6 Public Comments
PRIOR STAFF REPORT AND COMMENTS: https://www.ci.sebastopol.ca.us/MeetingEvent/Planning-Commission/2022/Planning-Commission-Meeting-of-June-28th,-2022 Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
1 EXHIBIT A
FINDINGS OF APPROVAL
Piala Restaurant
Alcohol Use Permit
7233 Healdsburg Ave
APN 004-251-023 (File 2022-020)
Based on the evidence in the public record, the Planning Commission finds that:
1. The project is categorically exempt from the requirements of CEQA pursuant to Section 15301 Existing Facilities which includes interior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances. The alcohol transfer permit would fit this exemption as it is for the use of a restaurant where one has existed in the past and will not create any new environmental impacts as it will be in an already developed area.
2. The project/use/proposal is consistent with the following provisions of the General Plan:
Action CHW 6c: Continue to require that all new or transferred Alcoholic Beverage Control (ABC) licensees and their employees participate in Responsible Beverage Service training, to promote public health and safety by reducing incidence of sales and service to minors and sales and service to obviously intoxicated persons.
As conditioned, all servers would be required to participate in Responsible Beverage Service training.
Action CHW 6e: Continue to require bars to serve food in order to help counter the effects of alcohol consumption.
The establishment is structured with table seating for dining. As conditioned, the establishment would be required to be maintained as a bone fide restaurant, serving full meals and with a balanced wine/beer and food menu.
Goal CHW 6: Reduce the Harmful Impacts of Alcohol, Tobacco and Drug Use on Individuals, Their Families, and the Larger Community
Policy CHW 6-1: Address responsible alcohol consumption through outreach and efforts intended to reduce adult high-risk drinking and its related problems.
As conditioned, alcohol consumption will be prohibited while on site by Lowell Sheldon, who would not otherwise be able to meet the criterion established in the Alcohol Use Permit section related to the applicant’s burden of proof.
As conditioned, this criteria is met.
3. The use is consistent with the Sebastopol Zoning Ordinance, including the specific criteria of the following sections as described:
Section 17.350.020 Alcohol Use Permits of the Sebastopol Municipal Code the additional findings applicable to Alcohol Use Permits as follows:
A. On and after the effective date of the ordinance codified in this chapter, no place wherein alcoholic beverages are sold, served, or given away for on-site or off-site consumption, shall be established without first obtaining a conditional use permit from the City.
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City Council Meeting Packet of August 31, 2022
ATTACHMENT 8
PLANNING COMMISSION APPROVED
FINDINGS AND CONDITIONS OF APPROVAL
2 Further, no existing site which substantially changes its mode or character of operation shall continue to operate without first obtaining a conditional use permit.
As conditioned, the establishment would be maintained as a bone fide restaurant at all times. The granting of this Alcohol Conditional Use Permit satisfies this criterion.
B. A copy of the conditions of approval for the conditional use permit must be kept on the premises of the establishments and posted in a place where it may readily be viewed by any member of the general public.
As conditioned, this criterion will be met.
C. In making any of the findings required pursuant to this chapter, the Planning Commission, or the City Council on appeal, shall consider whether the proposed use will adversely affect the health, safety or welfare of area residents or will result in an undue concentration in the area of establishments dispensing, for sale or other consideration, alcoholic beverages, including beer and wine.
As conditioned, Lowell Sheldon, part owner, will be prohibited from consuming alcohol on the proposed location the alcohol use permit is granted. His interactions with staff will also be limited, and an outside human resources firm will be monitoring the employee operations. As conditioned, this criterion can be met.
D. In all determinations pursuant to this section, the applicant for the conditional use permit shall have the burden of proving by clear and convincing evidence that the proposed use will not adversely affect the health, safety or welfare, result in undue concentration of alcoholic beverage outlets, or detrimentally affect nearby communities.
As conditioned, the applicant is able to meet the burden of proving by clear and convincing evidence that the proposed use, including it’s operations, will not adversely affect the health, safety, or welfare of the community, by limiting interaction for a minimum of one year of Mr Sheldon with staff involving any human resource or supervision/direction; prohibiting alcohol consumption by same; engaging an outside human resources firm; and, maintaining the venue as a bone fide restaurant.
E. The Planning Commission, or City Council on appeal, may impose any conditions on the applicant or proposed location reasonably related to the health, safety or welfare of the community.
F. Except as set forth in SMC 17.350.070, applications for conditional use permits herein shall be made in accordance with Chapter 17.415 SMC, together with amendments thereto. The applicant shall submit a processing fee as specified in the most current Planning Department schedule of fees. Any costs for processing an application that exceed the conditional use permit fee paid by the applicant shall be deemed a debt to the City and shall be paid within 30 days of issuance of the conditional use permit or said permit shall be revoked.
As conditioned, this criterion will be met.
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City Council Meeting Packet of August 31, 2022
EXHIBIT B
CONDITIONS OF APPROVAL
Alcohol Use Permit
7233 Healdsburg Ave
APN 004-251-023 (File 2022-020)
1. The Use shall be in substantial conformance with the proposed operations as described in the application materials prepared by Piala, LLC, and stamped received on March 29, 2022, as modified on May 11, 2022 appeal letter, and on file at the City of Sebastopol Planning Department, except as modified herein:
a) The applicant shall be modified in all application materials to the City to be Jeffery Berlin. All references to the Applicant’s responsibilities below shall be assigned to said Applicant.
2. Applicant shall not permit Lowell Sheldon to exercise, directly or indirectly, any personnelrelated responsibilities in connection with the ownership, management, or operation of the subject business, including without limitation:
a. the hiring, training, management, supervision, review, discipline, or termination of any employee; or
b. the fielding, review, investigation of, or response to any employee complaints or concerns.
3. Applicant shall prohibit Lowell Sheldon from serving or consuming alcohol in any capacity while on the premises.
4. This Use permit shall be reviewed after a period of one year after the restaurant commences operations by the Planning Commission. At that time, the Planning Commission may modify the Conditions of Approval to allow Lowell Sheldon to consume alcohol on the premises as a member of the dining public. This shall constitute a request for an Amendment to a Use Permit, with the applicant responsible for applying for this review.
5. Violation of any of Conditions 2 and/or 3 may, by itself, constitute a ground for revocation of the subject use permit.
6. Piala LLC shall engage and at all times retain an outside human resources firm to manage all aspects of employee complaints, issues, or concerns, including without limitation receiving, reviewing, investigating, and recommending appropriate action, if any, in response to such issues or concerns.
7. The establishment shall be maintained as a bone-fide restaurant as described in the revised application materials supplied by the applicant on May 11, 2022, including the requirements of Section 17.350.080.C, and as follows:
a) The menu shall at all times serve full meals, in addition to any such smaller plates proposed.
b) The beer/wine list shall remain in proportion with the menu as generally submitted in the revised application materials.
c) The seating in the restaurant shall continue to accommodate dining at table seating, and shall not transition to ‘bar’ style seating for more than 20% of the seating.
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8. The applicant shall be responsible for implementing an Alcohol Awareness and Security Plan, which shall be submitted to the Police Department for review and approval within 60 days from the effective date of the Use Permit approval. The Plan shall describe building security and fire safety; how the operation will address staff training relative to alcohol consumption and operational security; and how the operation will coordinate with the Police Department.
a. Applicant shall submit a copy of the approved plan to the Planning Department, to be added to the project file.
9. All persons serving or distributing alcoholic beverages are required to attend the Responsible Beverage Service training program or an equivalent, either in-person or online to the satisfaction of the Police Chief.
