Council Regular Meeting

MINUTES CITY COUNCIL REGULAR MEETING CITY OF MONTEREY Tuesday, November 20, 2018 4:00 p.m - 5:30 p.m. 7:00 p.m. - 11:00 p.m. FEW MEMORIAL HALL OF RECORDS, 580 PACIFIC STREET MONTEREY, CALIFORNIA Councilmembers Present: Councilmembers Albert, Barrett, Haffa, Smith, Roberson Absent: None City Staff City Manager, City Attorney, Interim Assistant City Manager, Community Present: Development Director, Public Works Director, Finance Director, Parks and Recreation Director, Police Chief, Fire Chief, Housing and Community Development Manager, Acting City Clerk, Deputy City Attorney, Property Manager, Associate Civil Engineer, Sustainability Coordinator, Associate Planner, City Manager Administrative Analyst CALL TO ORDER Mayor Roberson called the meeting to order at 4:02 p.m. PRESENTATIONS 1. Caltrans Transportation Award for the Holman Highway Roundabout (Not a Project under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 801-01) Action: Award presented Public Works Director Wittry presented the award and recognized the individuals who worked toward the success of the roundabout. Mayor Roberson opened public comments, received none, and closed public comments. 2. Recognition of Defense Language Institute Quarterly Joint Service Awards (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (City Manager - 701-17) (City Manager - 101-01) Action: Proclamations presented Mayor Roberson presented proclamations on behalf of Petty Officer 2nd Class Catherine Williams, and to Staff Sergeant Alex Badakpendou and Lance Corporal Clifford Polheber, who each made brief comments. PUBLIC COMMENTS Mayor Roberson opened the floor for public comments on non-agendized matters. Maria Magaña, Central Coast Center for Independent Living, said that Spanish language accessibility for the entire Council meeting would be a benefit to the community. Nancy Selfridge, Monterey resident, conveyed greetings from leaders in Monterey’s sister city of Lankaran, Azerbaijan. With no further requests to speak, Mayor Roberson closed public comments. CONSENT ITEMS City Manager Uslar noted that the title for Item No. 14 was amended to correctly reference APN number 031-191-003 instead of 031-091-003. Mayor Roberson opened public comments on the Consent Agenda, received none, and closed public comments.  City Council Minutes Tuesday, November 20, 2018 On a motion by Councilmember Albert, seconded by Councilmember Smith, and carried by the following vote, the City Council approved the Consent Agenda, except Items No. 4, 6, 9, and 10: AYES: 5 COUNCILMEMBERS: Albert, Barrett, Haffa, Smith, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None Approval of Minutes 3. November 6, 2018 (Not a Project under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (City Clerk - 701-09) Action: Approved Ordinances 4. 1st Reading to Amend Monterey City Code Sections 31-3 and 31-7 to Allow Temporary Advertising Banners on the Outfield Fences at Jacks and Sollecito Ballparks and Adding Signs on City Property for City Civic Events and Services and Temporary Signs During Construction to Table 31-1: Exempt Signs (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (Community Services - 701-11) Action: Pulled from Consent; Discussed; Tabled Councilmember Albert said that the high school’s sports leagues are non-profit, would have a difficult time selling advertising for a temporary period, and should receive accommodations. Mayor Roberson opened public comments, received none, and closed public comments. On a motion by Councilmember Albert, seconded by Councilmember Smith, and carried by the following vote, the City Council tabled the 1st Reading to Amend Monterey City Code Sections 31-3 and 31-7 to Allow Temporary Advertising Banners on the Outfield Fences at Jacks and Sollecito Ballparks and Adding Signs on City Property for City Civic Events and Services and Temporary Signs During Construction to Table 31-1: Exempt Signs: AYES: 5 COUNCILMEMBERS: Albert, Barrett, Haffa, Smith, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None 5. Second Reading of an Ordinance of the City Council of the City of Monterey Disestablishing the Monterey County Tourism Improvement District (MCTID) Formed Under the Parking and Business Area Law of 1989 in the County of Monterey (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (Finance - 701-11) Action: Adopted Ordinance No. 3587 C.S. 2  City Council Minutes Tuesday, November 20, 2018 6. Second Reading to Amend Monterey City Code Section 38-15(DD)(6) to Establish a Vehicle Sales, Limited, Use Classification; Section 38-40(B) to Add Vehicle Sales, Limited, as a Principally Permitted Use in the I-R Districts; Section 38-41 to Add a Supplemental Regulation Requiring Compliance with Airport Land Use Commission Avigation and Hazard Easement Conditions, as may be Applicable; and, Section 38-115 to Add Off-Street Parking and Loading Spaces Required for Vehicle Sales, Limited (Exempt from CEQA per Article 19, Section 15305, Class 5) (Plans & Public Works - 701-11) Action: Pulled from Consent; Discussed; Adopted Ordinance No. 3588 C.S. (3-2, Barrett and Haffa voting no) Councilmember Barrett expressed concern that a visioning process has not taken place involving jobs and economic development as they relate to land use and zoning, and that the proposed use would not benefit either the City in terms of revenue or a diverse population of its residents in terms of access. Mayor Roberson opened public comments. Henry Ruhnke, architect for one of the proposed projects, said that the goal is not to create car dealerships but to allow private individuals who already store cars to sell them discreetly on-site. Sharon Dwight, Monterey resident, said that the proposed use is not what was envisioned as Light Industrial zoning in the General Plan, and posed a question about how far is too far to step away from the