CITY COUNCIL: Appeal of Planning Commission's Decision to Certify EIR & Deny Plaza del Mar Project

Meeting Date: 6 October 2009
Prepared by: Sean Conroy, Plng & Bldg Services Manager and Brian Roseth, Planning Consultant

City Council
Agenda Item Summary

Name: Consideration of an appeal of the Planning Commission’s decision to certify an Environmental Impact Report and deny a project for the demolition of an existing building and the construction of a mixed-use development including a two-level underground parking garage, five market-rate condominiums, two low-income housing units, and commercial floor area. The project location is the SE corner of Dolores and 7th (Homescapes Building). The appellant is John Mandurrago.

Description: On 17 September 2009, the Planning Commission certified an Environmental Impact Report, adopted CEQA findings, and denied all permits for the Plaza del Mar project. The appellant is requesting that the City Council overturn the Planning Commission’s decision to deny the project.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Deny the appeal and uphold the Planning Commission’s decision.

Important Considerations: In December 2008 the City Council granted an appeal and overturned the Planning Commission’s decision to approve this project. The Council remanded all project decisions back to the Planning Commission, adopted findings and provided specific direction on several issues to assist the Commission. Part of this direction was to develop better evidence regarding the feasibility of the adaptive reuse.

The Council also affirmed that demolition of the Burde Building would constitute a significant environmental impact and provided the Commission with guidance on the interaction between CEQA and California housing statutes.

Recent Decision Record:
• 9/10/2008 - Planning Commission certifies and EIR and approves the project.

• 12/2/2008 - City Council adopts findings to overturn the Planning Commission decision.

• 9/17/2009 - Planning Commission adopts findings to certify EIR and deny the project.

• 9/21/2009 - Applicant files an appeal of the Planning Commission’s decision.

Reviewed by:

__________________________ _____________________
Rich Guillen, City Administrator Date

CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR MCCLOUD AND CITY COUNCIL MEMBERS
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
FROM: SEAN CONROY, PLANNING SERVICES MANAGER, AND BRIAN ROSETH, PLANNING CONSULTANT
DATE: 6 OCTOBER 2009
SUBJECT: CONSIDERATION OF AN APPEAL OF THE PLANNING COMMISSION’S DECISION TO CERTIFY AN ENVIRONMENTAL IMPACT REPORT AND DENY A PROJECT FOR THE DEMOLITION OF AN EXISTING BUILDING AND THE CONSTRUCTION OF A MIXED-USE DEVELOPMENT INCLUDING A TWO-LEVEL UNDERGROUND PARKING GARAGE, FIVE MARKET-RATE CONDOMINIUMS, TWO LOW-INCOME HOUSING UNITS, AND COMMERCIAL FLOOR AREA. THE PROJECT LOCATION IS THE SE CORNER OF DOLORES AND 7TH (HOMESCAPES BUILDING).

THE APPELLANT IS JOHN MANDURRAGO.

I. INTRODUCTION
On 17 September 2009 the Planning Commission certified the Environmental Impact Report, adopted CEQA findings and denied all permits for the Plaza del Mar project.

1 The applicant has appealed the CEQA findings and denial of permits to the City Council.
2 This appeal raises several issues, some of which the Council reviewed during Barbara Livingston’s appeal of the project approval in 2008.

In December 2008 the City Council granted the Livingston appeal and remanded all project decisions back to the Planning Commission. The Council adopted findings and provided specific direction on several issues to assist the Commission.3 Part of this direction was to develop better evidence regarding the feasibility of the adaptive reuse alternative. The Council also affirmed that demolition of the Burde Building would constitute a significant environmental impact and provided the Commission with guidance on the interaction between CEQA and California housing statutes.

1 See attachment #2: Planning Commission Resolution 2009-01 which includes Environmental Findings and Findings for Denial, dated 9/17/09
2 See attachment #1: Letter of appeal, dated 9/16/09
3 See attachment #3: City Council Findings for Decision, dated 12/2/08

In the discussion below, staff has summarized the claims in the appeal and provided a response. This report does not review in detail those issues already covered in prior Planning Commission and City Council Findings. Instead, only a brief response is given and references are provided to the relevant documents, which are attached.

II. RESPONSE TO ISSUES ON APPEAL
Mixed-Use Policies (appeal letter pages 1-2): The appeal claims that the Commission’s decision violates the applicant’s due process rights by raising a new issue, not noted in the Draft EIR or in any previous Staff Report, alleging a violation of the City’s General Plan/Coastal Plan. The appeal also claims that the Findings do not explain why the project is inconsistent with the General Plan/Coastal Plan. The appeal explains that the project was specifically designed to not increase commercial floor area and thereby avoid the need for a conditional use permit. The appeal notes that the project has nearly as much commercial square footage as currently exists on site.

Response: The Commission and staff repeatedly raised the issues related to the General Plan/Coastal Plan mixed-use policies and inadequate commercial floor area (12/13/06, 1/10/07, 5/14/08, 6/11/08 and 7/16/08). The RDEIR discussed these at pages 2-12 and 2-13 where it stated, “the project does not fully conform with the General Plan policies related to mixed-use developments”. The project requires a Use Permit regardless of the amount of commercial space because it includes construction of a parking facility.

The terms “violate” and “inconsistent with the intent of” are distinct. The Commission understood that the project does not “violate” the General Plan regarding mixed-use developments because the three applicable policies are an expression of intent. The policies are not structured to mandate a specific yes/no decision that could be violated. However, the City still has discretion to use the intent of the policies in the General Plan/Coastal Plan as a basis for its decisions. That is why they were adopted.

References:
Planning Commission Findings #3, #4 and #10 dated 9/17/09.
Planning Commission Minutes, dated 12/13/06, 1/10/07, 6/11/08
Staff Reports, dated 12/13/06, 1/10/07, 6/11/08 and 7/16/08
Revised Draft EIR pages 2-12 and 2-13
Architecture (appeal letter pages 3-4): The appeal claims that during the 2006 historic resources appeal the City Council determined that the building is not architecturally important and can be demolished. Therefore, the Planning Commission cannot subsequently determine that demolition of the Burde Building would cause a significant environmental impact on the City’s visual quality resources.