10. No sound may emanate from the building, which violates the Noise Ordinance or causes an undue disturbance to site neighbors.
11. Hours of operation shall be consistent with the hours stated in the application. The Planning Director shall have the authority to modify the hours of operation.
12. A Business License is required and shall be obtained prior to operation of the use.
13. Food, including meals, must be made available during all times that alcohol is served. This may include incidental food items.
14. Any minimum purchase requirement may be satisfied by the purchase of food or beverages.
In no case shall a “drink minimum” be imposed.
15. Off-sale of beer and wine is not permitted with this approval.
16. Placement of bottles into outdoor recycling bins shall take place only between the hours of 9:00 A.M. – 9:00 P.M.
17. The business owner shall ensure that employees are drug and alcohol free while on duty.
18. The establishment is not approved as an entertainment venue. Dancing and/or regular live music shall not be permitted on the premises without prior City approval. As an incidental use, recorded background music and occasional live acoustic music may be conducted inside the establishment only. All doors and windows shall be closed during any such activity. The Police Department or Planning Director may require termination or modification of such activity.
19. The business owner shall ensure that exterior areas, including the adjacent courtyard area and sidewalk, are free of trash and other debris that may be generated by patrons.
20. The business owner shall be responsible for removing any graffiti on the outside of the establishment.
21. A copy of the conditions of approval for the Alcohol Use Permit must be kept on the premises of the establishment and posted in a place where any member of the general public may readily view it.
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22. Occupancy limitations shall be established by the Building Official and clearly posted prior to issuance of a Certificate of Occupancy for any building, including a use requiring a Use Permit.
23. All applicable permits shall be obtained from other approving agencies prior to commencement of this use, including, but not limited to Building and Safety Department, Department of Alcoholic Beverage Control, Fire Department, and County Health Department.
24. As required by the Sonoma County Department of Health Services; a. A review and approval of the menu, plans, and/or specification sheets is required for any changes to the food service operation, facility remodel, addition of any equipment or expansion of any food or alcohol storage or food preparation areas prior to use of the area of equipment.
25. The City of Sebastopol and its agents, officers and employees shall be defended, indemnified, and held harmless from any claim, action or proceedings against the City, or its agents, officers and employees to attach, set aside, void, or annul the approval of this application or the environmental determination which accompanies it, or which otherwise arises out of or in connection with the City’s action on this application, including but not limited to, damages, costs, expenses, attorney’s fees, or expert witness fees.
26. The Planning Director shall interpret applicable requirements in the event of any redundancy or conflict in conditions of approval.
27. This approval does not include any signs. Any new signs that will identify the use of this property are subject to the prior approval of the Design Review Board or City staff, as appropriate.
28. Approval is valid for three (3) years, except that the applicant may request a one (1) year extension of this approval from the Planning Director, pursuant to Section 17.400.100 of the Zoning Ordinance.
29. The Use Permit shall be in effect unless it is abandoned or closed for 12 months or longer or otherwise rescinded.
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City Council Meeting Packet of August 31, 2022
EXHIBIT C
STANDARD CONDITIONS OF APPROVAL
Alcohol Use Permit
7233 Healdsburg Ave
(file 2022-020)
1. All plans shall include a brief description of the project on the cover sheet.
2. All submitted building permit plan check sets shall include a plan sheet incorporating these conditions of approval.
3. Except as otherwise noted in these conditions of approval, the plans submitted to the Building Department for plan check shall be in substantial conformance to those approved by the review body. If any changes are made to submitted plans which were approved by the review body the applicant shall work with the Planning Department to determine if the changes are significant enough to once again be seen by the review body, or if staff can approve the changes. Any changes that have not been approved by Planning staff are not approved. Construction or demolition work that does not conform to the Planning approval is not valid and shall be subject to stop work orders and may require removal.
4. Site landscaping shall be generally consistent with the Landscape Plan included as part of “Exhibit A” on file with the Sebastopol Planning Department. The final landscape plan shall be stamped by a licensed landscape architect and filed with the Planning Department prior to occupancy. Plans for any irrigation of the site shall be incorporated into the landscape plan. All planting shown on the approved plan shall be installed prior to occupancy of the proposed project. Upon the request of an Applicant to receive a Temporary Certificate of Occupancy and at discretion of the Planning Director, landscape installation may be suitably guaranteed by posting a cash bond equal to l00% of the cost and installation of any landscape improvements.
5. Acceptance of the construction drawings and specifications does not release the applicant and owner from correction of mistakes, errors, or omissions contained therein. If, during the course of construction, the field conditions or other previously unknown conditions require a modification or a departure from the accepted plans, the applicant shall provide the modifications or departure and specify the correction of mistakes errors, or omissions in compliance with the CBC and City Standards.
6. The City of Sebastopol and its agents, officers and employees shall be defended, indemnified, and held harmless from any claim, action or proceedings against the City, or its agents, officers and employees to attach, set aside, void, or annul the approval of this application or the environmental determination which accompanies it, or which otherwise arises out of or in connection with the City’s action on this application, including but not limited to, damages, costs, expenses, attorney’s fees, or expert witness fees.
7. A Construction Management Plan (CMP) shall be submitted to the City as part of the Building Permit and/or Grading Permit and shall be incorporated into the plans, unless waived by staff. The City’s CMP template, provided by the Planning Department, may be used for small, infill projects. Revisions to the CMP to increase or add on time to the construction timeline shall be coordinated with the Building Official and any additional requests will be at the applicant’s responsibility.
This CMP shall be a binding document. Failure to adhere to the CMP may result in a Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
“Stop Work Notice” being placed on the project. An electronic copy of the APPROVED CMP shall be submitted to the City, and may be posted to the city’s website. The CMP shall be updated as project conditions warrant. Updates to the CMP shall be provided to the City for review and approval. The CMP shall include but not be limited to:
a) Work schedule (start of construction date, road or lane closure intent/dates, important milestones and proposed final dates)
b) Construction Hours
c) Travel routes and turn-around locations with staff approval • Impact to state highways
d) Road and/or lane closures (Applicant to provide information on how many anticipated road closures, and the reasons for each road closure). e) Worker auto parking space locations/construction parking f) Phasing (if applicable)
g) If construction improvements are located in areas of slopes 15% or greater, the Contractor shall provide safe temporary hard surface stair access to the improvements, unless waived by the Building Official. This access shall be shown on the CMP.
h) Projects that require a grading permit shall comply with the City’s grading ordinance.
The CMP may be more stringent if the project is located close to schools or in impacted neighborhoods. A CMP may be required to be modified if a neighborhood becomes “impacted” during the course of the construction. Impacted neighborhoods are defined as areas in geographic proximity (i.e. using the same streets for access) with a significant number of simultaneous construction projects.
The hours of construction activity shall be limited 7:00 a.m. to 8:00 p.m., Monday through Friday, 8:00 a.m. to 5:00 p.m. on Saturdays with staff approval, depending on scope of work being done, or unless modified by a project’s Specific Conditions of Approval.
A24-inch by 36-inch weatherproof copy with items A-F posted on site. The remaining Construction Management Plan shall be made available on site. The Construction Management Plan shall be posted on the site as part of the job site signage and should include:
a) Address of the project site.
b) Permitted hours of construction and of deliveries/off-haul. c) Name, e-mail address and direct phone number of the General Contractor. d) Name, e-mail address and direct phone number of the person responsible for managing theproject.
e) Name and direct phone number of the party to call in case of an emergency. f) City of Sebastopol Building Department (707-823-8597).