intent of the General Plan. With no further requests to speak, Mayor Roberson closed public comments. Councilmember Barrett wondered if the goal could be accomplished with an overlay zone instead, and said he was not convinced the proposed use wouldn’t become predominant in the zone if approved. He introduced a motion, which was seconded by Councilmember Haffa, not to adopt the ordinance. The motion failed by a vote of 2-3 (Mayor Roberson and Councilmembers Albert and Smith voting no). On a motion by Mayor Roberson, seconded by Councilmember Albert, and carried by the following vote, the City Council adopted Ordinance No. 3588 C.S. to Amend Monterey City Code Section 38-15(DD)(6) to Establish a Vehicle Sales, Limited, Use Classification; Section 38-40(B) to Add Vehicle Sales, Limited, as a Principally Permitted Use in the I-R Districts; Section 38-41 to Add a Supplemental Regulation Requiring Compliance with Airport Land Use Commission Avigation and Hazard Easement Conditions, as may be Applicable; and, Section 38-115 to Add Off-Street Parking and Loading Spaces Required for Vehicle Sales, Limited: AYES: 3 COUNCILMEMBERS: Albert, Smith, Roberson NOES: 2 COUNCILMEMBERS: Barrett, Haffa ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None 7. Second Reading - Rezone 503 Pearl Street from PC-D-ES to PC-D-ES-H-2 and Approve Application TM-17-0473 for Mills Act Contract and H-2 Historic Zoning; Applicant/Owner Patrick McNeill and Patricia Hamilton (Exempt from CEQA per Article 19, Section 15305, Class 5, and Section 15331, Class 31) (Plans & Public Works - 701-13) Action: Adopted Ordinance No. 3589 C.S. Resolutions 8. Approve Modifications to City of Monterey Records Retention / Disposition Schedule (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (Information Resources - 104-03) Action: Adopted Resolution No. 18-209 C.S. 3  City Council Minutes Tuesday, November 20, 2018 9. Adopt Resolution Amending Resolution 15-215 Revising the Master Fee Schedule to Adjust the Recreational Vehicle and Boat Storage Yard Rates (Not a project under CEQA, per Article 20, Section 15378 and under General Rule Article 5, Section 15061) (City Manager - 101-01) Action: Pulled from Consent; Discussed; Adopted Resolution No. 18-210 C.S. as amended Administrative Analyst Punkar gave the staff presentation, saying that the proposed fee increases would place the City’s fees in closer alignment with the competition while remaining affordable to the community. Together with City Manager Uslar and City Attorney Davi, he answered Councilmembers’ questions. The Council discussed cost recovery, market rates, subsidization of services, and leasing strategies as they relate to how the City sets fees. Mayor Roberson opened the floor for public comments. Sharon Dwight, Neighborhood Improvement Program (NIP) Committee, said that the NIP funded the creation of the lot, which she said was intended to keep oversized vehicles off the streets and as a service to Monterey residents. She suggested that the City require current registration for vehicles in the lot, and asked for a rate that will cover costs borne by the City but not generate a profit. Rod Bartz said that the proposed fees are too high, and that maintenance and security at the lot are minimal. With no further requests to speak, Mayor Roberson closed public comments. City Manager Uslar noted that preference is given to Monterey residents in filling vacancies from the waiting list, and that the wait is usually four to five months. He said that the proposed fee increases are in line with CPI increases. Councilmember Smith said that the first round of fee increases proposed for January 1, 2019 seems fair and proposed bringing a second round back with the next budget cycle. He cited the California Vehicle Code and said that an unregistered vehicle can be an attractive nuisance and the policy should require current registration. On a motion by Councilmember Smith, seconded by Councilmember SECONDER[???], and carried by the following vote, the City Council adopted Resolution No. 18-210 C.S. Amending Resolution 15-215 Revising the Master Fee Schedule to Adjust the Recreational Vehicle and Boat Storage Yard Rates, amended to adopt only the fees set to go into place on January 1, 2019, waiting for one (1) year and a new budget cycle to consider increasing fees for a second tier, [and to include the annual CPI increase beginning January 2020 with Council’s approval: AYES: 5 COUNCILMEMBERS: Albert, Barrett, Haffa, Smith, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None 10. Authorize a $2,000,000 Ten-Year Loan from the Tidelands Fund to the Liability and Property Insurance Fund and Authorize FY18/19 General Fund Budget Reduction of Estimated Conference Center Rents by $341,360 as it Relates to the Custom House Hotel, LP v. City (Portola Hotel) Settlement (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (Finance - 403-02) Action: Pulled from Consent; Discussed; Adopted Resolution No. 18-211 C.S. On question, City Manager Uslar said that interest generated for the Tidelands Fund over the term of the loan would range from $55,000-70,000 and the ongoing annual revenue into the fund is a net $600,000. 4  City Council Minutes Tuesday, November 20, 2018 Mayor Roberson opened public comments, received none, and closed public comments. On a motion by Councilmember Smith, seconded by Councilmember Albert, and carried by the following vote, the City Council adopted Resolution No. 18-211 C.S. to Authorize a $2,000,000 Ten-Year Loan from the Tidelands Fund to the Liability and Property Insurance Fund and Authorize FY18/19 General Fund Budget Reduction of Estimated Conference Center Rents by $341,360 as it Relates to the Custom House Hotel, LP v. City (Portola Hotel) Settlement: AYES: 5 COUNCILMEMBERS: Albert, Barrett, Haffa, Smith, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None Other 11. