REGULAR MEETING
JOINT SAND CITY COUNCIL AND
SUCCESSOR AGENCY OF THE
REDEVELOPMENT AGENCY
TUESDAY, DECEMBER 19, 2023
5:30 PM
1 AGENDA
JOINT SAND CITY COUNCIL AND SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY
Regular Meeting - Tuesday, December 19, 2023
5:30 PM
THIS MEETING WILL BE HELD VIRTUALLY AND IN PERSON, IS COMPLIANT WITH ASSEMBLY BILL (“AB”) 2449, SIGNED INTO LAW ON SEPTEMBER 13, 2022, WHICH AMENDS GOVERNMENT CODE SECTION 54953 TO PROVIDE AUTHORITY FOR PUBLIC
AGENCIES TO CONTINUE TO HOLD VIRTUAL MEETINGS AND REMAIN IN COMPLIANCE WITH THE BROWN ACT (GOV. CODE §§ 54950 ET SEQ.).
TO PARTICIPATE IN THE ZOOM COUNCIL MEETING LIVE:
https://us02web.zoom.us/j/4614728829
Meeting ID: 461 472 8829
To participate telephonically by calling the number below:
(669) 900-6833
Meeting ID: 461 472 8829#
If prompted to enter a participant ID, press #
TO PARTICIPATE IN PERSON:
City Hall Council Chamber
1 Pendergrass Way
Sand City, CA
How to submit written Public Comments:
If any member of the public would like to provide written comments at the meeting, please do as set forth below.
Written: All comments received before 8:00 am the day of the meeting will be posted on the City’s website as “Correspondence” under the relevant agenda item and provided to the City Council members at the meeting. Please email your comments to: [email protected].
Read Aloud During the Meeting: Email your comments to [email protected]. When the Mayor opens the public comment period for the relevant agenda item; please indicate the agenda item and title in your email subject line. If you want your comment read aloud, prominently write “Read Aloud at Meeting” at the top of the email and your comments will be read into the record (not to exceed three minutes at staff’s cadence).
DURING EACH MEETING, members of the public may participate by calling and speaking live during the designated time(s), subject to time limits that may be imposed pursuant to the 2 1. ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. INVOCATION
4. ANNOUNCEMENT BY MAYOR, CITY ATTORNEY, AND CITY MANAGER
5. COMMUNICATIONS
Members of the public may address the City Council/Successor Agency on matters not appearing on the City Council/Successor Agency Agenda at this time for up to three minutes. In order that the City Clerk may later identify the speaker in the minutes of the meeting, it is helpful if speakers state their names. Public comments regarding items on the scheduled agenda will be heard at the time the item is being considered by the City Council/Successor Agency.
The City Council Chambers podium is equipped with a portable microphone for anyone unable to come to the podium. If you need assistance, please advise the City Clerk as to which item you would like to comment on and the microphone will be brought to you.
6. CONSENT CALENDAR
The Consent Agenda consists of routine items for which City Council approval can be taken with a single motion and vote. A Council member may request that any item be placed on the Regular Agenda for separate consideration.
6A. Approve the Proposed Calendar of City Council Meetings for 2024 Staff Report
Proposed Meeting Calendar
6B. Approval of City Donation/Contribution - Monterey County Business Council Memo
Monterey County Business Council Letter
6C. Approve a Resolution to Oppose Initiative 21-0042A1 Staff Report
Resolution
Oppose Letter
Summary Outline
6D. Hold Second Reading and Adopt an Ordinance Granting to the CaliforniaAmerican Water Company a Determinate Franchise to Construct, Maintain, and Use Pipes and Appurtenances, Necessary or Proper For Transmitting Water Under, Along, Across or Upon the Public Streets Within the City of Sand City Staff Report
Ordinance
6E. Hold Second Reading and Adopt an Ordinance Adding Chapter 18.100 to the Brown Act at the number provided above. Please use the "raise your hand" option on Zoom, and the City Clerk will call on your name.
3 Zoning Code Relating to Wireless Telecommunications Facilities Setting new Locational Requirements and Development Standards
Staff Report
Ordinance
7. CONSIDERATION OF ITEMS PULLED FROM CONSENT CALENDAR
8. PRESENTATION
8A. Salvation Army Impact Report Presentation
8B. Code Enforcement Presentation-Discussion and Direction of Code Enforcement Priorities
8C. TAMC Bike Trail Presentation
9. NEW BUSINESS
9A. Consideration and Approval for the Cancellation of the January 2, 2024 Regular City Council Meeting
9B. Discussion and Direction Regarding MST Surf! Bus Impacts at the Playa Avenue and California Avenue Intersection
9C. Approve a Resolution Approving Conditional Use Permit (CUP 23-006) for the Wonderwall Boutique Hotel at 1714 Contra Costa Street
Staff Report
Resolution CUP 23-006
EXHIBIT A Conditions of Approval (23-006)
EXHIBIT B Findings of Approval (23-006)
EXHIBIT C Location Map
EXHIBIT D Aerial Map
EXHIBIT E Site Plan
EXHIBIT F Site Photos
Exhibit G HazMat Questionnaire
Exhibit H Letter of Intent
10. COMMENTS BY COUNCILMEMBERS ON ITEMS OF INTEREST TO SAND CITY
11. ADJOURNMENT
The current agenda is available in PDF format on our website at:
www.sandcity.org
If you have a request for a disability-related modification or accommodation, including auxiliary aids or services, which will allow you to participate in a Sand City public meeting, please call the City Clerk at (831) 394-3054 extension 220, or give your written request to the City Clerk at 1 Pendergrass Way, Sand City, CA 93955 at least 48 hours prior to the scheduled meeting to allow the City Clerk time to arrange for the requested modification or accommodation.
4 AGENDA ITEM
6A.
Approve the Proposed Calendar of City
Council Meetings for 2024
5 City of Sand City
STAFF REPORT
TO: Honorable Mayor and City Council
FROM: Kerry Lindstrom, City Clerk
SUBJECT: Proposed Calendar of City Council Meetings for 2024 DATE: December 19, 2023
_______________________________________________________________________ BACKGROUND/DISCUSSION:
On November 7, 2023, the City Council directed staff to prepare a master calendar of City Council meetings in 2024. Sand City Municipal Code Chapter 2.04 states that the Council and Successor Agency meet regularly on the first and third Tuesdays of every month but that Council has discretion to adjust this schedule by adjourning some of the meetings. (SCMC section 2.04.010). The attached proposed calendar provides for City Council meetings on the first and third Tuesdays of the month with some exceptions.
In keeping with past practice due to holidays and the California League of Cities annual conference, several meetings are proposed to be cancelled as indicated on the calendar.
Staff will update the calendar in the event of the cancellation of an additional council meeting, approved by Council.
If approved, the calendar will be posted on the City’s website.
CEQA:
This action does not constitute a "project" as defined by the California Environmental Quality Act (CEQA) guidelines section 15378.
FISCAL IMPACT:
None – while there is a cost savings to the City when a Council meeting is cancelled due to less time spent by outside consultants attending several meetings in a month, the cancellations proposed are in line with the City’s past practice and thus do not reflect a change that has a financial impact.
RECOMMENDATION:
Adopt the proposed calendar of City Council Meetings for 2024.
ATTACHMENTS:
1. 2024 Meeting Calendar
6 Sand City Calendar 2024
January 2024
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
February 2024
S M T W T F S
1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29
March 2024
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31 April 2024
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30
May 2024
S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30 31
June 2024
S M T W T F S
1 2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30 July 2024
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
August 2024
S M T W T F S
1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 31
September 2024
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30
October 2024
S M T W T F S
1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30 31
November 2024
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
December 2024
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
City Council Regular Meetings – First and Third Tuesdays of the Month
Public Safety Committee - Second Tuesday of March, June, September, and December
City Barbecue – May 18, 2024 West End Celebration – August 24-25, 2024 Tree Lighting Ceremony – December 6, 2024 Canceled City Council Meetings 7 AGENDA ITEM
6B.
Approval of City Donation/Contribution -
Monterey County Business Council
8 Memo
To: Honorable Mayor and City Council
From: Vibeke Norgaard, City Manager
Date: December 19, 2023
Re: Review of City Donation/Contribution
Attached is a request for support and contribution for the fiscal year 2023-24. After reviewing this request, the following donation is recommended:
Monterey County Business Council - $5000.00
If any Councilmember wants to discuss this request or to propose a different contribution, then this item should be pulled from the consent calendar for discussion with the full Council. 9 2
The following finding is specified in the annual City/Successor Agency Budget: “The City council finds that it is a valid public purpose and in the best interest of the small city to support and participate in various community programs and activities of the larger Monterey Peninsula area. This support includes not only the City’s financial contributions outlined in the attached pages but also the active involvement/participation by councilmembers, city staff, Sand City businesses, and citizens. This Sand City’s pledge and commitment of support for the larger regional community in which it is an active and dedicated member.” 10 Overview
The Small Business Development Center (SBDC) is a federal, Small Business Administration (SBA) funded program to assist small businesses with resources necessary to be successful. This includes creating business plans, assistance with human resources, access to capital to ensure business owners are creating a solid foundation for their company, and more. Over the last 12 months, SBDC has assisted 839 local businesses in Monterey County.
The SBDC is currently hosted by Cal Coastal (a financial institution) through U.C. Merced (UCM), who manages multiple SBDC’s for the Small Business Administration throughout California. Cal Coastal notified U.C. Merced in October that they are opting not to renew their agreement with UCM for the SBDC designation. The Request for Proposals to host the SBDC was released at the end of October, with a tight deadline to apply by December 15th, 2023.
The current SBDC and Monterey County Business Council (MCBC) have worked collaboratively for years, referring business owners back and forth to each other based on the needs of the companies. MCBC has been working in partnership with the County of Monterey to assist businesses recover from the pandemic - the entirely bilingual staff at MCBC is active in all areas of the county, both in seminars and on foot, engaging businesses. The opportunity to expand those SBDC services to MCBC is a seamless progression for MCBC.
Plan
If selected as the host, Monterey County Business Council plans to run the SBDC a little differently than its current setup---requesting partnerships with the City of Soledad and City of Monterey for satellite offices in South County and Monterey Peninsula, in addition to the home base office in Salinas. This allows business owners to have access to the SBDC services in their area without traveling to Salinas, which is currently the only location. There is also a plan to expand outreach to South County and Monterey Peninsula, to ensure the assistance to those areas increases dramatically.
MCBC currently has bilingual staff, expertly trained in outreach and assistance to businesses – the progression of working as the SBDC is a natural fit.
Funding
MCBC is currently the only local agency applying for the designation. MCBC recognizes the need for the SBDC, and understands if no one applies, Monterey County loses the Small Business 11 Development Center entirely. There is a local match requirement of $120,000 for the $400K federal SBA Small Business Development Center (SBDC) program. There is CA GoBiz (Technical Assistance Program) funding available that MCBC plans to apply for in 2024 (the current SBDC has it), but with one month to submit the RFP, MCBC is unable to secure it from the state for the RFP application.
The requirement for funding is promissory for the RFP – the local match would only be required if MCBC is awarded the designation.
MCBC has secured $10,000 from the City of Monterey and a satellite location in Monterey and is currently asking for financial commitments from multiple cities. We have confirmation of the following:
County of Monterey - $64,000 – confirmed
Monterey - $10K and satellite office - confirmed
Carmel - $5K - confirmed
King City - $5K - confirmed
Gonzales- $5K – confirmed
Marina - $5K – confirmed
Seaside - $5K confirmed
Soledad - $10K and satellite office (going to council for approval on 12/5) Greenfield - $5K (going to council for approval on 12/12) We are contacting and sending a template staff report with the funding request to:
Sand City - $5K (requested to add to next council meeting) Pacific Grove- $5K (requested to add to next meeting)
Del Rey Oaks - $5K (requested to add to next council meeting) Request
MCBC is respectfully requesting $5,000 from Sand City towards the local match requirement.
We also recognize the variance in size of cities and their respective budgets in Monterey County, so we understand if Sand City cannot meet the $5K amount---but would ask for participation at some level to show the commitment from all cities. The match would be contingent upon the SBA grant being awarded to Monterey County Business Council. ***
12 AGENDA ITEM
6C.
Approve a Resolution to Oppose Initiative
21-0042A1
13 MEMO
TO: City Council
FROM: Mayor Carbone
SUBJECT: Initiative No. 21-0042A1, The Taxpayer Protection and Government Accountability Act
DATE: December 19, 2023
_______________________________________________________________________ BACKGROUND/DISCUSSION:
I. SUMMARY
The Taxpayer Protection and Government Accountability Act would amend the California Constitution with provisions that limit voters’ authority and input, adopt new and stricter rules for raising taxes and fees, and may make it more difficult to impose fines and penalties for violation of state and local laws.