8. All construction materials, debris and equipment shall be stored on site. If that is not physically possible, an encroachment permit shall be obtained from the Public Works Department prior to placing any construction materials, debris, debris boxes or unlicensed equipment in the right-of-way. The fee for using the right-of-way for storage of construction materials or equipment is $10.00 per day. A minimum of 11’ passable auto traffic clearance (paved travel way) shall be maintained at all times along the roadway. The placing of portable restroom facilities in the City right-of-way will not be permitted.
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9. All portions of the job site shall be maintained in an organized and professional condition. All trash, debris, construction scraps and broken/deteriorated machinery shall be removed from the site by the end of each week. If off loaded construction materials are not used within 2 weeks, they shall be screened from public view. All sidewalks, driveways and public/private roadways fronting the subject site shall be broom cleaned at the end of each business day.
10. A pre-construction meeting is required with city staff for projects that:
a) Require a City encroachment permit, a Caltrans encroachment permit, or a City grading permit; or
b) Have 5 dwelling units or more; or
c) Have a total of 5,000 square feet of building or more; or d) Have a creek setback requirement; or
e) Are required to have a pre-construction meeting under a specific condition of approval.
11. All permits and/or inspection fees required shall be paid in full prior to final occupancy being granted unless otherwise stipulated by the City.
12. All required construction signage and any required tree-protection shall be posted and available for City inspection at the time of the Pre-construction meeting or, if no preconstruction meeting is required, prior to commencing construction. If these measures are not in place at the time of the pre-construction meeting, a re- inspection fee will be required, and issuance of building permit will be delayed.
13. The Planning Director shall interpret applicable requirements in the event of any redundancy or conflict in conditions of approval.
Planning Department Standard Conditions of Approval:
14. This approval is valid for a period of three (3) years during which time the rights granted must be exercised. However, the applicant may request one (1) one-year extension of this Use Permit from the Planning Director, pursuant to Zoning Ordinance §17.400.100.
15. The light source for all exterior lighting fixtures shall be shielded from adjacent properties. Cut sheets for all exterior lighting shall be submitted as part of the Design Review or other planning application.
16. For projects with new foundations or retaining walls less than 10’ away from a required setback property lines shall be physically identified (string line or equal), and the applicant shall submit a letter or certificate from a licensed surveyor that confirms that the structure complies with the approved setbacks prior to placing the foundation. For any project that includes new foundations or retaining walls more than 10’ away from a required setback, the applicant may apply for a waiver from this requirement from the City Engineer and Planning Department.
17. For any project that includes new structures within 2 feet of the allowed height limit, a letter or certificate from a surveyor confirming that the height of the roof complies with the approved plans shall be submitted to the Planning Department at the earliest point possible.
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18. All landscape and irrigation plans must be designed in accordance with the most current City of Sebastopol landscape requirements. Prior to providing water service for new landscape areas, or improved or modified landscape areas, the Planning Department must review and approve the project’s working drawings for planting and irrigation systems. Any question regarding the City of Sebastopol current water conservation and Landscape Ordinance should be directed to the Planning Department.
New construction and rehabilitated (renovations or changes made to sites with an existing irrigation system) landscape projects will be affected by these requirements if the altered landscape area is greater than 500 square feet.
19. For any new housing unit development, the developer/owner shall submit the total amount of fees and exactions associated with the project prior to issuance of certificate of occupancy or final inspection.
Engineering and Public Works Department Standard Conditions of Approval:
20. All projects are subject to Impact Fees as adopted by the City Council, which are due at the time of issuance of the Building Permit unless otherwise stipulated by the City.
21. An Encroachment Permit is required from the Public Works Department for any and all work within the public right-of-way. If the work is within a CalTrans right-of way, an Encroachment Permit from CalTrans shall also be procured by the applicant.
Encroachment Permit shall not be issued until the City Engineer approves the applicant’s site improvement plans.
22. Construction within the public right-of-way is limited to that necessary to support the lot's use. This may include but is not limited to: driveways, sidewalks and any utility connections. For all improvements within the public right of way, the applicant shall submit plans to adequately describe the work. Plans shall include but not be limited to drainage details, cross-sections, driveway/roadway grades and utility locations as necessary.
23. The applicant shall prepare and submit site improvement plans for the construction of all improvements including water, sanitary sewer, storm drain, water quality facilities, roadway improvements, curbs, gutters, sidewalks, elevated or structural pedestrian walkways, landscaping, landscape irrigation, signing, striping, joint trench and streetlights. All design and construction shall conform to the latest edition of the City of Sebastopol Design and Construction Standards and other applicable codes, standards, guidelines and specifications. Public improvement drawings shall be drafted in the City-approved sheet format.
24. Once approved by the City Engineer, the applicant shall submit PDF files of the signed improvement plans. As-Built record drawings shall also be submitted as PDF files.
25. Deviations from City Standards and applicable Code requirements shall be approved by the City Engineer. The applicant’s engineer shall request all design exceptions in writing.
26. Any improvements, public or private, damaged during construction shall be replaced, Agenda Item Number 2 Agenda Item Number 2
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by the applicant, in-kind or with new improvements. All cracked, broken, or uplifted sidewalk, driveway and/or curb and gutter fronting the property shall be replaced.
Applicant shall coordinate with the Public Works Department prior to the first submittal of project improvement plans to identify the extents and limits of replacement.
27. An erosion and sediment control plan are required as part of the building permit application. The plan shall be prepared by a certified erosion control specialist and in full compliance with CASQA standards, The plan is subject to review and approval by the Engineering Department prior to the issuance of the building or grading permit. No modifications to the approved plans shall be made without approval of the City Engineer.
28. Mailbox plans and locations shall be approved by the Sebastopol Postmaster prior to improvement plan approval. The developer shall provide a letter and exhibit showing mailbox locations from the Sebastopol Postmaster approving mailbox locations.
29. City Public Water and Sewer and Drainage utility easements as required by the City Engineer utility companies shall be provided within the development. Easement locations shall be subject to review and approval by the City Engineer.
Roadway Improvements:
30. The improvement plans for the first phase of development shall include and provide for the construction of all offsite improvements as required to support full project buildout. Each subsequent phase of development shall construct sufficient onsite roadway and utility improvements to support the cumulative development proposed to be constructed as approved by the City Engineer.
31. Road closures, if permitted by the Project Approval, will only be permitted with prior authorization from the Public Works Department consistent with the City's road closure policy. Signs containing details of the proposed closure must be posted 48 hours in advance. Coordinate road closures with the Sebastopol Public Works Department.
Contact the Public Works Department at 707-823-5331 to obtain a road closure permit.
32. An emergency vehicle access, meeting the requirements of the Sebastopol Fire Department shall be constructed.
33. All private driveway areas less than 24-foot wide shall require the approval of the Sebastopol Fire Department.
34. Sidewalk warps shall be provided to allow a clear five-foot walkway at all locations, including areas where mailboxes, street furniture, streetlights, street signs and fire hydrants are to be installed, or as otherwise approved by the City Engineer.
35. The structural section of all public road improvements shall be designed using a soil investigation which provides the basement soils R-value and expansion pressure test results. A copy of Geotechnical report and structural section calculations shall be submitted with the first improvement plan check.
36. The structural section of the private on-site drive aisles and parking areas shall meet the requirements and recommendations of the geotechnical report for the project.