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 499 Madison Street; Agency Negotiators: Kimberly Cole and Janna Aldrete; Negotiating Parties: Sherry Garcia and James Garcia; Under Negotiation: Terms and Conditions for Purchase of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: Appointed 12. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: APN 001-761-045 and 001-761-046; Agency Negotiators: Kimberly Cole and Janna Aldrete; Negotiating Parties: Andrew H. Swartz, Christopher Dinner and Michael Bruno; Under Negotiation: Terms and Conditions for Acquisition of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: Appointed 13. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 150 Del Monte Avenue; Agency Negotiators: Kimberly Cole and Janna Aldrete; Negotiating Parties: Chan Associates, LLC; Under Negotiation: Terms and Conditions for Purchase of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: Appointed 14. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: APN 031-091-003, 031-191-006, 031-191-019, 031-191-017, 031-191-016, 031-191-015, and 031-191-003; Agency Negotiators: Kimberly Cole and Janna Aldrete; Negotiating Parties: Christopher Dinner and Michael Bruno Under Negotiation: Terms and Conditions for Disposition of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: Appointed with amended title to reflect correct APN 031-191-003 and remove APN 031-091-003. 5  City Council Minutes Tuesday, November 20, 2018 15. Appoint Agency Negotiators for Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8; Property: 43 Fisherman's Wharf (Wharf 1 Concession 7); Agency Negotiators: Kimberly Cole and Janna Aldrete; Negotiating Parties: Portco, Inc. (Nick Hoppe); Under Negotiation: Terms and Conditions for Lease Amendment (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: Appointed ***End of Consent Agenda*** PUBLIC APPEARANCE 16. 1st Reading - Amend Chapter 14 of the Monterey City Code (Garbage and Refuse) to Prohibit Use of Plastic Beverage Straws and Amend the Definition of Disposable Food Service Ware to Include Straws, Utensils, Stirrers and Cup Lids Thereby Requiring These Products to be Biodegradable, Compostable or Recyclable, and Amend the Code to Clarify Multifamily Dwellings Are Not Required to Provide Organic Waste Recycling Services Consistent with State Law (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061 and Categorically Exempt under CEQA Guidelines section 15308 (Class 8)) (Plans & Public Works - 802-12) Action: Passed to print, as amended City Manager Uslar noted that Associate Planner Roveri was providing Spanish language interpretation for members of the public. Sustainability Coordinator Terrasas gave a presentation on the environmental impacts of plastic. He said that an amendment was before the Council at the dais to modify the language about disabilities to reflect the language “self- identifying as a person with a disability.” Mayor Roberson opened the floor for public comments and asked commenters to honor a two minute speaking limit due to the time. Maria Magaña, Central Coast Center for Independent Living, thanked staff for modifying the draft ordinance to be more inclusive. Johnny Morales, Central Coast Center for Independent Living, thanked City Council for supporting the disabled community by allowing those who need them to use plastic straws. Teresa Zamudio, Salinas resident, interpreted by Associate Planner Roveri, thanked the City Council for hearing her voice and continuing to allow plastic straws to reflect the needs of everyone in the community. Omoyemi Aleru, Save the Whales and CSUMB, citing environmental concerns, encouraged the passage of the ordinance and asked the City to ensure that plastic substitutions will be recyclable. Esme Martines said she supports the ordinance because plastic is harming the environment. Erin Eastwood, Monterey Bay Aquarium, thanked the Council for taking steps to accelerate a shift toward more sustainable food packaging options. Melissa Salazar asked City Council to safeguard the future of children with disabilities and provide education to the business community on how to engage with consumers who need plastic straws. Janine Chicourrat, Portola Hotel & Spa, supported the ordinance and asked that the language is clear and compliant, from an Americans with Disabilities Act (ADA) standpoint, in order to help businesses comply with the law and prevent frivolous lawsuits. Ximena Waissbluth, Surfrider Foundation, supported the ordinance and suggested a further ordinance that would incorporate truly compostable alternatives. Sandra Nyland said that she advocates for caretakers of people with disabilities and hopes that restaurant staff will provide plastic straws as needed in a supportive, community-oriented way. 6  City Council Minutes Tuesday, November 20, 2018 John Pressley, Monterey resident, thanked the City for its leadership in pursuing the ordinance and showing consideration and inclusion to the full community. Alexa Ortiz spoke in support of the ordinance, citing environmental concerns posed by microplastics. Laurie Eavey, Sustainable Monterey, praised Sustainability Coordinator Terrasas and Administrative Assistant Pankretz for their work on the ordinance, and acknowledged local businesses for their role in paving the way in utilizing alternative straws. With no further requests to speak, Mayor Roberson closed public comments. The City Council said that the City has heard the needs of the disabled community and stressed that there will be an educational component so the business community understands how to provide plastic straws as needed. On a motion by Councilmember Haffa, seconded by Councilmember Barrett, and carried by the following vote, the City Council passed to print the 1st Reading, as amended, to Amend Chapter 14 of the Monterey City Code (Garbage and Refuse) to Prohibit