The measure puts billions of local government tax and fee revenues at risk statewide with related core public service impacts.
The measure would have significant negative impacts on City of Sand City operations and core service delivery.
The proposed constitutional initiative is sponsored by the California Business Roundtable.
II. MAJOR PROVISIONS
Fees and Charges1:
Except for licensing and other regulatory fees, fees and charges may not exceed the “actual cost” of providing the product or service for which the fee is charged. “Actual cost” is the “minimum amount necessary.” The burden to prove the fee or charge does not exceed “actual cost” is changed to “clear and convincing” evidence.
Requires fees and charges paid for the use of local and state government property and the amount paid to purchase or rent government property to be “reasonable.” These fees and charges are currently allowed to be market-based. Whether the amount is “reasonable” (introducing a new legal standard aiming to force below market fee and charge amounts) must be proved by “clear and convincing evidence.”2 The standard may significantly reduce the amount large companies
1 Initiative No. 21-0042A1 (pgs.4-6; Section 1 (a)-(j)
2 Initiative No. 21-0042A1 (pg.5; (3))
14 (e.g., oil, utilities, gas, railroads, garbage/refuse, cable, and other corporations) will pay for the use of local public property.
Prohibits fees on new development based on vehicle miles traveled.
Taxes3:
Taxes and fees adopted after Jan. 1, 2022, that do not comply with the new rules, are void unless reenacted4.
Invalidates Upland decision that allows a majority of local voters to pass special taxes. The measure specifies that taxes proposed by the initiative are subject to the same rules as taxes placed on the ballot by a city council. Expressly prohibits local advisory measures which allow local voters to express a preference for how local general tax dollars should be spent.5 Requires voter approval to expand existing taxes (e.g., Utility, Transient Occupancy) to new territory (e.g., annexations) or to expand the tax base (e.g., new utility service)
New taxes can only be imposed for a specific time period. City charters may not be amended to include a tax or fee. All state taxes require majority voter approval.
Fines and Penalties6:
May require voter approval of fines, penalties, and levies for corporations and property owners that violate state and local laws unless a new, undefined adjudicatory process is used to impose the fines and penalties.
III. DISCUSSION/ADDITIONAL BACKGROUND
On Jan. 4, 2022, the California Business Roundtable filed the “Taxpayer Protection and Government Accountability Act” or AG# 21-0042A1. On Feb. 1, 2023, the measure qualified for the November 2024 ballot.
The League of California Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly opposes this initiative.
3 Initiative No. 21-0042A1 (pgs.4-6; Section 1 (a)-(j)
4 Initiative No. 21-0042A1 (pg.7; Section 6 (Sec. 2)(g) 5 Initiative No. 21-0042A1 (pg.6 (3))
6 Initiative No. 21-0042A1 (pg. 5 (4))
15 Local government revenue-raising authority is currently substantially restricted by state statute and constitutional provisions, including the voter approved provisions of Proposition 13 of 1978, Proposition 218 of 1996, and Proposition 26 of 2010. The Taxpayer Protection and Government Accountability Act adds and expands restrictions on voters and local government tax and fee authority.
Fees and Taxes
Local governments levy a variety of fees and other charges to provide core public services.
Major examples of affected fees and charges are:
Nuisance abatement charges, such as for weed, rubbish, and general nuisance abatement to fund community safety, code enforcement, and neighborhood cleanup programs.
Commercial franchise fees.
Emergency response fees, such as in connection with DUI. Advanced Life Support (ALS) transport charges.
Document processing and duplication fees.
Transit fees, tolls, parking fees, and public airport and harbor use fees. Facility use charges, fees for parks and recreation services, garbage disposal tipping fees.
Virtually every city, county, and special district must regularly (e.g., annually) adopt increases to fee rates and charges and revise rate schedules to accommodate new users and activities. Most of these would be subject to new standards and limitations under threat of legal challenge. Based on the current volume of fees and charges imposed by local agencies, including council-adopted increases to simply accommodate inflation, Cal Cities estimates the amount of local government fee and charge revenue at risk is approximately $2 billion per year including those adopted since Jan. 1, 2022. Over ten years, $20 billion of local government fee and charge revenues will be at heightened legal peril.
Hundreds of local tax measures were approved in 20227 that likely do not comply with the provisions of the initiative. Nearly $2 billion of annual revenues from these voter-approved measures will cease a year after the effective date of the measure, reducing the local public services funded by these measures, unless the tax is re-submitted for voter approval.
Reductions on local government tax revenues have impacts on core services and infrastructure including fire and emergency response, law enforcement, streets and roads, drinking water, sewer sanitation, parks, libraries, public schools, affordable housing, homelessness prevention, and mental health services.
Fines and Penalties
7 http://www.californiacityfinance.com/Votes2211final.pdf 16 Under existing law, cities are required to provide due process before imposing a penalty or fine for violation of its municipal code:
1. A local agency must adopt administrative procedures that govern imposing fines and penalties, including providing a reasonable period of time for a person responsible for a continuing violation to correct or remedy the violation [Gov't Code 53069.4].
2. Notice must be given to the violating party before imposing the penalty; and give the party an opportunity to be heard and present any facts or arguments [Merco Construction Engineers v. Los Angeles Unified School District (1969) 274 CA 2d 154, 166].
3. The fine may not be "excessive" [U.S. Constitution amendments VIII and XIV].
The initiative converts administratively-imposed fines and penalties into taxes unless a new, undefined, and ambiguous “adjudicatory due process” is followed. This provision may put at risk authority to impose fines and penalties for violations of state and local law.
The Taxpayer Protection and Government Accountability Act will take billions of dollars away from local government services statewide.
RECOMMENDATION:
The Mayor recommends that the Council adopt a Resolution opposing Initiative No. 21- 0042A1, the Taxpayer Protection and Government Accountability Act.
ATTACHMENTS:
CBRT Resolution
CBRT Oppose Letter
CBRT Summary Outline
17 CITY OF SAND CITY
RESOLUTION SC ___, 2023
RESOLUTION OF THE CITY COUNCIL OF SAND CITY TO OPPOSE INITIATIVE 21- 0042A1
WHEREAS, the “Taxpayer Protection and Government Accountability Act,” (Initiative 21- 0042A) a statewide initiative measure to amend the California Constitution sponsored by the California Business Roundtable (“CBRT”) would limit the ability of the local governments to enact, modify, or expand taxes, assessments, fees, and property-related charges; and WHEREAS, Initiative 21-0042A1 includes provisions that would make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent; and
WHEREAS, the measure may make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods; and
WHEREAS, The initiative includes provisions that would retroactively void all state and local taxes or fees adopted after January 1, 2022 if they did not align with the provisions of the Initiative; and
WHEREAS, the measure puts billions of dollars currently dedicated to local services at risk and could force cuts to fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services.
THEREFORE, BE IT RESOLVED that the City of Sand City opposes Initiative 21-0042A1; PASSED AND ADOPTED by the City Council of the City of Sand City this ___, day of _____, 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
___________________________
Mary Ann Carbone, Mayor
ATTEST:
DATED: ____________________
18 ___________________________
Kerry Lindstrom, City Clerk
19 City of Sand City
1 Pendergrass Way
Sand City, CA 93955
Ph: 831-394-3054 | www.sandcity.org
December 19, 2023
Bismarck Obando
Director of Public Affairs, League of California Cities 1400 K Street, Suite 400
Sacramento, CA 95814
RE: Letter Opposing Initiative 21-0042A1
On December 19, 2023, the City of Sand City voted to oppose Initiative 21-0042A1, a deceptive, developer-sponsored proposition aimed for the November 2024 statewide ballot that would significantly jeopardize cities’ ability to provide essential services and infrastructure for our residents.
The measure includes undemocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and projects and would limit voter input by prohibiting local advisory measures where voters can express a preference on how they want their local tax dollars spent.
This measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including impacts on local infrastructure and our environment.
This measure also may make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods.
Unless defeated, the measure puts billions of dollars currently dedicated to local services at risk, and could force cuts to fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more.
The measure benefits wealthy corporations and real estate developers while decimating our local communities and neighborhoods.
You may list the City of Sand City in formal opposition to Initiative #21-0042A1 and include our city as part of the growing coalition of public safety, labor, local government, 20 infrastructure advocates, and other organizations throughout the state opposed to this deceptive proposition.
Sincerely,
Mary Ann Carbone
Mayor
City of Sand City
21 1
The Taxpayer Protection and Government Accountability Act Initiative No. 21-0042A11
Feb. 1, 2023
Effective date: Any new or increased tax or fee adopted by the Legislature, a city council, or the local voters after January 1, 2022, must comply with the Act’s new rules.
Voters
• Local advisory measures are prohibited. No measure may appear on the ballot asking for approval of a general tax that would allow the voters to express a preference for how the revenue from the general tax will, could, or should be used.
• Overturns Upland decision which upheld a special tax that had been placed on the ballot by the voters to be approved by a majority vote. Taxes proposed by initiative will be subject to the same rules as taxes placed on the ballot by a city council.
• Voters may not amend a city charter to impose, extend, or increase a tax or fee.
Local taxes
• Requires voter approval in order to apply an existing tax:
o to territory that is annexed.
o to a new service or product, for example when a utility user tax is applied to a new service.
• All new or increased taxes adopted after Jan. 1, 2022, must include a sunset date.
State taxes
• All new or increased state taxes require statewide voter approval. • Prohibits a property tax “surcharge” (increase). Prohibits any allocation of property tax to the state.
1 This is a summary of some of the more significant provisions of the Act. Please review the Act for a complete understanding of the changes it makes to the Constitution. 22 2
Fees and charges
• Fees and charges for services and permits may not exceed the “actual cost” of providing the product or service for which the fee is charged. “Actual cost” is the “minimum amount necessary.” Examples include planning services, excavation and encroachment permits, preparation of candidate statement, and permit parking.
• State and cities have the burden of proving by “clear and convincing evidence” that a fee/charge is not a tax, that the amount is reasonable, and that it does not exceed “actual cost.”
• Franchise fees — historically considered fees, not taxes — will more likely be considered taxes due to the elimination of an existing category of “fee” and the requirement that charges to entrance, purchase, rental, or lease of government property be “reasonable.” The state and cities issue franchises to oil companies, utilities, gas companies, railroads, garbage companies, cable companies, and other corporations.
• No fee or charge or exaction regulating vehicle miles traveled can be imposed as a condition of property development or occupancy.
Fines and penalties (administrative enforcement of state law and municipal codes)
• May require voter approval of fines and penalties for corporations and property owners that violate state and local laws unless a new, undefined adjudicatory process is used to impose the fines and penalties. Examples include nuisance abatement, organic waste reduction requirements, and failure to maintain a vacant property.
23 AGENDA ITEM
6D.
Hold Second Reading and Adopt an
Ordinance Granting to the CaliforniaAmerican Water Company a Determinate Franchise to Construct, Maintain, and Use
Pipes and Appurtenances, Necessary or
Proper For Transmitting Water Under,
Along, Across or Upon the Public Streets
Within the City of Sand City
24 City of Sand City
STAFF REPORT
TO: Honorable Mayor and City Council
FROM: Vibeke Norgaard, City Manager
SUBJECT: Hearing on Protests and Ordinance Granting Water Franchise to California-American Water Company
DATE: December 19, 2023
BACKGROUND/DISCUSSION:
On December 5, 2023, you introduced and conducted a first reading of an ordinance granting a water franchise to California-American Water Company. The CaliforniaAmerican Water Company (“Cal Am”) is a Class A public utility water and wastewater company regulated by the California Public Utilities Commission (“Commission”).
California American Water’s service area as approved by the Commission includes customers residing the City’s boundaries.
On October 25, 2023, Cal Am applied for franchise to provide water utility service to customers residing within the Sand City, consistent with California American Water’s service area as approved and may be amended from time to time by the Commission.
On November 7, 2023, the City Council adopted a resolution of intent to grant a water franchise to Cal Am and set a hearing for December 5, 2023 in accordance with Public Utilities Code Section 6232 where all persons having an objection to the granting of a water franchise to the California American Water may appear before the City Council and be heard.
On November 17, 2023 the City Clerk caused to be published notice of the hearing once in at least one newspaper of general circulation within the City in accordance with the provisions of Public Utilities Code Section 6233.