37. Retaining walls and retaining curbs may be required to protect damage to trees as determined by a licensed Arborist. All retaining structures shall be designed and Agenda Item Number 2 Agenda Item Number 2
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constructed to minimize damage to trees.
38. Pedestrian curb ramps, meeting City standards and current accessibility requirements, shall be provided at all intersections and crosswalks where sidewalks are proposed.
Drainage Improvements:
39. All project related flooding impacts shall be mitigated by the project developer.
Drainage improvements shall be designed by a Civil Engineer registered in the State of California in accordance with the Sonoma County Water Agency's Flood Management Design Manual (FMDM). Public and private drainage improvements shall be shown on the improvement plans and the City Engineer may require the applicant to acquire the review and recommendations by the Sonoma County Water Agency (Sonoma Water) prior to approval by the City Engineer. Private storm drain easements will be required for any portions of the private storm drain not entirely located with the lot being served or for any portion of a private utility located on an adjacent parcel.
40. No lot-to-lot drainage will be allowed between the project site and any adjacent parcels. No concentrated drainage may discharge across sidewalks. All site drains must be connected to the public storm drain system or discharged through the face of curb or to an established waterway.
41. Plans and certifications shall demonstrate compliance of all improvements, including building finished floor elevations, with the City's Flood Ordinance, to the satisfaction of the Building Official and City Engineer. Building finished floor elevations shall be constructed at a minimum of 2 foot above the 100-year storm event water surface elevation as determined by the City and certified by the project engineer. The Engineer of Record shall provide a signed and stamped letter indicating the project meets the requirements of the Ordinance before plan approval.
Stormwater Quality:
42. Projects that create or replace 10,000 square feet or more of impervious surface area are subject to design and construction requirements of the most recent edition of City of Sebastopol Low Impact Development (LID) Technical Design Manual.
Improvement plans with required LID design features shall be approved by the City Engineer.
43. Projects that will disturb 1.0 acre or more of developed or undeveloped land shall provide evidence that a Notice of Intent (NOI) has been submitted by the applicant and received by the State Water Resources Control Board for a General Construction Activity Storm Water Permit. Two copies of the project Storm Water Pollution Protection Plan (SWPPP) shall be provided to the City prior to issuing a grading permit, encroachment permit, or building permit.
44. For required LID features constructed on private property or on street frontage, the owner shall provide a Declaration Letter to the City Manager regarding the owner’s commitment to ongoing maintenance of said LID features (LID Declaration) prior to occupancy.
Grading:
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45. The improvement plans shall include a site-grading plan prepared by a Civil Engineer registered in the State of California as part of the required improvement drawings. Lots shall be generally designed to drain to public and private streets or parking areas, unless otherwise approved in the interest of tree preservation or other unusual circumstances.
46. The City of Sebastopol shall require a grading permit for projects that meet these requirements.
a) Cut or fill exceeding 50 cubic yards
b) Cut or fill greater than 3 feet in depth
c) Cut creating a cut slope greater than 5 feet in height and steeper than 2 units horizontal to 1 unit vertical
d) Fill intended to support a structure or surcharge greater than 1 foot in depth or placed on terrain with a natural slope steeper than 15 percent
47. When required by the Building Official the applicant shall submit to the City for review and approval, a detailed Geotechnical Report prepared by a Geotechnical Engineer registered in the State of California. The grading plan shall incorporate the recommendations of the approved Geotechnical Report.
48. Where soil or geologic conditions encountered during grading operations are different from those anticipated in the Geotechnical Report, or where such conditions warrant changes to the recommendations contained in the original soil investigation, a revised soil or geologic report shall be submitted for approval by the City Engineer.
It shall be accompanied by an engineering and geological opinion as to the safety of the site from hazards of land slippage, erosion, settlement, and seismic activity.
49. Existing wells, septic tanks and/or underground fuel storage tanks that are defective or will no longer be in use shall be permanently destroyed or removed under permit and inspection by the Sonoma County Permit and Resource Management Department, Well and Septic Division and/or Sonoma County Environmental Health or other designated agency. Underground fuel storage tanks are subject to UST regulations of the State Water Resources Control Board.
50. The grading plan shall clearly show all existing survey monuments and property corners and shall state that they shall be protected and preserved. Should monuments be damaged or destroyed during construction, they shall be replaced by the developer.
51. Improvements plans shall include an erosion control (winterization) plan. The plan shall include an order of work and staging/scheduling component indicating when facilities must be installed and when they may be removed.
52. Sewer services and laterals shall be CCTV inspected to determine if the service needs to be removed and replaced. A copy of the CCTV report shall be provided to the City Engineer. A waiver for CCTV inspection may be waived by the City Engineer, if the sewer lateral has been replaced within ten years of the submittal of the improvement plans. A copy of the documentation evidencing such replacement shall be included in the submittal package.
53. If the proposed project is located in or adjacent to a waterway, within an area designated as habitat for threatened or endangered species, or other special status Agenda Item Number 2 Agenda Item Number 2
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area, it possibly falls under the jurisdiction of another agency such as the United States Army Corps of Engineers, the California Regional Water Quality Control, or the California Department of Fish & Wildlife, U. S. Fish & Wildlife Service, etc. These agencies shall be contacted to determine if the project lies within their respective jurisdictions. All necessary permits and/or approvals shall be obtained prior to the City issuing any permits. If permits are not required, a letter stating so shall be submitted to the City as part of the record.
54. Trees and vegetation shall be trimmed according to Section 8.12 of the Sebastopol Municipal Code. Trees and shrubs shall be kept trimmed so that the lowest branches projecting over public properties provide a clearance of not less than eight (8) feet over sidewalks and not less than twelve (12) feet over streets.
Fire Department. Standard Conditions of Approval:
55. The address shall be posted in accordance with requirements of the California Building Code and California Fire Code. The Fire Chief shall review and approve all requests for new addresses. Inspection and signoff of address posting shall be coordinated through Building Department.
56.Smoke and CO detectors shall be installed in accordance with the California Building Code. Final inspection and signoff of smoke detectors shall be coordinated through Building Department.
57. Noncombustible roofing shall be provided for:
a. All new roofs shall be non-combustible.
b. Roof Repairs or replacement:
i. Less than 25% - no requirement
ii. 25Hr to 50% - Class C minimum
iii. 50% or more — Non-Combustible
c. In no case shall the roofing material used to be less fire resistive than the existing roof.
NOTE: A "noncombustible" roof is a Class A roof (for other than Group R Occupancies, a Class A or Class A assembly) as defined in the California Building Code and approved by the Building Department.
58. Prior to occupancy, a spark arrester shall be installed on the chimney(s) 3/8" mesh minimum.
Building Department Standard Conditions of Approval:
59. All construction shall comply with all applicable Title 24 Codes in effect at the time of building permit submittal. It is the responsibility of the designer(s) to ensure that all applicable Title 24 codes, as well as any applicable Sebastopol Municipal Codes are incorporated into the design.
60. The project shall comply with the Green Building regulations contained in the Sebastopol Municipal Code that are in effect at the time of building permit submittal.
END OF STANDARD CONDITIONS OF APPROVAL
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2022-60
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
ATTACHMENT 9
APPEAL FROM JESSE HOM-DAWSON AND
ADDITIONAL COMMUNICATIONS FROM
APPELLANT AND APPLICANT
Please accept this appeal to the decision made by the Sebastopol Planning Commission regarding the approval of an alcohol use permit in Lowell Sheldon’s name for 7233 Healdsburg Ave, a restaurant named Piala. I believe the Planning Commission’s decision to provide him with a conditional license was made in error due to the following reasons.
