Council Special Meeting

MINUTES CITY COUNCIL CITY OF MONTEREY Wednesday, July 25, 2018 4:00 p.m. FEW MEMORIAL HALL OF RECORDS, 580 PACIFIC ST. MONTEREY, CALIFORNIA Councilmembers Present: Mayor Roberson, Councilmember Albert (arrived at 5:00 p.m.), Councilmember Barrett (arrived at 4:05 p.m.), Councilmember Haffa, Councilmember Smith Absent: None City Staff Interim City Manager, Interim Assistant City Manager, City Attorney, Present: Community Development Director, Public Works Director, Acting City Clerk, Housing and Community Development Manager CALL TO ORDER Mayor Roberson called the meeting to order at 4:04 p.m. Councilmember Barrett arrived at 4:05 p.m. CONSENT ITEMS Mayor Roberson opened the floor for public comments on the Consent Agenda, and receiving none, closed public comments. On a motion by Councilmember Smith, seconded by Councilmember Barrett, and carried by the following vote, the City Council approved the Consent Agenda: AYES: 4 COUNCILMEMBERS: Roberson, , Barrett, Haffa, Smith NOES: 1 COUNCILMEMBERS: Albert ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None Resolutions 1. Authorize City Manager to Execute a Contract with the Monterey Peninsula Regional Water Authority (MPRWA) for the City of Monterey to Provide Administrative and Financial Accounting Services, and Serve as the Principal Office of the MPRWA (Not a project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) (Information Resources - 706-04) Action: Adopted Resolution No. 18-121 C.S. ***End of Consent Agenda*** Mayor Roberson opened the floor for public comments on the closed session. With no requests to speak, he closed public comments and adjourned the meeting to closed session at 4:06 p.m. The City Council reconvened at 4:55 p.m.  City Council Minutes Wednesday, July 25, 2018 PUBLIC HEARING 2. Deny 457, 465, 470, 565, and 570 Cannery Row; Appeal Application AP-18-0213 of Planning Commission Approval of Use Permit Amendment PE-17-0583 Amending Use Permit 00-019 for modifications to an approved project which include removal of five traffic mitigation measures due to changes in the City’s Capital Improvement Program and completion of traffic mitigations; Appellant: Michael Brown, on Behalf of AquaLegacy Development LLC; C-R Zoning District; Commercial General Plan Designation; Environmental Impact Report Addendum Filed -- Continued from July 17, 2018 (Plans & Public Works - 203-02) Action: Opened public hearing; Received public comment; Continued to August 21, 2018 Mayor Roberson said that the agenda report lacked information on the status of the Coastal Commission’s review of the extension of the Coastal Development Permit, and stated that he planned to move to continue the matter to August 21, 2018. He opened public comments. Ashley Weinstein-Carnes, land use counsel for Cox Castle & Nicholson on behalf of AquaLegacy Development LLC (“AquaLegacy”), disputed conclusions in the staff report that she said inadequately support the recommendation to deny the appeal. She said that the staff report lacked citations to legal references in making determinations about issuance of the conditional use permit amendment. She cited Monterey City Code Section 38-161, Required Findings, and said that the Planning Commission failed to make the required findings of fact in granting their amendment to the conditional use permit. She said that the City’s response to the appeal was that findings were not required for this project because the changes that were made did not rise to the occasion of requiring findings, but she stated that this assertion is not supported by any language in the City Code. She suggested that City Council determine if the findings were made, and if not, she said that the Planning Commission’s action should be invalidated because the steps required for the decision-making process were not fully completed. She said that the City has suggested that the City Council remedy the issue by adopting the findings in this City Council meeting, which she said she did not believe City Council had authority to do. Councilmember Albert arrived at 5:00 p.m. Ms. Weinstein-Carnes continued to say that even if City Council could adopt the findings at this date, the findings do not satisfy the requirements of the City Code. She said that the findings required by Monterey City Code section 38-161(A)(3)(a) have not been made and cannot be found in the facts and materials presented to the City Council. She addressed the ownership dispute used as a basis for the staff recommendation of denial, saying that the City has failed to cite any law that compels it to process the application on behalf of Ruby Falls Fund (“RFF”). She said that the implication of the City’s statement is that the Coastal Commission, which refuses to process the application during the ownership dispute, is wrong or in violation of some State law. She said that, on the contrary, case law that has been provided to the City supports not processing or approving land use entitlements prior to resolution of ongoing ownership disputes. Ms. Weinstein-Carnes continued, expressing surprise at the staff report statement that AquaLegacy has failed to stop the City’s processing of the application in a court of law. She said that they would like to avoid additional litigation, which she said is not collaborative or problem-solving, and instead forces additional delay, cost, and expense of resources. She said that the City has repeatedly referred to the indemnification agreement, and to the project being in the best interest for Monterey, and she said that litigation would serve to undermine the City’s interest in getting this project done. She said that the appellant must exhaust administrative remedies prior to seeking court’s relief. 