Response: In the 2006 historic resources appeal the City Council considered the architecture of the Burde Building for its historical significance. Specifically, the Council had to determine whether the architecture was so significant that it would qualify as historical even though the building was only 34 years old.4 The Council adopted the following finding:

Finding 34: Based on Findings #30 through #33, above, and pursuant to eligibility
criteria for the California Register of Historic Resources and the Carmel Municipal Code, the bank building does not embody distinctive characteristics of a type,
period, region or method of construction, or present the work of an important
creative individual or possess high artistic value, nor does it make an unusually
strong contribution to history, architecture, engineering or culture.

The preponderance of the evidence does not support the Bank building’s designation as an historic resource. Using the five tests established in National Register
Bulletins #15 and #22, and using the additional test for exceptional importance in the Carmel Municipal Code, the evidence in the record does not support a finding
that the bank building qualifies as historically significant within the City of Carmel-by-the-Sea.

Since adopting this finding the Council has twice confirmed that its historical resource conclusions should not be applied to the broader context of whether the building is environmentally significant as a visual quality resource.5 The Council has never stated that the building can be demolished.

References
City Council Findings and Basis for Decision #1, #2, #3 and#4, dated 12/2/08
City Council Actions on the Appeal #1, dated 12/2/08
Planning Commission Findings for Denial #6 and 7, dated 9/17/09
Planning Commission Environmental Findings, dated 9/17/09
Concessions (appeal letter pages 4-5): The appeal claims that the project is not seeking a density bonus and does not need to qualify for one in order to get concessions. The appellant acknowledges that the project violates the Zoning Code and General Plan/LCP but cites authority to waive these violations in the Density Bonus and Other Incentives Statute.

Response: The Planning Commission interprets the statute differently than the applicant. The first two subsections of the statute discuss the mandate for concessions:
65915 (a): When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city…that local jurisdiction shall provide the applicant incentives or concessions for the
production of housing units and child care facilities as prescribed in this section.

4 See attachment #4. This attachment is an excerpt from the City Council’s 2006 Findings.
5 On 2/6/07 and again on 12/2/08.

All cities…shall adopt an ordinance that specifies how compliance with this section
will be implemented.

65915 (b)(1): A city…shall grant one density bonus, the amount of which shall be as specified in subdivision (g), and incentives or concessions as described in
subdivision (d) when an applicant for a housing development seeks and agrees to
construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the
following: [The statute then lists affordable housing categories that must be met by the project].

These subsections are not independent. Subsection (a) establishes the principle that
concessions are mandated when an applicant seeks a density bonus. It functions like a preamble for the entire statute. Subsection (b) establishes the mechanism and makes reference to density bonuses and the concessions. If the subsections are independent, the first subsection is redundant. This result would be contrary to accepted rules for statutory interpretation. All subsections must add meaning and value.

References
Planning Commission Findings for Denial #15 and #16, dated 9/17/09
Housing Development Project (appeal letter pages 5-6): The appeal claims that the Planning Commission erred in finding that the project does not qualify as a “housing development project” as defined in the Housing Accountability Act.

Response: The Commission reviewed the statutory definition of this term and concluded that the commercial aspects of the project disqualify it. Specifically, the second level of commercial/valet parking and the absence of any control over what could occupy the retail spaces (e.g. visitor-serving uses such as art galleries, jewelry stores) both fail to meet the criteria in the definition.

References
City Council Actions on the Appeal #2 (bullet 5)
Planning Commission Finding for Denial #17, dated 9/17/09
Significant Adverse Impacts (appeal letter pages 6-9): The appeal claims that the Planning Commission erred in its CEQA decision because it relied on impacts to visual quality resources instead of the more limited “significant adverse impacts” defined in the Housing Accountability Act.

Response: The Commission and the applicant have different interpretations of the statute.
Section 65589.5 (d)(2) of the statute defines “significant adverse impact” as a:
“Specific, quantifiable, direct and unavoidable impact based on objective, identified
written public health or safety standards, policies or conditions as they existed on
the date the application was deemed complete”.

As defined, “significant adverse impact” is specific to “public health and safety”. It does not address “impacts to the physical environment”.

Section 65915(d)(3) states:
Nothing in this subdivision shall be interpreted to require a local jurisdiction to
grant an incentive or concession that has a specific adverse impact, as defined in
paragraph (2) of subdivision (d) of section 65589.5 upon health, safety, or the
physical environment and for which there is no feasible method to satisfactorily
mitigate the significant adverse impact. [Emphasis added]

This second term comes from CEQA. The very first step in the CEQA process is to determine whether a proposed activity may result in a physical change in the environment.

6 The hallmark of CEQA analysis is its demand for comprehensive review and consideration of all identified significant environmental impacts. If the legislature intended to limit the application of CEQA when applied to Housing Development Projects it could have amended CEQA or the CEQA Guidelines.

7 The discretion to adopt CEQA findings and deny the project is supported by another section of the statute, which states:
65589.5 (e) This section also does not relieve the local agency from making one or
more of the findings required pursuant to Public Resources Code Section 21081 or otherwise complying with the California Environmental Quality Act

The Commission concluded that the housing statute’s “specific adverse impacts” does not replace the broader scope of environmental impacts used in CEQA. By law, the Commission was obligated to consider all significant impacts, including visual quality.

References
City Council Findings and Basis for Decision #2 through #5, dated 12/2/09
City Council Action on Appeal #2 (bullet #1), dated 12/2/08
Planning Commission Findings for Denial #18 and #20
Planning Commission Environmental Findings, dated 9/17/09

6 PRC Section 21065 and CEQA Guidelines Section 15060.

7 In fact, the CEQA Guidelines were amended in 2008 to address affordable housing projects that met certain thresholds. The Plaza del Mar project does not meet these thresholds. (CEQA Guidelines Article 12.5 Sections 15191 through 15196.)