Background
In Planning Director Kari Svanstrom’s initial response to Sheldon’s application, she cites Municipal Code 17.415.030 B, which states: “The establishment, maintenance, and operation of the use applied for will not, under the circumstances of the particular case (location, size, design, and operating characteristics), be “detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the area of such use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City.” In her opinion, this criterion was not met due to over ten former employees of Lowell Sheldon speaking out publicly of sexual harassment, toxic workplace, as well as illegal practices such as the serving of alcohol to underage workers (City of Sebastopol Planning Commission Staff Report, June 28, 2022).
City staff and Planning Commission agreed that Sheldon poses a risk to the health and safety
The damning allegations against Lowell Sheldon have been printed in multiple news sources (The Bohemian, The San Francisco Chronicle, and The Press Democrat to name a few), and been verified by multiple fact checkers. There is also a police report detailing Sheldon’s assault of a woman while he was under the influence. I am not here to convince you that Sheldon is “detrimental to the health, safety, peace, morals, comfort, and general welfare of our community”. This determination is clear, and has been voiced by almost all the members of the Planning Commission during their public meeting on June 28th, 2022. Commission Member Paul Fritz said, “What the planning commission has to find is that the operation of this restaurant with its alcohol license will not harm people in the community. At this point I don’t know If I can say that.” Commission Member Evert Fernandez echoed his sentiments, saying, ““Would I feel comfortable to have my daughter work there? The answer is that I couldn’t say honestly I would.”
The burden of proof was placed on Sheldon
By filing an appeal, the burden of proof was placed on Sheldon to prove that he is NOT detrimental to the health, safety, etc, of employees and customers alike. The members of the Planning Commission agreed that he failed to prove this. The administrative record includes documentation that Sheldon continued to harass and intimidate the former employees who shared their experiences in advance of the June 28th hearing. The commissioners also expressed concern that Sheldon failed to accept responsibility for his actions, without which, it is unreasonable to expect his future behavior will be different. If the Planning Commission believed he was not a danger, they would have completely overturned the initial staff decision.
However, they did not. As such, Sheldon did not meet the criteria for Svanstrom’s original decision to be overturned.
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
Conditions must adequately address the threat and be enforceable The Planning Commission reluctantly agreed to attempt to mitigate the possibility of Sheldon causing future harm by placing several provisions on the conditional license they agreed to approve on July 12th. Their original proposal was that Sheldon (City staff in the June 28th hearing) not be allowed to set foot in Piala, which he refused. The final provisions include Sheldon not being allowed to serve or consume alcohol on the property and he may not participate in any direct management of the employees. Comments by Commissioners included, ““There are many eyes on this project,” said Paul Fritz. “I think the community is monitoring this.” Kathy Oetinger stated, “I feel like we would be leaving the enforcement up to Mr. Berlin and Mr. Sheldon.”
Please consider for a moment what this would look like. Anyone who would choose to dine at Sheldon’s establishment would not be the community that would be willing to monitor this condition, and the community members who would be willing will certainly not feel safe as patrons of Sheldon’s restaurant. Secondly, if they leave the enforcement to Berlin and Sheldon themselves, are they really expecting either of them to report themselves if Sheldon breaks the provision? I don’t believe it is likely that Berlin would go to the City to tell them that Sheldon drank on premise and the City should remove his alcohol license. Furthermore, considering Sheldon’s habit of intimidating and harassing employees who choose to speak up, it seems improbable that if Sheldon asked Piala’s employees to serve him alcohol that they would feel comfortable saying no, or even if they witnessed Sheldon himself serving the alcohol they would be reluctant to report.
When the provisions are considered in a realistic manner, it is clear that they place an unfair burden on the community. It is not the responsibility of the community or the offender or offender’s business partner to enforce these provisions, it is the city’s responsibility. And if they cannot enforce those provisions, then the first approval should be overturned.
Recommendations to use discretion and authority
In lieu of a conditional permit, I and the other victims suggest the following alternatives:
● Deny the license for one year. In one year, allow Sheldon to return to the Planning Commission with evidence that he has taken meaningful steps to understand the risks of drug and alcohol use in the workplace and is no longer a threat to community health and safety by holding a license to sell alcohol.
● The second alternative is that Sheldon remove himself from any ownership of Piala. The former businesses he was associated with have all removed him as owner because of past behavior and the risk he posed. Jeff Berlin has stated many times in the June 28th meeting that he plans on doing most of the work alone, and Sheldon would only come in if they were short an employee. As multiple commissioners noted, staffing shortages Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
are extremely common in our current economy and the likelihood that Sheldon will frequently be needed is high.
● Sheldon could maintain his role as owner but be banned from being on premises based on Planning Director's initial recommendation in the June 28th hearing for a minimum of one year. Berlin stated multiple times in the June 28th hearing that he was fully capable of running the restaurant without Sheldon’s help.
All alternatives mitigate the damage that Lowell could cause to the Sebastopol community, which could be the harm of another employee that could be traumatic and cause lasting mental, emotional, or physical damage. Twelve years of this sort of behavior shows a pattern of using his position of owner to manipulate and abuse other employees. The liability not only to Berlin but to the the City of Sebastopol for approving this unenforceable conditional license is too high to risk another person being harmed. Please reconsider the Planning Commission’s decision.
We ask that the city be provided with the full administrative record of the previous application, denial and appeal with all supporting documents in advance of reviewing this matter. We only seek to keep our community safe and prevent any future harm.
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
From: Naomi Minturn <[email protected]>
Sent: Wednesday, August 24, 2022 3:03 PM
To: Kari Svanstrom; John Jay
Cc: Patrick Slayter; Neysa Hinton; Una Glass; Sarah Glade Gurney; Diana Rich Subject: Appeal Planning Commission Decision to Approve Alcohol Use Permit for Piala LLC
Attachments: Public comment attachments.pdf; Survivor_Supporter Letter to Sebastopol City Council.pdf
Dear Patrick Slayter, Neysa Hinton, Una Glass, Sarah Glade Gurney and Diana Gardner Rich:
We are writing to you as a group of survivors and supporters to express our concerns regarding the alcohol use permit for Piala LLC. Some of us have personally experienced Lowell Sheldon’s abuse as former employees. The administrative record leading up to the Planning Commissioners June 28, 2022 appeal hearing contains a detailed account of our concerns that the proposed use “will adversely affect the health safety and welfare of area residents” and we do not believe the applicant met the burden of proof to demonstrate otherwise. In addition, the conditions of approval are unenforceable and do not provide sufficient protection to potential employees or patrons of Piala or to area residents. We are seeking only to prevent another woman in our community from having to experience a life-altering trauma. We ask you to use your authority to:
1. Deny the conditional approval of the proposed Alcohol Use Permit or
2. Prohibit Lowell Sheldon from entering the restaurant premises With Sheldon as Owner, an Alcohol Use Permit for Piala will Affect the Safety of Residents
Planning Director Kari Svanstrom’s initial response to Sheldon’s application cites Municipal Code 17.415.030 B, which states: “The establishment, maintenance, and operation of the use applied for will not, under the circumstances of the particular case (location, size, design, and operating characteristics), be “detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the area of such use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City.” In Svanstrom’s opinion, this criterion was not met due to eleven former employees of Lowell Sheldon speaking out publicly of sexual harassment and a toxic workplace, as well as illegal practices such as the serving of alcohol to underage workers (City of Sebastopol Planning Commission Staff Report, June 28, 2022).