The City received no protests stating objections against the granting of the franchise On December 5, 2023 Council conducted a public hearing. Also on December 5, 2023 the Council introduced the ordinance.
The ordinance would grant Cal Am a water franchise for a 25-year period with additional 25- year renewal periods. It would require Cal Am to pay franchise fees in accordance with Public Utilities Code Section 6231 totaling 2% of the its gross annual receipts arising from the use, operation or possession of the franchise, except that this payment shall be not less than 1% of the gross annual receipts from the sale of water within the limits of the City.
CEQA:
This action does not constitute a “project” for purposes of the California Environmental Quality Act (Pub. Resources Code, § 21000 et. seq.) (“CEQA”) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). Even if this action constituted a “project” for purposes of CEQA, the project would be exempt from environmental review 25 under State CEQA Guidelines section 15301 (Existing Facilities), 15320 (Organization of Local Agencies), and 15061(b)(3), which exempts projects for which it can be seen with certainty will not result in significant environmental impacts and none of the exceptions found in State CEQA Guidelines section 15300.2 exist.
FISCAL IMPACT:
No. Negative impact; City would receive increased revenue in the form of franchise fees (2% of gross annual receipts from use of franchise).
RECOMMENDATIONS:
1. Adopt the ordinance granting the franchise to California-American Water.
ATTACHMENTS:
1. Ordinance Granting Water Franchise to Cal Am
26 CITY OF SAND CITY
ORDINANCE NO. SC 23-___, 2023
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAND CITY GRANTING
TO THE CALIFORNIA-AMERICAN WATER COMPANY A DETERMINATE
FRANCHISE TO CONSTRUCT, MAINTAIN AND USE PIPES AND
APPURTENANCES, NECESSARY OR PROPER FOR TRANSMITTING WATER
UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS WITHIN THE CITY
OF SAND CITY
THE CITY COUNCIL OF THE CITY OF SAND CITY DOES ORDAIN AS FOLLOWS:
Section 1. Definitions. Whenever in this ordinance the words or phrases defined in this section are used, they shall have the respective meanings assigned to them in the following definitions:
(a) “City” means the City of Sand City, a California municipal corporation, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
(b) “Construct, maintain and use” means to lay, construct, erect, install, operate, maintain, use, repair, modify or replace.
(c) “Day” means a calendar day.
(d) “Grantee” means the California-American Water Company, a California Corporation, and its lawful successors or assigns. (e) ”Franchise” means the rights and privileges described in this ordinance.
(g) “Pipes and appurtenances” means pipe, pipelines, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, ditch, flume, appliance, attachment, appurtenance and any other property located or to be located in, upon, along, across, under or over the streets of the City, and used or useful in transmitting and distributing water; provided, however, that nothing in this franchise grants the right to use any of the foregoing facilities for any purpose other than the transmission or distribution of water. The term “facilities” may hereafter be used for convenience to refer to “pipes and appurtenances.”
(h) “Public streets” means the public streets, ways, alleys and places as they may now or hereafter exist within the city limits of City, including State highways, now or hereafter established within City. “Public streets” includes a public right-of-way, whether or not formally included within City’s public road system. “Public streets” does not include a public utility easement crossing private property, nor does “public streets” include any park, playground, school property or other municipal or 27 public property not constituting a public right-of-way. “Public streets” does not include, and this franchise does not allow the use of, a public utility easement described in Government Code Section 50335 or successor legislation, the use of which is governed by such terms and conditions as agreed upon by the parties thereto. (i) “Term” shall mean the initial term as defined in Section 5(a) and any renewal term, unless otherwise required by the context.
Section 2. Grant of Franchise. City hereby grants Grantee a non-exclusive and determinate ranchise to construct, maintain and use pipes and appurtenances necessary or proper for the transmission and distribution of water under, along, across or upon the public streets within those areas of the City located within the Grantee’s dedicated areas of service as set forth in the tariff map filed by Grantee with the California Public Utilities Commission (CPUC). Grantee shall provide City with notice of any filing with the CPUC for a change in service area located within the boundaries of the City and all tariff maps filed by Grantee with the CPUC reflecting the service area of Grantee within the City, unless waived in writing by the Public Works Director.
Section 3. Compliance with Local Laws.
(a) Grantee shall construct, maintain and use all pipes and appurtenances in a good and workmanlike manner and in compliance with all lawful federal, State and City laws, ordinances, resolutions, regulations, policies, rules, orders, plans and specifications in force at the time this franchise becomes effective or as may be amended or added from time to time during the term of this franchise. (b) All zoning, uniform code, business license, fee, or other generally applicable ordinances now existing, or enacted by the City Council in the future, are, to the extent lawful, fully applicable to Grantee, and the Grantee agrees to fully comply with these existing and future generally applicable lawful ordinances. The Grantee agrees that the City requiring the Grantee to comply with future generally applicable lawful ordinances, will not result, in any circumstances, in a substantial impairment of the Grantee’s rights under this franchise. If there is a conflict between this franchise and any generally applicable lawful ordinance, the generally applicable lawful ordinance will prevail. If the City requires the Grantee to comply with a future generally applicable lawful ordinance that the Grantee determines will materially increase the Grantee’s operations costs, the Grantee may request that the City approve a longer franchise term.
(c) Upon constructing, maintaining or using any pipes and appurtenances, or any part thereof, Grantee shall expeditiously at its own cost and expense restore all public property disturbed or altered as a result of Grantee’s actions to the condition that the public property was in prior to being disturbed or altered as reasonably determined by the City. As used in this section, “public property” means public streets, rights-of-way and improvements and includes, but is not limited to, all public improvements associated with the public streets that may be affected by 28 Grantee’s activities, such as landscaping, irrigation systems, street lights, street furniture, sidewalks and bus shelters. Grantee shall comply with City’s terms and conditions concerning the location within the public streets of proposed facilities, except to the extent State or federal law or regulation preempts any such terms and conditions. (d) Grantee’s activities and each restoration of public property under this franchise shall be performed in a good and workmanlike manner, and in accordance with the lawful standard plans, specifications, orders, rules and regulations of City and each of its applicable departments, and subject to all lawful fees and exactions.
Section 4. Relocation. Grantee shall remove or relocate, without expense to City and within the time City reasonably specifies, any facilities installed, used and maintained by Grantee if and when made necessary by any lawful construction, change of grade, alignment, or width of any streets, ways and alleys or other public places by City, including the construction of any storm drain, sanitary sewer, subway or viaduct.
City agrees that, except for emergency situations, which include unexpected relocations necessitated by a fault of Grantee (such as erroneous pipe location data), it shall make a good faith effort to provide as much notice as possible of such relocations so as to afford Grantee an adequate opportunity to budget for such relocation expenses. As a general guideline, the City shall strive to provide 90 days' notice of proposed construction potentially necessitating relocation of Grantee property.
Section 5. Term.
(a) The initial term of the franchise shall commence with the effective date of this franchise as certified under Section 21 and continue for a period of twentyfive (25) years (“Initial Term”), subject to renewal and termination as provided under this section. The aggregate term of the franchise, including the Initial Term and any Renewal Term as defined in subsection (b), shall not exceed fifty (50) years. (b) At the conclusion of the Initial Term and upon application by Grantee, the term of the franchise may be renewed for an additional twenty-five (25) year period (“Renewal Term”). An application for renewal shall be filed with the City Clerk at least six (6) months before the expiration date of the current term. Such application shall be subject to the approval of the City Council after a public hearing.
Notice of the hearing shall be published at least fifteen (15) days prior to the hearing in a newspaper of general circulation within City or posted in the places designated for posting of official notices. The City Council shall approve the application unless it finds, on the basis of substantial evidence, that Grantee is then in material violation of this franchise. In approving the application, the City Council may modify the franchise by ordinance based upon the experience of City in administering the franchise during the preceding term and to take into account changes in relevant technology and utility industry regulatory developments and business practices. Any modification of the franchise shall be based upon substantial evidence concerning the need for such modification in the record considered by the City Council. Grantee shall reimburse City 29 for all reasonable costs, staff time, legal and consulting fees incurred by City, in connection with processing the application, up to a maximum of $5,000. Such payment shall be made within thirty (30) days after City shall have completed proceedings on the application and furnished Grantee with a written statement of such expenses. A renewal, including any modifications to the franchise ordinance, shall not be effective, unless Grantee accepts such renewal pursuant to Public Utilities Code Section 6235. (c) During the term of the franchise, the franchise shall remain in full force and effect unless: (1) Grantee voluntarily surrenders or abandons the franchise, with the consent of the applicable State or federal regulatory agency; (2) the State or some municipal or public corporation purchases by voluntary agreement or condemns and takes under the power of eminent domain, all property actually used and useful in the exercise of the franchise and situate within the territorial limits of the State, municipal or public corporation purchasing or condemning such property, or (3) the franchise is forfeited for noncompliance with its terms by Grantee.
Section 6. Franchise Payment. Grantee shall pay the franchise payments set forth in this section.
(a) During the term of this franchise, Grantee shall pay City two percent (2%) of Grantee’s gross annual receipts arising from the use, operation or possession of the franchise which shall include Grantee’s receipts from the transmission and distribution of water, and from the sale of any service or use of facilities, which involves Grantee’s use, operation or possession of the franchise, except that this payment shall be not less than one percent (1%) of Grantee’s gross annual receipts derived from the sale within City limits of the utility service for which the franchise is awarded. This subsection is intended to be consistent with applicable decisional law.
(b) In the event the legislature amends the Franchise Act of 1937 or enacts any other state law which increases the franchise payment to cities to a level greater than that provided in Section 6(a), then the City shall have the option of prospectively employing the new legislative formula, which shall apply for the remaining term of this Franchise. If the City exercises this option, the legislative formula shall be prospectively applied hereto on the later of (i) the effective date of the legislation, or (ii) January 1 of the calendar year in which the City exercised this option. (c) The franchise payment under this section constitutes payment for the privilege of using public streets, and is not in derogation of any other lawful fee or exaction. Nothing in this ordinance shall limit or otherwise affect any ability City may have to require franchisees making use of public streets to pay for and obtain encroachment permit fees and pay trench cut fees, as applicable. In no event may any such fees or exactions charged by the City in connection with obtaining any such permit or trench cut fees exceed the reasonable costs to the City in processing the permit application, or otherwise be unreasonable or discriminatory. 30 Section 7. Payment; Audit.
(a) Within three (3) months after the expiration of each calendar year, or fractional calendar year, following the effective date of this franchise as certified under Section 21, Grantee shall file with City’s Finance Director or other official designated by City a verified statement under penalty of perjury showing in detail the total gross receipts of Grantee during the preceding calendar year, or fractional calendar year. Grantee’s statement shall include such other data or information as City may need to calculate or determine the amounts which Grantee is obligated to pay City pursuant to the provisions of Section 6.
(b) Within fifteen (15) days after filing the statement required by Section 7(a), Grantee shall pay to City, in lawful money of the United States, the amount required by Section 6 for such calendar year or fractional calendar year. (c) Annually, at Grantee’s expense, the City shall have the right to audit the books and records of Grantee relating to the calculation of the franchise fee upon reasonable notice during normal business hours solely for the purpose of verifying the calculation of the franchise fee. City shall, to the extent permitted by applicable law, maintain the confidentiality of all information provided by Grantee to City in connection with such audit that Grantee has informed City is confidential. Nothing herein shall be construed to require Grantee to make available information which constitutes private or confidential information pertaining to specific customers of Grantee, without the prior written consent of such customers. All books and records of Grantee relating to the calculation of the franchise fee for any calendar year shall be maintained by Grantee for a period of at least four (4) years following the delivery of the certified statement for such year.
(d) Any neglect, omission or refusal by Grantee to file the verified statement, or to remit its payment as specified in this section and in the amount set forth in Section 6 shall be grounds for declaration of a forfeiture of this franchise and of all rights of Grantee hereunder, consistent with Public Utilities Code Section 6291.
Section 8. Authority. This franchise is granted under the Franchise Act of 1937.
Section 9. Indemnity; Liability.
(a) Grantee shall indemnify, defend and hold harmless City, its officers and employees from all liability for damages proximately resulting from any operations under the franchise. In addition, Grantee shall be liable to City for all damages proximately resulting from the failure of Grantee well and faithfully to observe and perform any lawful provision of the franchise and any provision of any applicable law under which this franchise is granted.
31 (b) In addition to the provisions of Section 9(a), Grantee shall specifically indemnify, defend and hold harmless City, its officers and employees from any claim, suit or action arising from the presence of any hazardous materials in a public street and proximately resulting from Grantee’s operations under the franchise.