2 City Council Minutes Wednesday, July 25, 2018 Ms. Weinstein-Carnes continued, addressing the staff report’s assertion of lack of evidence that AquaLegacy would be injured by approval of the use permit amendment. She said that multiple letters have been submitted showing economic harm and reputational damage, and said that City Council does not have the power or authority to arbitrate that question. She said that two supplemental letters were provided by Cox Castle & Nicholson prior to this meeting and said she hoped City Council had had the opportunity to read them. Mark Slater displayed on an easel enlarged screenshots of:  a docket sheet for a lawsuit that he said is pending in bankrupty court in San Jose, on which he highlighted “page 1 of 23” to emphasize the length of the document;  another page of the docket sheet that he said shows everything that has been filed in the San Jose case, on which he emphasized that the last document filed in the case was “filing # 189,” and added that a preliminary hearing will be held August 21, 2018, all of which points he said give a sense of scale of the proceedings;  the docket sheet for the AquaLegacy Development LLC v. 2012 Canrow Owner, LLC case in Monterey, on which he emphasized the number of involved parties and the filing date which he said was from a few years prior;  a list of filings in the Monterey Superior Court through May 23, 2018, which he said show how much time and energy is spent on the matter;  a list of hearings showing each instance when the court has spent time reviewing issues in the Monterey case, which he said was an extraordinary number of hearings;  a page of the hearings list showing the most recent hearing date in May 2018; and  two pages of an order to remove a lis pendens, on page two of which he highlighted the quote: “Defendants’ Motion to Expunge Lis Pendens shall be and hereby is denied,” stating that this is where the Monterey Superior Court falls on this property dispute and emphasizing how much court time has been involved. Mr. Slater continued, saying that the City Council has been through the letters back and forth and said he believes some false information has been deliberately put forward to the City Council. He said that accusations are easy and proof is hard. He said that in the Superior Court, there are tools that City Council doesn’t have: the ability to compel evidence and testimony. He quoted the draft resolution before Council as saying that “RFF has provided evidence of ownership.” He asserted that Judge Villarreal of Monterey Superior Court had reviewed the documents and said they are not enough. He said that the decisions about ownership and harm are the court’s duty, not the City Council’s, and asserted that Ruby Falls Fund can’t win in court, they shouldn’t try to “end run” the Court and come to City Council. On behalf of AquaLegacy he asked the City Council to take the same path as the Coastal Commission in waiting until the dispute is resolved in court. David Armanasco said that his business has been in Monterey for a long time with the opportunity to represent a number of clients along Cannery Row. He said that AquaLegacy got their permit in 2006 and everyone has been waiting for the permitted development, and instead there has been a court circus. He said that First American Title gave title, staff has vetted it, and that AquaLegacy had plenty of time to get a project done. He said that Ruby Falls Fund is prepared to do the project, has title, and looks forward to the August 21 public hearing. Mayor Roberson closed public comments. On a motion by Mayor Roberson, seconded by Councilmember Smith, and carried by the following vote, the City Council continued to August 21, 2018 the matter entitled “Deny 457, 465, 470, 565, and 570 Cannery Row; Appeal Application AP-18-0213 of Planning Commission Approval of Use Permit Amendment PE-17-0583 Amending Use Permit 00-019 for modifications to an approved project which include removal of five traffic mitigation measures due to changes in the City’s Capital Improvement Program and completion of traffic mitigations; 3 City Council Minutes Wednesday, July 25, 2018 Appellant: Michael Brown, on Behalf of AquaLegacy Development LLC; C-R Zoning District; Commercial General Plan Designation; Environmental Impact Report Addendum Filed -- Continued from July 17, 2018”: AYES: 5 COUNCILMEMBERS: Roberson, Albert, Barrett, Haffa, Smith NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None ABSTAIN: 0 COUNCILMEMBERS: None RECUSED: 0 COUNCILMEMBERS: None ***Adjourn to Closed Session*** Mayor Roberson opened the floor for public comments on the closed session. With no requests to speak, he closed public comments and adjourned the meeting to closed session at 5:19 p.m. ANNOUNCEMENTS FROM CLOSED SESSION Acting City Clerk Klein announced the following: cs1. Conference with Legal Counsel –Significant Exposure to Litigation Concerning Application for Use Permit Extension and Development Agreement – Pursuant to Government Code section 54956.9(d)(2), (e)(3). (City Attorney - 703-06) Action: Report received, no action taken cs2. Conference with Legal Counsel, Existing Litigation Pursuant to Government Code section 54956.9(d)(1): Custom House, LP (Portola Hotel) v. City (City Attorney - 703-06) Action: Report received, no action taken ADJOURNMENT The City Council adjourned at 5:50 p.m. Respectfully Submitted, Approved, Clementine Bonner Klein Clyde Roberson Acting City Clerk Mayor 4