Coastal Act (appeal letter page 9): The appeal claims that the City must grant concessions from the LCP and cites authority in the Density Bonus and Other Incentives statute as well as Government Code Section 65590 related to affordable housing in the Coastal Zone.

Response: The Planning Commission’s finding addressed the Housing Accountability Act
(HAA). The appellant’s argument is based on the Density Bonus and Other Incentives statute and is not applicable. The appellant’s reference to Section 65590 overstates the statutory requirement; the City is not obligated to approve all requests.

The “or” in the statute allows discretion to offer density bonuses, modified zoning standards, accelerated processing or fee waivers. The City already waives building permit fees in proportion to the number of affordable units in a project and offers density bonuses, reduced parking requirements and increased floor area. These are more than sufficient to implement Section 65590.

References:
Planning Commission Findings for Denial #19, dated 9/17/09
Housing Accountability Act Findings (appeal letter pages 9 and 10): The appeal claims that the Commission erred in finding that project denial was required in order to comply with CEQA and the Coastal Act.

Response: The HAA specifies that a city can deny a Housing Development Project only when one of five circumstances applies. The Planning Commission found that one did apply: compliance with State statutes (CEQA and the Coastal Act) compels denial. The HAA requires that CEQA be implemented. The Commission’s CEQA findings (1) identified a significant impact, (2) found alternatives infeasible, and (3) determined that project benefits did not warrant adoption of overriding considerations. This chain of decisions mandates project denial. The HAA also requires that the Coastal Act be implemented. The project violates LCP requirements to protect significant trees and provide rental units equal in number to the proposed condominiums. The project also fails to implement the intent of the LCP policies for mixed-use developments. Unlike the Density Bonus Statute, the HAA does not override the LCP.

References:
Planning Commission Findings for Denial #18, #19 and #20, dated 9/17/09

III. NEW ISSUES
The appeal letter includes two comments not previously raised during Commission review of the project:

“The applicant will comply with the requirement to retain two significant trees if this incentive is not granted and if the applicant seeks judicial review of the City’s denial of applicant’s request for these incentives”...the applicant is willing to provide [an] equal number of rental units as market rate [units], provided a court should rule, and/or the City finds that the two incentives requested by the applicant are not appropriate. Under this condition the applicant will comply with the City ordinance/General Plan to have [an] equal number of rental units and condominium [units] in the Plaza del Mar project.

While not entirely clear, these appear to withdraw the request for concessions or offer to accept conditions of approval. If implemented, these would eliminate some of the issues that led to project denial.8 However, design revisions would be necessary, especially if the trees are to remain. At present, there are no drawings that would allow review of a revised project.

Further, the offer to withdraw the request for concessions to facilitate project approval indicates that the concessions are not needed to make the project economically feasible.

According to provisions in the Density Bonus Statute9, waivers of development standards must be “required” or “necessary” to make the affordable housing feasible.

IV. RECOMMENDATION
Deny the appeal and uphold the Planning Commission’s decision.

8 The CEQA issues regarding loss of visual quality resources would still remain. The appellant’s new comments relate to the applicant’s project as submitted—not to an adaptive reuse alternative. The applicant has stated in the record, and the Planning Commission has agreed, that the project is infeasible if the Burde Building is retained.

The concessions, whether approved or denied, will not change this.

9 Sections 65915(d)(1)(A) and 65915(f)


CITY OF CARMEL-BY-THE-SEA
PLANNING COMMISSION
RESOLUTION 2009-01
A RESOLUTION CERTIFYING AN ENVIRONMENTAL IMPACT REPORT AND DENYING PERMITS FOR THE PLAZA DEL MAR PROJECT

WHEREAS, the City received and reviewed a project known as Plaza del Mar to be located on the south east corner of Dolores Street and Seventh Avenue; and

WHEREAS, the project includes demolition of existing site improvements and construction of a two-level underground garage plus two stories above grade to be occupied by 4,958 square feet of commercial space and seven residential condominiums units, two of which will be restricted to low-income households for time limits as specified in the Government Code and the Health and Safety Code; and

WHEREAS, the Planning Commission has reviewed detailed plans showing the location of buildings and open space, all parking, garage entrances, allocation of commercial and residential space and the project architecture; and

WHEREAS, the City required preparation of an Environmental Impact Report; and

WHEREAS, the final Environmental Impact Report has been completed in compliance with the California Environmental Quality Act; and

WHEREAS, the Environmental Impact Report identified eight project impacts, one of which is significant and cannot feasibly be mitigated ; and

WHEREAS, the Final Environmental Impact Report was presented to the Planning Commission on 17 September 2009; and

WHEREAS, the Commission has reviewed and considered the information contained in the Environmental Impact Report prior to taking action on the project and has applied its understanding of this information when considering development permits for the project; and

WHEREAS, the Planning Commission has determined that project benefits are insufficient to warrant adoption of overriding findings pursuant to Section 15093(a) of the California Environmental Quality Act Guidelines; and

WHEREAS, the Final Environmental Impact Report reflects the Planning Commission’s independent judgment and analysis.

NOW THEREFORE, the Planning Commission of the City of Carmel-by-the-Sea does hereby resolve to:

1. Certify the environmental impact report.

2. Adopt all findings above.

3. Deny all project permits

4. Adopt all findings and citations to evidence attached hereto.

AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:

_______________________
Alan Hewer, Chairman

Attest:

___________________
Leslie Fenton
Secretary thereof

Planning Commission Environmental Findings
Plaza del Mar Project
Adopted: 17 September 2009

I. FINDINGS OF FACT
1. The project site is a 16,000 square foot parcel of land located in the Service
Commercial Land Use District. Existing improvements on the site include a building constructed in 1972 and a paved parking lot.