As former employees, we experienced and witnessed these violations first-hand. By filing an appeal to the Planning Commission’s initial denial of the application, the burden of proof was placed on Sheldon to prove that he is NOT detrimental to the health, safety, etc, of employees and customers alike. The members of the Planning Commission agreed that he failed to prove this. As Commissioner Fritz stated:
“I do really have concerns about Mr. Sheldon’s involvement at this point and what it could mean to the health, safety and welfare of the workers at the restaurant.” Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
Our first-hand experiences with Lowell Sheldon as an Owner at multiple establishments negatively affected our health and well-being and we witnessed co-workers and community members suffer from his actions over the course of years. We have seen no evidence of his purported change or growth as we stated in our statements to the Planning Commission at the June 28th, 2022 hearing (see attachment). Many of the Commissioner’s shared our concerns:
Commissioner Fritz stated:
“He has not learned and he is not respecting people’s boundaries.” “From what I’ve seen and heard tonight, I don’t know that I believe that Lowell is a changed person.”
“I can’t say Lowell is a changed man, and that I have no problem or no concern that he will not be a threat in the future. I just don’t have that… understanding.” Commissioner Burns expressed similar doubts:
“I feel very uncomfortable with a lot of the comments tonight, leading me to believe, not only does Lowell not take what happened, and has done his piece in, um, his own self, you know, but also that his supporters haven’t.”
“We heard that, you know, that he has worked very hard to change, but we saw little evidence of that. As I stated, we saw evidence to the opposite.”
“We’re talking about women who have been violated and someone mis-using their power.” “I wish we were in a situation where, as our lawyer said, where he had proven to us as a Commission that he has changed.”
On August 23, 2022, Mr. Sheldon used the email list for one of his former restaurants to share the letter he sent to the Sebastopol City Council. He opens this letter by stating, “I am innocent of all accusations of sexual harassment and assault.” In fact, an independent investigation was completed by Susan Daniel of Employee Relations Consultants to investigate claims of sexual harassment while Mr. Sheldon was a co-owner at Fern Bar and found that policies had been violated. An email dated November 26, 2019 from co-owner Sam Levy to a victim states:
“Ms. Daniel interviewed numerous witnesses, and reviewed documents, emails, texts and video footage and ultimately concluded that Mr. Lowell’s [sic] conduct violated Fern Bar policies. Rest assured, Fern Bar will be taking proportionate, remedial actions to prevent such violations in the future.”
In Mr. Sheldon’s letter to the Council he cites that one of his main lessons from “extensive therapy” has been to learn how to make a genuine apology and refuse to apologize for mistakes he has not made. To date, none of us have received an apology for the tremendous harm he has caused us that was not couched within a threat. He has yet to take responsibility for anything other than running his business in a “sloppy manner” or having “flaws.” Rather than Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
acknowledge the effects his actions had on his employees and the damage that caused, he constructs a narrative wherein he himself is a victim of the MeToo movement.
We ask that the City of Sebastopol please consider the long-lasting effects that workplace harassment, abuse and sexual assault have on survivors in your review of this matter.
Conditions Must Be Enforceable
The Planning Commission reluctantly agreed to attempt to mitigate the possibility of Sheldon causing future harm by placing several provisions on the conditional license they agreed to approve on July 12th. The Draft Conditions of Approval stated:
2. Applicant shall not permit Lowell Sheldon to exercise, directly or indirectly, any personnel - related responsibilities in connection with the ownership, management, or operation of the subject business, including without limitation:
a. the hiring, training, management, supervision, review, discipline, or termination of any employee; or
b. the fielding, review, investigation of, or response to any employee complaints or concerns.
3. Applicant shall prohibit Lowell Sheldon from serving or consuming alcohol in any capacity while on the premises.
These conditions fail to mitigate the risk that this project will adversely affect the health, safety or welfare of area residents and are unenforceable. Many of the Commissioners noted the limitations of these conditions.
Commissioner Burns stated:
“I haven’t seen him demonstrate the ability… If it (conditions) doesn’t (work), another woman has been at the end of that, and I am just not willing to be the person to say OK, let’s see if this time he can adhere to it.”
“This is a history of violation after violation and so I am not comfortable with making the condition that he won’t be there, because I haven’t seen him show us that he has respect for these, um, rules when they’re set in place.”
Commissioner Fernandez stated:
“I don’t know that any conditions can be placed to ensure that, other than (Sheldon) not being part of it.”
“It’s not a decision where, OK, if it don’t work out, you know, it’s unfortunate. It’s, we’re talking about people’s lives.”
Enforcement would be left to Co-Owner Jeffrey Berlin who stated to the Planning Commission in the July 28th meeting, "I wouldn’t even see it as something that would even need to be enforced.”
Mr. Berlin would have a significant conflict of interest in reporting any violation of the condition.
Reporting a violation would result in a personal and professional financial loss to Mr. Berlin.
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
Any employee who witnesses a violation would face significant risk in reporting, even with an outside HR firm in place. As we know from experience, speaking out against Mr. Sheldon carries significant consequences to livelihood, safety, relationships and personal well-being. It is not the responsibility of employees to monitor the adherence to such a condition.
During the June 28, 2022 Planning Commission hearing it was proposed that Lowell Sheldon be prohibited from entering restaurant premises. We believe this condition to be enforceable and that it would mitigate the risk that this project will adversely affect the health, safety or welfare of area residents.
We ask you to deny the Permit or place the condition that Mr. Sheldon is prohibited from entering the establishment.
Summary and Personal Statements
We have lived and worked in Sebastopol for years – some of us grew up here, and all of us consider it our community and our home. We have witnessed and experienced harassment and assault by Lowell Sheldon. We are seeking only to prevent another woman in our community from having to experience a life-altering trauma. We believe that his involvement in Piala as an establishment that serves alcohol poses a significant risk to our community and ask you to uphold your responsibility to protect the area residents. We ask that you:
1. Deny the conditional approval of the proposed Alcohol Use Permit OR
2. Prohibit Lowell Sheldon from entering the restaurant premises Sincerely,
Leah Engel
Freddie Francis
Jacqueline Gleason
Ray Gonzalez
Jesse Hom-Dawson
Alexandra Lopez
Naomi Minturn
Attachment: Selected Public Comments from June 28th, 2022 City of Sebastopol Planning Commission Hearing
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
1 Application: Alcohol Use Permit/ABC Transfer (2020-22) Applicant: Piala, LLC
Date: August 31, 2022
I address this to the Sebastopol City Council, News Media, and to the public at large.
I am innocent of all accusations of sexual harassment and assault.
Since these allegations came out in September 2021, I have remained largely silent, and was ready to move on. I thought, erroneously, remaining quiet and compliant was the right and honorable thing to do, a way for me to keep the peace and preserve whatever semblance of a dignified person I still could.
But, as someone who has spent every day of the past year, introspective, contemplating all sides and nuances of these allegations, I have come to conclude that staying quiet and maintaining a stiff upper lip is not the solution and never will be. The only way for me to move forward with my life with a true sense of dignity and self-respect is to speak the truth and share my side of the story.
Before I begin, I will be the first to admit, I’m no angel. I am complex and flawed. I have a stack of mistakes and miscues along with the lessons learned from them, stored deep in my memory bank. I’ve always sought to be a man who apologized directly to those I have slighted. My entire life has been one long process of reconciling my present with my past, and growing into the future person I hope to be. With God as my witness.
