82

City Council
Agenda Item Summary
Meeting Date: 4 June 2013
Prepared by: Marc Wiener, Senior Planner
Name: Consideration of water entitlement for a property located in the Service Commercial (SC)
District on the southeast comer of Dolores and Seventh.
Description: The applicant is proposing to use the existing buildings on the site as an event
center to provide a venue for special events, such as meetings, conferences, wedding
receptions, cooking demonstrations, hands-on classes, retail shows, etc. The applicant
is requesting water credits from the City to support the proposed use. The purpose of this
hearing is to determine if the applicant is entitled to the water credits.
Overall Cost:
City Funds: N/A
Grant Funds: N/A
Staff Recommendation: 1) Determine the appropriate action; 2) Direct staff to prepare findings
consistent with the Council determinations.
Important Considerations: The City spent several years reviewing a proposal for a mixed use
building at the subject property that was denied. Two commercial property owners had
transferred water to the City for the project. Because the project was denied the water
was never transferred to the property.
Decision Record: The Del Mar project was denied by the City in November 2009 for reasons
primarily related to the preservation of the existing structure.
Attachments:
• Attachment "A"- Staff Report
• Attachment "B" - Updated Water Resource Allocation
• Attachment "C"- City Attorney Report (Brian Finegan)
• Attachment "D" - City Attorney Opinion Letter (Brian Finegan)
• Attachment "E"- Applicant Background Report & Findings
• Attachment "F" - Applicant Evidence
Reviewed by:
F.l Letters (LeVett & Le Towt)
F.2 Water Transfer Staff Report year 2000
F.3 Resolution No. 00-84
F.4 Plaza Del Mar EIR
F.5 Water Management Transfer Documents
F.6 Water Resource Allocation
Jason S ~ Administrator Date
r •
83
CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR BURNETT AND MEMBERS OF THE CITY COUNCIL
FROM: MARC WIENER, ASSOCIATE PLANNER
THROUGH: JASON STILWELL, CITY ADMINISTRATOR
DATE: 4 JUNE 2013
SUBJECT: CONSIDERATION OF WATER ENTITLEMENT FOR A PROPERTY
LOCATED IN THE SERVICE COMMERCIAL (SC) DISTRICT.
BACKGROUND
The project site is a 16,000 square foot property located at the southeast corner of
Dolores Street and Seventh Avenue. The site is developed with two commercial
buildings totaling 5,357 square feet and a parking lot containing 15 angled parking
spaces. The buildings were designed by Walter Burde in 1971 and have historically been
used as a bank and for retail purposes.
The City spent several years reviewing a proposal for an 18,000 square foot mixed use
building with underground parking at the subject property named Plaza Del Mar. The
project was denied by the City in November 2009 for reasons primarily related to the
preservation of the existing structure.
Two commercial property owners, Denny LeVett and Zigmont Le Towt, transferred
water to the City' s reserves for the purpose of being used for the Plaza Del Mar project
(Attachment F.l). However, the water was never transferred to the site from the City
reserves because the project was denied. The water transferred from Mr. LeVett (.3340
acre feet) remains in a category entitled "Spinning Wheel".
With regards to the Le Towt water, in 2000 the City Council adopted Resolution No. 00-
84 which accepted the .3495 acre-feet of water from Mr. Le Towt. The water was to be
placed in the Multi-family and Commercial land use categories and pre-committed to the
Plaza Del Mar project (Attachment F.2 and F.3). There is no clear record of where the Le
Towt water was placed in the City reserves following denial of the Plaza Del Mar project.
In 2006 the City Council updated the Water Resource Allocation. The Multi-family and
Commercial categories were identified as having a zero balance. In the staff report that
accompanied the resolution there is no reference to the Plaza Del Mar project or of any
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Staff Report
Page2
water being taken out of the Commercial or Multi-Family categories. It is highly
possible that the Le Towt water was placed in the City's Unallocated Reserve category.
It should be noted that the Monterey Peninsula Water Management District keeps a tally
on the City's total water reserves (the top line in the Water Resource Allocation), but
does not assist in tracking individual categories.
PROJECT DESCRIPTION
On 2 April 2013, the City Council was presented with a use permit application to
establish an event center at the subject property. The site is currently categorized as a
Group I use and would be required to obtain additional water credits to support the event
center, which is a Group II use. The site currently contains 0.3750 acre-feet of water and
at a minimum would need an additional 0.5110 acre-feet of water.
The applicant had asserted that they are entitled to the water that was donated to the City
with the intent of being used at the property in connection with the Plaza Del Mar project.
The City contracted land use attorney, Brian Finegan, to provide a legal analysis of the
water entitlement (Attachment "D"). Mr. Finegan concluded that the applicant does not
have legal ownership of the water credits. However, the applicant may be entitled to
equitable ownership.
It was detennined shortly before the hearing that the Council should not review the use
permit application until a decision can be made as to whether the applicant is entitled
(legal or equitable) to the water credits. The applicant requested a continuance in order to
prepare a stronger case that they are entitled to the water credits.
The applicant has returned with findings and evidence to support their claim to the water
credits. The City's contract attorney, Brian Finegan, has prepared a staff report
(Attachment C) analyzing the water entitlement claim. In the report Mr. Finegan
concludes that the applicant does not have a legal claim to the water, but provides options
for making a decision about the equitable claim.
Mr. Finegan states that the following four elements are necessary to establish equitable
ownership of the transferred water:
(1) The City was familiar with the facts of the LeTowt and Spinning Wheel transfers
when they were made and accepted by the City;
(2) The City led the Applicant to believe that it could rely on the ownership of the
transferred water;
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Staff Report
Page 3
(3) The Applicant did not know that it had no legal right to the transferred water; and
(4) The Applicant relied upon the conduct of the City to its injury.
Mr. Finegan states that "a claim of equitable ownership cannot be applied against the
City if to do so would effectively nullify a strong rule or policy adopted for the benefit of
the public. In other words, the City may be bound by an equitable claim if a) the four
elements listed above are present, and, b) the City Council determines that the
fundamental injustice that would result from denial of the Applicant's claim outweighs
any negative effect upon public interest or policy that would result from granting the
Applicant's claim."
Mr. Finegan has not provided a recommendation as to whether the Council should find
that applicant has an equitable claim to the water. However, Mr. Finegan will be at the
hearing to answer questions and provide legal guidance to the Council.
Alternatives: Mr. Finegan has provided several alternatives for the Council that range
from determining that the applicant has a legal or equitable rights to the water, to having
no rights to the water and denying the application. Staff notes that because the use permit
application is not before the Council at this meeting, it would have to be denied at a
subsequent hearing.
Any decision will require that the Council direct staff to prepare findings consistent with
the determinations. If the Council determines that the applicant has rights to the water,
then it should direct staff to prepare the appropriate findings and direct the Planning
Commission to conduct proceedings to provide recommendations to the Council on the
water credit transfer pursuant to CMC 17.50.030.B.
RECOMMENDATION
1) Determine the appropriate action.
2) Direct staff to prepare findings consistent with the Council determinations.
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Attachment B ~ ~ Updated Water Allocation
2006 Water Allocation (Updated 3/11/13)
TOTAL AVAIL ABLE WATER RESOURCE 2.97 af
*(Note: Water resource will be 2.854 af after water is transferred to Scenic Restrooms)
Category #1: Low & Very Low Income Housing .507 af
This category includes residential housing units that meet the affordable housing standards for
low-income and/or very low-income households as estimated by the municipal code.
Category #2: Single Family Residential 0.0 af
Category #3: Multi-Family Residential 0.0 af
This category includes permanent and non-transient multi-family housing in all commercial and
R-4 Districts, including new apartments and condominiums, conversions of commercial space to
residential dwellings, and the housing component of mixed-use projects.
Category #4: Commercial 0.0 af
This category includes construction of new commercial floor space and conversion of existing
space to uses with a greater demand for water. This category also includes the commercial
component of mixed-use projects.
Category #5: Municipal .224 af
This category includes all forms of municipal projects including expansion or renovation of
existing facilities, construction of new facilities and changes in use.
Category #6: Unallocated Reserve 1.69 af
This category is unallocated and is to be held as uncommitted until assigned to a defined
category through adoption of a new Allocation Resolution by the City Council.
Category #7: Mallery/Pescadero Water Transfer Reserve .106 af
This category includes the remaining balance from .960 acre-feet of water originally set aside
through a transfer of development rights for four vacant lots in Pescadero Canyon owned in 1998
by Tim Mallery but dedicated as permanent open-space. This water may be used for residential,
multi-family residential, commercial or public use development as determined by Mallery
provided that the project complies with all zoning and provided that the is located with the City
limits.
Category #8: Spinning Wheel .334 af
This category is for water remaining from .56 acre feet of water that came from the Spinning
Wheel Restaurant.
Category #9: Forest Cottages Pre-commitment .109 af
This category is for water pre-committed to the Forest Cottages Specific Plan for the creation of
two low-income housing units. If this project is denied by the City Council or Coastal
Commission or the project is not under construction by 13 February 2014 or is otherwise
abandoned, the water shall return to Category #1.
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Attachment "C" - City Attorney Report (Brian Finegan)
EVENT CENTER STAFF REPORT INSERT RE WATER
Background.
The City's Water Management Program (CMC 17.50.040.A.4) is clear:
"If the project would require more water from a land use category than
currently remains, after considering the original allocation minus all
existing pre-commitments and dedications, the application shall be
returned to the applicant and shall not be processed or shall be denied."
The Event Center requires water from the Commercial water allocation category. The
Commercial category currently has a zero balance. The application was allowed to
proceed to this point because the Applicant asserted that the project site had a vested
right to water credits sufficient for the project. That assertion is now in question. Thus,
before the project application can proceed any further, the City Council must resolve the
water availability question. If the Council determines that the Applicant's assertion
regarding available water is correct, and the project does have sufficient vested water
credits, the project application (a use permit to allow off-site parking) may be
considered. If the Council determines that the project site does not have sufficient
vested water credits, the City's Water Management Program would require that the
application be withdrawn by the Applicant or denied by the Council because "the project
would require more water from a land use category than currently remains." CMC
17.50.040.A.4.)
The project requires either 0.8252 afy (the amount determined by Applicant's
engineering study) or 0.8860 afy (the amount determined by the Water Management
District). All parties agree that the project site has a water credit of 0.3750 afy based on
the prior use of the site. Thus the project requires either 0.4502 afy or 0.511 afy of
additional water. Staff recommends that the Council use the Water Management
District figure, leaving the project in need of 0.511 afy.
