Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY (Hybrid meeting) Friday, February 24, 2023 2:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins (in chambers), Glenzer (via Zoom), Millich (via Zoom) Absent: None. Board Staff Assistant City Attorney Karin Salameh, Deputy City Attorney Christian Present: Wellisch and Clerk of the Board Alicia Salas Other Staff Harbormaster, Brian Nelson Present: CALL TO ORDER Chair Hawkins call the meeting order at 2:15 pm. CONSENT AGENDA 1. Minutes of January 5, 2023, (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 15061.) Board member Glenzer made a motion to approve the minutes of January 5, 2023. Vice Chair Millich seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 2. Minutes of January 26, 2023, (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 15061.) Board member Glenzer made a motion to approve the minutes of January 26, 2023. Vice Chair Millich seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None PUBLIC COMMENTS None.  Appeals Hearing Board February 24, 2023 Minutes PUBLIC HEARING 3. Appeal of Harbormaster’s revocation of Scott Johnson’s berth license in the Monterey Marina pursuant to Monterey City Code Section 17-7 (b) (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) Assistant City Attorney Karin Salameh said she is the attorney representing the Appeals Hearing Board. She said she has implemented an ethical wall and she has not discussed the matter with staff or any other attorney in her office. Ms. Salameh said the Department is exclusively represented by Deputy City Attorney, Christian Wellisch. She stated that she and Mr. Wellisch have not conferred on the matter. Ms. Salameh asked the Board to disclose any ex-parte contacts they may have had with the Harbormaster or the appellant, Scott Johnson. The Board Members said they did not have anything to disclose. Harbormaster Brian Nelson gave his presentation and took questions from the Board Members. Board member Glenzer asked Harbormaster Nelson how his Department has engaged with Mr. Johnson and whether granting an extension is that normal. Harbormaster Nelson said he takes each case on its own merit; he said there are different situations, different ages of the boats, availability of parts, etc. Harbormaster Nelson said in this particular case his office has had a lot of communication Johnson, with Mr. Johnson that was in-person, on the telephone and via email to try to navigate the situation. Harbormaster Nelson said the issue is that the boat is inoperable, and his office takes the complaint of raw sewage or hazmat materials leaking into the Harbor very seriously. Board member Glenzer asked Harbormaster Nelson if the boat had been leaking sewage into the Harbor which is a National Marine Sanctuary. Harbormaster Nelson said his Department has not been able to verify if the boat is leaking because it cannot be moved. Chair Hawkins said other than the fact that the boat cannot be moved what other evidence is there to show the boat is inoperable. Harbormaster Nelson said the owner’s letter says it is inoperable. Board member Glenzer asked the Harbormaster to identify the four out of five conditions that Mr. Johnson says he has satisfied in his letter for Appeal. Harbormaster Nelson said he noted in his presentation that Mr. Johnson had corrected the fact that he had an unauthorized person living on the boat, he removed the hazardous material from the dock, and he said Mr. Johnson corrected the inability to communicate with the Harbormasters office, which is required. Harbormaster Nelson said the complaint about the sewage smell from around Mr. Johnson’s boat has not been repeated since his liveaboard status was removed. Board member Glenzer asked Harbormaster Nelson to explain the fifth condition that Mr. Johnson needs to improve. Harbormaster Nelson said it is the boat’s inoperability which is the reason for the hearing. Board member Glenzer asked the Harbormaster if Mr. Johnson was currently living on his boat. Harbormaster Nelson said no, he is not since his liveaboard license was revoked. Vice Chair Millich asked what happens to the boat if the Board upholds the City’s position. The Harbormaster said Mr. Johnson will have to remove the boat from the Monterey Marina. Vice 2 Appeals Hearing Board February 24, 2023 Minutes Chair Millich asked what happens if he does not remove the boat. Harbormaster Nelson said because it is a documented vessel, the City could establish a federal lien on it. Vice Chair Millich asked if Mr. Johnson removes and corrects the issues on his boat, will he be allowed to come back to the Marina if there is available space or is he barred for a period of time. Harbormaster Nelson said according to the code, and it is discretionary depending on the circumstances. He said that decision would be up to the Harbormaster. Scott Johnson, appellant, gave his presentation. He said that the Harbormaster has been working with him to get his boat to the condition that is required by the Monterey Marina, but he said he has been very ill for the last two years. Mr. Johnson said the first issue he cleared up with the Harbor Office was his outstanding balance at the Marina. He said he also corrected the communication issue, and he cleaned up the fingers around the slip where his boat is. He said he was unable to fix the pump out request to test the holding tank to make sure it was clean and not leaking into the Harbor and the Bay. Mr. Johnson said he has asked the Harbormaster for certain requests and time, and they have given him time to correct the issues. He said, however, he has not been able to complete the requests due to his illness; he said he has been focusing on his health and paying his bills. As such, he said he has not been able to meet the requirements for his boat at the Harbor. Mr. Johnson said the person who stayed on his boat only stayed for one night, but there were some issues with this person, and he said he immediately had him removed the next day from the boat. Mr. Johnson said he uses the public restrooms at the Harbor and not on his boat because he does not want his boat to smell. He said he does not know why there was a complaint about odor, he said the Harbor office knows that he uses the public restrooms because he has a key that is specific for him. He