff Response: As discussed above, Seaweed Holistics storefront remains out of compliance with PMC sec. 4-16.03(c)(1)(ii) and with COA No. 9 as revised by Resolution No. 2021-001.

Additionally, as further discussed below, the outstanding fees are not associated with the “window glazing non-issue,” but are associated with the City’s cost processing the Appellant’s CAP-8-18. As the Appellant was made aware of the requirement to pay for all costs associated with processing its CAP application and agreed to such by signing an Agreement for Reimbursement of City Costs (“Reimbursement Agreement”) as part of her initial application submittal. Because the City operates on a deposit system, an initial deposit is required with the submittal of an application, in this case $10,000 was provided and staff, including legal counsel, against which the actual costs to cover the time and expenses associated with processing the application are billed. By signing the Application 8 and the Reimbursement Agreement, the Appellant understood that the initial deposit may not be sufficient to cover the City’s costs processing the application and agreed to make one or more additional deposits within 30 days of being notified that additional funds are required. Additionally, staff included COA No. 18 in Resolution No. 2019-031 (Attachment B), which is a standard condition of approval for all development permits, to require the Appellant to pay all outstanding fees associated with the processing of the project within 30 days of the approval of the permit and prior to commencement of operation.

In January 2020, the City sent the Appellant a letter to inform her that City costs to process CAP-8-18 had exceeded the initial deposit and that an additional $4,080.56 was requested. At the Appellant’s request, staff began working on the Deferral Agreement to defer COA No. 9 and COA No. 18. As captured in the Deferral Agreement, the Appellant had indicated that she needed to commence operation of the cannabis retail to generate revenue to satisfy COA No.

18. The Appellant voluntarily entered the Deferral Agreement, which in addition to establishing a payment deadline for outstanding fees until after commencement of operation, included a provision that the Appellant would pay the outstanding $4,080.56, as well as, “all costs, including but not limited to, staff time, administrative costs, legal fees and any other cost incurred by the City (“City Costs”) associated with preparing this Agreement and all City Costs and associated fees relating to the Planning Commission hearing to consider the Application for Amendments and appeal(s) of the Planning Commission decision, if any.” The Planning Commission adopted Resolution No. 2021-001 on February 16, 2021 to incorporate the deferral amendments to COA No. 18. The revised condition required the Appellant to pay all outstanding fees within 60 days of Planning Commission approval of the revised conditions (i.e., April 17, 2021). By March 10, 2021 staff calculated costs known at the time and informed the Appellant of the outstanding fees. No payment for the outstanding fees was made. On June 10, 2021 the City provided written notice to the Appellant that the final invoices for the processing of the amendment were received and the final total outstanding costs for the processing of the CAP, preparation and execution of the Deferral Agreement, and processing the amendments of the CAP was $25,952.899. This amount remains outstanding.

For all the reasons provided above, staff recommends that the Council deny this basis of the 8 Subsection B of Section II. Acknowledgement and Agreement by Applicant and Owner of the signed Marijuana Use Permit Application (subsequently retitled Cannabis Activity Permit) states, in summary, that the undersigned agrees to pay any and all City costs incurred in connection with the application, enter into a reimbursement agreement with the City for the payment of such fees, and satisfy requests for further deposit of funds within 30 days of a City request.
9 This amount is the sum of the outstanding $4,080.56 for the original processing of CAP-8-18 and the outstanding $21,872.33 for the processing of the Deferral Agreement and the amendment to CAP-8-18. 10 Packet Pg. 169
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appeal.

C. CITY COUNCIL’S ROLE
Pursuant to PMC Section 2-1.105 and PMC Section 9-4.3208, the Council may approve, deny or modify the Planning Commission’s decision on Cannabis Activity Permit CAP-8-18, after considering the call-up and appeal. With respect to the appeal specifically, the City Council may also refer the matter back to the Planning Commission pursuant to PMC Section 9-4.3208(b)(2).