The Applicant's assertion that the project site has vested rights to water credits
sufficient for the project is based upon the project site being credited with water arising
from either or both of two transfers of water to the City from terminated restaurant uses:
The so-called LeTowt transfer in June of 2000, and the Spinning Wheel transfer in
2002.
The LeTowt transfer conveyed 0.34950 afy to the City. In accepting the transfer, the
City Council revised the City's allocation of water resources to make the transferred
water available for the multi-family and commercial land use categories (Resolution No.
00-84). Although the resolution does not specify how much water was allocated to each
of those two categories, the staff report indicates that 0.12900 afy would be allocated to
the Multi-Family category, and 0.22050 afy would be allocated to the Commercial
category. These amounts were required for a mixed-use development on the project
site proposed by Greg Tomlinson known as the Carmel Center project (DR 99-15).
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Resolution No. 00-84 included a pre-commitment of the transferred water to the Carmel
Center project, but the project was subsequently denied. Unlike the Spinning Wheel
transfer (see below) the LeTowt transfer credits are not specifically identified in any
allocation category. Both the Commercial and the Multi-Family categories have a zero
balance. In the absence of substantial evidence to the contrary, it must be assumed
that whatever water was assigned to those categories from the LeT owt transfer has
been used for other projects or allocated elsewhere.
The Spinning Wheel transfer conveyed 0.3465 afy to the City. This transfer was
initiated by John Mandurrago, who indicated in a letter to the City that he needed to
have the transfer approved "from the old Spinning Wheel Restaurant to the Old Great
Western Bank site ... " Mandurrago's letter indicated that the transfer was sought in
connection with the Plaza Del Mar Project (formerly the Penthouses Project). A letter to
the Water Management District from Ron Motta, the owner of the Spinning Wheel
property, stated, "This water is designated for projects of John Mandurrago." The Plaza
Del Mar project consisted of demolition of the two existing buildings on the site, and the
construction of five market rate condominiums, two low-cost condominiums, and 4,550
square feet of commercial space. The Plaza Del Mar project was subsequently denied.
0.334 afy of water from the Spinning Wheel transfer remains in a separate Spinning
Wheel category in the Water Allocation Resolution with the following text: "This
category is for water remaining from .56 acre feet of water that came from the Spinning
Wheel Restaurant. " The water in this category, if added to the site's 0.3750 prior use
credit, would still be less (by 0.217 afy) than the site requires for the Event Center
project.
The first step is for the City Council to determine whether the project site "owns" some
or all of the water from the LeTowt and/or the Spinning Wheel transfers sufficient to
meet project requirements. If the Council concludes that the site has sufficient water
rights for the project, the Council can then proceed to consider the adoption of the
Negative Declaration and use permit for the project. If the Council determines that the
site does not have sufficient water rights for the project, one of two actions must follow:
1) the Applicant must withdraw the project application until such time as the Council
adopts, after a recommendation from the Planning Commission, an amended Water
Allocation Resolution placing sufficient water in the Commercial category; or 2) the
Council must deny the application as required by the Water Management Program
(CMC 17.50.040.A.4). If the application must be denied, the Council has the discretion
to deny it without prejudice, which would allow the application to be resubmitted if and
when sufficient water becomes available in the Commercial category.
In making its determination, the Council should consider the following:
• It appears that none of the LeT owt transfer that was accepted into the
Commercial category remains available, the Commercial category having a zero
balance.
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• If the site is determined to be vested with all of either the LeTowt transfer or the
Spinning Wheel transfer, the site would have more water allocation than required
for the Event Center project.
• The Council's determination requires the adoption of findings based upon
substantial evidence in the record. Substantial evidence includes facts,
reasonable assumptions based upon facts, and expert opinion supported by
facts. Argument, speculation, unsubstantiated opinion or narrative, and evidence
that is clearly erroneous is not substantial evidence. (CEQA Guidelines, Section
15384)
• According to the Municipal Code, the Council cannot amend the Water Allocation
Resolution without a public hearing after referral to and recommendation from the
Planning Commission (CMC 17.050.030.A and B).
Appl icant's Legal Claim to Water Credits.
The City engaged attorney Brian Finegan to investigate the issue from a legal
standpoint. Mr. Finegan's opinion letter is attached to this report as Attachment "0 ."
Mr. Finegan concluded that from a legal standpoint, the project site does not own a
vested interest in any of the water from either the LeTowt transfer or the Spinning
Wheel transfer. The Applicant does not appear to dispute this legal conclusion.
Applicant's Equitable Claim to Water Credits .
. The Applicant contends that although the site does not have legal right to the LeT owt
or the Spinning Wheel water credits, the site has equitable ownership of the transferred
water.
The four elements necessary to establish equitable ownership of the transferred water
are the following:
( 1) The City was familiar with the facts of the LeT owt and Spinning Wheel transfers
when they were made and accepted by the City;
(2) The City led the Applicant to believe that it could rely on the ownership of the
transferred water;
(3) The Applicant did not know that it had no legal right to the transferred water; and
( 4) The Applicant relied upon the conduct of the City to its injury.
A claim of equitable ownership cannot be applied against the City if to do so would
effectively nullify a strong rule or policy adopted for the benefit of the public.
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In other words, the City may be bound by an equitable claim if a) the four elements
listed above are present, and, b) the City Council determines that the fundamental
injustice that would result from denial of the Applicant's claim outweighs any negative
effect upon public interest or policy that would result from granting the Applicant's claim.
The burden of proving the required elements of equitable estoppel is on the Applicant.
Applicant's Evidence
Applicant has submitted written information as evidence to support its claim that the
owner of the subject property has relied on certain alleged agreements with the City that
the intent of the LeTowt and LeVett water transfers was strictly for the benefit of the
subject site, and that the current owner has the equitable right to the use of that water
for the current project. Applicant's written submittal is attached to this report as
Attachment E.
The Applicant has submitted a letter from Mr. LeTowt, in which he states that the water
credits he transferred to the City " ... were to be applied to the intended redevelopment of
that corner property [Dolores St. and 7
1
h Avenue]." Mr. LeTowt also states: "My
recollection is that a City Council resolution directed staff to place the sater credits of
.35 units in a special reserve for that purpose." A copy of Mr. LeTowt's letter is attached
to this report as Attachment F.1 . The resolution referred to in Mr. LeTowt's letter
(Resolution No. 00-84) actually states: "To revise the City's allocation of water
resources to make the transferred water available for the multi-family and commercial
land use categories." Resolution No. 00-84 also states: "Upon approval of project
applications, authorizes a letter from the City to the Water Management District, stating
the City's acceptance of the water transfer to the Carmel Center site. " (Emphasis
added.) The Carmel Center project was not approved. A copy of Resolution No. 00-84
is attached to this report as Attachment F.3.
A signed statement from Mr. LeVett has also been provided by the Applicant in which
Mr. LeVett states that he transferred the Spinning Wheel water credits for use on two
sites (Mandurrago and LaCostas), that .0455 was intended for the Carmel Center site,
that he received no compensation from the City for the transfer, and he transferred the
water to the City's allocation " ... for the sole purpose and based on representations by
the City that the water would be allocated to" the Carmel Center site. A copy of Mr.
LeVett's letter is attached to this report as Attachment F.1 . The City's records reflect
that the transfer of the Spinning Wheel water credits came from Mr. Ron Motta, the
owner of the Spinning Wheel property. In his letter of March 18, 2001 , Mr. Motta stated:
.. . "this water is designated for projects of John Mandurrago."
The Applicant also cites portions of the June 6, 2000 staff report for the Tomlinson
Carmel Center project, indicating that the applicant for that proj ect had obtained water
by transfer from Mr. LeTowt. The staff report is consistent with Resolution No. 00-84,
showing the disposition of the LeTowt water credits to the multi-family and commercial
allocation categories, and stating: "The amounts would be placed in the multi-family and
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commercial categories and 'precommitted' to the applicant's project in those two
amounts." (See Section 2, page 4, of Mr. Finegan's opinion letter on the effect of "pre-
commitment" of water allocations.)
The Applicant points to the Plaza del Mar. Draft EIR stating that the project had
obtained allotments of water from three sources, including the LeTowt transfer and the
Spinning Wheel transfer. A copy of the cited page of the Plaza del Mar DEIR is
attached to this report as Attachment F.4.
Applicant's Proposed findings
The Applicant's attorney has drafted proposed findings reflecting the Applicant's
interpretation of the evidence. A copy of those findings is attached to this report as
Attachment D. The staff does not believe that the findings accurately reflect the
evidence in a number of respects, and does not recommend adoption of those findings.
Proposed Finding 5: Allocation to Site. Applicant's proposed Finding 5 asks the Council
to find that the LeTowt water credits were applied to a specific site (the " ... Carmel
Center site"), not to a specific project. In fact, Paragraph 3 of Resolution No. 00-84
states clearly: "To approve the precommitment of the transferred water to the Carmel
Center project. " (Emphasis added.) The City's Water Management Program does not
allow pre-commitment of water credits to a site; it provides only that "a pre-commitment
of water resources shall be temporarily assigned to the project during processing of the
application. " (CMC Section 17.50.040.A(6), emphasis added.) The reference to "the
Carmel Center site" cited in the Applicant's proposed finding (Paragraph 4 in Resolution
No. 00-84) is preceded by the phrase "Upon approval of project applications ... " The
Carmel Center project was never approved. Applicant's proposed finding is misleading.
Proposed Findings 7 and 9: "Special Allocation/Category". Among the proposed
findings, the Applicant claims that the City staff failed to carry out the direction contained
in Resolution No. 00-84 relating to the LeTowt transfer. The Applicant's proposed
Finding 7 asks the Council to find the following to be true:
• "There is no apparent category recorded for the LeTowt transfer of .3495 AF,
despite the Council resolution and direction to staff to establish a special
allocation for this water." (Applicant's Proposed Finding 7)
• "Although the water transferred was pre-committed to the Carmel Center site by
Resolution 00-84, there is no evidence that the City took action to place that
water into either the multifamily of commercial categories." (Applicant's Proposed
Finding 7.)
• "A category for the LeTowt transfer should be added based on the 2002 transfer
and it too should be reserved for the Carmel Center site as directed in Resolution
00-84." (Applicant's Proposed Finding 9.)
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The second paragraph of Resolution No. 00-84 (adopted June 6, 2000) reads as
follows:
"To revise the City's allocation of water resources to make the transferred
water available for the multi-family and commercial land use categories."