Use of Plastic Beverage Straws and Amend the Definition of Disposable Food Service Ware to Include Straws, Utensils, Stirrers and Cup Lids Thereby Requiring These Products to be Biodegradable, Compostable or Recyclable, and Amend the Code to Clarify Multifamily Dwellings Are Not Required to Provide Organic Waste Recycling Services Consistent with State Law: AYES: 5 COUNCILMEMBERS: Albert, Barrett, Haffa, Smith, Roberson NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None The City Council recessed at 6:07 p.m. and reconvened at 7:05 p.m. PLEDGE OF ALLEGIANCE Mayor Roberson led the Pledge. CONTINUED PUBLIC COMMENTS Mayor Roberson opened the floor for continued public comments on non-agendized matters. Julia Keller, Cannery Row business owner, citing safety issues, asked City Council for help with homeless people on Cannery Row who she said do not avail themselves of services and behave dangerously. With no further requests to speak, Mayor Roberson closed public comments. PUBLIC HEARING 17. Approve Mixed Use Project That Spans Two Sites at 300 Cannery Row and 258/270 Foam Street and Deny Appeal of Planning Commission Decision (Appeal Application AP-18-0369); Appellant: Laurie Hambaro; Applicant and Owner: 300 LLC; Zoning: Cannery Row Commercial and Planned Community - Lighthouse; General Plan: Commercial; CEQA: Mitigated Negative Declaration Adopted (Plans & Public Works - 203-02) Action: Held public hearing; Discussed; Granted the appeal and directed staff to bring findings back to City Council at the next meeting (4-1, Smith voting no) Housing and Community Development Manager Caraker gave the staff presentation on the history of both the 300 Cannery Row site and the development of the proposed mixed use project at 300 Cannery Row and 258/270 Foam Street, including: 7 City Council Minutes Tuesday, November 20, 2018  the Planning Commission’s adoption of a Mitigated Negative Declaration finding, approval of the use permit and tentative maps, and recommendation of Council approval of an amendment to the Cannery Row Coastal Land Use Plan (“LUP”) for the project because the original permit findings were that the project would be consistent with LUP policies as proposed in amendments relating to density and location of residences on the first floor;  the joint meeting of the Historic Preservation Commission and Architectural Review Committee, required by the Cannery Row Conservation District, reviewing the project and adopting findings that it was consistent with the Secretary of the Interior’s standards for treatment of historic properties;  the Planning Commission’s subsequent determination, after City staff consulted with Coastal Commission staff, to find the project consistent with the two land use policies. Housing and Community Development Manager Caraker continued, saying that the Planning Commission decision was appealed by Laurie Hambaro, specifically with regard to the calculation of density, interpretation of the first floor location at 300 Cannery Row, and determination of building height for 300 Cannery Row. She addressed the density question, explaining that if considered on their own without combining the density of the sites:  the 300 Cannery Row site on its own would yield five residential units, and would not yield any affordable housing for the City because of the inclusionary housing requirement kicking in at six units; and  the Foam Street site on its own could yield between five and seven residential units— more likely five because of the mixed use and parking issues and the fact that a use permit would be required for an extra third story to result in that many units—potentially resulting in one affordable unit. She said combining the sites to spread the thirty unit per acre density across both of them would result in ten residential units at the 300 Cannery Row site, which would then trigger the inclusionary requirement of two affordable units, and would also require a deed restriction to make sure the Foam Street site did not yield more than two units. She said the end result would be an overall thirty unit per acre density across both sites. She said that the Coastal Commission staff was not as concerned about the density because the project does not exceed the overall cap of 183 residential units across Cannery Row. She stated that, according to a traffic study, there would be no significant difference in traffic impacts whether the density is combined or separated. Addressing the portions of the appeal relating to the first floor location at 300 Cannery Row and the building’s calculated height, Housing and Community Development Manager Caraker showed the City Council images of the West and street elevations and floor plans of the proposed project. She said per Building Code definition, the lowest floor qualifies as a first floor because it defines a floor if the floor above it is more than 12 feet above ground level. She said that the second floor is about 18 inches above street entry level. She explained that the height limit is measured from the street. Housing and Community Development Manager Caraker said that approval of the Use Permit Amendment would alleviate the need for LUP policy amendments and find the project consistent with existing policies. On question, she provided examples of buildings in the City with entry on the second floor. She confirmed that Coastal Commission staff prefers no residential on the second floor and requires the City complete its process before they will review. She said that the two sites are connected because the Foam Street site will provide parking for the Cannery Row site. She answered questions about the bridge, which she said is not safe and has no access at the moment. She confirmed that the affordable housing units would have to be built and available at the same time or before the market rate units, and that homeowner association fees are included in affordability calculations. She confirmed that the ADA access had been approved by the City’s Disabled Access Appeals Board. 