2. On 9 September 2001, the project applicant filed an application for development
of this site. The project includes full demolition of all site improvements,
construction of a two-level underground garage, construction of a floor at street
grade to be occupied with a mix of commercial shop spaces and residences plus a second floor level with residences.

Evidence:
• Assessor’s parcel record showing the size and configuration of the site.
• Application materials showing existing and proposed improvements.
• Final EIR, page 1-1 describing the project scope.
• Revised design submittals received for the meeting of 9/10/08.

3. Full approval of the proposed project requires issuance of a Demolition Permit,
Tree Removal Permit, Conditional Use Permit, Design Review Permit, Coastal Development Permit and a Condominium Subdivision Map. Due to the scope of the project and the potential for impacts to historic resources, the City required preparation of an Environmental Impact Report (EIR) consistent with the
provisions of the California Environmental Quality Act (CEQA), prior to taking action on any permits.

Evidence:
• CMC Title 17:
17.48.050 Trees.
17.30.010 Demolition.
17.14.050 Use Permit.
17.14.010 Design Review.
17.52.090 Coastal Development Permit.
• California Subdivision Map Act.

II. FINDINGS ON THE ENVIRONMENTAL IMPACT REPORT PROCESS
4. The City hired the firm of EIP Associates to prepare the EIR. Impacts identified
in the Draft EIR were:
Biology Impact BR-2: Vegetation removal may result in impacts to nesting birds. (Potentially significant)

Cultural Resources Impact CR-1: Excavation activities during demolition and construction may disturb previously unidentified cultural resources. (Potentially
significant)

Cultural Resources Impact CR-2: During excavation of the project site, the proposed project may encounter unidentified buried archaeological resources or human remains. (Potentially significant)

Noise Impact NO-1: Construction activities associated with the proposed project could generate substantial temporary or periodic noise levels. (Potentially significant)

Noise Impact NO-2: Construction activities associated with the proposed project could generate or expose persons off site to excessive ground-borne vibration. (Potentially significant)

Mitigations to reduce each impact to a level of less-than-significant were identified.

5. The Draft EIR was circulated for a 45-day public review and comment period beginning on 28 May 2004 and ending on 15 July 2004. The City’s Planning Commission held a public hearing during the comment period. During the comment period the City received comment letters from the following sources:
*Brian T. Congleton, American Institute of Architects (Monterey Bay Chapter)
*Kent L. Seavey
*Richard N. Janick
*Clive and Salley Anne Smith
*Enid Sales, representing the Carmel Preservation Foundation
*Richard F. Barrett

At the public hearings, testimony was received from the following speakers:
*Kent Seavey
*Richard Janick
*Marshall Hydorn
*Brian Congleton
*Ann Bell
*Richard Barrett
Don Kramer
Alan Hewer
*Julie Culver

John Mandurrago-Applicant
Several comments both oral and written (identified above with an asterisk), questioned the EIR conclusion that the bank building was not historic.

Evidence:
• Draft EIR 5/28/04.
• Planning Commission Minutes dated 7/14/04.
• Comment letters.

6. After the close of the public comment period, EIP Associates prepared a Final
EIR. As required by CEQA, the Final EIR responded to each comment received during the 45-day public comment period. A (draft) Final EIR was released in October 2005.

Evidence:
• (draft) Final EIR

7. The (draft) Final EIR reached the same conclusion as in the Draft EIR—the building is not historically significant. Based on this evidence, City staff prepared a Preliminary Determination of Ineligibility for the Historic Resource Inventory. This action was appealed to the Historic Resources Board. The Board granted the appeal. The Board’s action was appealed to the City Council by the applicant. The City Council’s action was to reverse the Board’s action and to determine that:
The Palo Alto Savings and Loan Building (Bank Building) does not qualify as an historic resource. It shall not be listed on the Carmel Inventory of Historic Resources and shall not be considered an historic resource for purposes of any environmental review.

Evidence:
• Preliminary Determination of Ineligibility for the Historic Resources Inventory, dated 8/12/2005.
• American Institute of Architects, Monterey Bay Chapter appeal letter, dated
12/14/05.
• Historic Resources Board Minutes, dated 12/16/05.
• Letter of appeal submitted by the project applicant, dated 1/28/06.
• City Council Minutes for meetings dated, 6/6/06, 8/8/06, 10/3/06 and 11/7/06.
• Findings, evidence and conclusions in the Findings for Decision, adopted by
the City Council, dated 11/7/06.

8. Text in the EIR discussing historic resources was revised accordingly. During
the revision process it became evident that conclusions in the EIR regarding
architecture and visual quality resources were no longer valid. During the appeal
hearings there had been a significant amount of new testimony and evidence presented by professionals and lay-people recognizing the existing building on the site as visually and architecturally significant, even if it was not historically significant. The City Council adopted a finding regarding this issue:

The bank building is visually striking. It is an excellent representative of the
Second Bay Area Tradition in architecture. It is modern in design and it reflects a more recent period in the City’s history. It contrasts with earlier
historic styles of design and it adds to the architectural diversity of the City.
At the hearing, architects characterized it as heroic or monumental in design.
There are few buildings in Carmel that share all of these qualities. (Finding #25
adopted by the City Council, 7 November 2006)

The visual quality impact has two aspects. First, as an example of contemporary
architecture from the 1970’s, its loss would diminish the diversity of architecture in the City. Architectural diversity is of general benefit to the community and has been an important local issue. Second, the City would lose an individually significant building of great visual quality designed by an important architect. This is a specific benefit to the community.

If demolished, the first aspect can be recovered by constructing a new building
that reflects its time and enhances architectural diversity. The second aspect of
the visual quality impact cannot be recovered: once an architecturally important
building is demolished, it is gone forever. Using the visual impact threshold
already established in the 2005 Draft EIR, the Planning Commission identified
this loss as a significant environmental impact (hereinafter called VQ-1).
Mitigating this impact would require incorporating some or all of the existing
building into the project design. On 13 December 2006 the Planning Commission added the following text to the EIR:

Visual Quality
VQ-1 Threshold of Significance: Loss of special character-defining features of the project setting that make it architecturally and visually distinctive.