Resolution No. 00-84 did not direct staff to "establish a special allocation" of the LeTowt
water credits; it directed the staff to allocate the water to two existing categories, multi-
family and commercial land use. Staff is not aware of any substantial evidence of
"direction to staff to establish a special allocation for this water." There is no substantial
evidence, only speculation, that the staff did not follow that direction, and Government
Code Section 664 establishes a presumption that an official duty has been regularly
performed. In the absence of substantial evidence that the staff did not transfer the
LeTowt water credits to the multi-family and commercial categories, it must be
presumed that they did so.
Proposed Findings 7 and 9: Accounting. The Applicant's proposed findings also ask the
Council to find the following to be true:
• "It is also clear that the City's calculation of its total available water resources
were (sic) not fully or accurately updated in 2006 to correctly account for those
transfers." (Applicant's Proposed Finding 7.)
• The LeTowt, although clearly transferred to the City by the MPWMD, is not
accounted for in the either (sic) the 2006 accounting of 'Total Available Water
Resource' or in the City's 2013 update of the 2006 accounting of "Total Available
Water Resource." (Applicant's Proposed Finding 9.)
There is no substantial evidence (only speculation) that the staff did not correctly
account for the LeTowt and Spinning Wheel transfers. As noted above, Government
Code Section 664 establishes a presumption that an official duty has been regularly
performed. In the absence of substantial evidence that the staff did not accurately
update the Water Allocation Resolution to reflect the LeTowt and Spinning Wheel water
credits, it must be presumed that they did so.
Proposed Findings 8 and 9. Applicant's proposed Finding 8 correctly states a) that
CMC Section 17.50.040 provides that upon denial of a project, any pre-commitment of
water shall be terminated and the water shall be administratively restored to its original
allocation category; and b) that "the City Council took no action when it denied the Plaza
Del Mar project to abandon their pre-commitment of water." However, the proposed
finding goes on to ask the Council to find as true that there has been no administrative
action taken by the City staff to "restore that water to its original allocation category."
The "original allocation category" would not be "a special category for the LeTowt
transfer" as requested by the Applicant (Applicant's Proposed Finding 9). Such a
category was never created by the Council and never existed. The water would be
restored to the multi-family and commercial categories from whence it came. The
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applicant cites no substantial evidence to support the finding that the administrative
restoration of the pre-committed LeTowt water never took place. As noted above,
Government Code Section 664 establishes a presumption that an official duty has been
regularly performed, i.e., that the staff has done what it is supposed to have done.
It is up to the Council to determine whether or not the assertions contained iin
Applicant's proposed findings are true based on substantial evidence presented at the
hearing. As noted above, substantial evidence includes facts, reasonable assumptions
based upon facts, and expert opinion supported by facts. Argument, speculation,
unsubstantiated opinion or narrative, and evidence that is clearly erroneous is not
substantial evidence.
Alternatives
The City Council has several alternatives:
1. Legal Right to Water. Determine that, contrary to the conclusions expressed in
Brian Finegan's legal opinion, the project site has a legal right to use all or part of
the LeTowt transfer and/or the Spinning Wheel transfer. The staff does not
support this alternative, and the Applicant appears to acknowledge that it does
not have a legal claim to either transfer. Should the Council nevertheless select
this alternative, the Council should direct staff to prepare findings consistent with
this determination and schedule a hearing for consideration of the negative
declaration and the off-site parking use permit for the Event Center project.
2. Equ'itable Right to Water. Determine that the project site does not have a legal
right to use the transferred water, but does have an equitable right to water
credits from the LeTowt transfer and/or the Spinning Wheel water credit
transfers. Under this scenario, the Council would have several options,
depending on the Council's weighing of the evidence presented. For example:
a. The Council could determine that the Project is equitably entitled to
credits from one or the other transfer, but not both.
b. The Council could determine that (as the Applicant claims) the City
never added the LeTowt transfer to the calculation of the City's Total Available
Water Resource. In that case, the Applicant contends that "[a] category for the
LeTowt transfer should be added based on the 2002 transfer and it too should be
reserved for the Carmel Center site, as directed by Resolution 00-84."
(Applicant's proposed Finding 9.) Such a determination would require hearing
and recommendation by the Planning Commission, and concurrence by the
Monterey Peninsula Water Management District (because it would in effect
increase the City's Total Available Water Resource).
c. The Council could determine that the Project is equitably entitled to
water from the transfers, but only so much of it as is necessary for the Project.
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For example, the Council could determine that the Project is equitably entitled to
all of the Spinning Wheel transfer credits held in Category #8 (0.334 afy). If all of
the Spinning Wheel transfer were credited to the Project, the Project would still
require an additional 0.217 afy, The only available source for that water would
be the Category #6 Unallocated Reserve allocation (the only applicable category
with a remaining balance of water) which contains a total of 1.69 afy.
Transferring water from the Unallocated Reserve requires hearing and
recommendation by the Planning Commission (see Amendment of Water
Allocation Resolution below). Such a transfer would leave the City with only
1.473 afy in the Unallocated Reserve category for other municipal uses. It is
staff' s opinion that this is the only feasible scenario for finding that the Event
Center Project has an adequate supply of water as required by the City's Water
Management Program.
If the Council chooses this alternative, the Council should direct staff to prepare
findings consistent with its determi nations, direct the Planning Commission to
conduct proceedings to consider transfer of 0.217 afy from the Unallocated
Reserve category to the Commercial category or to a new category for the
Project, and table this matter until the Planning Commission recommendation is
received.
3. No Legal or Equitable Right to Water- Withdrawal of Application. Determine
that a) the project site does not have a legal or an equitable right to use the
transferred water; and b) the Event Center project would require more water from
the Commercial land use category than currently remains in that category. If the
Applicant withdraws its application, the Council may then initiate an amendment
to the Water Allocation Resolution to consider either transferring sufficient water
from other land use categories (such as Category #6: Unallocated Reserve) to
the Commercial category or creating a new category for the LeT owt transfer in
order to serve the Event Center project, and refer the amendment proceedings to
the Planning Commission for review and recommendation in accordance with
CMC 17.050.030.8 and C.
4. No Legal or Equitable Right to Water- No Withdrawal of Application. Determine
that a) the project site does not have a legal or an equitable right to use the
transferred water; and b) the Event Center project would require more water from
the Commercial land use category than currently remains in that category. If the
Applicant does not withdraw its application, the Council must deny the application
as required by CMC 17.050.A.4.
Findings.
In the case of each of the above alternatives, the City Council must direct the staff to
prepare findings to reflect the Council's determination, based on substantial evidence in
the record of the proceedings. The purpose of findings is to bridge the analytical gap
between the raw evidence and the decision. To assist the staff in preparing the findings,
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the Council should indicate to staff the factual and related considerations that formed
the basis for their decision.
Amendment of Water Allocation Resolution
Water for the project can only come from the City's available water resources, i.e., from
one of the ten allocation categories in the Water Allocation Resolution. The Council can
determine that the Spinning Wheel allocation can be pre-committed to the Project
without change to the Water Allocation Resolution. However, pre-committing the
LeTowt transfer credits to the Project is problematic unless and until the Water
Allocation Resolution has been amended.
Amendment of the Water Allocation Resolution is governed by the City's Water
Management Program (CMC 17.50.030 et seq), adoption or amendment of which
requires review and recommendation by the Planning Commission, including review of
consistency with the General Plan and the Local Coastal Program. Thus, adding water
to an allocation category (e.g., transferring water from the Unallocated Reserve
category to the Commercial category), or creating a new category for the LeTowt water
credits (as suggested by the Applicant) would mean that the Council could not take final
action on the adequacy of the Project's water supply until after a Planning Commission'
hearing and recommendation on the proposed change ..
The City's Water Management Program provides that water reserves are intended to
provide a means of adjusting water allocations to respond to changing conditions and
General Plan policy (CMC 17.50.030.C). Thus, water from the Unallocated Reserve
category cannot be pre-committed to a project without first being transferred to a
defined allocation category. Such a transfer may only be accomplished by the same
process as required for the adoption or amendment of the Water Allocation Resolution,
i.e., following hearing and recommendation by the Planning Commission.
If the Council amends the Water Allocation Resolution to add water to a category (such
as the Commercial category) that water becomes available to all comers on a first come
first served basis, unless the Council pre-commits some or all of the transferred water to
a specific project application as provided in CMC 17.50.040.8.6.
The Council may use the amendment process to "tidy up" the Allocation Resolution
where the Council finds uncertainties or inconsistencies in the existing resolution.
5/28/13
96
Attachment "D" -City Attorney Opinion Letter (Brian Finegan)
Mr. Mark Wiener
Associate Planner
City of Carmel-by-the-Sea
FINEGAN
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March 20. 2013
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Re: Events Center Project- Water Allocation
Dear Mr Wiener:
Mr Jeffrey Peterson has applied to the City for necessary approvals to develop
the existing building on the east side of Dolores Street between Seventh and Eighth
Avenues (Block 91 . Lots 2, 4, 6 and 8) (the "Subject Property") as an events center (the
"Project"). His attorney. Anthony Lombardo, has asked the City to confirm that a total of
1.071 acre feet per year ("afy") of potable water have been previously allocated from the
City's reserve to the Subject Property and are thus available for use in the Project.
A. QUESTIONS PRESENTED.
1. Does the Project have a vested right to any of the City's potable water
reserve by reason of prior legally binding commitments?
2. Does the City have the authority to allocate some or all of the requested
1.071 acre feet per year of potable water to the Project?
B. REGULATORY BACKGROUND.
In 2004, the City adopted its Water Management Ordinance (Ordinances 2004-1
and 2004-2, Sections 17.50.010 through 1 7-50-040 CMC). Section 17-50-030.A
requires the City to adopt a water allocation resol ution containing four components:
1. The remaining quantity of water available to t he City including any new supplies
made available since adoption of the last Allocation Resolution;
97
Page 2
March 20, 2013
2. A list of defined land use or project categories for which water will be made
available;
3. A discrete quantity of water, expressed in acre-feet per year , to be allotted for
each defined land use category; and
4. A discrete quantity of water to be held as unallocated reserves.
Section 17.50.030.8 states:
"Each allocation resolution shall reserve at least 10 percent
of avail able water resources for projects that will create new
affordable housing units for moderately low-, low- or very
low-income households. Each allocation resolution also shall
ensure that water is reserved for anticipated projects serving
coastal recreation, access and essential public services."