As used in this section, ‘hazardous materials’ means any hazardous substances, materials or wastes (1) defined or listed as “hazardous substances,” “toxic substances” or similarly identified under any provision of California law; (2) designated as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sections 9601, et seq.), the Federal Hazardous Materials Transportation Law (49 U.S.C. Sections 5101, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901, et seq.), or the Toxic Substance Control Act of 1976 (15 U.S.C. Sections 2601, et seq.); (3) defined as “toxic pollutants” under the Clean Water Act (33 U.S.C. Sections 1251, et seq.); (4) designated as “hazardous air pollutants” under the Clean Air Act (42 U.S.C. Sections 7401, et seq.); or (5) defined, designated or listed under any State or federal legislation or regulations adopted or amended during the term hereof. However, nothing in this section shall be interpreted in a way that would preclude Grantee from asserting defenses liability claims afforded public utilities regulated by the California Public Utilities Commission under California law (including court interpretations of California laws, such as Hartwell Corp. v Superior Court (2002) 27 Cal. 4th 256.
Section 10. Payment of Cost of Repairs. Grantee shall pay to City on demand the cost incurred by City for all repairs to public property made necessary by any of Grantee’s operations under this franchise.
Section 11. Performance Bond or Letter of Credit.
(a) Grantee shall file with the City Clerk a corporate surety bond running to City and approved by the City Council, in a penal sum of $15,000 (fifteen thousand dollars), which sum was set forth in the resolution of intention to grant this franchise. The bond shall be conditioned that Grantee shall well and truly observe, fulfill and perform each lawful term and condition of the franchise, and that in case of any material breach of condition of the bond the amount of the penal sum therein shall be recoverable. Grantee shall file such bond within five (5) days after the effective date of this ordinance. If the bond is not so filed, or is not approved by the City Council, the franchise may be refused or forfeited and any money paid to City in connection therewith shall be retained by City.
(b) Grantee shall maintain the bond in full force and effect throughout the Term of this franchise, at Grantee's sole expense. The bond shall be issued by an admitted surety insurer and comply with the requirements of the Bond and Undertaking Law, codified in Code of Civil Procedure Sections 995.010 et seq. This franchise shall be considered a “license or permit” within the meaning of the Bond and Undertaking Law, solely for purposes of application of such law to the bonding requirements of this section.
32 (c) Grantee may at its sole election provide an irrevocable standby letter of credit, in a form acceptable to the City Attorney, securing all or a portion of the amount otherwise required to be secured by the performance bond. The letter of credit shall be issued by an issuing bank with offices in California, or shall authorize an advising bank with offices in California to pay the beneficiary thereunder. The letter of credit shall authorize City to draw upon its proceeds in the event that Grantee fails to well and truly observe, fulfill and perform each lawful term and condition of the franchise, and that in case of any material breach of the franchise City may draw against the letter of credit up to the total amount set forth therein. If Grantee determines to file a letter of credit, Grantee shall file such letter of credit within five (5) days after the effective date of this ordinance.
Section 12. Publication Expenses. Grantee shall pay City a sum of money sufficient to reimburse City for all publication expenses incurred by it in connection with the granting of this franchise. Such payment shall be made within thirty (30) days after City shall have furnished Grantee with a written statement of such expenses. City shall furnish such written statement within thirty (30) days after this ordinance becomes effective.
Section 13. Other City Expenses. Grantee shall pay City a sum of money sufficient to reimburse City for all City staff time, legal and consulting fees reasonably incurred by City, in connection with the review and granting of this franchise, up to a maximum of $5,000. Such payment shall be made within thirty (30) days after City shall have furnished Grantee with a written statement of such expenses. City shall furnish such written statement within thirty (30) days after this ordinance becomes effective.
Section 14. Insurance. During the term of this franchise, Grantee shall obtain and maintain at its sole cost and expense the insurance coverage required by this section.
(a) Grantee shall obtain and maintain commercial general liability insurance coverage for an aggregate annual amount of three million dollars ($3,000,000), including bodily injury, personal injury and property damage or its equivalent in coverage, upon approval by the City. Such insurance coverage shall include, without limitation: (1) contractual liability coverage adequate to meet Grantee’s indemnification obligations under Section 9; and (2) a cross-liability clause.
Additionally, the insurance coverage shall contain the following endorsements as a part of each policy: (1) City is added as an additional insured for Grantee’s operations under the franchise; and (2) the insurance shall cover the negligent acts of Grantee and the negligent acts of its employees, agents and subcontractors in the performance of work under the franchise.
(b) The insurance coverage required by this section may be satisfied by any combination of specific liability and excess liability policies, or by a selfinsurance program reasonably satisfactory to City. 33 (c) The insurance coverage shall be primary and no insurance held by City shall be called to contribute to a loss under this coverage. (d) Grantee shall submit proof of insurance to the City Clerk as set forth in Section 21 , and shall thereafter file additional such proof annually.
Section 15. Police Power. Nothing in this franchise shall limit or otherwise affect the police power of City, as such authority may affect Grantee.
Section 16. Acquisition of Grantee’s Property. The franchise granted hereunder in no way impairs or affects the right of City to acquire the property of Grantee by purchase or condemnation, and nothing in this ordinance shall be constructed to contract away, modify or abridge either for a term or in perpetuity City’s right of eminent domain in respect to any public utility.
Section 17. Valuation of Franchise. This franchise shall never be given any value before any court or other public authority in any proceeding of any character in excess of the cost to Grantee of the necessary publication under Section 12 and any other sum paid by Grantee to City under Section 13 at the time of acquisition.
Section 18. Franchise Not Assignable. The franchise shall not be sold, leased, assigned or otherwise alienated, without the express consent of the City Council of City given by ordinance and subject to referendum.
Section 19. Resolution, Notice of Hearing and Protests. On November 7, 2023, the City Council adopted Resolution No. SC 23-62 stating its intent to grant this franchise. Notice of hearing was given in the manner required by law. The City Council has held a duly noticed public hearing on its intention to grant this franchise. The City Council has heard any and all protests, and hereby determines such protests to be insufficient, overruled or denied.
Section 20. Construction. Headings in this ordinance are for convenience only, and shall have no bearing on interpreting the provisions hereof. If any provision of this ordinance is held by a court to be void or unenforceable, the same shall in no way affect any other provision of this ordinance, the application of any such provision in another circumstance, or the validity or enforceability of this ordinance as a whole. In the event any provision of this ordinance is held by a court to be void or unenforceable, City shall have the opportunity to amend this ordinance in a manner consistent with the judgment with the consent of Grantee or to negotiate a new franchise with Grantee.
Section 21. Franchise Effective Date. The franchise granted hereby shall not become effective until each of the following conditions is satisfied: (1) Grantee files written acceptance thereof with the City Clerk, which shall occur no later than one hundred and twenty (120) days after the effective date of this ordinance or this ordinance shall be of no further force or effect. (2) Grantee pays all sums owed to City under Sections 12 and 13. (3) Grantee files with the City Clerk either a bond as 34 provided for in Section 11(a) or a letter of credit as provided in Section 11(c), and proof of insurance as required by Section 14. Upon receipt of the required documentation, the City Clerk shall certify the effective date of the franchise and notify Grantee thereof.
Upon becoming effective, the water franchise granted hereunder shall supersede any previous water franchise issued to Grantee for service areas within the City of Sand City and shall be binding on Grantee.
Section 22. Enforcement.
(a) If Grantee fails, neglects or refuses to comply with any of the provisions or conditions prescribed in this ordinance in any material respect, and does not within ten (10) days after receipt of a written demand for compliance begin the work of compliance, or after such beginning does not prosecute the work with due diligence to completion, City through its City Council may declare the franchise forfeited, or assess damages as provided in this section for unexcused violations of the franchise. (b) To implement enforcement under this section, City shall proceed as follows.
(1) Notice of demand for compliance shall be in writing signed by the City Manager or designee and delivered by personal delivery or certified mail to that person identified in Section 26. The notice shall demand correction within a reasonable time. Such time shall not be less than ten (10) days after receipt of the notice. If Grantee is shown to have violated the franchise, or to have failed to correct the violation within the time prescribed, or if Grantee fails to commence corrective action within the time prescribed and diligently remedy such violation thereafter, or if the violation is not correctable, then City shall give Grantee written notice of not less than ten (10) days of a public hearing to be held before the City Council. City shall also give public notice of the hearing. The notice shall specify the alleged violations. (2) At the public hearing, the Council shall hear and consider all relevant evidence, and thereafter render written findings and its written decision. The hearing shall provide Grantee with the full opportunity to participate and present evidence.
(3) If the Council finds that no material violation exists, or that Grantee has corrected the violation, or has diligently commenced correction of such violation after notice thereof from City and is diligently proceeding to fully remedy such violation, the proceedings shall terminate and no penalty or other sanction shall be imposed. In determining whether a violation is material, City shall take into consideration the reliability of the evidence of the violation, the nature of the violation and the damage (if any) caused to City thereby, whether the violation was chronic, and any aggravating or mitigating circumstances and such other matters as City may deem appropriate. In the event a proceeding is terminated, and City subsequently finds that the violation has not been corrected, City may, without prejudice, reinstate the proceeding.
35 (4) If the Council finds that a material violation exists and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation, the Council may declare the franchise forfeited; or require payment of a dollar amount of compensatory damages resulting from Grantee’s material violation; or declare the franchise forfeited and require payment of such compensatory damages. If Grantee fails to pay any sum due under this section within ten (10) days after invoice, City may require payment under the performance bond or letter of credit provided for in Section 11.
(5) If the Council finds that a material violation exists, Grantee shall have the right to seek review of the Council’s decision in the Superior Court of the State of California. The Council’s decision shall not be stayed pending such review, absent a contrary order of the Court.
(6) The remedies set forth in this section are cumulative, and are in addition to all other rights and remedies, including injunctive relief, available to City.
Section 23. Jurisdiction and Venue. Any dispute that arises under or relates to this franchise shall be resolved in the Superior Court of the State of California, and venue shall be proper in the county in which City is located. In any such litigation, Grantee and City shall each be responsible for its respective attorneys’ fees and costs.
Section 24. Notices. All notices, demands or statements required by this franchise to Grantee shall be in writing and delivered by hand or certified mail addressed to
Manager
California-American Water Company
511 Forest Lodge Road, Suite 100
Pacific Grove, CA 93950
All notices required by this franchise to City shall be in writing and delivered by hand or certified mail addressed to the City Clerk. All notices shall be deemed given on the date of delivery by hand, or three days after deposit in the mail, postage prepaid.
Section 25. Effective Date and Publication. Within fifteen (15) days from and after adoption, this Ordinance shall be published once in a newspaper of general circulation printed and published in Monterey County and circulated in the City of Sand City, in accordance with California Government Code Section 36933. This Ordinance shall take effect and be enforced thirty (30) days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Sand City this 5th day of December, 2023, by the following vote:
36 AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED
_________________________
Mary Ann Carbone, Mayor
ATTEST:
Kerry Lindstrom, City Clerk
5525555.1
37 AGENDA ITEM
6E.
Hold Second Reading and Adopt an
Ordinance Adding Chapter 18.100 to the
Zoning Code Relating to Wireless
Telecommunications Facilities Setting new
Locational Requirements and
Development Standards
38 City of Sand City
STAFF REPORT
TO: Honorable Mayor and City Council
FROM: Vibeke Norgaard, City Manager
PREPARED BY: Anthony Amara, City Attorney’s Office
SUBJECT: Addition of Chapter 18 to the Sand City Municipal Code Pertaining to Wireless Communication Facilities Effective Citywide
DATE: December 19, 2023
__________________________________________________________________ BACKGROUND/DISCUSSION:
On December 5, 2023, you introduced and conducted a first reading of an ordinance for the addition of Chapter 18 to the Sand City Municipal Code pertaining to Wireless Communication Facilities Effective Citywide. The Telecommunications Act of 1996 ( the “ Telecom Act”) was signed into law by
President Clinton in February 1996 and reflected the changes and rapid growth of telecommunications technologies. Under the Telecom Act, local zoning authorities were granted the ability to regulate the location and design of wireless communication facilities within their jurisdictional area through a discretionary permit process.
Since adoption of the Telecom Act, wireless technology has substantially changed. For example, in recent years, wireless carriers are seeking to install smaller wireless communication facilities in the public right -of-way. These “small cell facilities” are integrated into the carrier’s existing wireless network to increase capacity. Concurrent with the new technology, there have been changes in wireless facilities law at both the federal and state levels. The Sand City Municipal Code does not address these new technologies or new regulations, most notably Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.
