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ITEM: |
PUBLIC HEARING |
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21. |
CONSIDER APPEAL OF GENERAL
MANAGER’S DECISION TO REQUIRE A WATER PERMIT FOR A CHANGE OF USE FROM A DELI
(GROUP II) USE TO A RESTAURANT (GROUP III) USE PURSUANT TO DISTRICT RULE 20, PERMITS
REQUIRED – 484 WASHINGTON STREET, MONTEREY (APN: 001-692-011) |
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Meeting
Date: |
February 13, 2014 |
Budgeted: |
N/A |
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From: |
David
Stoldt, |
Program/ |
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General
Manager |
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Prepared
By: |
Gabriela
Ayala |
Cost Estimate: |
N/A |
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General Counsel Review: N/A
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Committee Recommendation: N/A
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CEQA Compliance:
N/A |
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SUMMARY: The Santa Lucia Market located at 484 Washington, Monterey, was permitted by the District as a delicatessen in February 1997 (Exhibit 21-A). In October 2013, District staff met with the business owner, Mr. Uwe Grobecker (appellant) after being prompted by the City of Monterey Planning Department staff to discuss a change in business practices that had occurred over the years. Initially, Santa Lucia Market was mostly retail and take-out sales, offering meats, cheeses, coffee, and other deli items. The appellant stated that after the business had been in operation for some time, he removed the meat and cheese counters and replaced them with tables and chairs. He also hired waitresses, expanded the menu, and the business transformed into a full-service eating establishment offering complete meals. Santa Lucia Market is currently for sale, and the appellant was advertising it as a full-service restaurant. However, the appellant did not seek or gain approval for a Water Permit to facilitate this changed business practice or Expansion of Use.
Following the October 2013 meeting with Mr. Grobecker, District staff notified him that the operation of Santa Lucia Market as a full-service restaurant was a violation of the Water Permit. The violation notice (Exhibit 21-B) specified that a Water Permit was required to operate the Santa Lucia Market as a restaurant. The appellant was given the options of reverting the business operation to the permitted delicatessen use or permitting up to 23 restaurant seats without requiring additional water from the City of Monterey. Mr. Grobecker is appealing the General Manager’s decision that a Water Permit is required to Change the Use of the Santa Lucia Market from a deli (Group II Commercial use) to a restaurant (Group III use). The appellant’s Application for Appeal is provided as Exhibit 21-C.
District Rule 70, Appeals (Exhibit 21-D), provides a setting whereby a decision by staff can be reconsidered. At the public hearing, the appellant and/or Applicant and other Persons may present evidence concerning the appeal. The Board may deny, approve or continue any appeal. In applying for an appeal, the appellant must reference the provision of the Rules and Regulations which has been violated. The Board must then determine whether the General Manager made the decision in error.
This enforcement action to require a Water Permit for a Change in Use is consistent with other similar situations presented to the District. MPWMD Rule 20, Permits Required, states: “A Water Permit is required for every Change in Use, including any Change of Use and any expansion of a Non-Residential use to a more intensive use as shown on Table 2 (Rule 24).” As there is no enforcement team per se, enforcement of permit violations resulting from Changes in Use is usually complaint driven. When a complaint is received, action is taken to investigate the complaint and enforce the permit conditions, if necessary. In this case, after reviewing the business operations with the owner, staff notified him that the business was not operating as a Group II commercial use as permitted. An inspection of the Site on January 30, 2014 (Exhibit 21-E) confirmed that Santa Lucia Market is a full-service restaurant. The appellant has not shown that a mistake was made by staff in notifying him that the business is out of compliance with its Water Permit. Further, granting an appeal for this circumstance would violate the purposes of the Rules and Regulations.
The difference between Group II food uses (i.e., deli, coffee house, pizza, bakery and sandwich shop) and restaurants is the Water Use Capacity[1] of the two types of use (Exhibit 21-F). Group II food uses have been consistently described by staff over the years as businesses that primarily sell take-out food and other items on disposable plates and that do not offer full restaurant service (i.e., table service, china, etc.). Restaurants provide full service and sit down meals and have a higher water use capacity. The appellant contends that he was not given detailed information about the allowable services when the 1997 Water Permit was issued for the deli use. He contends that when he paid for the Change of Use to a deli, he was not specifically notified of the restrictions on providing full service and the use of china and silverware. Therefore, he states that he should be allowed to continue to function as a full-service restaurant with 46 seats, and the property should be found in compliance with the Group II permit. However, the appellant both applied for and signed a Water Permit that specifically identified the proposed use as “deli/retail.” Allowing the restaurant use to continue contradicts the District’s Rules and Regulations. To continue the use, the appellant should be required to obtain a Water Permit.
Remedy
In an attempt to resolve this situation, staff reviewed the file and proposes the following options to resolve the Water Permit violation:
The appellant could request 0.464 Acre-Foot of water from the City of Monterey’s water Allocation and permit the restaurant seats. District records indicate that there is sufficient water in the City’s Allocation to enable to current use. However, use of the Allocation is subject to approval by the Jurisdiction.
The appellant could continue the business as a compliant deli use. This use requires counter service and use of disposable containers.
The appellant could apply for a Water Permit to operate the Santa Lucia Market as a full-service restaurant. The 2,277 square-foot deli use converted to restaurant use would allow a 23-seat restaurant.
RECOMMENDATION: Staff recommends the Board deny the appeal and adopt the Findings of Denial attached as Exhibit 21-G. This recommendation is consistent with the District’s action on similar situations involving a Change of Use or Expansion of Use.
PROCESS: The consideration of an appeal of a decision of the General Manager, pursuant to District Rule 70, is a quasi-judicial action of the Board of Directors. At the outset, Legal Counsel may provide an overview of the process.
Appellants will be allowed to make a brief opening statement to characterize their case, followed by a statement by District Staff. The Board will then open the public hearing to receive documentary evidence, including the Staff report, submissions by involved parties, factual testimony and any rebuttal by the parties. The Board may ask questions of fact.
At the conclusion of evidence, the Board must close the evidentiary phase of the hearing, and allow the parties a reasonable amount of time to provide a summary statement. No rebuttal is allowed. The matter will be opened for public comment, limited to three minutes per speaker. At the conclusion of the public comment period, the Board will close the hearing. No additional questions may be posed to the appellant or to Staff without re-opening the hearing. The Board may, however, seek guidance from Legal Counsel on law or process and can direct Legal Counsel to prepare findings for approval or denial. Findings may be adopted by the Board at a future meeting or if necessary, the matter may be continued.
21-A Water Permit No. 15856
21-B MPWMD Water Permit Violation Letter
21-C Application for Appeal
21-D MPWMD Rule 70
21-E MPWMD Inspection Report
21-F Table 2, Non-Residential Water Use Factors
21-G Draft Findings of Denial
U:\staff\Boardpacket\2014\20140213\PubHrngs\21\item21.docx
[1] Water Use Capacity” is the maximum potential water use which theoretically may occur, based on average water use data for similar structures and uses in the Monterey Peninsula region, as shown by projected water use tables set forth in Rule 24.