In the event that the Council determines that there is substantial evidence in the record to support the Planning Commission’s revocation of the Cannabis Activity Permit CAP-8-18, the Council should deny the appeal by adopting the attached Resolution.

If the Council decides to modify Planning Commission’s action to a suspension, the Council should provide staff with conditions and criteria for the suspension which would be inserted into a Resolution upholding the appeal, and modifying the decision of the Planning Commission to reflect a suspension, which would be brought back to Council at a later date. In the event that the Council decides to uphold the appeal and deny the revocation, Council will need to provide staff with the basis for those findings that are supported by substantial evidence which would be inserted into a Resolution upholding the appeal by staff and brought back to Council at a later date.

D. STAFF SUMMARY
As detailed in this staff report, the claims of the Appellant’s appeal are unfounded and inaccurate. The Appellant has been aware of her requirement to bring her storefront window into compliance with PMC sec. 4-16.03(c)(1)(ii) and her requirements to pay all outstanding fees to the City since at least the initial approval of CAP-8-18 on September 16, 2019. These appeal claims are untimely efforts by the Appellant to delay or avoid the responsibilities that are codified in the Pacifica Municipal Code for cannabis retail operations and which the Appellant has agreed to and that have been consistently applied to all other cannabis retail operators. The City has provided the Appellant more than generous support, accommodations, and time to address these continuing compliance issues, without receiving any notable response from the Appellant. Some of these accommodations include establishment of a payment plan, an agreement to defer conditions, providing additional time due to personal matters, and scheduling the annual report at the latest meeting opportunity to confirm compliance status.

These accommodations are in addition to the several email reminders and extra guidance that staff has provided the Appellant. Staff has provided this assistance with the intention of helping the Appellant succeed and to be a business-friendly resource.

Despite these significant efforts by staff, the Appellant has failed to satisfy COA Nos. 9 and 18 and is therefore also not in compliance with COA Nos. 1, 5 and 6. The Planning Commission agreed with staff that the Appellant’s lack of progress on COA Nos. 9 and 18 has provided no indication that further extensions for compliance through a temporary suspension of their permit would result in completion of the applicable requirements by the Appellant.

For all the reasons provided in this staff report, staff recommends that the City Council deny the appeal and uphold the Planning Commission’s revocation of CAP-8-18 to be effective immediately. Revocation of CAP-8-18 would remove the Appellant’s ability to operate, engage in, conduct or carry out any cannabis operation at 450 Dondee Way, Suite 2, and prevent the Appellant from dispensing, selling, and/or delivering cannabis and/or cannabis products.

Additionally, staff will continue to work to obtain the outstanding fees owed to the City of Pacifica.
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Staff notes that the Appellant timely paid the $23,577 CPSL yearly license renewal fee before its due date on October 16, 2022. Should Council support revocation of CAP-8-18, staff will prepare a reimbursement of the Appellant’s recent payment for the CPSL.

ALTERNATIVE ACTIONS:

The City Council may move to continue the appeal hearing in order to allow staff to prepare a resolution and associated findings to uphold the appeal and deny the Planning Commission revocation of the Coastal Development Permit, or to modify the revocation to be a temporary suspension. The City Council may also refer the matter back to the Planning Commission for reconsideration.

RELATION TO CITY COUNCIL GOALS AND WORK PLAN:

FISCAL IMPACT:

The revocation of CAP-8-18 could result in reduced cannabis tax revenues collected by the City in the near term. However, purchases could shift to another existing or future permitted cannabis retail operation in the Rockaway Beach district or to another permitted cannabis retail operation elsewhere in Pacifica. Therefore, the potential fiscal impact of this permit revocation is unknown but has the potential to be negligible. Individual cannabis tax payment amounts are confidential.