Middle Class Tax Relief and Job Creation Act
The U.S. Congress adopted the Middle Class Tax Relief and Job Creation Act of 2012 Act) which established additional regulations of wireless facilities and expedited permitting process for modification of and collocation to existing facilities. Section 6409(a) of the Act established new requirements for modification and collocation of existing wireless telecommunication towers and base stations.
An “eligible facilities request” refers to any request for modification of an existing wireless tower or base station that involves:
39 - Collocation of new transmission equipment,
- Removal of transmission equipment, or
- Replacement of transmission equipment.
For the purposes of this Staff Report, the following terms are described and simplified as follows:
- “Collocation” refers to the mounting of a wireless communication facility on the same tower or structure as an existing wireless communication facility. - Tower” refers to a pole, mast, monopole, lattice tower, etc. - Base station” refers to any structure that is not a tower.
Section 6409(a) of the Act does not define what constitutes a “substantial change” to an existing tower or base station. However, the Federal Communication Commission FCC) issued rules and clarifications for modification of wireless telecommunication facilities that defined “ substantial change”. According to the FCC, a modification substantially changes the physical dimension of a wireless tower or base station if it meets any one of the following criteria:
Regardless of the above, all modifications remain subject to building codes and other 40 non-discretionary structural and safety codes.
Proposals Requiring Expedited Processing Under §6409(a) Under the Act, the City must act on an application for a Section 6409(a) modification within 60 days unless the City notifies the applicant within 30 days that the specific information in the application is incomplete. After the applicant makes a supplemental filing, the agency has 10 days to notify the applicant if the application remains incomplete. If no decision on the application is made during the 60 -day review period (approval or denial), the request is “deemed granted.”
ANALYSIS
The following is an overview of the proposed amendments to Title 18 ( Zoning Ordinance) to address wireless communication facilities in the public right-of-way and on private property. For the complete Ordinance additions, please refer to Attachment 1.
Wireless Communication Facilities (Chapter 18.100)
Based on these recent developments in federal and state law, and on the fact that the Sand City Municipal Code does not contain any regulations specifically applicable to wireless telecommunication facilities, there is a need for the City to update its Municipal Code to align with current telecommunications trends, updates in laws, as well as provide aesthetic and location options for wireless facilities.
Definitions (Section 18.100.030)
The City’s existing ordinance has a multitude of definitions for the technical terms related to wireless communication facilities. The proposed ordinance simplifies these definitions and eliminates the overly technical terms that have no relationship to the aesthetics of a facility, which is what the ordinance regulates.
Application Requirements (Section 18.100.060)
Section 6409(a) of the federally adopted Act, limits the application materials that the City can require for qualified modifications and collocations. The City may require an application, but may only seek documentation about whether the facility meets Section 6409(a) requirements. The City may not require documentation proving the need for the proposed modification or collocation. In response, the draft ordinance separates the application requirements for new facilities and modifications, and the application requirements for facilities which qualify under Section 6904(a).
Development Standards Regulations (Section 18.100.080)
This section is to ensure internal consistency in the Zoning Ordinance to clarify that the height limit exceptions do not apply to new wireless communication facilities. Instead, new wireless communication facilities are solely regulated by Chapter 18 and are limited to the height for the district in which they are located. However, it should be noted that 41 modifications to existing wireless communication facilities that qualify under Section 6409(a), may exceed the height limits established by the Zoning Ordinance.
CEQA:
The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to the CEQA, Staff is recommending that the project be found exempt in accordance with CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments to Title 18 of the Sand City Municipal Code (Zoning Ordinance) will not have a significant effect on the environment. Pursuant to the FCC, changes to an existing telecommunications facility that complies with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, are considered minor changes and amending the Zoning Ordinance to comply with this Federal law would not impact the environment. As such, the proposed Zoning Ordinance Amendment is not subject to CEQA.
FISCAL IMPACT:
There is no direct fiscal impact associated the proposed ordinance. The ordinance may, however, increase City staff time in the processing and approval of applications.
RECOMMENDATION:
Adopt the ordinance adding Chapter 18 to the Sand City Municipal Code Pertaining to Wireless Communication Facilities Effective Citywide
ATTACHMENTS:
1. Wireless Communication Facilities Ordinance
42 CITY OF SAND CITY
ORDINANCE NO. SC 23-___, 2023
AN ORDINANCE OF THE CITY COUNCIL OF SAND CITY ADDING CHAPTER 18.100 TO THE
ZONING CODE RELATING TO WIRELESS TELECOMMUNICATIONS FACILITIES SETTING
NEW LOCATIONAL REQUIREMENTS AND DEVELOPMENT STANDARDS
WHEREAS, California Public Utilities Code section 7901 authorizes wireless telecommunication service providers to construct facilities in the public right-of-way, subject to regulation by municipalities; and
WHEREAS, the Telecommunications Act of 1996 provides that local governments cannot enact regulations that would prohibit or effectively prohibit telecommunication services; and WHEREAS, the Federal Communications Commission issued a Declaratory Ruling and Third Report and Order (“FCC Order”) on September 26, 2018; and WHEREAS, the Order interprets the “effective prohibition” provisions under the Act and sets forth the various restrictions on the exercise of local aesthetic, zoning, public works, and fee restrictions when local governments review and regulate wireless telecommunications facilities deployment applications, including on City-owned poles in the public right of way; and WHEREAS, the FCC Order requires that aesthetic requirements be (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance; and
WHEREAS, the City desires to amend the Municipal Code to adopt regulations regarding wireless telecommunication facilities in order to establish comprehensive requirements and standards for the development, siting, installation and operation of wireless telecommunication facilities in a way that protects and promotes public safety, community welfare and aesthetic quality; and WHEREAS, the City desires to adopt design requirements that further govern the aesthetics of wireless telecommunication facilities; and
WHEREAS, the City Council finds that the proposed amendments to the Zoning Code are consistent with and support the Sand City General Plan by helping to ensure the aesthetic quality of wireless telecommunication facilities in a manner consistent with Federal law and regulations; and WHEREAS, the City Council finds that the proposed Zoning Code amendment is intended to establish comprehensive requirements and standards for the development, siting, installation and operation of wireless telecommunication facilities in a way that protects and promotes public safety, community welfare and aesthetic quality.
43 WHEREAS, the City Council desires to adopt the proposed changes to the Zoning Code.
NOW, THEREFORE, the City Council of the City of Sand City does ordain as follows:
SECTION 1: Recitals.
The above recitals are true and correct and made a part of this Ordinance.
SECTION 2: Municipal Code Addition – Chapter 18.100.
Chapter 18.100 of the Sand City Municipal Code is added to provide as follows:
Chapter 18.100
WIRELESS COMMUNICATION FACILITIES
18.100.010 Purpose.
The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in Sand City. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary to: (1) preserve and promote harmonious land uses and the public right-of-way in the City; (2) promote and protect public health and safety, community welfare, visual resources, and the aesthetic quality of the City consistent with the goals, objectives and policies of the General Plan; (3) provide for the orderly, managed, and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules, and regulations; and (4) encourage new and more efficient technology in the provision of wireless telecommunications facilities.
This chapter is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services; (2) prohibit or effectively prohibit any entity’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation for rights-of-way management; (3) unreasonably discriminate among providers of functionally equivalent services; (4) deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC’s regulations concerning such emissions; (5) prohibit any collocation or modification that the City may not deny under federal or state law; or (6) otherwise authorize the City to preempt any applicable federal or state law.
18.100.020 Intent.
The intent of the regulations contained herein is to protect and promote public health, safety, community welfare and to:
A. Protect the visual character of the City from the potential adverse effects of wireless communication facilities development and wireless communication facility installation; B. Ensure against the creation of visual blight within or along the City; 44 C. Ensure that wireless communication facilities, to the maximum extent possible, are located in areas where the adverse impacts on the community are minimal; D. Ensure that wireless communication facilities, which include equipment cabinets and shelters, are configured in a way that minimizes the adverse visual impact of the facilities; E. Retain local responsibility for management of the use of the public right-of-way; F. Enhance the ability of the provider of wireless communication services to provide such services to the community quickly, effectively and efficiently;
G. Ensure that a competitive and broad range of wireless communication services and high quality wireless communication service infrastructure are provided to serve the business community; H. Encourage collocation when it will decrease visual impact and discourage collocation when it will increase negative visual impacts, to the extent allowed by state and federal law; and I. Establish a process for obtaining necessary permits for wireless communication facilities while at the same time ensuring compliance with applicable zoning, building, and safety requirements under this code.
18.100.030 Definitions.
For the purposes of this chapter, the following defined terms shall have the meaning set forth in this section unless the context clearly indicates or requires a different meaning.
Accessory Equipment. The term accessory equipment shall mean any equipment associated with the installation of a wireless telecommunications facility, including, but not limited to, cabling, generators, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers.
Antenna. The term antenna shall mean any system of wires, poles, panels, rods, reflecting disc, or similar devices used for the transmission or reception of electromagnetic waves (or radio frequency signals) when such system is either external to or attached to the exterior of a structure, ground-mounted, or is portable or movable. “Antenna” includes devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna.
Base Station. The term base station means the same as defined by the FCC in 47 C.F.R. Section
1.6100(b)(1), as may be amended, which defines that term as a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R. Section
1.6100(b)(9) or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or 45 houses equipment described in 47 C.F.R. Section 1.6100(b)(1)(i) and (ii) that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in 47 C.F.R. Section
1.6100(b)(1)(i) and (ii).
Collocation. The term collocation the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting or receiving radio frequency signals for communications purposes.
Eligible Facilities Request. The term eligible facilities request means the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(3), as may be amended, which defines that term as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (1) collocation of new transmission equipment; (2) removal of transmission equipment; or (3) replacement of transmission equipment.
Existing. The term existing means the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(4), as may be amended, which provides that a constructed tower or base station is existing for purposes of Section 6409(a) regulations if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
Fully- Concealed Facility. The term fully-concealed facility refers to wireless communication facilities which are designed and constructed to blend in with the surrounding environment so that the antenna and related equipment are not readily visible. Examples include a cupola on a building, water tank, artificial tree, rocks and a utility pole where all antenna and related equipment are internally mounted or underground.
Height. The term height shall mean the distance measured from ground level to the highest point on the wireless communication facility, including an antenna or piece of equipment attached thereto. In the case of “crank-up” or other similar towers whose height can be adjusted, the height of the tower shall be the maximum height to which it is capable of being raised.
Owner or Operator. The term owner or operator shall mean the person, entity or agency primarily responsible for installation and maintenance of the wireless communication facility, which may or may not be the same person or entity which is the owner of the property on which the facility is located.
Personal Wireless Service. The term personal wireless service facilities mean the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services.
Public Right-of-Way. The term public right-of-way shall mean and include all public streets and easements, now and hereafter owned by the City or other public entity, but only to the extent of the City or public entity’s right, title, interest or authority to grant a license to occupy and use such streets and easements for wireless communication facilities.
Radio Frequency (RF). The term radio frequency (RF) shall mean electromagnetic energy with wave lengths between the audio range and the light range.
46 Readily Visible. The term readily visible means that an object can be seen from street level by a person with normal vision, and distinguished as an antenna or related equipment of a wireless communication facility, due to the fact that it is not fully-concealed, stands out as a prominent feature of the landscape, protrudes above or out from the structure ridgeline, or is otherwise not sufficiently camouflaged or designed to be compatible with the appurtenant architecture or building materials.
Related Equipment. The term related equipment shall mean all equipment ancillary to the transmission and reception of voice and data via radio frequencies. Such equipment may include, but is not limited to, cable conduit and connectors, equipment pads, equipment shelters, cabinets, buildings and access ladders.
Site. The term site means the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(6), as may be amended, which provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
Section 6409(a). The term Section 6409(a) refers to Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, codified as 47 U.S.C. section 1455(a), as may be amended or interpreted in judicial or administrative decisions or implementing regulations.
Section 6409(a) Modification. The term Section 6409(a) Modification means a collocation, modification, or replacement of transmission equipment at an existing wireless tower or base station that does not result in a substantial change in the physical dimensions of the existing wireless tower or base station pursuant to Section 6409(a).