The evidence submitted by professional architects at the appeal hearing, the
determination by the City Council, the findings adopted by the Historic
Resources Board and the Planning Commission’s own judgment, all support
the conclusion that the building qualifies as having special characterdefining
features that make it architecturally and visually distinctive. Upon demolition, the loss of architectural diversity can be mitigated; the loss of great architecture cannot. Therefore, the project would result in a significant impact on visual quality.

MITIGATION MEASURES. The following two mitigation measures address this issue. Implementation of either would reduce the visual quality impacts associated with loss of the building’s architectural and visual distinction to a less-than-significant level. (LTS):

VQ-1.1 Incorporate the existing building into the design of the proposed project. This would probably require a significant reduction in the size of the underground parking garage so as to avoid excavating under the existing building.

VQ-1.2 Deconstruct the existing building, complete the underground garage, reconstruct the building and build the remainder of the project around it.

Evidence:
• City Council Minutes dated, 6/6/06, 8/8/06, 10/3/06 and 11/7/06.
• Findings, evidence and testimony documented in The Findings for Decision
adopted by the City Council, dated 11/7/06.
• Planning Commission Minutes, dated 12/13/06, 1/10/07
• Staff Reports dated, 6/6/06, 8/8/06, 10/3/06, 11/7/06, 12/13/06 and 1/10/07.
• Historic Resources Board Minutes, dated 12/16/05 and 1/23/06.
• Draft EIR, October 2005.
• Final EIR (draft), December 2006
• General Plan Land Use and Community Character Element

9. A second visual quality impact resulted from the similarity of architecture in the project to existing designs in the Historic Resource District across the street. This similarity would blur the boundary of the Historic District and diminish its value. The Planning Commission identified this as a significant environmental
impact (VQ-2). Mitigating this impact would require a redesign of the project using more contemporary architecture.

Evidence:
• Historic Resources Board Minutes, dated 1/23/06
• Planning Commission Minutes, dated 12/13/06 and 1/10/06.
• Staff Reports, dated 12/13/06 and 1/10/06.

10. On 10 January 2007, the Planning Commission reviewed the new text on visual
quality issues, found it adequate and certified the EIR. On 1/11/07, one
Commissioner filed a Request for Reconsideration of the Commission’s action on grounds that identification of a new significant impact required a recirculation
of the EIR to allow for public comment. Since the impacts on visual quality were identified as significant, certification was premature. On 1/16/07, the Commission reconsidered the issue, rescinded certification and directed staff to circulate the Revised Draft EIR with its new text discussing visual quality impacts.

Evidence:
Planning Commission Minutes for meetings dated 1/10/07 and 1/16/07.
Staff Reports, dated 1/10/07 and 1/16/07.

Request for Reconsideration, dated 1/11/07

11. On 24 January 2007, the project applicant appealed the Commission’s action to
the City Council. On 6 February 2007, the Council heard the appeal, upheld the
Commission and denied the appeal.

Evidence:
• Letter of appeal from the project applicant, dated 1/24/07.
• Staff Report to the City Council, dated 2/6/07.
• City Council Minutes for 2/6/07.

12. The Revised Draft EIR was recirculated for 30 days from 1 March 2007 to 1
April 2007. Due to an error in public notice, the comment period was extended
to 10 May 2007. Public comments were received from the following:
• Enid Sales
• Monte Miller
• Clark Watkins
• Clive and Sally Anne Smith
• Mike Cate
• Niels Reimers
• Miriam Shikat

Following the close of the public comment period, the City prepared responses to
comments for inclusion in a Revised Final EIR. The (draft) Revised Final EIR
was released on 7 June 2007.