Though I’m no angel, I’m also not the cartoonish predator I’ve been made out to be. While I am more than willing to take complete ownership of the mistakes I did make, I resolutely refuse to take ownership of the ones I didn’t. One of the most significant lessons I’ve taken away from my extensive work in therapy is that I now know how to genuinely apologize and atone for the mistakes I have made - as well as know that I cannot apologize for those I haven’t. For that lesson alone, there are days when I can truthfully say this experience, as painful and humiliating as it’s been, might be one of the best things to ever have happened to me. The strange truth of it is it’s made me a better, more authentic person.
Before I got there, though, I was willing, too willing, to throw out an apology whenever one was expected of me. Too willing to unthinkingly accept the blame cast upon me while too unwilling to speak up when the alleged victims and the newspapers that aided and abetted them distorted events and twisted the facts to suit their needs. Looking back, I have to ask myself why I was so ready to self-gaslight and absorb blame for crimes I knew I hadn’t committed.
For one thing, I didn’t believe I had any other real options. In our current culture, where the court of public opinion is the only one that matters, what kind of person would I be if I didn’t “believe women”? If I, or anyone for that matter, were to argue with an alleged “victim”, I’d be Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
2 doubtlessly seen as an unreasonable monster. It was an additional misstep to add to the list of all the other “sins” I had already been accused of. If I didn’t deny the allegations, I was damned because I would be agreeing I was guilty, and if I did deny them, equally damned, because it would imply I thought that these women were lying - the most unacceptable and morally reprehensible thing to think at the time. It’s a trap. And I was trapped. Finding the language today to speak about this with humility and resolve, has been liberating. Understanding the specifics of how my accusers’ way of thinking is broken and how the point was to keep me (and everyone else) from asking too many questions - or otherwise face the very real consequences of being canceled - makes me want to speak up more. Lifting the veil on this has revealed to me many truths both broad and particular. On a broader level, I hate how this broken thinking has eroded due process and stripped us of one of our foundational truth-seeking tools. I hate how it favors a cruel and sensational mob justice. I hate how it has made us blindly compliant, unthinking and, worst of all, glorify shame and shaming. And I, for one, am done being shamed.
Particularly for things I have not done. In no way and in no world am I ready to fall on my sword, have my reputation raked over coals, name smeared beyond recognition, lose my ability to start a business and provide for my family over crimes I didn’t commit or over infractions so minor, no one would ever look at them.
My detractors would have you believe that if I don’t buy into their zealous worldview, I should be forever punished and cast out. They get to play both victim and judge, controlling the cause and effect, handing down judgment that I am guilty, even though I have never been investigated or convicted of anything. That isn’t justice. It’s a personal vendetta masking as justice.
I was targeted and unfairly rammed into this narrative for several reasons. One, I was the boss.
And in this cultural paradigm, having “power” alone is as good as an indictment. The justice merchants of today sell the idea that “power” is mysterious, pervasive and drives every angle of our lives. And that it underpins each and every interaction between men and women, boss and employee. They would have us believe it is top down and impenetrable. This incomplete notion of power feeds into a pernicious victimhood mentality. In reality power is fluid, and runs in all directions. In reality, we all have agency. We have the agency to choose what to engage with or disengage from. We can see power as either a tool of oppression or a path to liberation. It can be everything or nothing. It is whatever we project onto it, and in this instance, this particular definition of power was abused by some to portray themselves as helpless victims, when in reality, they had agency. They could have chosen to have straightforward conversations in an effort to pursue genuine understanding. They could have chosen to litigate those accusations in our robust legal system. Instead they chose to wield their power on social media and via journalists, who have significantly more power than I ever had, to tear me down.
Was I always a great boss, each and every day, for twelve years? No. There are many things I wish I could go back and change about how I ran Lowell’s. But my deficiencies as a boss never overlapped with abusing my power. The overtone of this entire ordeal is a presumption that I wielded power in order to coerce people into doing things. It’s a false premise and one that needs to be discarded. Those that stayed into the evening to have a few drinks after work did Agenda Item Number 2 Agenda Item Number 2
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3 so happily. Those that worked at Lowell’s did so willingly, and could have left at any time to find another job. Indeed, many did, over the years, for a variety of personal reasons. The only reason people ever stayed working at Lowell’s was because they chose to. Because it was a truly decent place to work.
And the other reasons? Here, it gets hazier. To get to the bottom of everything that has happened, I have to recognize that there’s another, truer story beneath this one. The understory might be an overshare, but I think it’s one that’s essential to tell: while I was with my partner, who was my partner both in life and in business, I had an affair. And to make matters worse, this affair was with an employee. We all know the damage that affairs lay to bear and this one was no exception. However, the awfulness of my betrayal must not be confused with sexual harassment or predatory behavior. It was consensual, and because of our callowness, we chose a path of dishonesty.
The affair not only tore apart my family in the most impossibly painful way, but the aftershock of this seismic event also rippled out underground to shake the foundations of our businesses, and the employees felt this. It redefined how employees viewed me.
I bring this painful and intimate part of my past up because I believe these two things - the affair and the sexual harassment allegations - got coiled together and became impossible to decouple. As MeToo grew larger and more diffuse, to encompass everything from rape to a disappointing date, thus equating their seriousness, MeToo became a catchall term for “men doing bad things to women”, whether that bad thing is sexual assault or making someone mildly uncomfortable or having an affair. Although my affair was a separate thing entirely, it dumped me squarely in the “men behaving badly towards women'' category. The affair shocked many of my employees and tested how they saw me. If I was capable of cheating on my partner, then what other ugly man things was I capable of? Of course, no one spoke openly of the affair at work; it existed in the basement world of rumors, as these things do, the rumor growing insidiously in chaotic and malignant ways.
Rightly so, many of the staff had a strong urge to protect my former partner. I suspect that this protective impulse, coupled with the burgeoning MeToo movement, created the perfect conditions to day-by-day mold me into a sexual predator. It was the perfect set-up for employees, especially those carrying their own pain and trauma, to now view me with new eyes and an out-and-out contempt. Of course, my shortcomings and flaws as a manager early on didn’t help. What started out as a very private personal betrayal slowly became a collective one.
The affair had ended one year before I made my now infamous “sit on Daddy’s lap” comment.
A crude and very regretful comment to be sure, but on the whole, a comment too feeble to hang an entire sexual harassment interrogation on. But it’s like that saying about going bankrupt, how it happens gradually and then suddenly. That comment was the suddenly. If employees had been quietly simmering with suspicion and contempt, that comment led to the boil over. Anyone had the greenlight now to openly skewer me. Not only skewer me but revise Agenda Item Number 2 Agenda Item Number 2
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4 history with abandon. Any and all stories welcome, however distorted, untruthful or selfserving. Run-of-the-mill work activities, like bumping up against someone in a tight kitchen space or a friendly hug or a picture taken while picking plums, were now loaded with dark meaning, anything even slightly questionable now reframed as something mimicking sexual harassment. And the rest, as we all know, is history.
I will say this again: I have never sexually harassed or assaulted anyone.
I am aware that my version of events and the conclusions that I’ve drawn from them might be controversial or seen as denial. A way to absolve myself of the wrongdoing assigned to me. But nothing could be further from the truth. I come to these complicated conclusions from a daily reckoning of the hard truths, a mirror held up firmly to my face, even on days when my heart would rather fail me. In fact, I welcome a good-faith discourse or, better yet, going through a formal process where both sides can ask the hard questions and are accountable to the answers.
I have been made out to be a sexual predator because some of my former employees harbor negative feelings about me. I believe they dislike me not because I harassed them but because I betrayed my partner (and for various other mundane reasons why people dislike each other).