Substantial Change. The term substantial change means the same as defined by the FCC in 47 C.F.R. Section
1.6100(b)(7), as may be amended, which defines that term differently based on the particular wireless facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC’s criteria and thresholds for a substantial change according to the wireless facility type and location.
a. For towers outside the public right-of-way, a substantial change occurs when:
1. The proposed colocation or modification increases the overall height more than 10% or the height of one additional antenna array not to exceed 20 feet (whichever is greater); or
2. The proposed collocation or modification increases the width more than 20 feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
3. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or
4. The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.
b. For towers in the public rights-of-way and for all base stations, a substantial change occurs when:
1. The proposed collocation or modification increases the overall height more than 10% or 10 feet (whichever is greater); or
2. The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
3. The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or 47 4. The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are 10% larger in height or volume than any existing ground-mounted equipment cabinets; or
5. The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground. c. In addition, for all towers and base stations wherever located, a substantial change occurs when:
1. The proposed collocation or modification would defeat the existing concealment elements of the support structure as determined by the Planning Director; or
2. The proposed collocation or modification violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is inconsistent with the thresholds for a substantial change described in this section.
The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur. The thresholds for height increases are cumulative limits. For sites with horizontally separated deployments, the cumulative limit is measured from the originally-permitted support structure without regard to any increases in size due to wireless equipment not included in the original design. For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012—the date that Congress passed Section 6409(a).
Structure Ridgeline. The term structure ridgeline shall mean the line along the top of an existing roof or top of a structure, including existing parapets, penthouses, or mechanical equipment screens.
Tower. The term tower shall mean a mast, pole, monopole, lattice tower, or other structure erected on the ground or on a structure designed and primarily used to support antennas. A ground or building mounted mast greater than 15 feet tall and 6 inches in diameter supporting one or more antenna, dishes, arrays, etc., shall be considered a wireless communications tower.
Wireless Communication Facilities. The term wireless communication facilities shall mean a facility that transmits and/or receives electromagnetic signals, including antennas, microwave dishes, parabolic antennas, directional antennas and other types of equipment for the transmission or reception of such signals, towers or similar structures supporting the equipment, equipment buildings, shelters, cabinets, parking area and other accessory development.
18.100.040 Exemptions.
The following wireless communication facilities are exempt from the standards of this Chapter, but shall fully comply with other applicable requirements of the municipal code including, but not limited to, adopted building, electrical, plumbing, mechanical, and fire codes:
A. Antennas designed to receive video programming signals from direct broadcast satellite (DBS) services, multi-channel multipoint distribution providers (MMDS), or television broadcast stations (TVBS), provided that all of the following conditions are met:
1. The antenna measures 39 inches (one meter) or less in diameter within residential districts; or 78 inches (two meters) or less in diameter within commercial and industrial zoning districts;
2. If the antenna is mounted on a mast, the mast must measure less than twelve (12) feet in height; 48 3. The antenna does not pose a threat to public safety, including, but not limited to, minimum separation from power lines, compliance with electrical and fire code requirements, and secure installation, as determined by the Building Official;
4. The antenna is not located on a site or building with historical significance, as demonstrated by inclusion on any list of historical sites officially adopted by any local, state, or federal governmental body;
5. To the extent feasible, the antenna is installed in a location where it is not readily visible from the public right-of-way.
B. Amateur radio antennas that do not exceed the maximum building height for the zoning district in which it is located by more than 25 feet. If an antenna is installed on the roof of the building, the height of the antenna shall be inclusive of the building height.
C. Public communication facilities, including personal wireless services, used and maintained by the City, or any fire district, school district, hospital, ambulance service, governmental agency, or similar public use.
D. Minor repair and regular maintenance of an existing wireless telecommunication facility that does not increase the number, height, size, or appearance of the antennas or ancillary related equipment as previously approved by the City.
E. Any “co-location facility” that meets the requirements of California Government Code Section 65850.6.
18.100.050 Permitting Procedure.
A. A Zoning Compliance Review or Conditional Use Permit pursuant to Title 18 shall be required for all new or modified wireless communication facilities, unless otherwise noted in this Chapter.
B. Notwithstanding any provision of the Sand City Municipal Code to the contrary, provisions governing the installation of a public utility facility or accessory equipment shall not apply to wireless telecommunications facilities.
18.100.060 Application Requirements.
A. New Wireless Communication Facilities. The following application materials are required for new wireless communication facilities:
1. Plans. Complete and accurate plans, fully-dimensioned and drawn to scale, which include the following items.
a. A depiction of all existing and proposed utility runs and points of contact. b. A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view. c. Plan view and all elevations of a scaled depiction of the maximum permitted increase to towers, base stations and other support structures as authorized by Section 6409(a) of the 2012 Middle Class Tax Relief Act. The proposed project shall be used as the baseline for new facilities and the existing facility used as the baseline for modifications.
2. Authorization. A statement from property owner authorizing application.
3. Description of Services. A description of the services that the applicant proposes to offer or provide in conjunction with the proposed sites.
49 4. Definition of Service Area. Definition of the service area needed for coverage or capacity of a wireless communication facility and service area maps and information showing that the proposed facility would provide the needed coverage or capacity.
5. Visual Analysis. Photographs of facility equipment and an accurate visual impact analysis with photo simulations.
6. Noise Analysis. Noise impact analysis information for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators. A manufacturer’s specification sheet may be provided in lieu of a noise impact analysis, if determined appropriate by the City Planner.
7. RF Emissions. Written documentation demonstrating that emissions from the proposed wireless communications facility are within the limits set by the FCC. The document shall include both the actual levels as they exist currently and the cumulative levels for the proposed facility and all other facilities in the vicinity.
8. Landscape Plan. Where applicable, the applicant shall submit a plan depicting existing surrounding landscaping, proposed landscaping, a landscape protection plan for construction and a maintenance plan (including an irrigation plan).
9. Other Information. The applicant shall submit any other relevant information as required by the City Planner.
B. Modifications to Existing Wireless Communication Facilities. The following application materials are required for modifications to all existing wireless communication facilities except Section 6409(a) Modifications:
1. Plans. Complete and accurate plans, full-dimensioned and drawn to scale, which include the following items.
a. A depiction of all existing and proposed utility runs and points of contact. b. A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plain view.
2. Prior Permits. True and correct copies of all previously obtained land use approvals, including all required conditions of approval.
3. Noise Analysis. Noise impact analysis for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators. A manufacturer’s specification sheet may be provided in lieu of a noise impact analysis, if determined appropriate by the City Planner.
4. RF Emissions. Written documentation demonstrating that emissions from the proposed wireless communications facility are within the limits set by the FCC. The document shall include both the actual levels as they exist currently and the cumulative levels for the proposed facility and all other facilities in the vicinity.
50 5. Other Information. The applicant shall submit any other relevant information as required by the City Planner.
18.100.070 Section 6409(a) Modification.
Except as expressly modified by this section, an application for a Section 6409(a) Modification shall be subject to the provisions of this Chapter.
A. Application Materials. Notwithstanding Section 18.100.060 (Application Requirements), the following application materials are required for Section 6409(a) Modifications:
1. A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated. The plans must include plan views and all four elevations that depict the physical dimensions of the existing facility as it existed on February 22, 2012 or as approved if constructed after February 22, 2012.
2. A description of all construction that will be performed in connection with the proposed modification, including, but not limited to, the location of any excavations or deployments.
3. A written statement that explains in plain factual detail whether and how Section 6409(a) and applicable implementing regulations require approval of the proposed Section 6409(a) Modification. A complete written narrative analysis shall state the applicable standard and all facts that would allow the city to conclude the standard has been met. Bare conclusions without factual support shall not constitute a complete written analysis. As part of the written statement the applicant shall include: (i) whether and how the support structure qualifies as an existing tower or existing base station; and (ii) whether and how the proposed Section 6409(a) Modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment, or permit compliance.
4. True, correct and complete copies of all permits and other regulatory approvals, including without limitation any conditions of approval, issued in connection with the tower or base station to be collocated on or modified.
B. Review and Required Findings. Notwithstanding the provisions of 18.100.050 (Permitting Procedures) and 18.100.080 (Development Standards and Regulations), the City Planner shall approve or deny a request for a Section 6409(a) Modification in accordance with this section and applicable federal law or regulations.
The City Planner shall approve an application for a Section 6409(a) Modification if he or she makes the following findings:
1. The proposed modification does not cause a substantial change in the existing tower or base station and otherwise fully qualifies as a Section 6409(a) Modification under applicable law;
2. The existing tower or base station was permitted with all required regulatory approvals required at the time of construction; and 3. The proposed modification does not violate any legally enforceable standard or permit condition reasonably related to public health and safety, including, but not limited to, building, structural, electrical, and safety codes.
A proposed modification to a wireless communication facility that does not qualify as a Section 6409(a) Modification shall be denied and will instead be subject to the requirements set forth in this Chapter for the specific type of wireless communication facility proposed. 51 C. Other. Nothing in this section prevents the city from imposing other lawful conditions on the approval of a Section 6409(a) Modification including, but not limited to, conditions consistent with obligations imposed on the initial installation. Nothing in this section shall be construed to waive or limit the city’s proprietary right to control the use of its real or personal property for telecommunications purposes.
18.100.080 Development Standards and Regulations.
A. Residential Districts. Wireless communication facilities are prohibited on private property in all residential zoning districts except as indicated in Section 18.100.040.
B. Location Criteria. All wireless communication facilities shall be located so as to minimize their visibility. The following measures shall be implemented:
1. No facility may be located within the front setback, along major street frontages where it will be readily visible or between the face of a building and a public street, bikeway or park, except for approved facade-mounted equipment or facilities located on existing structures;
2. No towers shall be installed closer than one half mile from any existing tower unless technologically required (technical evidence must be submitted to the City Planner showing a clear need for this facility, and the infeasibility of collocating it on an existing site), or visually preferable (i.e. fully-concealed facility that blends with the surrounding existing natural and artificial environment.
3. Each facility shall be operated in such a manner so as to minimize any possible disruption caused by noise. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 8:00 p.m. and 7:00 a.m. on weekday nights. At no time shall equipment noise from any source exceed an exterior noise level of 60 dB at the property line. If the facility is located within one hundred (100) feet of a residential use, noise attenuation measures shall be included to reduce noise levels to a level of 50 dBA measured at the property line.
5. All towers shall be set back at least twenty percent (20%) of the tower height from all property lines, and at least one hundred (100) feet from any public trail, park, or outdoor recreation area, unless it is a fullyconcealed facility that blends with the surrounding existing natural and artificial environment.
C. Design Review Criteria. In addition to all other requirements set forth in this Chapter, all wireless communication facilities shall meet the following design requirements :
1. Minimizing Visual Impact. All wireless communication facilities shall incorporate appropriate techniques to camouflage, disguise and/or blend them into the surrounding environment. Wireless communication facilities shall be in scale and designed to blend with the existing natural or built surroundings and existing supporting structures. The City shall have the authority to require special design features for the wireless communication facilities in areas of particular sensitivity (e.g. proximity to historic or aesthetically significant structures, views and/or community features).
Based on potential aesthetic impact, the order of preference for facility type is: (1) Collocation sites, when such siting minimizes adverse effects related to land use compatibility, visual resources, public safety, and other environmental factors, (2) building-mounted (façade or roof) facilities, (3) ground-mounted facilities and (4) a new tower.
52 2. Paint and Finish Materials. Wireless communication facilities including the antennas and related equipment shall be constructed out of non-reflective materials, painted and/or textured to match the existing support structure and painted to blend with their surroundings.
3. Related Equipment. All equipment shelters or cabinets must be concealed from public view or made compatible with the architecture of surrounding structures or placed underground. Support equipment pads, cabinets, shelters and buildings require architectural, landscape, color, or other camouflage treatment to minimize visual impacts.
4. Lightning Arrestors and Beacon Lights. Lightning arrestors and beacon lights shall not be included in the design of facilities unless required by the FAA. Lightning arrestors and beacons shall be included when calculating the height of facilities such as towers.
5. Height. The maximum height of a wireless communication facility shall be equal to the height limit for the district in which it is located. An exception to the height limit may be approved based on a visual analysis demonstrating that views of the facility are minimized or are substantially screened, and on an engineering analysis justifying the height of the proposed facility and demonstrating that a lower height is not feasible.
6. Lighting. Wireless communication facilities shall not be artificially lighted, unless required by the FAA or other applicable authority and designed to ensure the least disturbance to the surrounding views.
7. Satellite Dish/Parabolic Antennas - Ground-Mounted. Satellite dish or parabolic antennas that are ground-mounted shall be situated as close to the ground as possible to reduce visual impact without compromising their function. No such antenna shall be located in any front yard, nor in a corner side yard unless the antenna is screened from pedestrian-level view. No such antenna exceeding 39 inches in diameter shall be located within a required setback unless approved through a Site Development Review application upon a showing that no reasonable alternative location is available.