Evidence:
• Revised Draft EIR.
• Public Notices dated 3/1/07 and 4/1/07.
• Letters to interested parties dated 4/1/07.
• Comment Letters.
• Revised Final EIR (draft).
13. The Planning Commission reviewed the project and the EIR on 13 June 2007.
The applicant presented testimony on why demolition of the existing building
was required and why any alternative or mitigation that would save all or a
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Planning Commission
Plaza del Mar Environmental Findings
17 September 2009
Page 8
portion of the building was infeasible. The applicant also stated his willingness
to redesign the building using contemporary architecture and thereby avoid
visual impact VQ-2. The Commission accepted the applicant’s argument
regarding the infeasibility of mitigating impact VQ-1. The Commission also
accepted the applicant’s pledge to pursue project design revisions to mitigate
impact VQ-2. Without seeing the new design, or any issues it might raise, the
Commission followed staff recommendations and certified the Revised Final
EIR.
Evidence
• Revised Final EIR, dated 6/7/07.
• Planning Commission Minutes, dated 6/13/07.
• Staff Report dated 6/13/07.
14. On 3 July 2007 the City Council reviewed the Commission’s action and
determined that since the new design was not yet submitted it was uncertain
whether it might present environmental concerns. Therefore, certification should
not occur until the final project design and all project permits were ready for
approval. The Council directed the Planning Commission to decertify the EIR.
Evidence:
• City Council Minutes, dated 7/3/07.
• Staff Report, dated 7/3/07.
15. In January 2008, the applicant submitted revised plans for the project using
contemporary architecture, an increased amount of commercial floor area and
adding two housing units restricted to occupancy by low-income households.
These plans addressed land use, design and environmental issues (VQ-2). The
revised design still required full demolition of the existing building on the
property and, therefore, the significant environmental impact (VQ-1) resulting
from demolition would still occur.
Evidence:
• Revised project plans.
16. The Commission reviewed these plans at a public hearing on 6/11/08, 7/16/08
and 8/13/08. It determined that only minor revisions to the design of the project
were needed and that the EIR was ready for certification. Since no feasible
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Planning Commission
Plaza del Mar Environmental Findings
17 September 2009
Page 9
alternative/mitigation existed to remedy the visual quality impact, project
approval would require adoption of overriding findings. The Commission
directed staff to work with the applicant on final revisions, prepare all permits for
adoption and to draft a Resolution to Certify the EIR all for review and approval
at the meeting of 10 September 2008.
Evidence:
• Planning Commission Minutes, dated 6/11/08, 7/16/08 and 8/13/08.
• Staff Reports, dated 6/11/08, 7/16/08 and 8/13/08.
• California Environmental Quality Act Guidelines Sections 15091, 15092 and
15093.
III. FINDINGS ON THE 2008 CEQA DETERMINATIONS AND APPEAL
17. During project review, the California Quality Act Guidelines require cities to
consider environmental impacts classified as significant and to take one of the
following three actions:
• Adopt feasible mitigation measures or a project alternative that avoids or
substantially lessens the significant impact.
• Deny the project.
• Determine that mitigating the significant effect is infeasible and adopt findings
of overriding consideration explaining why the project is being approved in
spite of the significant effect.
Evidence:
• CEQA Guidelines Sections 15091, 15092 and 15093.
18. As stated in finding #13, above, the Commission had already determined that
mitigating the Visual Quality impact (VQ-1) was infeasible as defined in the
CEQA Guidelines. This determination eliminated the first option provided in the
Guidelines for responding to significant impacts. (Bullet #1 in Finding #17)
Evidence:
• Planning Commission Minutes, dated 6/13/07.
• CEQA Guidelines Section 15091(a)(3) and 15092(b)(2)(A).
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19. The Planning Commission believed, based on advice from City staff, that the
California Housing Accountability Act requires cities to approve projects that
include affordable housing, even if approval would result in significant
environmental impacts. Further, the Commission also believed that the
California Density Bonus Statute required City approval of concessions for this
project—including waivers of local zoning codes and General Plan policies. The
effect of these beliefs, based primarily on the advice of City staff and legal
counsel, was to eliminate the second option provided in the CEQA Guidelines
for responding to significant environmental impacts. (Bullet #2 in Finding #17)
Evidence:
• California Government Code Sections 65589.5 and 65915.
• CEQA Guidelines Section 15091(a)(3) and 15092(b)(2)(A).
• Staff Reports, dated 8/13/08 and 9/10/08.
20. The Planning Commission concluded that its only remaining option to comply
with CEQA was to acknowledge the significant environmental impact and
approve the project with overriding findings. The Commission adopted the
following Finding:
For the Plaza del Mar project the overriding finding is that because of
the important benefit of providing affordable housing, California
Statutes have removed the City’s discretion. The City is compelled to
approve the project because it includes two units of housing reserved
for low-income households.
On 10 September 2008, the Planning Commission adopted Findings for
Approval, a Resolution Certifying the Environmental Impact Report for the Plaza
del Mar Project and all project permits.
Evidence:
• CEQA Guidelines sections 15092(b)(2)(B) and 15093.
• California Government Code Section 65589.5.
• Planning Commission Minutes, dated 8/13/08 and 9/10/08.
• Staff Reports dated 8/13/08 and 9/10/08.
• Resolution Certifying an EIR for the Plaza del Mar Project, dated 9/10/08.
• Adopted Project Findings and Conditions, dated 9/10/08.
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21. The Planning Commission’s action was appealed to the City Council with
several issues raised. Among them were:
o The Planning Commission was not obligated to approve concessions just
because the project provided affordable housing. Concessions are required
only for projects that require a density bonus.
o The affordable housing statute does not trump the requirements of CEQA.
Section 65915 limits its own mandate by acknowledging that CEQA still
applies. The statute preserves the City’s discretion regarding how to respond
to significant environmental impacts.
o The Commission erred in adopting a Statement of Overriding Considerations
premised solely on a conclusion that Section 65915 compelled project
approval.
o The Planning Commission erred because the project does not meet the
definition of a “housing development project” specified in the Housing
Accountability Act and therefore is not subject to the terms of the Act.
Evidence:
• Letter of Appeal from Barbara Livingston, dated 9/24/08
• Staff Report to City Council, dated 11/4/08
• City Council Minutes, dated 11/4/08
• City Council Findings, adopted 12/2 08
22. On 4 November 2008, the City Council conducted a public hearing and granted
the appeal on most of the issues raised.1 The Council remanded the project
permits and CEQA determinations to the Planning Commission with
instructions, including the following regarding CEQA:
o The affordable housing statutes in the Government Code and the environmental
review provisions in the Public Resources Code must coexist with equal force.
One obligation does not invalidate or “trump” the other. The decision-making
process established by CEQA is to be followed independently from the decisionmaking