8 City Council Minutes Tuesday, November 20, 2018 Nicole Capps, New Monterey Neighborhood Association President, on behalf of the appellant, said that the Association supports development but has concerns about this particular project. She said that rules and policies already in place, such as the Cannery Row Land Use Plan, should be followed by all. She addressed the density aspect of the appeal, saying that by tying the two properties together and combining their densities, the applicant states that they are below the density limit. She said that in all other calculations the Association is aware of, the City has taken the number of housing units and divided by the size of the parcel they will occupy in order to determine units per acre. She said that if this project were evaluated using the City’s usual arithmetic, and that used by other cities, the result would be the Cannery Row project having a density well above the number allowed in the LUP. She said that the Association believes the City should not allow applicants to determine how density is calculated, as it could set a precedent and pave the way to bypass the intent of the LUP without seeking an amendment. Ms. Capps continued on to the floor aspect of the appeal. She said that by considering the below grade level, which she said may be considered in this country to be a basement, to be the first floor, the applicant is bypassing the fact that residential is not actually allowed on the first floor as defined by the LUP. She stated that a museum, which she said the applicant has proposed in the past to have on the below grade level, does not qualify as a visitor-serving use. She cited the Monterey Plaza Hotel as an example of a building where the street entry level seems to be considered a first floor, saying that the elevator signage refers to the street entry level as the lobby, the floor directly above as 2200, the floor above that as 2300, and the floor above that as 2400. She said that using the same logic, the Cannery Row building’s entry at street level would be considered the first floor. On the building height aspect of the appeal, she said that the City seemed to be massaging its policies to consider the street level floor the first floor for floor determination purposes yet measuring the full height of the building from the very bottom level. Citing the lack of water, Ms. Capps asked where and when the inclusionary housing will be built, and where the water will come from for 300 Cannery Row. She said that the Association supports use of the existing density policies (calculating by site), only allowing Commercial use on first floor street level, and measuring height from the first floor street level. Anthony Lombardo, legal counsel for the project applicant, said that the applicant has been trying to satisfy all of the involved agencies’ concerns for 12 years, six of which he said have been without a tenant due to the restrictions of the LUP. He said that the applicant had met with the New Monterey Neighborhood Association to explain what they were proposing, and were told that the Association didn’t dislike the project but disliked the idea of amending the LUP policies because another developer might try to do something bad. He stated that the Water Management District has determined that there are sufficient water credits on the site for the project as proposed. He displayed on-screen maps, drawings, and elevations of the properties to illustrate his points. Mr. Lombardo addressed the density calculation, stating that the combined calculation ensured that the properties wouldn’t be sold separately with higher densities. He said that the number of units, which he said is fewer than if the sites were considered separately, will never change from what the City permits. He said that six of the capped 183 residential units in Cannery Row have been built so he is not concerned that there is any danger of going over the limit. He said that the City had approved another project, the Cannery Row Marketplace, with off-site parking further away than is proposed for this project. He addressed the definition of first floor and said that there is a floor 18 inches above the street and a floor below street level, so the applicant used the requirements in the Local Coastal Plan (LCP) Policies III.C.3.b, IV.A.3.d, and IV.B.3.f.2.b. He said that the City’s Building Official called it the first floor. Regarding 9 City Council Minutes Tuesday, November 20, 2018 inclusionary housing, he said that the agreement will require that the units be identified and deed restricted or built before the units are completed for this property. Mr. Lombardo said that the City won’t issue the building permit for 300 Cannery Row until they are satisfied by the progress of the inclusionary housing. He cited benefits to the project, including maintenance and preservation of a historic building, provision of off street parking as close as possible, and less residential density than if calculated for each building separately. Referring to the potential of setting a precedent, he said that every project stands on its own. He said that the applicant has tried to make the various involved parties happy—specifically mentioning the State Architect, the State Lands Commission, the Coastal Commission, the City of Monterey, and the New Monterey Neighborhood Association—and is running out of ideas. He posed the question: “if not this, what?” and asked the City Council to support the decisions of the Architectural Review Committee, Historic Preservation Commission, and the Planning Commission and approve the project. On question, Mr. Lombardo said that the project would not work if the two units went away, because the