8. Roof Setbacks. Roof-mounted antennas shall be constructed at the minimum height possible to serve the operator’s service area. Roof mounted antennas shall be designed to minimize their visibility and blend with the surroundings. Placing roof mounted antennas in direct line with significant view corridors shall be avoided.
18.100.090 Removal of Abandoned Facilities.
Any wireless communication facilities that are not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of such facilities or the owner of the property upon which the facilities are located shall remove the same within ninety (90) days of receipt of notice from the City Planner notifying the owners of the removal requirement. If such facilities are not removed within the ninety (90) days, the City Planner may cause the antenna or tower to be removed at the expense of the owners of the facilities and the property. If there are two (2) or more users of a single tower, the tower shall not be deemed abandoned and shall not be subject to these provisions until all users have abandoned the facility.
SECTION 3: Severability.
If any section, subsection, sentence, clause, or phrase of this Ordinance is, for any reason, held to be unconstitutional and invalid, such decision shall not affect the validity of the remaining portion of this Ordinance. The City Council hereby declares that it would have passed this ordinance and every section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clause, or phrase be declared unconstitutional or invalid.
53 SECTION 4: CEQA
The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to the CEQA, Staff is recommending that the project be found exempt in accordance with CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments to Title 18 of the Sand City Municipal Code (Zoning Ordinance) will not have a significant effect on the environment. Pursuant to the FCC, changes to an existing telecommunications facility that complies with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, are considered minor changes and amending the Zoning Ordinance to comply with this Federal law would not impact the environment. As such, the proposed Zoning Ordinance Amendment is not subject to CEQA
SECTION 5: Effective Date
This Ordinance shall become effective thirty (30) days following its adoption.
SECTION 6: Codification
The City Clerk is hereby authorized and directed to codify the provisions of Section 1 of this Ordinance into the SCMC.
PASSED AND ADOPTED, by the City Council of Sand City, this ____ day of_____, 20____ by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
______________________________
ATTEST: Mary Ann Carbone, Mayor
_____________________________
Kerry Lindstrom, City Clerk
54 AGENDA ITEM
8A.
Salvation Army Impact Report
Presentation
55 AGENDA ITEM
8B.
Code Enforcement PresentationDiscussion and Direction of Code Enforcement Priorities
56 AGENDA ITEM
8C.
TAMC Bike Trail Presentation
57 AGENDA ITEM
9A.
Consideration and Approval for the
Cancellation of the January 2, 2024
Regular City Council Meeting
58 AGENDA ITEM
9B.
Discussion and Direction Regarding MST
Surf! Bus Impacts at the Playa Avenue and
California Avenue Intersection
59 AGENDA ITEM
9C.
Approve a Resolution Approving
Conditional Use Permit (CUP 23-006) for
the Wonderwall Boutique Hotel at 1714
Contra Costa Street
60 City of Sand City
STAFF REPORT
TO: Honorable Mayor and City Council
FROM: Zane Mortensen, City Planner
SUBJECT: Application for a Conditional Use Permit (23-006) Wonderwall Boutique Hotel at 1714 Contra Costa Street
DATE: December 19th, 2023
_______________________________________________________________________ BACKGROUND/DISCUSSION:
An application was submitted by Mark Cristofalo (the “Applicant”) for a Conditional Use Permit (CUP 23-006) to establish a boutique hotel (the “Applicant Use”) in the existing building located at 1714 Contra Costa Street (APN: 011-232-012 and 011-232-013) (the “Subject Property”). The Applicant Use will consist of six (6) suites, an enclosed outdoor fountain court, a reception room, an art gallery, coffee bar, and lounge.
SITE DESCRIPTION:
The Subject Property consists of 2 parcels, APN’s 011-232-012 and 011-232-013 which are 75-ft wide and 50-ft deep single-story mixed-use building on the corner of Contra Costa Street with the main property entrance facing Contra Costa Street. The building has 10-foot setbacks on both Contra Costa and Elder Avenue (APN: 011-232-013). The subject property consists of an adjacent 75-ft wide and 25-ft deep (APN: 011-232-012), which is primarily vacant with the exception of an existing storage container This adjacent lot will be used to support hotel parking, as well as provide an outdoor fountain area, storage, and the housekeepers supply area. Utilities (i.e. gas, electric, water, sewer, etc.) are available; however, there is not sufficient water available to the Subject Property to accommodate the Applicant’s Use. Therefore, additional water credits would need to be applied for and allocated by Monterey Peninsula Water Management District through the Sand City Water Entitlement. Building and street improvements (i.e. curb, gutter, drive-apron, etc.) in fair condition along the Subject Property’s Contra Costa Street and Elder Avenue frontage. The Subject Property has a non-coastal Planned-Mixed Use (MUP) zoning designation and a General Plan land use designation of Mixed-Use (MU-D).
Hotels are a permitted use under this zoning designation with an approved conditional use permit (Sand City Municipal Code 18.13.020). A conditional use permit is required for all new development uses within the MU-P Zoning district. The previous use for the building was a commercial office for the Mark Cristafalo Company an architectural and interior design company.
61 FISCAL IMPACT:
There will be minimal cost associated with staff time; however, this use will generate revenue for the city through the Transient Occupancy Tax (T.O.T) at a rate of 12% of the hotels monthly income as described in the Sand City Municipal Code (section 3.24). “Hotel” means any structure or any portion of any structure which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home at a fixed location if said location is outside a mobile home park and if such mobile home is rented to someone other than an employee of the owner or operator of the same for occupancy as a transient for a period not exceeding thirty (30) days, or other similar structure or portion thereof (section 3.24.020).
For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of twelve percent (12%) of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City which is extinguished only by payment to the operator or to the City. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient’s ceasing to occupy space in the hotel. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax shall be paid directly to the Tax Administrator (section 3.24.030). (Ord. 16-06 §1; Ord. 86-7 Art. 3 §4.0; Ord. 82-7)
DISCUSSION
Project Description:
The Applicant intends to utilize the Subject Property for a boutique hotel that consists of 6 suites, an enclosed outdoor fountain court, a reception room, an art gallery, coffee bar, and lounge. There would be one (1) employee on site during business hours (24 hours per day) to accommodate guest check-ins and check-outs, and twice daily visits by housekeeping staff. Due to the nature of the business as a hotel there are no set hours of operation as guests may arrive at any time of day or night for their stay at the Wonderwall Hotel. Small shipments of bath products and coffee bar supplies will be expected and are not anticipated to impede traffic. Storage of supplies will be in a covered prefab unit for the housekeeping team. Trash will also be contained in a covered receptacle near the housekeeping unit. The parking stalls on Elder Avenue are dimensioned at 9' wide x 20' long with 11' of the length extending into the right of way and about 9' of the spaces on site. The project would require an encroachment permit on Elder Avenue to provide sufficient parking to accommodate guests in each of the 6 rooms with one of those parking spaces reserved for ADA parking.
Land Use: The Subject Property has a Zoning Map designation of “Planned Mixed Use” and a General Plan designation of Mixed-Use Development (MU-D). Section
18.13.040(M) of the City’s Zoning Ordinance lists ‘Hotels’ as an allowable use subject 62 to the issuance of a conditional use permit pending review of potential impacts upon a mixed residential/commercial neighborhood. Therefore, staff finds the Applicant’s Use consistent and compatible with the intent of the General Plan and Zoning Code.
Hours of Operation: Due to the nature of the business being a hotel there are not “normal business hours” as guests may arrive at any time of the day or night for their stay at the Wonderwall Boutique Hotel. However, there will be small shipments of bath products and housekeeping supplies which are to be accepted by the on-site manager during a daily window of 7:00am to 6:00pm. The permit specifies that these activities take place between the hours of 7:00am and 6:00pm on weekdays for consistency with surrounding operations.
Parking: the Subject Property has a roughly 1,150 Square foot parking area on the south side of the building on the Elder Avenue frontage which can accommodate 6 parking stalls with one of those stalls being reserved for ADA parking with the issuance of an encroachment permit. Hotels and motels, one space for each living or sleeping unit as required by Sand City Municipal Code 18.64.050. the Permit requires an encroachment permit for the off street parking as there will be a portion of the parking stalls that will be on public right-of-way. There are no company vehicles that will be parked/stored at the subject property.
Storage: Items stored on-site will primarily bath products, housekeeping supplies, and coffee bar supplies which will be stored in a prefab housekeeping shed. Staff recommends outside storage of materials, equipment, and items associated with the Applicant’s Use is prohibited. The placement of storage containers/pods in the parking area/driveway is also prohibited. If the Applicant needs to place a storage container in the parking area to accommodate activities/storage, then that would indicate that this operation has exceeded the Subject Property’s ability to accommodate the Applicant’s Use.
Loading/Unloading: According to the Applicant, small shipments, deliveries to/from the site are anticipated. The Subject Property has an approximate 1,150 square foot paved area for parking on the Elder Avenue frontage of the building that can accommodate loading/unloading activities from smaller sized vehicles (ie. pick-up truck, Box truck, etc.). Contra Costa Street is a major street through the West End District, and should remain open for 2-way vehicular traffic. Therefore, loading/unloading activities are prohibited unless utilizing the abutting curbside parking within the Elder Avenue rightof-way in a manner that does not interfere or impede 2-way traffic flow on Elder Avenue.
The property owner should also be held responsible for managing/addressing conflicts between tenants’ use of the paved area for parking and loading/unloading activities, provided minimum City zoning and permit requirements are satisfied.
Trash: The Subject Property will provide an enclosure for trash bins or dumpsters. The Applicant is required to maintain refuse and trash receptacles for their operation within the building or in the trash enclosure the Applicant is establishing on the Subject 63 Property. The storage of refuse bins/dumpsters on the street by the Applicant’s Use is prohibited with the exception of curbside trash removal on scheduled collection days.
Impacts: A boutique hotel is considered to be a relatively modest activity that does not produce excessive detrimental noise, vibrations, dust, fumes, or particulates. Provided the Applicant abides by the requirements as stated in the conditions of approval, the Applicant’s Use should not pose a public nuisance or blighting influence.
Signs: The Applicant does not intend to establish a business sign on the Subject Property. Commercial signs are subject to City Design Review Committee (DRC) review and approval in the issuance of a sign permit prior to installation and should The Applicant decide to add a sign in the future will need to file a permit with The City subject to DRC approval prior to the installment of such a sign.
Water: The existing on-site water credit of the Subject Property is inadequate to facilitate the Applicant’s Use. The Subject Property has available onsite water credits sufficient to meet its current use as office space in accordance with the Monterey Peninsula Water Management District (MPWMD) regulations. However, the transition to a boutique hotel would require more water credits be issued than is currently available. Therefore, the Applicant is required to appeal to the City Council of Sand City for the approval of the additional allocation of water required to support the Applicant Use, as stated in the Conditions of Approval. Approval of CUP23-006 does not arbitrarily grant any privilege or right to the Applicant and/or property owner for any allocation of water from the City or other entity.
CEQA:
The Applicant’s Use at the Subject Property qualifies for a categorical exemption, under the California Environmental Quality Act (CEQA) Guidelines, Section 15301, Existing Facilities, consisting of the operation of existing public or private structures, facilities, or mechanical equipment, involving negligible or no expansion of existing or former use.
RECOMMENDATION:
Staff recommends APPROVAL of Conditional Use Permit CUP23-006 for the Applicant.