Section 17.50.040 states:
"No change in land use shall be allowed through any permit
or license that could result in a net increase in water use
unless such change has been approved in accordance with
all applicable provisions of the water management program."
On March 7, 2006, the City adopted the water allocation resolution (Resolution
2006-15. the "Allocation Resolution"). A copy of Exhibit "A'' to that resolution. showing
the total available water resource and nine categories of water use allocation, is
attached to this letter as Attachment "A. " Exhibit ''A" was updated on February 25, 2013
to reflect the current total available water resource and the current water use
allocations. A copy of the updated exhibit is attached to this letter as Attachment "B. "
Between March 7, 2006 and February 25, 2013, the total amount of available water has
declined from 3.26 acre feet to 2.97 acre feet. The amount of water allocated to
commercial use (Category #4) stayed at zero; the amount of the unallocated reserve
(Category #6) stayed at 1.69 acre feet. and the Spinning Wheel allocation (Category #8)
remained at .334 acre feet.
C. THE APPLICANT'S CONTENTION.
The Project applicant engaged Axiom Engineers to analyze the potential water
demand for the Project. According to Axiom, the Project will use 268,900 gallons of
potable water per year (0.825 afy) .
1
1
Axiom Engineers. Carmel Event Center Water Use Study, February 7, 2013.
98
Page 3
March 20, 2013
The Applicant contends that the Events Center project is ent itled to three
components of water totaling 1.071 a/f/y:
1. A credit for prior water use on the property in the amount of 0.3750
a/fly;
2. A credit in the amount of 0.3495 a/fly year attributable to the so-
called '' LeTowt transfer;" and
3. A credit in the amount of 0.3465 a/fly attributable to the so-cal led
"Spinning Wheel transfer ."
D. ANALYSIS.
1. Prior Use Credit.
The Subject Property is currently developed with two commercial buildings
totaling 5,357 square feet of floor area. The buildings were previously occupied by a
bank (Palo Alto Saving & Loan) . Using the Monterey Peninsula Water Management
District (MPWMD) Group I use factor, the Subject Property has an existing water credit
of 0.3750 afy. This water credit has been confirmed by the MPWMD.
The prior use credi t of 0.3750 a/fly is undisputed. Based on the Appl icant' s most
recent demand estimate by Axiom Engineers. the Event Center project requires a total
of only 0.825 a/fly of potable water. Thus, the project requires 0.450 a/f/y over and
above its prior use credit.
2. The. LeTowt Transfer.
On June 6, 2000, by Resolution 00-84, the City 1) accepted a transfer of 0.34950
afy into the City's unallocated water reserve, 2) revised the City's allocation of water
resources to make the transferred water available for the multi-family and commercial
land use categories,
2
and 3) approved a "precommitment" of the transferred water to the
Carmel Center project .
3
. A copy of Resolution No. 00-84 is attached to this letter as
Attachment "C. " The findings for Resolution 00-84 cite General Plan policies
encouraging mixed-use development projects, especially housing in the downtown area.
The Carmel Center project was subsequently denied.
----------
? Although Resolution 00-84 does not specify the amounts to be transferred to each of the two categories,
the staff report for the item indicates that 0.12900 afy would be allocated to multi-family and 0.22050 afy
would be all::lcated to commercial.
3
The Carmel Center proJect (DR 99- 15) involved the remodeling of the two exist ing structures on the
Subject Property to add a new upper level apartment to one of the structures, and build an additional
commercial structure on the site. The applicant was shown as Greg Tomlinson
99
Page 4 March 20, 2013
The Applicant contends that this water was pre-committed to the prior Carmel
Center project on the Event Center project site, and is therefore committed to the Event
Center project The Appl icant's contention is not borne out by the facts.
First of all, paragraph 2 of Resolution No. 00-84 assigns the transferred water to
the multi-family and commercial land use categories.
4
The Carmel Center project was a
mixed-use project containing both apartment and commercial uses that would qualify
under both allocation categories. The Event Center project does not include any
residential use.
Secondly, Resolution No. 00-84 consistently uses the term ·'precommitment"
rather than an outright "commitment." The significance of the term "precommitment" is
found in paragraph 4 of the Resolution. which reads as fol lows:
"Upon approval of project applications, authorizes a letter
from the City to the Water Management District, stating the
City's acceptance of the water transfer to the Carmel Center
site.·· (Emphasis added.)
It seems clear that the commitment of water to the project site would become
effective only when and if the Carmel Center project application was approved. This
conclusion is consistent with the provisions of Section 17.50.040(a)(6) of the City' s
Water Management Program which explains the function of a pre-commitment of water
resources as follows:
"Upon acceptance of an application as complete by the
department. a pre-commitment of water resources shal l be
temporarily assigned to the project during processing of the
applications ... For projects that are denied or abandoned, the
pre-commitment shall be terminated and the water shall be
administratively restored to its original allocation category."
The Carmel Center project was denied. Therefore the 0.34950 a/fly of water
from the LeTowt transfer that was pre-committed to the project was terminated.
The policy of terminating pre-commitments of water for projects that are denied
or abandoned makes eminent sense. The City's water resources are a scarce and
valuable commodity. and the City would not want to have those scarce resources held
captive by projects that do not or cannot meet the City's development objectives.
4
The resolution itself does not reflect in what amounts the water ts to be divided between the two use
categories However, the staff report for Resolution No. 00-84 states that the proposed allocation is as
follows· Multi-family- 0.12900 acre feet, and commercial- 0.22050 acre feet.
100
Page 5 March 20, 2013
The May, 2004 Draft EIR for the Plaza Del Mar project states that the necessary
allocation of water for that project "has been secured" from three sources discussed in
this letter (the prior use credit. the LeTowt transfer and the Spinning Wheel transfer) .
Appl icant argues that this is conclusive evidences that these allocations have been
made irrevocably to the Event Center site (the former Plaza Del Mar site) and thus to
the Event Center project. That argument fails. The Plaza Del Mar project was a very
different project (a mixed-use project consisting of five market-rate condos, two low-cost
apartments and 4,550 square feet of commercial space) addressing entirely different
City goals as expressed in the General Plan and the Water Management Program It is
a novel theory at best to suggest that an Environmental Impact Report conveys vested
property rights. The Plaza Del Mar EIR should not be accepted as determinative of the
status of these water allocations.
The Allocation Resolution does not disclose the source of the 1.69 acre feet of
water in the Category #6 Unallocated Reserve. It is possible that the 0.22050 acre feet
of the LeTowt transfer accepted into the commercial al location category in 2000 ended
up in Category #6: Unallocated Reserve. If so it could still be possible for the City to
transfer some or all of this water to the Category #4 Commercial allocation category in
accordance with the procedure outlined in the Water Management Program (see
Alternatives below). Allocating all of the 0.22050 afy to the Event Center project would
still leave the Project short 0.2295 afy.
3. The Spinning Wheel Transfer.
On or about November 18. 2002. the city Counci l approved a water use credit
transfer of 0.56 acre feet of water to the city's unallocated reserve. The water use credit
was attributable to the Spinning Wheel restaurant which had closed permanently.
The transfer was initiated by John Mandurrago, who indicated in a letter to the
City that he needed to have the transfer approved "from the old Spinning Wheel
Restaurant to the Old Great Western Bank site ... "
5
Mandurrago's letter indicated that
the transfer was sought in connection with the Plaza Del Mar Project (formerly the
Penthouses Project). The Plaza Del Mar project consisted of demolition of the two
existing buildings on the site. and the construction of five market rate condominiums.
two low-cost condominiums, and 4,550 square feet of commercial space. The draft EIR
for the Plaza Del Mar project (May 2004) states that the project would require 1.070 afy
of water, which would be supplied as follows: 1) the existing on-site water credit of
0.3750 afy, 2) the 0.3495 afy referred to in Resolution 00-84 (the LeTowt transfer) , and
3) 0.3465 afy from the Spinning Wheel Restaurant water transfer. The Plaza Del Mar
project was ultimately denied in November of 2009.
5
Transfers of water from one property directly to another property were not permitted by the MPWMD at
the time Mandurrago's actual apphcat1on was for a "Commercial-to-Public" transfer, i.e . a transfer to the
City, not to a specific property or project ..
101
Page 6 March 20, 2013
As noted above, the May, 2004 Draft EIR for Mandurrago's Plaza Del Mar project
states that the necessary allocation of water for that project "has been secured" from
three sources, including the Spinning Wheel transfer. Similarly, the July 14, 2004 staff
report for the Plaza Del Mar project states:
"The project will inherit the water currently allocated to the
site as well as a transfer of water from the old Spinning
Wheel Restaurant and a precommitted City allocation to the
project. "
6
The language of the Draft EIR and the staff report notwithstanding, there is no
evidence that the City ever took any formal action to allocate or "pre-commit" any
portion of the Spinning Wheel transfer to the Plaza Del Mar project or to the Subject
Property. The Spinning Wheel water has consistently remained in a separate category
under the Allocation Resolution. The only evidence suggesting such a pre-commitment
1s the EIR which, as mentioned above, does not convey water rights. The Plaza Del
Mar project was ultimately denied, whereupon any pre-commitment of water, if there
had been any, would have been terminated pursuant to Section 17.50.040(a)(6) of the
Water Management Program.
4. Summary.
In summary. it is my opinion that the Event Center applicant is entitled to the prior
use credit of 0.3750 a/fly of water, but is not entitled to the claimed vested credits for
either the 0.3495 a/f/y from the LeTowt transfer, or the 0.3465 a/fly from the Spinning
Wheel transfer. As noted, this would leave the appl icant needing an additional 0.450
a/fly of water for the Event Center project.
E. ALTERNATIVES
The City's Water Management Program (Chapter 17.50 of the Municipal Code)
sets forth a detailed and rigorous process for allocating water to projects.
Section 17.50.040 of the Water Management Program states the basic purpose
of the water use allocation categories:
"The purpose and effect of establishing categories for the
allocation of water supplies are to limit access to water to
those categories that are consistent with the General Plan
and the Local Coastal Program. No change in land use shall
be allowed through any permit or license that could result in
6
The "precommitted City allocation to the proJect" appears to refer to the LeTowt transfer reflected in
Resolut1on No 00-84.