applicant has been forced by the State Lands Commission to reserve the whole back of the building for commercial use, when it would be a more desirable location for residential use. He said that realistically the back of the building is an inferior space for commercial use that will require reduced rent due to the only use allowed by the various agencies. He referred to a former night club called the Boiler Room and said that in that building, retail use was at street level and the commercial use above never succeeded. On question, Mr. Lombardo said that the affordable units are generally not profit-makers so when you add inclusionary units, you need to add market density to make up for the loss. He said that the applicant proceeded with the project on the basis that the 183 unit residential cap would remain, but the Coastal Commission said there are too many residential units in the LUP already, and urged the applicant to make their project work within existing policies because they wouldn’t support amendments to LUP that add housing on Cannery Row. He said that the Coastal Commission didn’t dispute the first floor but said the City needs to define it, and he said that policy defines a first floor being at pedestrian street level. On question, Housing and Community Development Manager Caraker said that the timeframe for the Coastal Commission action is hard to determine. She said that the use permit can be extended in the future if the Coastal permit takes too long. She said the proposed policy amendment is so narrow that it would practically limit its application to this property, but “spot zoning” is not desirable. The City Council recessed at 8:18 p.m. and reconvened at 8:32 p.m. Mayor Roberson opened public comments. Frank Sollecito said that he was a Councilmember when the project first came along. Citing the needs of the business community past Hoffman Avenue, he said Cannery Row needs to be finished and urged the Council to approve the project. Susan Nine, Monte Vista neighborhood, said the community cares about rules and codes being applied fairly, equitably, and consistently. She said that the answer to the question “if not this, what?” should be: “what the rules permit” and that the community perception if the project is approved would be that the City bent the rules to enrich individual property owners. Werner Gerstacker, Archer Street resident, said that the distance between the properties is 500 feet, and that a rise of 18 inches isn’t enough to stop the entry floor from being the first floor. He said that he gathered a total of 33 signatures in person and online in favor of the appeal in half a day, and urged City Council to think about what people think is fair. He said he is concerned about whether the developer can make good on his promises. Kim Meyer, Monterey 10 City Council Minutes Tuesday, November 20, 2018 homeowner and resident, asked for clarification on the Coastal Commission’s role. She said that the petition showed that residents were previously unaware of the matter, and that they have concerns about density, traffic, building height, and elimination of the affordable housing requirement. She asked City Council to grant the appeal. Michelle Neubert, Pebble Beach resident, said that affordable housing details need to be confirmed, and asked for clarification on the total number of units. Housing and Community Development Manager Caraker clarified that originally, tentative maps were approved for 10 units at the Cannery Row site, and five at the Foam Street site, which would have required a LUP amendment, and now the proposed use permit amendment would include only the 10 units and a deed restriction on the Foam Street site for only two units. Bob Evans said that as someone who has spent some time in a disabled state, he would not buy one of the units due to the distance to the parking. He said he could park on Cannery Row and use his disabled placard and take away a parking space from the public. He referred to privacy issues relating to commercial traffic mixing with residential traffic within the building. He asked where the people would live who would service the condominiums or retail spaces, and suggested thinking outside the box and turning the warehouse into workforce housing. Laurie Hambaro, New Monterey Neighborhood Association, said that the Planning Commission and Building Official did not see the provision of parking for people with disabilities as a problem. She said that developers are required to design and develop projects that meet the needs of different types of people with disabilities, and asked if it is reasonable to expect people with disabilities to safely traverse the traffic on the Recreation Trail. She asked if the City would be liable if the City allows this path of travel and a person becomes injured. She said that the proposal would allow a private developer to use a public recreational trail to meet ADA requirements for their private building. She cited concern about sea level rise as it relates to some of the City’s standards which she said are quite old. Dan Silverie, 201 Cannery Row, said that 300 Cannery Row and some neighboring buildings are in bad shape, and expressed concern that the property may never be developed if the project is denied. He urged the City Council to approve the project. Diana Galbraith, New Monterey resident, said the focus should be on the community, not profit. She said that the project doesn’t feel right for Monterey. She echoed Mr. Evans’ concern about where the people will live who service the building. Patricia Domingo, New Monterey resident, said that the purpose of a representative government is to fulfill the people’s will, not to persuade the public to go with what they think is best, and expressed concern that the odds are stacked against the average citizen and the neighborhoods. She spoke against what