There was nowhere to put these bitter feelings, and MeToo gave them the perfect place to express it. And an overzealous media hungry for a piece of the MeToo pie swallowed this story hook, line and sinker.
Ultimately, I write this not to exonerate myself but to give you, members of City Council, a fuller picture, one that now includes my side of the story, in hopes that it will bring us to a fuller and more balanced understanding. I know that a true exoneration is impossible. My name will still be left to rot on the forever internet and the stain of being an alleged “sexual predator” will never really wash clean. Instead, I write this, humbly, to ask you to keep an open mind to the intricate truths that underlie these matters, and to grant some mercy as I attempt to start again.
Throughout this past long, difficult, painful year, I have been girded by these words by Salman Rushdie: “Those who do not have power over the story that dominates their lives, power to retell it, to rethink it, deconstruct it, joke about it, and change it as times change, truly are powerless.” I will keep striving for that personal power by telling my story, by integrating my past with the present, all the while seeking truth and staying close to my own fallibility.
Thank you,
Lowell Sheldon
Agenda Item Number 2 Agenda Item Number 2
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HAROCHE LAW
p: (707) 814-0028 f: (707) 289-7996 [email protected] 121 North Main Street, Ste 210 Sebastopol, CA 95472 www.haroche.law
August 24, 2022
Sebastopol City Council
7120 Bodega Avenue
Sebastopol, CA 95472
Re: Piala Use Permit (2022-020): Response to Appeal
HL no. 213-01
Dear City Council Members:
I am writing on behalf of Piala, LLC and its principals Lowell Sheldon and Jeffrey Berlin in response to the appeal filed by Ms. Jesse Hom-Dawson. 1 Introduction
The appeal, as Appellant states in her letter, is premised on "allegations against Lowell Sheldon…printed in multiple news sources" (emphasis added). The operative word here is “allegations.” No criminal charges were ever sought nor any sheriff’s investigation ever commenced.2 No complaint was ever filed with the Department of Fair Employment and Housing and no civil lawsuit was ever brought. The allegations against Lowell, which he has vehemently denied, were never subject to crossexamination, never weighed in any forum against Lowell’s testimony, and never adjudicated. These are not facts but unchallenged accusations by individuals seeking 1 The subject use permit was originally applied for in the name of Lowell Sheldon, acting on behalf of Piala, LLC. In accordance with the Planning Commission’s approved condition, the applicant is to be modified to be Jeffrey Berlin.
2 Appellant misleadingly refers to a “police report detailing Sheldon’s assault of a woman while he was under the influence," but that document, a half page in length and heavily redacted, is no more than a business record of a complaint having been received by the Sheriff’s office. The individual made the report two years after the alleged incident occurred and timed to the day to coincide with publication of an article about Lowell in The Bohemian.
The reporting individual never followed up on her complaint.
Agenda Item Number 2 Agenda Item Number 2
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Sebastopol City Council
August 24, 2022
to elevate what they perceive as boorish behavior to the level of a criminal threat to Sebastopol residents and visitors.
3 We do not intend, however, to litigate these accusations before the Council because the sole issue before you is whether granting Jeffrey Berlin an alcohol permit for Piala restaurant would adversely affect the health, safety, or welfare of the community. The answer is that it would not and the conditions we have proposed, and which staff supported and the Planning Commission approved, will ensure as much.
Any Perceived Risk from Permit Issuance Has Been Eliminated Appellant misrepresents that the Planning Commission "agreed that Sheldon poses a risk to the health and safety." It certainly did not and its findings nowhere suggest as much. Indeed, the Commission could not have legally approved the permit had it found, as Appellant contends, that the proposed use would pose such a risk.
What the commissioners did agree on was that they did not want to adjudicate the veracity of the accusations leveled by Appellant and others, so they instead accepted staff’s and Applicant’s proposed conditions designed to eliminate any perceived risk posed by Lowell’s part-ownership of Piala, LLC.
Specifically, the use permit was approved subject to a number of unusual and stringent conditions including:
3 This is not to say that Lowell has always acted impeccably (he has not) but he has acknowledged, examined in therapy and in restorative justice work, and apologized repeatedly for his lack of boundaries with former employees. Earlier this year, for instance, he wrote to Appellant:
I continue to be deeply ashamed of the comment I made to you. It is a north star for me and will always be at my side to remind me never to be inappropriate with employees in the future. I wish you peace as you move forward in your life.
Appellant responded to this apology by taunting Lowell that "[n]ow hundreds of our supporters know what a cowardly sack of shit you are."
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
Sebastopol City Council
August 24, 2022
• All personnel matters, including employee complaints, will not be handled by Lowell or his partners but instead by an outside human resources firm.
• Lowell shall not "exercise, directly or indirectly, any personnel related responsibilities in connection with the ownership, management, or operation of the subject business."
• Lowell shall be prohibited from "serving or consuming alcohol in any capacity while on the premises."
• Violation of either of the latter two conditions "may, by itself, constitute a ground for revocation of the subject use permit."
Reasonableness of Proposed Conditions
Permit conditions must bear a sufficient nexus to the projected burden (or risk) of the proposed development (or use).4 In this case, it bears noting that Lowell could, without any use permit, still work as the on-site manager and staff supervisor of any “dry” food establishment in the City – in which case the City would have no authority to consider, much less address, the behavior he is accused of having committed between 3 and 9 years ago.
It is only the pending alcohol use permit application which affords the City this opportunity to review that past (alleged) conduct. Yet even then, it must still make findings that the “proposed use” – i.e., the sale of alcohol – would “adversely affect the health, safety or welfare of area residents."5 6
4 Associated Home Builders, Inc. v. City of Walnut Creek, 4 Cal. 3d 633, 644 (1971); Ayres v.
City Council, 34 Cal. 2d 31, 42 (1949).
5 City Code § 17.350.020.
6 The City is legally required to base its decision on findings and those findings in turn must be supported by “substantial evidence.” Code of Civil Procedure § 1094.5. Analogizing to the CEQA context, “substantial evidence” means “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." 14 CCR § 15384 (b).
Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022
Sebastopol City Council
August 24, 2022
Given that fact, our approach, which both staff and the Commission found to be reasonable and realistic, is to separate alcohol from Lowell’s involvement altogether and thereby provide a complete mitigation of the perceived risk posed by the presence of alcohol.
7 In other words, once we completely divorce Lowell from any interaction with alcohol, there no longer remains any nexus between the proposed use and the feared harm to be mitigated.
We appreciate that this application has presented a controversy different than what the Council is typically tasked with addressing, but it is critical to both this applicant and the business community at large that the City not embark on using the development process as a means to render social judgment rather than implement rational, and legally defensible, land use planning.
Thank you for your consideration of this matter.
Sincerely,
Bob Haroche
7 Appellant argues that the condition prohibiting Lowell from touching alcohol on-site places “an unfair burden on the community” to ensure compliance. But in terms of monitoring, this condition is not unlike any other imposed on a discretionary approval. City staff does not regularly patrol businesses to ensure compliance with permitted uses, hours of operation, noise levels, or any other limiting condition attached to their permit. Staff instead relies on community reporting of problematic behavior.
In this instance, with Lowell’s detractors having already undertaken a year-long news and social media campaign against him, one can safely assume that they will be highly attuned to any whiff of impropriety at Piala. As one commissioner commented, “There are many eyes on this project…I think the community is monitoring this.” Agenda Item Number 2 Agenda Item Number 2
City Council Meeting Packet of August 31, 2022