102
Page 7
March 20, 2013
a net increase in water use unless such change has been
approved in accordance with all applicable provisions of the
water management program ... "
Section 17.50.030(C) of the Water Management Program explains the function of
the Unallocated Reserves category as follows:
"Water held in unallocated reserves shal l not be used for any
project or land use change until transferred to a defined
allocation category. Such transfers shall be made by
adopting a new allocation resolution as described in
subsection (A) of this section. Reserves are intended to
provide a means of adjusting water allocations to respond to
changing conditions and General Plan policy. If new water
resources become available to the City by action of the
Monterey Peninsula Water Management District , they shall
be placed in unallocated reserves administratively until
distributed to other categories through adoption of a new
allocation resolution. "
Nothing in the Water Management Program or the Allocation Resolution explains
the use or purpose of the Category #8 Spinning Wheel allocation category.
The Water Management Policy contains very severe restrictions regarding the
treatment of new projects that would require increased water use. For example. Section
17.50. 040(A)(4) provides that If the project would require more water from a land use
category than currently remains in that category. the application shall be returned to the
applicant and shall not be processed or shall be denied . Category #4, the Commercial
category under which the Project would fall . currently has no water available, which
would mean that the current application shall not be processed or shall be denied.
Two procedural avenues could conceivably make reserves available to the Event
Center project.
Alternative #1. The City could adopt an amended Allocation Resolution in which
it could re-allocate some or all of the Category #6 Unallocated Reserve and/or some or
all of the Category #8 Spinning Wheel allocation to the Category #4 Commercial
category. This would require a public hearing and the adoptions of findings reflecting
the manner in which the adjusted water allocations respond to changing conditions and
General Plan policy. If such a re-allocation were adopted, then water from the #4
Commercial category could be precommitted to the Project, and the Project could
continue through the permit process.
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Page 8 March 20, 2013
Alternative #2. The city could adopt an amended allocation resolution
establishing a purpose for the Category #8 Spinning Wheel category. and establishing
standards for its use which could include the Event Center project.
If you have any questions about the contents of this letter. please feel free to
contact me.
0Jry truly yours,
~ d - ~ . < - -
Bri an Finegcti
104
Attachment "E"- Applicant Background Report & Findings
Water History for
South East Corner of Dolores Street & Seventh Avenue Site
The historical uses at this site consists of "low water use" businesses, defined as Group I uses by
Monterey Peninsula Water Management District regulations. The prior businesses in the
existing 5369 square foot building(s) have established existing water for the site at 0.375 AF of
allocation for the site.
In 2000, the owners of the property were developing a plan for a new use at the property that
required additional water. The new use would have required 1.071 AF. As required in
17.50.040A of the City code, an application could not be accepted by the City for any project
that did not have enough water available for the use or that the City did not have water to
allocate to the site. To provide the additional 0.696 Acre Feet of water necessary for a project
without reducing the City's allocation, the property owners negotiated for and secured water
credit transfer agreements from two other property owners within the jurisdiction. To secure
the water credit transfer, the owners of this site paid all costs associated with the transfer and
reimbursed the other property owners for the Rule 24 connection fees related to the water use
capacity as is allowed under Rule 28 of the Monterey Peninsula Water Management District
regulations. The water credits secured are described as follows:
• 0.3495 Acre Feet of water credit belonging to APN: 010-145-010, and owned Mr. Z.J.
LeTowt Ill resulted from changes in use in the sites tenant spaces. This water credit was
then secured by the Dolores/ih property for transfer to the Plaza Del Mar site.
• 0.560 Acre Feet of water credit belonging to APN: 010-201-014, and owned by Mr.
Dennis A. LeVett, resulted from the closure of the Old Spinning Wheel Restaurant. This
water credit was then secured by agreement by the Dolores/ih property owner for
transfer to the Plaza Del Mar site.
Prior to the date of the transfer from LeTowt on December 16, 2002 and prior to submission of
an application for any project, the City Council resolved to accept the transfer from LeTowt to
the City's allocation and directed staff to establish a pre-commitment to the Carmel Center site
for commercial and residential uses. The water from this transfer was privately negotiated and
obtained by the applicant specifically for use on that site (Resolution 00-84). Once the water
transfer by Mr. LeTowt was approved by MPWMD, the transfer of the water credit was made to
the City in 2002. The direction by the City Council given to staff was to record the LeTowt water
105
in the City's water allocation summary report when it was received, and then transfer it into a
special category for pre-commitment to the Carmel Center site. Records obtained from the City
do not appear to show any recording of the receipt of water from the LeTowt transfer or
allocation to any category. The absence of any LeTowt water in the City's allocation summary
appears to be a clerical error.
Also a water transfer agreement was reached with Mr. LeVett to secure the remaining water
needed for the Carmel Center site, and that transfer was finalized in 2005. This allocation is set
aside in a special allocation titled "Spinning Wheel water". Both water transfer were governed
by MPWMD Rule 28, and were required to be transferred to the City first prior to transfer to
the owner's site that had secured the water. As the facilitator of the transfers, the City received
a portion of the water.
On September gth, 2001 an application for a mixed-use development known as Plaza Del Mar
was submitted to the City. The project as proposed would have required water for commercial
and residential uses totaling 1.071 Acre Feet per year. The application was accepted by the
City for processing and consideration, as water availability for the site had been confirmed. Per
17.50.040A, the application could not be accepted otherwise. Upon accepting the application
as complete, an EIR was prepared in which the water transfers for the benefit of the site are
clearly described. The project was later denied by the City on 10/ 06/2009.
The denial of the Plaza Del Mar project was in response to significant concerns of the
community and the City and the citizens of Carmel about preserving the existing buildings on
the site. The water allocation and transfer credits due to the site were uncontested. During the
hearings before the City, the owners were strongly encouraged by the City and staff to return
with a project for the site that would provide for an adaptive re-use of the existing buildings.
In November 2012, Mr. Petersen returned with the current application to the City for the
Carmel Event Center use. The proposed use provides for an adaptive reuse of the buildings as
requested. The use supports visitor serving businesses in Carmel, which is a Coastal priority.
The proposed use has received a positive and enthusiastic response from the community as a
whole. As part of the preparation and planning for this use, the owner has relied on the
agreements with the City that the intent of water transfers to the City's allocation was strictly
for the benefit of the Carmel Center site, as the equitable right to the use of that water bel ongs
to the owner having secured that water. Signed statements have been provided from Mr.
LeTowt and Mr. LeVett that confirm that the intent was that the water they agreed to transfer
was for the benefit of the Carmel Center site, and was not a gift to the City.
106
In summary, as demonstrated by the hi story of events and all of the evidence in the case, the
original water allocation on the site is 0.375 AF. The total water transfer credit from the LeTowt
property and the LeVett property for the benefit of a new use at this site is 0.696 Acre Feet. The
Carmel Event Center project proposes to use 0.886 Acre Feet of water, per the MPWMD
recognit ion of the Use as a Group II use. The post-project balance of the water transfers will be
0.185 AF. Once the project application is approved, the Carmel Center site owner would be
amiable to discussing a dedication of the remaining 0.185 AF to the City's allocation.
107
1. FINDING: The historical uses at the Carmel Center site were "low water use" Group I uses as
determined by the by Monterey Peninsula Water Management District regulations. The prior
businesses, a bank and then a retail store, were operated in the existing 5369 square foot
building(s). The water demand for these uses on the site, based on the Group 1 classification,
was 0.375 AFY.
EVIDENCE: June 6, 2000 report to the City Council prepared by Ben Bento, Senior Planner for
the City of Carmel.
EVIDENCE: Certified Environmental Impact Report for the Plaza Del Mar project which
discussed the historic use and water demand of the property.
2. FINDING: In late 1999 and early 2000, a project commonly referred to as the "City Center
project" was being planned for this site and the applications required by the City of Carmel were
being prepared. It was determined that the proposed use would be consistent with the City
General Plan and development regulations. It was determined however that the project would
require more water than the 0.375 AF credit accrued by the previous use. It was incumbent on
the project proponents to find additional water credits for the reuse of the project site. The
additional water would be provided by " ... an applicant privately obtaining water from one site,
then donating the water to the City with the stipulation that this water be "pre-committed" to
another site of theirs."
EVIDENCE: June 6, 2000 report to the City Council prepared by Ben Bento, Senior Planner for
the City of Carmel.
3. FINDING: On June 6, 2000 the City Council of the City of Carmel approved Resolution 00-84
resolving:
1. To accept a transfer of0.34950 acre feet ofwater into the City' s supplies.
1
108
2. To revise the City's allocation of water resources to make the transferred water available
for the multi-family and commercial land use categories.
3. To approve the pre-commitment of the transferred water to the Carmel Center project.
4. Upon approval of project applications, authorizes a letter from the City to the Water
Management District, stating the City's acceptance of the water transfer to the Carmel
Center site.
EVIDENCE: City of Carmel-by-the - Sea City Council Resolution No. 00-84, adopted June 6,
2000.
4. FINDING: Although the June 6, 2000 staff report proposed that the water to be transferred be
allocated to Multi-family (0.129000 AF) and Commercial (0.22050 AF) categories, the Council's
resolution does not include direction to allocate specific amounts of water to individual
categories, but only " ... to make the transferred water available for the multi-family and
commercial land use categories. "
EVIDENCE: City of Carmel-by-the - Sea City Council Resolution No. 00-84, adopted June 6,
2000.
5. FINDING: The June 6, 2000 resolution approved a pre-commitment of the transferred water,
0.34590 AF, to the Carmel Center project but stated the future acceptance of the water transfer
was to the " ... Carmel Center site ... " The pre-commitment of water was to the site, not a
specific project.
EVIDENCE: City of Carmel-by-the -Sea City Council Resolution No. 00-84, adopted June 6,
2000.
6. FINDING: On September 9, 2001 a project application for a mixed-use development known
as Plaza Del Mar on the site was submitted to the City. As required in 17.50.040A of the City
code, the Department of Community Planning and Building was required to evaluate the
application to determine whether its approval could result in a net increase in water use, classify
2
109
the land use categories of the project, estimate the net increase, and review the water allocations
through the City's supply to determine ifthere was sufficient water available for the project. At
that time the water was pre-committed to the project site per Resolution 00-84.
The total water required for the Plaza Del Mar project was I. 071 AFY. In addition to the 0.3 7 5
AFY available to the site based on its historic use, the project proponents and the property owner
negotiated for and secured water credit transfers from two other property owners within the
jurisdiction. The water credits secured were:
• 0.3495 Acre Feet ofwater credit belonging to APN: 010-145-010, and owned Mr. Z.J.
LeTowt III resulted from changes in use in the sites tenant spaces. This water credit was
then secured by the Dolores/7
1
h property for transfer to the Carmel Center site.