she called a cookie cutter approach to development and said that residents feel strongly about holding onto Monterey’s small town feeling. She opined that the importance of coastal preservation has been lost in the discussion about coastal access. Bruce Orinstein, Monterey resident, said he wants the property developed and the blighted building used, but that the LUP is very specific about no residential on the first floor and he believes the intended meaning of “first floor” was “street level.” He suggested all involved parties get together in the same room to hash out the details. Roberta Myers, Monterey resident, said that this proposed project uses tricky, uncomfortable logic and feels like a shell game, and cited concern about increased parking density further up the hill. Valentina Milaychev, New Monterey neighborhood resident, cited privacy concerns about residential use the ground level, and stated she believes developers need to follow the rules laid out in the LUP. Lev Milaychev said that entrepreneurs losing money is nobody’s problem but the entrepreneurs’ and is the reality of doing business. He said he objected to a double standard and the bending of the rules. 11 City Council Minutes Tuesday, November 20, 2018 Sharon Dwight, New Monterey neighborhood resident, said that the neighborhood supports mixed use development but that the ADA parking issue is unrealistic. She said that the density is clearly defined in the City’s General Plan and the Cannery Row Land Use Plan. She said that the reduced number of affordable housing units is distressing, and that density incentives can require affordable units. She cited Local Coastal Program (“LCP”) Policy IV.A.3.d, defining “visitor-serving commercial,” and said that museums and dinner theaters are allowed in visitor- serving areas with a use permit but are not part of the definition. She said that the LUP requires residential uses to be located on the upper floors above visitor-serving commercial uses and stressed that it prohibits them at first floor or street pedestrian levels. She said that California is creating Tideland standards and those same standards will apply to the lower level of the 300 Cannery Row building. She called into question whether the developer has the water credits to complete the project. She asked whether the City wants other project applicants to average their unit density or start calculating height from the second floor. Anthony Lombardo, on behalf of the project applicant, said that that the height was measured from Cannery Row street level and meets the requirements of a maximum of forty-five feet with a use permit. He said that the proposed parking is allowed. He said a building is not required to use density, and said that concentrating density in the existing sites kept more density off of Foam Street, and does not increase density of the neighborhood. He said that without water the applicant has to look for another solution: build elsewhere or deed restrict for affordability. He said that City officials confirmed all the determinations about ADA compliance and floors, and the applicant followed the rules. He said that the applicant has exhausted all other possible alternatives and came up with a plan that works within the existing building. Housing and Community Development Manager Caraker answered questions, saying that after City entitlements, the applicant would be required to undergo Coastal Permit review with the Coastal Commission. She clarified that the original five Foam Street units were not going to be deed restricted but only two were going to be affordable. She said that the first floor level as planned is sufficiently above the anticipated flood level. She explained the distinction between workforce and inclusionary housing, saying that inclusionary requires moderate and low, and workforce income levels are higher than low or moderate income. On question, Community Development Director Cole said that the Monterey Plaza Hotel transferred the development rights from an adjacent building to the oceanfront site. Councilmember Haffa said that he supports development of blighted properties but has concerns about the City’s creative application of its rules in a way that may not meet the intent of the rules. He said that the two inclusionary units are not inconsequential. He said that in his opinion the City should get more in exchange for the density calculation. Councilmember Barrett said that deviations from the norm make the neighborhood community uncomfortable. He asked if the creativity could be precedent-setting, and referred to an example earlier on the agenda that he said originally started as an exception and this afternoon became an entire zoning decision. He stated he was uncomfortable with the many exceptions. Councilmember Albert observed that the architect Mr. Davis is local and wants what is best for the City. He said that residents ask for variances to fit specific projects on their specific properties. He said that the density combination would be proposed again if it is approved in this case. He cited concerns about the street level issue and the idea of residents on the street level. He said he can’t decide based on what he thinks the Coastal Commission will do, but he doesn’t think the Coastal Commission will approve this anyway. He cited concern that if this project isn’t approved, nothing will go into this building for many years. Councilmember Smith said that he considers his task in the case of a Planning Commission appeal to be to find errors in the Planning Commission’s decision. He said that he doesn’t 12 City Council Minutes Tuesday, November 20, 2018 agree with every variance identified by the Planning Commission but doesn’t find the Commission to have made errors. He said that land use and applying the General Plan are contentious and complicated processes requiring the