said that key gives his name, what time he went in and what time he left. Mr. Johnson said he is not sure why all these issues have been lined up for him as he can give the names of at least 30 other boats that have not moved from the Harbor, and some do not even have engines. He said these ‘things’ became problems after the interaction with the person who had stayed on his boat for one night. Mr. Johnson said he is trying to improve his health enough so he can get the boat operable and so he can make the last improvements requested by the Harbor Office. He said it is irresponsible of him and apologized for the delay. Mr. Johnson said between the procedures and his treatments, he has not been able to finish the requests made by the Harbormaster. Vice Chair Millich asked what it is going to take to get the boat operable. He asked Mr. Johnson if he had a bid for what it is going to cost to fix. Mr. Johnson said he did have a bid, but he did not have with him and that most of the bids were oral. He said he was told it would cost about $10,000.00 to fix. Vice Chair Millich asked Mr. Johnson when he thought he might have money to resolve the issue. Mr. Johnson said the problem is getting a mechanic to come to the boat. He said it is winter now and it is hard to get a diesel mechanic to come out to the boat at a rate he can afford. 3 Appeals Hearing Board February 24, 2023 Minutes Board member Glenzer asked Mr. Johnson if he was currently on the boat. Mr. Johnson said he visits the boat. He said he can stay two nights a week on the boat and does when he is working in town, otherwise he lives in his van. Board member Glenzer asked Mr. Johnson if he had looked into any non-profit groups or government programs that could help him stay on his boat, like groups that help people stay in their homes during challenging times. Mr. Johnson said he has not looked into some help, he does not know where to start, but said it is a different situation living on a boat and owning a home. Chair Hawkins asked Mr. Johnson if he had been living at the slip since 2007. Mr. Johnson said he has been living at the Monterey Harbor since 2007. Chair Hawkins asked Mr. Johnson if he removes the boat and stores it, would he be able to get the slip back? Mr. Johnson said no because there is a very long list of people who want a slip. Vice Chair Millich asked Mr. Johnson if he would take the boat to Moss Landing. Mr. Johnson said he would take it to the Moss Landing boat yard not to dock it there. Mr. Johnson said after the Decision is made, he will have to make some critical and expensive decisions regarding his situation, which he said he cannot afford. Chair Hawkins asked Mr. Johnson if he had any idea how long it was going to take to get his health back to normal. Mr. Johnson said maybe three – six months before his health may improve. Public Comments A woman, a coworker of Mr. Johnson, spoke on his behalf. She said she can verify that Mr. Johnson has been dealing with health issues. She said the smell that was complained about and was to be coming from Mr. Johnson’s boat could have come from the mass of sea lions that were at the Harbor. She said they did leave quite a smell and now there is a lot less of them and the smell has lessened. Appellant, Scott Johnson thanked the Board and took responsibility for the situation. Deputy City Attorney, Christian Wellisch, representative for the Harbor Office said the liveaboard is not at issue at the hearing. He said that was only brought up to show that the vessel has been inoperable since then and continues to be inoperable. Ms. Salameh clarified that if a liveaboard permit is revoked, there is a time period where you cannot reapply for that permit, but she does not believe that there is a similar time period for a berth license if it is revoked. However, she said, a person would have to go to the bottom of the waiting list which is a lengthy period of time. Board Member Discussion Vice Chair Millich said this is a very difficult human situation and the real issue is whether the boat can be brought into an operable status within a set period of time and the answer to that is no. Vice Chair Millich said we cannot kick the can down the road another 6-9 months and question whether the situation will be any different then. He said he does not see how he can grant Mr. Johnson’s appeal and feels that he must sustain the city’s position. 4 Appeals Hearing Board February 24, 2023 Minutes Board member Glenzer asked Ms. Salameh if the liveaboard permit had been revoked and is not in question at the hearing. He said since Mr. Johnson’s permit has been revoked, he is now at the bottom of the list to gain a liveaboard permit for his vessel. Ms. Salameh agreed with Board member Glenzer and stated there was no appeal for the revocation of the liveaboard permit so that issue has been settled. She stated Mr. Johnson would go to the bottom of the waitlist regardless of what decision is made here. Board member Glenzer reiterated for the record that the liveaboard permit was not on the board’s Agenda and not at issue at the hearing. Ms. Salameh again agreed with Board member Glenzer. Board member Glenzer said the City has done a lot, the Harbormaster has done a lot, they have extended deadlines and he would like to give Mr. Johnson one last chance, but he is not sure what that should be. Chair Hawkins said sometimes in life things change and without a definite date of when things will be normal again. He said sometimes you just have to make that tough decision, even with a heavy heart. Vice Chair Millich made a motion to uphold the Harbormasters decision. Ms. Salameh noted that the packet did not include a Proposed Decision. She clarified the motion with the Board. She asked if the Board would be finding that the vessel is currently inoperable and therefore out of compliance with Chapter 17 of the City Code and base the denial of the appeal on that. Vice Chair Millich agreed with Ms. Salameh and remade his motion. Chair Hawkins seconded the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Millich, Hawkins NOES: 1 COMMISSIONERS: Glenzer ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Hawkins adjourned the hearing at 3:16 pm 5  Appeals Hearing Board February 24, 2023 Minutes Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 6