process under the two affordable housing statutes.
1 Incorporated by reference are the City Council findings and decisions adopted 2 December 2008.
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o The Council concurs with the Commission that demolition of the Burde
Building would constitute a significant impact on the City’s visual quality
resources and therefore constitute a significant environmental impact as defined
in CEQA.
o In considering the feasibility of a project alternative (per CEQA) the
Commission’s decision should be supported by evidence in the record. To be
credible, the analysis of the evidence must be adequately reasoned and, if
possible, should be provided by an independent third party. This is consistent
with CEQA Guidelines Sections 15091 and 15093.
o At a minimum, an adaptive reuse project alternative that avoids demolition of
the Burde Building (or at least retains the important visual character of the
building) should be considered as an alternative in the EIR even if it does not
meet all project objectives. This is consistent with Section 15126.6 of the
CEQA Guidelines.
o In reaching a decision regarding the feasibility of providing affordable housing
without the requested incentives/concessions the Commission should rely on
evidence in the record. This too should be the product of a reasoned analysis.
Evidence:
• City Council Findings, adopted 12/2/08
IV. FINDINGS AND CEQA DETERMINATIONS: 2009
23. The Planning Commission reopened its consideration of project permits and
CEQA determinations on 11 February 2009. The Commission determined (1)
that the Adaptive Reuse Alternative discussed in the Draft EIR would could
mitigate the significant impact but (2) that there was insufficient evidence in the
record to determine if it was feasible. The Commission requested that additional
evidence be prepared on this issue, preferably from a third party source.
24. An economic analysis has now been completed on the feasibility of constructing the
project without the underground garage, keeping the existing building, altering the
site design and reducing unit sizes. The analysis shows that even with favorable
assumptions, the project would not be profitable. Therefore the Commission
concludes that the Adaptive Reuse Alternative is not economically feasible.
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Evidence:
• Final Environmental Impact Report
• Economic Feasibility Study prepared by BMR Construction
• Real Estate analysis by Alain Pinel Realtors, dated 7/14/09
• Planning Commission Minutes, dated 2/11/09, 8/12/09 and 9/17/09
• Applicant’s correspondence, dated 6/20/09
25. By companion action on this date2, the Planning Commission has determined
that the Project does not qualify for concessions per the California Density Bonus
statute and does not qualify for special treatment under the Housing
Accountability Act. Therefore, the conflicts between the project design and the
City’s Municipal Code, Local Coastal Program and the land use policies and
housing policies of the General Plan are not overcome by application of these
statutes. The project does not comply with local standards for approval.
Evidence:
California Government Code, sections 65915 and 65589.5
City Council Findings, adopted 12/2/08
Planning Commission Findings for Decision, dated 9/17/09
Project plans submitted for approval on 9/10/08
General Plan/LCP Land Use and Community Character Element
General Plan Housing Element
Municipal Code Land Use Tables and provisions regarding significant trees.
26. The project will have a significant environmental impact on the City’s visual
quality resources due to loss of the Burde Building—an outstanding architectural
design that adds to the cultural richness of the downtown area.
Evidence:
Revised Draft and Revised Final Environmental Impact Report
American Institute of Architects Letter of Appeal, dated 12/14/05
Evidence submitted during City Council appeal hearings, 6/6/06 and 8/8/06
Historic Resources Board Minutes, dated 12/19/05, 1/23/06, 6/19/06
Planning Commission Minutes, dated 12/13/06, 1/10/07, 2/11/09 and 9/17/09.
Letters from Dahlstrand, Brandt-Hawley and Sales, received 2/6/07
2 Planning Commission Findings for Decision, Plaza del Mar Project
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City Council Minutes dated 2/6/07 and 11/4/08
City Council Findings on Appeal, adopted 12/2/08
27. There is no feasible way to mitigate this impact and the Commission finds no
substantial project benefits or other considerations that would make living with
this impact “acceptable” or that would warrant approval of permits that do not
comply with City standards and policies.
Evidence:
• Revised Draft and Revised Final Environmental Impact Report
• Economic Feasibility Study prepared by BMR Construction
• Real Estate analysis by Alain Pinel Realtors, dated 7/14/09
• Planning Commission Minutes, dated 1/10/07, 6/13/07, 8/12/09
• Applicant’s correspondence, dated 6/20/09
• CEQA Guidelines Sections 15091, 15092 and 15093
• Municipal Code Land Use Tables and provisions regarding significant trees.
28. Having made the determinations in Findings #24 through #27, and pursuant to
the requirements of Sections 15091, 15092 and 15093 of the CEQA Guidelines,
the Planning Commission is obligated to deny the project for the reasons stated
in these Findings.
Evidence:
CEQA Guidelines Sections 15091, 15092 and 15093
Planning Commission Findings for Decision, dated 9/17/09
City Council Findings, dated 12/2/08
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Adopted: 17 September 2009
I. DECISION SUMMARY
The project is denied based on the following conclusions:
• Project approval would violate the City’s General Plan.
• Project approval would violate the City’s Municipal Code.
• Project approval would violate the Local Coastal Program (LCP).
• The project has a significant environmental impact that cannot feasibly be mitigated.
• Project benefits are insufficient to justify a finding that environmental impact is acceptable.
• The project does not qualify for special treatment under the Density Bonus Statute.
• The project does not qualify for special treatment under the Housing Accountability Act.
II. PROJECT CHARACTERISTICS
Finding #1: The Plaza del Mar Project (the Project) site is located within the commercial core
area of Carmel-by-the-Sea. This area is built-up with mostly two-story buildings occupied by
retail on the street level and residences on the second story. The site is currently underdeveloped
with approximately 5,268 square feet of retail floor area and a surface parking lot.
Evidence:
Carmel-by-the-Sea Municipal Code and Zoning Map
Project plans
Staff Reports dated 6/1/08 and 9/10/08
Finding #2: The Project includes the following elements:
• Demolish the existing single-story retail building.
• Demolish the surface-parking lot.
• Remove 16 Monterey pine trees.
• Construct an underground garage with two levels, the lowest level to be operated as valet.
parking for nearby motels and businesses and the upper level to be reserved for on-site uses.
• Construct 4,958 square feet of commercial space to be occupied by unspecified tenants.
• Construct five condominiums targeted to a high-income market.
• Construct two apartments affordable to low-income households.
Evidence:
Project application materials and design submittals
Staff Reports dated 6/1/08 and 9/10/08
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Finding #3: The following City permits are required for project approval:
• Tree Removal permit
• Demolition permit
• Use permit for underground garage
• Use permit for construction of commercial floor space
• Subdivision Map for condominiums
• Design Review
• Coastal Development Permit
Evidence:
• Carmel Municipal Code (Zoning Ordinance)
• Local Coastal Implementation Plan
• Subdivision Map Act
• Staff Report dated 10 September 2008
III. FAILURE OF THE PROJECT TO COMPLY WITH LAND USE ORDINANCES,