• 0.560 Acre Feet of water credit belonging to APN: 010-201-014, and owned by Mr. Ron
Motta, resulted from the closure of the Old Spinning Wheel Restaurant. This water credit
was then secured by agreement by the Dolores/7
1
h property owner for transfer to the
Carmel Center site.
To secure the water credit transfer, the project proponents paid all costs associated with the
transfer and reimbursed the other property owners for the Rule 24 connection fees related to the
water use capacity as is allowed under Rule 28 of the Monterey Peninsula Water Management
District regulations.
EVIDENCE: Letter dated March 16,2001 from Ron Motta, owner ofthe Spinning Wheel
property (APN 010-201-014) to Stephanie Pintar, Monterey Peninsula Water Management
District authorizing the transfer of 0.56 AF of water from the Spinning Wheel property to the
City of Carmel.
EVIDENCE: Letter dated December 16, 2002 from Gabriela Ayala, Monterey Peninsula Water
Management District, to Mr. Z.J. Le Towt confirming that 0.350 AF of water was transferred
from APN 010-145-010 to the City of Carmel 's public water account.
3
110
EVIDENCE: Letter dated August 22, 2005 from Gabriela Ayala, Monterey Peninsula Water
Management District, to Mr. Dennis A. LeVett confirming that 0.560 AF of water was
transferred from the Spinning Wheel property APN 010-201-014 to the City of Carmel's public
water account.
7. FINDING: Although the water transferred water was pre-committed to the Carmel Center site
by Resolution 00-84, there is no evidence that the City took action to place that water into either
the multifamily or commercial categories.
The transfers of water to the City of Carmel's Public Account were completed in 2002 (.35
AF/LeTowt) and 2005 (.56 AF/LeVett). In the City's 2006 Water Allocation (Amended) table,
there was no available water for multi-family or commercial uses. "Category #8 Spinning
Wheel" shows .334 AF and notes this is " ... water remaining from .56 acre feet of water that
came from the Spinning Wheel Restaurant." According to the certified EIR for the Plaza Del
Mar project, this is the amount of water remaining after retention of 0.112 by the MPWMD and
0.0455 by the City, and additional water was committed to the Los Costas project of0.056; the
remaining water from the Spinning Wheel transfer should have been recorded as 0.3465 AF.
There is no apparent category recorded for the LeTowt transfer of .3495 AF, despite the Council
resolution and direction to staff to establish a special allocation for this water.
In the February 2013 update of the 2006 Water Allocation table, there is still no available water
for multi-family or commercial uses. "Category #8 Spinning Wheel" remains and shows a
balance of .334 AF and still notes this is " ... water remaining from .56 acre feet of water that
came from the Spinning Wheel Restaurant." There is still no apparent category for the LeTowt
transfer of .35 AF.
The water transfers occurred as evidenced by the 2002 and 2006 letters from Gabriela Ayala. It
is also clear that the City' s calculation of its total available water resources were not fully or
accurately updated in 2006 to correctly account for those transfers. Those accounting
discrepancies do not invalidate the transfer of water to the City' s public account and does not
4
111
now affect the City's pre-commitment and agreements to transfer that water from its public
account to the Carmel Center site upon approval of a project application.
EVIDENCE: Letter dated December 16, 2002 from Gabriela Ayala, Monterey Peninsula Water
Management District, to Mr. Z.J. Le Towt confirming that 0.350 AF of water was transferred
from APN 010-145-010 to the City of Carmel's public water account.
EVIDENCE: Letter dated August 22, 2005 from Gabriela Ayala, Monterey Peninsula Water
Management District, to Mr. Dennis A. LeVett confirming that 0.560 AF of water was
transferred from the Spinning Wheel property APN 010-201-014 to the City of Carmel's public
water account.
EVIDENCE: City of Carmel ' s 2006 accounting of"Total Available Water Resource."
EVIDENCE: City of Carmel ' s 2013 update of the 2006 accounting of"Total Available Water
Resource."
8. FINDING: The City required an Environmental Impact Report be prepared for the Plaza Del
Mar project. The Environmental Impact Report was prepared for the City by EIP Associates and
was certified by the City Council on September 17, 2009.
The water allocations for the site that were pre-committed and reserved for the site were clearly
described in the Plaza Del Mar EIR. The Plaza Del Mar project was denied by the City on
October 6, 2009 in response to significant concerns of the community and the City about
preserving the existing buildings on the site. The pre-commitment of water and transfer of water
credits to the site were uncontested. Mr. Jeff Peterson (owner) was advised by the City and staff
to return with a project for the site that provided for an adaptive reuse of the existing building
that would ensure preservation ofthe buildings on the site. Mr. Petersen then proceeded
pursuant to the City' s direction and with the belief that pre-commitment of water remained valid.
Section 17.50.040 (6) of the Municipal Code states "For projects that are denied or abandoned,
the pre-commitment shall be terminated and the water shall be administratively restored to its
original allocation category." The City Council took no action when it denied the Plaza Del Mar
project to abandon their pre-commitment of water nor has there been any administrative action
5
112
taken by the City staff to abandon that precommitment or restore that water to its original
allocation category. Given the City Counsel's direction to Mr. Peterson to return with another
project combined with the fact that neither the Council nor the staff took any action to abandon
its pre-commitment, the pre-commitment of water to this site remains.
EVIDENCE: Administrative Record ofthe City's processing, actions and decisions ofthe Plaza
Del Mar EIR and permits.
9. FINDING: In November 2012, Mr. Petersen applied to the City for the Carmel Event Center
use. The proposed use preserves the buildings as requested by the City Council and the use has
significant public support. Throughout the application process Mr. Petersen had numerous
discussions with City staff on the question of water supply. Mr. Petersen believed the issue was
addressed based on:
o the Council's 2000 pre-commitment of water to the site,
o the specific transfers of water to the City in 2002 and 2006,
o the Council's direction to Mr. Petersen following the Plaza Del Mar denial to return with
a project for the site retaining the existing buildings,
o the lack of an affirmative action since 2009 to abandon the pre-commitment.
The total water transfer credit from the LeTowt property and the LeVett property for the benefit
of a new use at this site is 0.696 Acre Feet. The Carmel Event Center project proposes to use
0.886 Acre Feet of water, per the MPWMD recognition of the Use as a Group II use. The post
project balance of the LeTowt and LeVett water credit transfers will be 0.185 Acre Feet of water.
The LeVett water (Spinning Wheel) is shown in the City' s 2006 accounting of"Total Available
Water Resource" and in the City's 2013 update of the 2006 accounting of"Total Available
Water Resource", though the balance should read 0.3465. Pursuant to the agreements and the
intent of all parties, this water should be reserved for the Carmel Center site.
6
113
The LeTowt, although clearly transferred to the City by the MPWMD, is not accounted for in the
either the 2006 accounting of "Total Available Water Resource" or in the City's 2013 update of
the 2006 accounting of "Total Available Water Resource." A category for the LeTowt transfer
should be added based on the 2002 transfer and it too should be reserved for the Carmel Center
site, as directed in Resolution 00-84.
EVIDENCE: Administrative Record ofthe City's processing, actions and decisions on the
Carmel Event Center use
Resolved: The City Council of the City of Carmel-by-Sea determines that in light of the record
as a whole:
1. The 2000 pre-commitment of water to the Carmel Center site has not been terminated.
2. That pre-committed water may be used for the Carmel Event Center use.
3. The 2013 update of the "Total Available Water Resource" is corrected to reflect and
reserve the "LeTowt water" of0.3495 AF for the Carmel Center site consistent with
Resolution 00-84.
4. The 2013 update ofthe "Total Available Water Resource" is corrected to show the
remaining "LeVett water" transfer from 2005 to be 0.3465 AF, and to reserve that water
for the Carmel Center site.
7
114
F.l Letters (LeVett & Le Towt)
STR UTZ - LEV ETT I NVESTM ENT & H OL DING COMPANY • 5 02 WA VE RL EY STREE T
Aprill5, 2013
Dear Mayor Burnett and Members of the City Council:
PA LO ALTO • CA 94 30 1
TEL (650) 32 1-0440
FAX (6 50) 32 8-4 859
In 2005, I transferred water credits from the Spinning Wheel property to the City
for use on two specific project sites (Mandurrago and La Costas) As the City agreed
to act as a facilitator to the transfer of water to these two sites, I also agreed to
transfer an additional .0455 acre/feet to the City and 0.112 for .MPWMD for use as
they saw fit. The total transfer intended for the benefit of the Carmel Center site
was 0.3465. I received no compensation from the City for this transfer.
I did not intend for the water that I transferred to be used by the City for any
purpose other than the development of those two sites. I transferred this water into
the City's allocation for the sole purpose and based on representation by the City
that the water would be allocated to the LaCostas site and the Cannel Center site as
noted above.
Sincerely,
115
04/ 18/ 201 3 14: 15 831 5253939
TEL 8311624-0440
Mayor Jason Burnett
City Council Members
City Hall,
Cannel, CA 93921
Ladies and Gentlemen:
ZJL III
Zigmont J. Le Towt ill
PO Box 3272
Carmel, CA 93921
April 17, 2013
PAGE 01/01
FAX 831/626-3939
In 2002 I transferred water credits from my property on Dolores Street, APN 010-145-010, Lot 14, Block
91 to a person who had purchased the property at the south east comer of Dolores Street and 7m Avenue.
Because the properties contained mixed commercial uses, the protocol required the water credits to first
pass through the hands of the City before eventua1ly being applied to the property at Dolores St. and 7th
Avenue.
It 'W83 never my intention that the water credits be retained by the City pennanently. I received no
compensation from the City and the credits were not intended to be a gift. Rather, the credits were to be
applied to the intended redevelopment of that comer property. My recollection is that a City Council
resolution directed staff to place the water credits of .35 units in a special reserve for that purpose ..
The fonner bank building has been sitting on that corner empty or under utilized for too many years. Since
I have three other commercial properties in the immediate vicinity, I am concerned about the business
health of that neighb01hood if the building becomes run down or remains unused. As holders in due course
of that property, the current owners are entitled to the water credits I originally transferred. Please allocate
those credits to them accordingly so that redevelopment of the property can proceed ..