ATTACHMENTS:
Resolution
Exhibit A: Conditions of Approval
Exhibit B: Findings of Approval
Exhibit C: Location Map
Exhibit D: Aerial Map
Exhibit E: Floor Plan
Exhibit F: Site Photos
64 Exhibit G: Hazardous Materials Questionnaire
Exhibit H: Letter of Intent
65 CITY OF SAND CITY
RESOLUTION SC ___, 2023
RESOLUTION OF THE CITY COUNCIL OF SAND CITY APPROVING
CONDITONAL USE PERMIT (CUP 23-006) FOR THE WONDERWALL
BOUTIQUE HOTEL AT 1714 CONTRA COSTA STREET
WHEREAS, an application was submitted by Mark Cristofalo (The Applicant) for a Conditional Use Permit to establish the Wonderwall Boutique Hotel (The “Applicants Use”) within the 5,625 Square Foot area encompassing parcels APN: 011-232-013 and 011-232-012 (1714 Contra Costa Street and neighboring parcel on Shasta Ave); and WHEREAS, the Applicant’s Use is considered consistent with the non-coastal Planned Mixed-Use (MU-P) zoning designation and a General Plan land use designation of MixedUse Development, as defined by the City’s General Plan and Zoning Ordinance; and WHEREAS, the Applicant’s Use is not anticipated to generate excessive noise, vibration, odors, and/or pose a general nuisance to neighboring properties or the tenants therein; and WHEREAS, the available on-site water credit is not sufficient to accommodate the proposed use types and further water allocation through City Council approval is required; and
WHEREAS, the Applicant’s Use, within an existing commercial building, qualifies for a Categorical Exemption under CEQA (California Environmental Quality Act) Guidelines, Section 15301; and
WHEREAS, the City Council of the City of Sand City has accepted the findings for approving Conditional Use Permit CUP23-005 as outlined in the City staff report, dated December 19th, 2023.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Sand City does hereby grant and issue the Conditional Use Permit CUP23-006 with the following terms and conditions listed in Exhibit A – Conditions of Approval.
PASSED AND ADOPTED by the City Council of the City of Sand City this ___, day of _____, 2023 by the following vote:
66 AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
___________________________
Mary Ann Carbone, Mayor
ATTEST:
DATED: ____________________
___________________________
Kerry Lindstrom, City Clerk
67 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
EXHIBIT A
CITY OF SAND CITY
CONDITIONAL USE PERMIT CUP23-006 CONDITIONS OF APPROVAL Project Name: Conditional Use Permit (CUP23-006) for Wonderwall Boutique Hotel at 1714 Contra Costa Street
Address: 1714 Contra Costa Street, Sand City, CA
Hearing Date: Dec 19th, 2023
Conditions of Approval:
A. Permit Effectiveness/Time Limits:
1. Conditional Use Permit CUP23-006, is not valid, and project use(s) shall not commence, until two (2) copies of this Resolution/Permit, signed by the permittee and landowner, acknowledging receipt of the Resolution/Permit and acceptance of the terms and conditions, are returned to the City's Planning Department. Failure of the applicant to return the (2) 2 copies of the signed Resolution/Permit within thirty (30) days from the date of City Council approval shall cause said Conditional Use Permit to become null and void unless good cause to grant an extension is found acceptable by the Community Development Director.
B. Land Use Terms and Conditions:
1. Property Maintenance: The site shall be maintained in a clean, orderly, weed-free, and litter-free condition. The property owner shall be responsible for maintenance and upkeep of the entire property.
2. Onsite Management: On-site management shall be available twenty-four (24) hours per day. A City issued placard shall be prominently posted by the property owner and/or Manager in a location visible from the front entrance of the property, which includes the property owner’s and/or site manager’s contact information.
3. Refuge storage & pickup: Trash, litter, boxes, crates, debris, or other used and/or discarded materials generated by the occupants of this building shall be stored within the appropriate waste collection receptacle(s).
Except on a designated trash collection day, said waste receptacle(s) shall be screened from public view. The property owner shall be responsible for 68 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
arranging and providing waste hauler access for standard pick-up services.
4. Hazardous Material: No hazardous materials will be stored or used onsite.
5. Water: Additional water allocation through the Sand City Water Entitlement will be required to support the proposed use. The approval of the Conditional Use Permit (CUP23-006) does not convey such an allocation. Water allocation from the Sand City Water Entitlement will require separate City Council approval, as well as the requisite approvals from the Monterey Peninsula Water Management District.
6. Building: Proper building permits will need to be acquired for all construction related activities, including the following: interior building remodel, trash enclosures, fountain court yards, and prefab housekeeping building.
7. Deliveries: All deliveries shall be accepted on the Elder Avenue frontage in the parking stalls provided by the hotel. In the event all spots are taken by guests they may accept deliveries in another parking location as long as traffic is not impeded in the City’s right of way. All deliveries shall be accepted only between the hours of 7:00am and 6:00pm.
8. Design: Approval from the Design Review Committee and/or City Council will be required for all exterior improvements.
9. Noise/unlawful conduct: There shall be no excessive noise that could be deemed a nuisance to neighboring businesses or residents. In the event of a complaint regarding activities on the property, the property owner and/or onsite manager shall respond within thirty (30) minutes from time of notification of any issue to address concerns/complaints pertaining, but not limited to, disorderly or unlawful conduct on the subject property, overcrowding of the unit, and/or unreasonable noise or other limits specified in the Sand City Municipal Code, or the City’s administrative policies or procedures.
C. General Requirements:
1. All commercial use type will remain consistent with the permitted uses as described in the Conditional Use Permit, which includes the following:
Hotel and Motel
69 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
2. Violation: If the City determines any term or condition of the Conditional Use Permit CUP23-006 has been violated, written notice shall be issued to the property owner, that if such violation is not corrected or removed within a specified time, a public hearing may then be scheduled where the City Council may consider amending or revoking the Conditional Use Permit CUP23-006 and may then order said Permits amended or revoked.
3. All permitted transient use, including dwelling or sleeping purposes, must consist of a minimum period of 24 hour and shall not exceed period of 29 consecutive days.
4. The issuance of Conditional Use Permit CUP23-006 shall not supersede or override any applicable requirements of any other City, County, State, or Federal agency.
5. Applicant must comply with all building department rules and regulations.
6. Applicant must comply with all Monterey County Department of Consumer Health rules and regulations.
7. Interpretation: Any questions of intent or interpretation regarding any condition of Conditional Use Permit CUP23-006 shall be resolved by the Community Development Director.
D. Street and Public Improvements
1. Street and Public Improvements: The development project shall construct improvements along the property frontage as necessary to accommodate the approved use, required number of parking spaces, access, and required utilities. The Applicant shall be responsible for the design and construction of these improvements. All street and public improvements shall be reviewed and approved by the City Engineer.
2. Improvement Plans: The Applicant shall submit Public Improvement Plans to the City for review and approval prior to the issuance of any building or construction permits. The plans shall be prepared, signed, and stamped by a California Registered Professional Civil Engineer. All improvements (grading, drainage, utilities, concrete, parking, walkways, access, etc.) shall clearly show the proposed improvements necessary to serve the development project and shall be designed per City standards and requirements.
70 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
3. Utility Plans: The Applicant shall submit Utility Improvement Plans showing how utilities will be provided to serve the property. The Utility Improvement Plan shall identify all utilities and utility connections required for the Project, including but not limited to, storm drainage, sanitary sewer, water, electric, gas, telephone, cable, onsite utilities, and associated infrastructure. Any trenching of street asphalt and/or concrete for utility connections shall be replaced per City standards and requirements.
4. Parking Stalls: The proposed use must maintain a minimum of six (6) parking stalls. All proposed parking stalls serving the Development Project shall be constructed in concrete or other suitable material as determined by the City Engineer.
5. Encroachment Permits: Encroachment permits shall be required for any work performed within public rights-of-way and/or easement. The Applicant shall complete and submit an encroachment permit application to the City and shall pay all fees associated with the processing and review of the permit.
6. Coordination of Plans: All improvement plans (architectural, civil, electrical, mechanical, landscaping, etc.) shall be fully coordinated with each other to ensure that the improvements may be constructed safely and without conflict with one another.
E. Stormwater Management
1. Applicability: The Development Project shall comply with applicable requirements of Sand City Municipal Code (SCMC) 13.05 Stormwater Management and the City’s Phase 2 National Pollutant Discharge Elimination System (NPDES) General Permit, including the PostConstruction Stormwater Management Requirements for Development Projects in the Central Coast Region (PCRs).
2. Determination: The Applicant shall complete a Stormwater Compliance Tracking Form or similar documentation for review by the City, to determine whether the Development Project is subject to these requirements.
71 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
3. Stormwater Control Plan (SWCP): If applicable, the Applicant shall prepare and submit a Stormwater Control Plan (SWCP) for the Development Project demonstrating compliance with the PCRs. The SWCP shall be prepared by the project civil engineer in accordance with City requirements. The SWCP shall be prepared in accordance with the latest adopted Stormwater Technical Guide (STG) and templates.
4. Agreement Regarding Maintenance and Right of Entry for Stormwater Control Measures: If determined that the Development Project is subject to the PCRs and structural Stormwater Control Measures (SCMs) are required, the Property Owner shall enter into a written agreement with the City to provide for the long-term operation and maintenances of all SCMs.
This agreement shall provide for ongoing maintenance and verification of maintenance by the Owner and any successors in interest, among other provisions. This agreement shall be based on the City’s latest adopted template and shall be prepared per City requirements. A fully executed copy of this Agreement shall be required prior to final certificate of occupancy.
5. Operation and Maintenance Plan (OMP): If determined that the Development Project is subject to the PCRs and structural SCMs are required, the Applicant shall prepare and submit an OMP that establishes, identifies, directs, and records the operation and maintenance of all Development Project SCMs. The OMP shall be prepared by the project civil engineer in accordance with City requirements. The OMP shall be prepared in accordance with the latest adopted Stormwater Technical Guide (STG) and templates.
6. Best Management Practices (BMPs): During all phases of construction and/or land disturbance activities, the Development Project shall implement site-specific BMPs to protect water quality and prevent storm water pollution, as required by SCMC 13.05 Stormwater Management.
The Application shall submit an Erosion and Sediment Control Plan (ESCP) or Water Pollution Prevention Plan (WPPP), as applicable, for review and approval by the City Engineer, prior to the issuance of any grading and/or building permit(s).
72 EXHIBIT A
CUP23-006 CONDITIONS OF APPROVAL
F. Plans and Agency Compliance
1. Examination of Plans: All construction plans, documents, reports, and supporting materials for the Development Project shall be reviewed and approved by the City prior to the issuance of any building or construction permits. Any and all requirements specified by the City during plan review shall be implemented to the satisfaction of the City.
2. Agency/Department Compliance: All requirements of the City’s Planning, Building, Fire, Public Works, and Engineering Departments, as well as California American Water, Monterey Peninsula Water Management District, and Seaside County Sanitation District (SCSD), and the Monterey County Health Department shall be implemented to the satisfaction of each agency/department.
3. Water and Sewer: All water and sewer utilities, connections, improvements, etc., shall be design and constructed in accordance with the standards and specifications of Cal-Am Water and the SCSD, to the satisfaction of the City Engineer. The Applicant shall provide approvals from both Cal-Am and the SCSD for all water and sewer improvements, and/or connections.
4. Lot and Parcel Merger: The Property Owner shall merge Lots 2, 4, and 6 of Block 31 of APNs 011-232-012 and 011-232-013 into a single lot/parcel to accommodate the proposed Development Project. The Property Owner shall submit a Lot Merger application and supporting documents per City requirements and shall pay all fees associated with the processing and review of the lot merger application. The lot merger application and supporting documents will be reviewed and approved by the City Surveyor and City Engineer.
73 EXHIBIT B
CUP23-006 FINDINGS OF APPROVAL
EXHIBIT B
CITY OF SAND CITY
CONDITIONAL USE PERMIT CUP23-006 FINDINGS OF APPROVAL
Project Name: Conditional Use Permit (CUP23-006) for Wonderwall Hotel at 1714 Contra Costa Street
Address: 1714 Contra Costa Street, Sand City, CA
Hearing Date: Dec 19, 2023
Findings of Approval:
1. The intended use type for the existing commercial building is consistent with the Planned Mixed-Use (MU-P) zoning of the surrounding properties as indicated on the City of Sand City Zoning Map.
2. The establishment of commercial space with the intended use types as described in CUP23-006 is allowed under the MU-P zoning regulations with an approved Conditional Use Permit.
3. Adequate parking has been provided on the property.
4. Utilities, including electricity, gas, and, sewer, are sufficiently available to facilitate the Applicant’s Use at the Subject Property.
5. Additional water allocation necessary to accommodate the proposed use will require City Council approval.
6. The Applicant’s Use is not anticipated to pose an impediment of traffic flow
7. The intended use on this property qualifies for a categorical exemption, under California Environmental Quality Act (CEQA) guidelines section 15301. 74 EXHIBIT C
CUP23-006 LOCATION MAP
EXHIBIT C
LOCATION MAP
75 EXHIBIT D
CUP23-006 AERIAL MAP
EXHIBIT D
AERIAL MAP
Subject
Property
76 EXHIBIT E
CUP23-006 FLOOR PLAN
EXHIBIT E
FLOOR PLAN
77 EXHIBIT F
CUP23-006 SITE PHOTOS
EXHIBIT F
SITE PHOTOS
Contra Costa Street
Elder Avenue
78 79
80 81
82