most thought for legislative bodies and staff. He said he finds it worthy to look at the sites as combined for the purposes of density. He said that he doesn’t want this historic site lost and is concerned that the building will sit in a blighted, empty condition if the City can’t accommodate the applicant and find a way to say yes. Mayor Roberson noted that it seemed that the State Lands Commission, Cannery Row Land Use Plan, and Coastal Commission all seemed to be in conflict. He said that he is uncomfortable with the first floor determination and the combined density. He said that the LUP didn’t anticipate residential use in the area, which created the parking problem. He said that the extra height with a use permit creates problems. Mayor Roberson introduced a motion to grant the appeal and direct staff to bring back the Council’s findings back at the next meeting. The motion was seconded by Councilmember Barrett. Councilmember Barrett acknowledged the work that has been put into the plans so far. City Attorney Davi recommended that the City Council provide factual findings to explain how they reached their conclusions. The City Council stated their factual findings as follows:  that two non-contiguous sites constitute two different projects, and density should be calculated for the two projects separately;  that the floor closest to street level is 18” higher than street level, which constitutes street level;  that the proposed residential use on the first floor or street level is prohibited in the Cannery Row Land Use Plan; and  that the Planning Commission was inconsistent in their application of what constitutes a first floor, using ground level for one calculation and street level for another. Councilmember Smith noted in response to several previous public comments that if no water is available for the Foam Street site, then there could be no building at that site, therefore the whole project would be incomplete and the City would reject it or hold it back. He highlighted that it is frustrating that the water is frequently in the way of achieving more housing units for the City. He cited the money, time, and complications invested in the project to date and said he hopes the developer will be able to do something to provide housing and find water and can go back to the drawing board to accommodate some of the problems with the project. The motion passed with the following vote: AYES: 4 COUNCILMEMBERS: Albert, Barrett, Haffa, Roberson NOES: 1 COUNCILMEMBERS: Smith ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None COUNCIL COMMENTS Each member of City Council wished everyone a happy Thanksgiving, and the following individual comments were made: Councilmember Barrett praised two recent events: the reenactment of the invasion of Monterey and Slow Money Monterey Bay’s Entrepreneurial Showcase at the Cooper-Molera Adobe. 13 City Council Minutes Tuesday, November 20, 2018 Councilmember Smith invited all to the Cannery Row tree lighting on November 23. Councilmember Albert thanked the City Council as a whole for the difficult decision required for Item No. 17. CITY MANAGER REPORTS Interim Assistant City Manager Gawf said that a special closed session is scheduled for November 28. ANNOUNCEMENTS FROM CLOSED SESSION Acting City Clerk Klein announced the following: cs1. Conference with Legal Counsel - Existing Litigation Before Administrative Body Pursuant to Government Code section 54956.9(d)(1) - Nina Beety Complaint to State Bar of California (City Attorney - 703-06) Action: On a unanimous roll call vote, City Council gave direction to legal counsel to waive the City’s privilege for attorney-client communications only for the purpose of providing to the California State Bar existing attorney-client agreements with the law firm of Best Best & Krieger cs2. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8 Property: 43 Fisherman's Wharf (Wharf 1 Concession 7) Agency Negotiators: Kimberly Cole and Janna Aldrete Negotiating Parties: Portco, Inc. (Nick Hoppe) Under Negotiation: Terms and Conditions for Lease Amendment (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: On a unanimous roll call vote, City Council gave confidential direction to its property negotiators cs3. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8 Property: 499 Madison Street Agency Negotiators: Kimberly Cole and Janna Aldrete Negotiating Parties: Sherry Garcia and James Garcia Under Negotiation: Terms and Conditions for Purchase of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: On a unanimous roll call vote, City Council gave confidential direction to its property negotiators cs4. Closed Session Conference with Real Property Negotiators Pursuant to Government Code Section 54956.8 Property: 150 Del Monte Avenue Agency Negotiators: Kimberly Cole and Janna Aldrete Negotiating Parties: Chan Associates, LLC Under Negotiation: Terms and Conditions for Purchase of Property (Not a Project Under CEQA per Article 20, Section 15378 and Under General Rule Article 5, Section 15061) (Plans & Public Works - 206-03) Action: On a roll call vote of 4-1 (Roberson voting no), City Council gave confidential direction to its property negotiators 14 City Council Minutes Tuesday, November 20, 2018 cs5. Conference with Legal Counsel – Anticipated Litigation, Significant Exposure to Litigation Pursuant to Government Code §54956.9(e)(3) (Jeff and Nicole Burghardt complaint set forth in letters dated August 22, 2018 and October 4, 2018 re: principally permitted use of 147 El Dorado Street [Gathering for Women])(Not a Project Under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (City Attorney - 703-06) Action: City Council received a confidential report from its legal counsel ADJOURNMENT The City Council adjourned at 11:01 p.m. Respectfully Submitted, Approved, Clementine Bonner Klein Clyde Roberson Acting City Clerk Mayor 15