116
F.2 Water Transfer Staff Report year 2000
CITY OF CAruvffiL-BY-THE-SEA
DEPARTMENT OF CO:MMUNITY PLANNING AND.BUILDING
STAFF REPORT
TO: MAYOR McCLOUD AND CITY COUNCIL MEMBERS
THROUGH: JERE A. KERSNAR, CITY ADMINISTRATO
FROM: BEN BERTO, SEN10R PLANNER
DATE: 6 JUNE 2000
SUBJECT: DR 99-15/GREG TOMLINSON/CARlvfEL CENTER
BLOCK 91, LOTS N2, 4,6,8
SIE CORNER OF DOLORES AND SEVENTH
I. RECO:tvflvfENDA TI ON
Staff recommends that the City Council adopt the attached Resolution No. 00-84 which
accomplishes the following:
I . To accept a donation of0.34950 acre feet ofwater into the City's supplies.
2. To revise the City' s allocation of water resources to make the donated water available
for the multi-family and commercial land use categories.
3. To approve the precommitment of the donated water to the Cannel Center project.
4. Upon approval of project applications, authorizes a letter from the City to the Water
Management District, stating the City's acceptance of the water transfer to the Cannel
Center site.
II. BACKGROUND
A moratorium on increased water use continues to be in effect for the Monterey peninsula.
In order for a project that might have an impact on water use to go forward, the project
applicant must demonstrate that an adequate supply of water is available, as detennined by
the Monterey Peninsula Water Management District (MPWMD).
In addition, the MPWMD recently took the first vote to enact a temporary moratorium on
commercial water transfers. Such a moratorium, due to go in effect on June 20, would
~ J d-2 . .11'0:.__ ' .•
' 24 5
117
' 246
DR 99- I 5fr omlinson/Cannel Center
6 June 2000
Staff Report
Page 2
preclude this project unless the City is willing to participate in the action that is the subject
of this staff report. The City is considering a letter to MPWMD in opposition to such a
moratorium.
Municipal Code Sections 17.08.030 through 17.08.060 establish the City's Water
Management Program. These Municipal Code provisions govern what water is available and
the process for allocating supplies among various use categories. The purpose of this
allocation is to direct water to categories that are consistent with the General Plan.
In the past, the City has received water from the Monterey Peninsula Water Management
District (MPWMD) and allocated · it between five different categories (single family
residential, multi-family residential, commercial, municipal, and unallocated reserve. The
majority of water received was allocated to residential use, resulting from the demand for
water being primarily residential. At this time, the City has no water available that is not
allocated or must be held in reserve for future City use.
The Municipal Code provisions do not directly address water that is donated to the City by
a private applicant, for the purpose of enabling a project that the applicant is proposing.
However, the provisions do allow for establishing a "precommitment of water resources" to
a project. The provisions stipulate that there be enough water in the allocation category to
allow for the proposed use.
This project mvolves an applicant privately obtaining water from one site, then donating the
water to the City with the stipulation that this water: be '·precommined'' to another site of
theirs . The water would originate from Jqdy LeTovvt ' s commercial allocation. Proposed
amounts are as follows :
Land use
Multi-family
Commercial
Amount (acre-feet)
0. 12900
0.22050
Total amount of water proposed to be transferred to the City is 0.34950 acre feet, enough
for the proposed land use category allocations (see attached applicant' s letter and water
transfer application). The amounts would be placed in the multi-family and commercial
categories and "precommitted" to the applicant's project in those two amounts ..
118
DR 99-15/Tomlinson/Carmel Center
6 June 2000
Staff Report
Page 3
If the City Council takes action on the proposals requested, the next step will be for the
applicant to take the record of the Council's action to the WPW1viD and request that the
District approve the transfer.
With respect to the project itself, the applicant r o p o s e ~ to remodel two existing structures,
add an upper level apartment to one of the structures, and build an additional structure on
property located at the southeast comer of Dolores and 7th. In order to add to the building
square footage on the site and create the new (apartment) use, the applicant needs more water
than has presently been allocated for the site. The applicant has found a potential seller for
the additional water. However, in order to transfer water from one land use to another, a
number of steps must take place.
The water transfer request was conceptually reviewed by the Planning Commission at their
26 April 2000 public hearing. At the hearing, the Planning Commission voted to recommend
Council approval ofthe transfer (see attached meeting minutes).
III. STAFF REVIEW
A number of City policies and regulations govern provision of residential housing in the
commercial district. The City's General Plan contains the following:
Objective 03-11 Continue to encourage mixed-use developments (second floor housing
over first floor commercial uses) as a preferred development form
contributing to the village character in the Commercial District.
P3-33
P3-37
P3-5l
The City will encourage mixed-use developments through its ordinances and
permit processes.
Newly constructed floor space at the second floor shall continue to be reserved
for residential units .. .
Continue to encourage mixed-use housing development that minimizes auto-
dependence for work commutes and shopping.
These adopted General Plan Objectives and Policies, and Zoning Ordinance provisions
(housing is allowed by right up to 33 dwelling units/ acre) encourage housing in the
247
119
DR 99-15/Tomlinson/Carmel Center
6 June 2000
Staff Report
Page 4
commercial districts.
,. 24 8
Additional water beyond that currently allocated to the site is necessary in order for the
apartment and the additional commercial space to be built. Staff supports the mixed-use
water· transfer. Staff has worked cooperatively with the applicant's representatives on this
project over the last several months. If the City Council takes affirmative action on the water
transfer at this meeting, the project will go forward.
IV. RECO:MM.ENDATION
Adopt the attached Resolution No. 00-84, which accomplishes the fo'llowing:
I. To accept a donation of 0.34950 acre feet of water into the City's supplies.
2. To revise the City's allocation of water resources to make the donated water available
for the multi-family and commercial land use categories.
3. To approve the precommitment ofthe donated water to the Carmel Center project.
4. Upon approval of project applications, authorizes a letter from the City to the Water
Management District, stating the City's ·acceptance of the water transfer to the Carmel
Center site.
120
F.3 Resolution No. 00-84
CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION NO. 00-84
A RESOLUTION ACCEPTING A TRANSFER OF WATER TO THE CITY
ALLOCATING THE WATER TO THE MIXED-USE CATEGORY
PRECOMMITTING THE WATER TO THE CARMEL CENTER PROPERTY
AND AUTHORIZING A LETTER TO THE WATER DISTRICT
REGARDING THE ABOVE
WHEREAS, the City of Carmel-By-The-Sea' s General Plan encourages
mixed-use development projects, especially housing in the downtown area; and
WHEREAS, the Carmel Center applicant is proposing an adaptive reuse
project involving the provision of housing over commercial; and
WHEREAS, the Carmel Center applicant is also proposing an increase in
commercial area that is within the City's zoning area limits; and
WHEREAS, the rules of the Monterey Peninsula Water Management
District (MPWMD) restrict the private transfer of water from one land use
category to another; and
WHEREAS, the City's Zoning Ordinance allows allocation of water to
particular land use categories, and transference of water from one land use
category to another; and
WHEREAS, the City's Zoning Ordinance allows the precommitment of
water to a particular project; and
WHEREAS, the applicant for the Carmel Center project is proposing to
transfer the water necessary for the project to the City, provided that the City
transfers the water to the multi-family and commercial land use categories and
precommits the water to the Carmel Center roject; and
WHEREAS, City Council approval is necessary for the water transfers to
take place; and
WHEREAS, the Planning Commission reviewed the proposed water
transfers at their 26 April 2000 public hearing and recommended that the City
Council approve the actions described below.
121
Resolution No. 00-84
Page Two
NOW, THEREFORE, the City Council of the City of Carmel-by-the-Sea
does resolve as follows :
1. To accept a transfer of 0.34950 acre feet of water into the City's supplies.
2. To revise the City's allocation of water resources to make the transferred
water available for the multi-family and commercial land use categories.
3. To approve the precommitmem of the transferred water to the Carmel
Center project.
4. Upon approval of project applications, authorizes a letter from the City to
the Water Management District, stating the City's acceptance of the water
transfer to the Carmel Center site.
PASSED AND ADOPTED by the City Council of the City of Carmel -By-
The-Sea this 6th da) of fune, 2000 by the following roll call vote:
AYES: COUNCIL MEMBERS: Hazdovac, Rose, McCloud
NOES: COUNCIL MEMBERS: Ely, Livingston
ABSENT: COUNCIL MEMBERS: None
~ · < \ ~ . c - ~ - /
Sue McCloud, Mayor
Attest:
planblg \ . .. \00-84
122
F .4 Plaza Del Mar EIR
En' i r0n mental Ana lysis
i J. "{;- I . I Ji t' l7rnpc ,:,: ed project H O!tlcl in\ nt..'H c t '! .' ·.'? i ;!, l! :. •.'·>!dt! !h · n;,n;ber ,:j·
; ·u:n/;:·1! .. '-=:' _ftt:.:tt..!S ,:! tlit: sitt.> . l'c' . .-.• tlring in u ... 7hij· i:tt hut:fd be
,!·;;;:-;n/t: ed undttr lht.' local H 'd!c'r i.i !11 l !l :.:'
: ,,,:_;t· r.-cl!it•n .u:.f [II'J>!f'.l ' l! <1i t!t<' .\f, •nL.:r<. l \nin.,·u{.; \l -,u".,- J/.Iriii!:Jcllic!!l! .-!.!(.,;ncy.
i!. 75•
l he p;·op•jSed pmjccl \\ 1Hdd ro::qu i re , ' - 1 \ . , , · ·
.::: i,' ll b: prt Spiii!Silf u:-: i ng :-..t ['\\' r.l D a;)rfl '
1
• c:J !:! : n::rati•,n t.JC(I tfS This
• secured from r!1r::!c :'llur::::.-; :
..... I •-)i \ 1.! •..' j 'L { ,l: ·.\.J(_ , ,· ;•L
-:redits of exis1ing buildings L) n \•, hi·.:h \\t··uld no l ong::r reqnire ?"ur::r sine:::
'.\(lt:i J b.: rerbc:::d l:>y the pni pG:>:: J [' :'0jc.::t. The :::\iSliug bud..!i ;l:?-5 i, l f J ! 5 ..
Sl.JUil<t: i:,;;.;t, lJj ing a • Ll,; !,•r IJf ll.IJU!JIJ7 . \ cr-:.: Fc::::: l per fl.> <.l!. lilt;:
bui! diilg would resul r in a \\'<Her credit uf 0 . .3750 .-\..:r-::: F.:eL
,.

,,
fJ :'" f .. •:l \, • I It
... 1:
• (. J • f, . •
1
.._·, if _ , f ·'·I.._' '\ti!"l(•i 1· \\ :. _;_'1 p .,;:-.l 1 I f I
\V1lU!d no lnnger use i ts aii\Kar::d \\'<H<::r -;uppl;; due 10 ck>s ure. The O!J Spinning
was iO
ill;: Ci' Y of Carrnc:: 1 . Ofrhi <: ' dt<tl" t•:::r 1 .. : ..