ORIGINATED BY:

Planning Department
Police
ATTACHMENT LIST:

Attachment A - Draft Resolution (DOCX)
Attachment B - Planning Commission Resolution 2019-031(PDF) Attachment C - Agreement re: Deferral of Specified Conditions (PDF) Attachment D - Planning Commission Resolution 2021-001(PDF) Attachment E - Planning Commission Resolution 2022-016(PDF) Attachment F - August 15, 2022 Planning Commission (PDF) Attachment G - Planning Commission Resolution 2022-021(PDF) Attachment H - October 3, 2022 Planning Commission Staff Report (PDF) Attachment I - Appeal Form (PDF)
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RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA DENYING THE APPEAL AND UPHOLDING PLANNING COMMISSION’S REVOCATION OF CANNABIS ACTIVITY PERMIT CAP-8-18 (FILE NOs. 2018-029 AND 2020-020)

WHICH AUTHORIZES OPERATION OF A CANNABIS RETAIL OPERATION KNOWN AS SEAWEED HOLISTICS AT 450 DONDEE WAY, SUITE 2 (APN 022-021- 640), AND FINDING THE ACTION EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).
_______________________________________________________________ WHEREAS, the Planning Commission of the City of Pacifica adopted Resolution No. 2019-031 to approve Cannabis Activity Permit CAP-8-18 (File No. 2018-029) to Seaweed Holistics, LLC (“Permittee”) for a cannabis retail operation at 450 Dondee Way, Suite 2 (APN 022- 021-640) subject to conditions of approval, at a duly noticed public hearing on September 16, 2019; and
WHEREAS, the Planning Commission of the City of Pacifica adopted Resolution No. 2021-001 on February 16, 2021 to amend Conditions of Approval No. 9 and 18 of Resolution 2019- 031 to revise the timing of the implementation of the conditions to after commencement of operations of the cannabis retail operation (File No. 2020-020); and WHEREAS, Condition No. 19 of Exhibit A of Resolution No. 2019-031 of the Planning Commission of the City of Pacifica requires the Planning Commission to perform two annual reviews of the cannabis retail operation authorized by Cannabis Activity Permit CAP-8-18, where the first annual review shall occur not less than one year but not more than two years from the issuance of the Cannabis Public Safety License (CPSL); and WHEREAS, the Chief of Police issued a CPSL for the subject cannabis retail operation on October 16, 2019; and
WHEREAS, the Permittee commenced cannabis retail operations in September 2020 and therefore staff delayed the first annual review to occur not later than more than two years from the implementation of the CPSL; and
WHEREAS, the Planning Commission of the City of Pacifica did hold a duly noticed public hearing on August 15, 2022, to conduct an annual review of Cannabis Activity Permit CAP8-18 and adopted Resolution No. 2022-016 finding that the operation of the subject cannabis retail operation is being conducted in a manner that is not in compliance with Article 48 of Title 9, Chapter 4 of the Pacifica Municipal Code (PMC) and the requirements of Planning Commission Resolution Nos. 2019-031 and 2021-001 and therefore, constitutes a public nuisance in accordance with PMC sec. 9-4.4806 and PMC sec. 9-4.4807; and
WHEREAS, the Planning Commission of the City of Pacifica adopted Resolution No. 2022-021 to revoke Cannabis Activity Permit CAP-8-18 (File No. 2018-029) to Seaweed Holistics, LLC by a vote of 3 to 2 (with 2 absences); and
WHEREAS, on October 10, 2022, the City Clerk received a written request from a Councilmember to call up the Planning Commission’s action on the subject item for City Council review pursuant to PMC sec. 2-1.105; and

10.a
Packet Pg. 172 Attachment: Attachment A - Draft Resolution [Revision 1] (5176 : Appeal and Call-Up of Planning Commission Revocation of CAP-8-18) File Nos. 2018-029 and 2020-020: Revocation of Cannabis Activity Permit CAP-8-18 (Seaweed Holistics Cannabis Retail Operation)
450 Dondee Way, Suite 2 (APN 022-021-640)
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Pacifica City CouncilNovember 14, 2022

Pacifica City Council
November 14, 2022