> p \'P' -.,'-=J prd:e ... t, J.h! t!:::
1
·: •. _ ! ·I t_:

;..'r f ct .. t ' lll lh :1 :J .. ::. l ,!' ;, "'n
!.u;; ns•.t l'rPJ<.:U .llld tl ) ,,,5 .\. r::> l 1 !''-"-< .. ll; 111 rh::: rr·"'•"c:d ;'r
' l hus . the- " f"J'tl:".;d !' t l j\ , t ''- •t. 'c! fi:_· r ... 3_
1
i rb: r 1•1 warer i t
!'he indicates rhar rhe projt:>cr Sf )(Jil " llr hcen ahlt: rn sc;.·ttrc: a r0r:1J of 1 (J7(}
of necessary for the opaation uf rh<.: pr•)p<JSt!d project Cii·; en rhar there are
'U!TLi;:: r.t \\·:t r.:r ;uppl ies from exi sting c ntitknk<H:; and the: pr\Jpo-; c:d projct:[
--- ------
,_ :'! __, t/, -,,;
1
, I', _ .. , { J•,;·, LJR \ \ uur Jt)j
· \V? • Ill PJ •''''·•.CJ\ W7Si-OO Pl.u.:a [tel W::: t: r kl(;
123
F.S Water Management Transfer Documents
1\\0 NTER.tr PEN!NSULJ\
\1/.A. fi-\A!··ll\GEt•\EJ'iT DI STRiC I
5 1-' •. •.RRIS C()(JRT, BLDC (_;
1<-31 OrFI•:E B0X 65
C.-\ 939 t=:-oot·1 .. ..
i J 6 ..1--9553 • .. ... !.;: .:J .4;
De:mis A. LeVett
[',)5' O(f;cc Box -12 0
---· - --- ---·------·- - ----
Commerci al-t o-Juri:di:: tic n Wat::r from.-\.?.\: O:f!-2Gi-O:..; • )
Ci ry Pt: lJ!i-:: • rd.

.. .._.
·- , - . i '
.... . . .. ' ::.. : !
...· ... ?..L:!;: t...\ ..L) 2'./ .. 5
•._'ji1Jifi0Ji3 t() S ;1ul:,ll: \•:::·:; .!.) \..', L- :>.!;
d.J:C.
f i' you have any questions 'Xate.r u.;e tr:lr:.:i :-::r p the P-.!.:r :i dnd •
;Yiice Jt 65S-560 ! .
. : :· . . :lllJ ' ,",. ,; '.;, - : ·.-:1:1 ; :'-:l • ..i· .• ;- ,. J : . •.• '.:.'-: .;· .: J 2 · I •1:-. .1 _. ·" \, l
124
EXHI.E IT 14-C
Montetey i?erunsula Water Management District.
187 El Dorado Street
Monterey, Ca 93942.0085
Attention: Locke
Reference: Spinning Vlheej Restaurant Water Transfer
Dear Stephanie,
March 16, 200 J
I, Ron Motta_ Owner of the on Monte 2 SIE ofO.:ean
A venue in Carmel, where fue Spinning _Whee! pre-Yio."US1y located, hereby
aut!.v, ri.u:. :--: .:-<:fer of .56 acre feet of water to the City ofC!l.qnel by the Sea. flus
,, ·e- :: of John Mandll!Tago. AddH .. Oor- ... .. e!ly, I
MJ' ·: to :. 15"? .. · acre-feet and allow the recordation of a deed
restrh."'. j{m,, · •Hture uses of water on my property at this location.
D1:>ti''-· •>".Y ;;.u't:?rization rnoni1or water use. Ow- Cal· Am account number is:
020-526-940(; ...
/ \
{ f
I /
I I
I I / 1
1/ !
f' 1 -

\ ...
. !
__
. •
125
MONTEREY PENINSULA
WATER MANAGEMENT DISTRICT
5 HARRIS COURT, BLDG. G
POST OFFICE BOX 85
MONTEREY, CA 9.3942· 0065 • ( 8.31) 658-5601
FAX (631) 644-9556 • http:/ /www.mpwmd.dat.ca.us
December 16, 2002
M.r. Z.J. Le Towt, III
GLM Associates
Pest Offi: e Bcx: 1255
Pebble Beach, California 93953
Subject: Transfer of Water Credits to the City of
Dear Mr Le ToWi
Thts responds to your request for ,.,.ntten con.firmation that 0.3 50 acre-fc:.;t of watc!r was
tra.nsfened from APX (South West Comer ofDolores Street & Oc.!an Avenue,
Carmel) to the Ci ty ofCam1el's publt c wa:er account This water resulted trom changes in use in
tenant spaces.
If you have any questions, please call me at 658-5601 .
Sincerely,

126
F.6 Water Resource Allocation
2006 Water Allocation Amended
TOTAL AVAILABLE WATER RESOURCE
3.251 af
Category #1: Low & Very Low Income Housing .589 af -2, (''-
This category includes residential housing units that meet the affordable housing standards for
low-income and/or very low-income households as estimated by the municipal code.
C,ategory #2: Single Family Residential
0.0 af
Category #3: Multi-Family Residential
0.0 af
This category includes pe1manent and non-transient multi-family housing in all commercial and
R-4 Districts, including new apartments and condominiums, conversions of commercial space to
residential dwellings, and the housing component of mixed-use projects.
Category #4: Commercial 0.0 af
This category includes construction of new commercial floor space and conversion of existing
space to uses with a greater demand for water. This category also includes the commercial
component of mixed-use projects.
Category #5: Municipal .224 af
This category includes all forms of municipal projects including expansion or renovation of
existing facilities, construction of new facilities and changes in use.
Catcgon #6 Unallocated Resen.c 1.69 af
This category is unallocated and is to be held as uncommitted until assigned to a defined
category through adoption of a new Allocation Resolution by the City Council.
Category #7: Mallery/Pescadero Water Transfer Reserve .106 af
This category includes the remaining balance from .960 acre-feet of water originally set aside
through a transfer of development rights for four vacant lots in Pescadero Canyon owned in 1998
by Tim Mallery but dedicated as permanent open-space. This water may be used for residential,
multi-family residential, commercial or public use development as detennined by Mallery
provided that the project complies with all zoning and provided that the is located with the City
limits.
Categon #8. Spinning Wheel .334 af
This category is for water remaining from .56 acre feet of water that came from the Spinning
Wheel Restaurant.
Category #9: Forest Cottages Pre-commitment .109 af
This category is for water pre-committed to the Forest Cottages Specific Plan for the creation of
two low-income housing units. If this project is denied by the City Council or Coastal
Commission or the project is not under construction by 1 March 2008 or is otherwise abandoned,
the water shall return to Category #1.
Category #10: Trevvett Court
•7
127
LXHiBII ··.\··
TOTAL:\\ AILAHLE \V,\
Categon #_1_: . ln<.:ome HllUSing . . .
!'hi' includes n:sidcntial units that tnl!et the at ton.labk
.;tand,mb' • ttnd or \·er;-l<IW-inctnnt• hc>uscholds :1s estimatt;d b) the
lllli'I:L·tpitl ('lid<..'
C ategon- #2: Sing!.: f amih Residential
3.26 af
.788 af
0.0 af
U.O af
:hi, 1nclud.:' ['ltTn;,tn..:Jll and ltll\lsing in at;
cunllnc:\:ta: ,ll\d DhirJL'h. i1lclulb1g. m·"· Jpar.mcnt.; anJ L'•HH.ll'i:liniunb. <.:1lr.\
oft:P01:llL'fda. Sf'IHL:C l\11'\:"id.:ntial d\\cl\i:1gs. and the housiag 1:0tllp0!1t:lll {>J'tniXL:J·LISC:
PHil<.'-:'.'
#:t. 0.0 at'
Tltts inc i:Itlo:' ot' IlL:\\ ..:.,mmen:i:d il•'<'r '>pan· .md ..:r<nn :1;
sp<tL'L It' USL':-- \\ ith d greater demand t\.1r \\ at..:r l hb call.!gor;. nlsn the
component of mix..:J-use rro.:ccb
rurcgon #5. .224 af
; inr!mk ... t'Pnw, ,,, prnjl.'t:l.' or n:n•" :lli .. ln
!:, .. diti ........ • •. .. 111.! "·h;ln:!t'' in L'St'
Catcgur.L#Q..; 1.69 af
This llJ!allucall..'tl and is to he I: .... Jc.J .lS LHKom,nittcd until !l) a dctim:d
thwug.h udojllinn <,f n llt:'' :\llocati.m Rl'St\lutiun the City Council
L_ategon ;0, . :Vlaikr' l'_t:s..:adm, j kr .1{_..::-icn .115 af
This includes lhl' rl'mainint? bai:Jn<.:t: !'rom .t)otl a<.:rc· ft:t..'\ of water t)riginall:
u'\idc a tran:-: f..:r ''' UL.'Yd .. ,pmt:nt right::. for !'our ,·acant lots in l't:scadcro Canvon
i11 ! im but :!cdicat<:d pcnnarwnt Clpcn-spacc. This 1\·atcr.md\.
h.: ll:'t.:C t'tlf rl'-;idi!JHiaL L:<•JH!llt.:rcii!l ur rublic usc
pr.,\·id..:d :hat the pwi.:ct t:•lmp!ie:-- '' ith all 'l(lning and provid.:J
tht.ll tht.: is located tht.: C
Ca #8: Spinn im! Wh.:d .334 af
i:> fpr ,,.<ttt.:r r.:mai11111_:.! frlln: ctl'!'c ftoct l•f that lron1tht'
<..;rim lin,<! \\'h.;d l\.<.: ·.(..tUhl ;i(.
ATTACHMENT A
128
\\'.I<' ' 4- l lx:ll:•,r.
' 20Uti

!19: • itmcnl . J 09 af
I i:. lil!. '' alt:J pn:-u !:JIIIIitted tn the 1-'PrL''>I C •'i tagt'.; Spcl' i fie Plan for the
creation nft\\\I I0\1-itK••ml! housing units. denied City ClHIIH:il or Coastal
llr the: • i$ nut built by I :vtar(h 2<108 nr i:-; lllht:f\\ isc- Hbundnncd. the:
,,·att?r shall reTUrn to Cakgory 1.

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