PLANS AND POLICIES1
Finding #4: The project is inconsistent with the LCP and General Plan (Land Use and
Community Character Element) regarding the City’s downtown development pattern.
Discussion: City policies and ordinances support high-intensity land uses in the core of the
commercial area including retail uses at the street level with residential uses (condominiums
and apartments) located at the second story. This mixed-use concept is intended to create a
strong and vital downtown. Maintaining a dense concentration of retail activity in the core
area supports this vitality as the customers drawn to each business also help support other
businesses nearby. General Plan and LCP text describing the intent of the core area states:
Core Commercial: This area is intended to provide for a wide range of retail and service
uses…More intense commercial activities such as retail, restaurant and visitor commercial
uses are appropriate in this area.
General Plan and LCP direction regarding the appropriate form of mixed-use development is
provided in the following policies. Each of these policies supports full development of the
ground floor with commercial uses and placing residential uses on the second story:
1 This Section discusses land use conflicts between the Project and the General Plan/Coastal Plan and Municipal Code.
The Project’s conflicts with the City’s planning documents related to housing are addressed in Section V.
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• General Plan policy P1-8: Continue to encourage mixed land uses that create new second
floor apartments located over ground floor retail and service uses in the commercial district
on streets where a pattern of second story buildings already exists.
• General Plan policy P1-62: Continue to encourage the established mixed-use pattern
(residential over commercial uses) in all commercial districts.
• General Plan objective O3-6: 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 all Commercial Districts.
The project site is underdeveloped and most of the land is occupied by a surface parking lot.
The site includes just 5,268 square feet of retail space whereas the zoning allows up to 15,200
square feet. The site has no second story.
The proposed project would not increase retail space. All net new floor area would be
reserved for residential use. More than half of the ground floor space would be occupied by
residences. The General Plan and LCP do not support this development pattern in the
commercial core area. The proposed development is more characteristic of the lower-intensity
pattern intended for the periphery of the commercial area (RC District).
Evidence:
• General Plan/Coastal Plan text on pages 1-1 through 1-5 and pages 1-10 through 1-16
• General Plan/Coastal Plan policies P1-8, P1-62 and O3-6
• Chapter 3.5 (Land Use) in the Revised Draft EIR
• Staff Reports, dated 12/13/06, 1/10/07, 6/11/08 and 7/16/08
Finding #5: Approval of the project would violate the requirements of the Local Coastal
Program regarding significant trees.
Discussion: Pursuant to the California Coastal Act, the City has adopted a Local Coastal
Program (LCP). The LCP was certified by the California Coastal Commission and all City
actions on all projects requiring a Coastal Development Permit must be consistent with the
Plan. The introduction to the Land Use Plan contains the following text:
Located adjacent to Carmel Bay with gently rising slopes, the City has conscientiously
retained its residential village character in a forest setting, dominated by Monterey Pines.
The special character of this residential coastal community is considered a unique asset of
statewide and national significance that should be maintained as a resource both for local
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residents and for visitors. The incorporated limits of the City of Carmel-by-the-Sea shall
be designated a “special community and a highly scenic area within the meaning of [the]
Coastal Act. New development shall protect this special community and its unique
characteristics.
The LCP also recognizes that “The Monterey pine forest is the character defining feature of the
City” (emphasis in the original). The LCP requires Forest and Beach Commission approval to
remove Monterey pine trees and prohibits removing any tree classified as “significant”. The
LCP includes a detailed system whereby the City Forester must rate trees for their significance
using criteria for species, age, form, health and other factors.
The City Forester approved removal of six trees on the project site. On 2 November 2006 the
Forest and Beach Commission approved removal of the remaining 8 non-significant trees. As
mandated by the LCP, the Commission denied removal of the two significant trees. The
Commission required that a 15-foot setback be established between the proposed construction
and both trees.2 At the meeting, the applicant stated that he could redesign the project to avoid
the significant trees. He did not appeal the Commission’s decision.
The project has not been redesigned and still requires removal of the two significant trees
located on site. Permit approval would violate the LCP.
Evidence:
• Local Coastal Land Use Plan Introduction
• Chapters 12.28 and 17.48 of the Coastal Implementation Plan
• CIP Appendix: Tree Evaluation Form
• Revised Draft EIR, pages 3.8-19 and 3.8-20
• Staff Report dated 2 November 2006
• Forest and Beach Commission Minutes dated 2 November 2006
• Project plans.
IV. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) REVIEW
Finding #6: The aesthetic effects of a project are a valid topic for environmental review and
can be the basis for finding a significant impact on the environment.
Discussion: The State CEQA Guidelines include an Environmental Checklist that is used by
local agencieswhen making an initial study of the potential effects of a project on the
environment. This checklist includes a section on aesthetics. California Appellate decisions
2 The Commission also required that this 15-foot setback be maintained from two significant trees located in the public
right-of-way, adjacent to the project site.
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have affirmed that aesthetics and visual character are important environmental issues worthy of
analysis in an EIR and can be the basis of finding significant environmental impacts.
Evidence:
• Environmental Checklist published by the California Office of Planning and Research
• Ocean View Estates Homeowners Association, Inc, v. Montecito Water District.
• Pocket Protectors, v. City of Sacramento et.al.
Finding #7: The project would have a significant environmental impact on the City’s visual
resources due to demolition of the Burde Building.
Discussion: The Project EIR identifies eight impacts. Seven of these are less-than-significant
or could be mitigated to less-than–significant. The remaining impact that would result from
demolition of the Burde Building is classified as significant. Through an appeal process in
2006, the City Council determined that the Burde Building does not qualify as a historical
resource, but it also adopted a finding stating:
The bank building is visually striking. It is an excellent representative of the Second
Bay Area Tradition in architecture. It is modern in design and it reflects a more
recent period in the City’s history. It contrasts with earlier historic styles of design
and it adds to the architectural diversity of the City. At the hearing, architects
characterized it as heroic or monumental in design. There are few buildings in
Carmel that share all of these qualities.
The Burde Building has been described as being of exceptional importance. It is a pure,
original and unique example of modern architecture. Evidence submitted by the Monterey Bay
Chapter of the American Institute of Architects, evidence submitted by individual architects,
determinations by the City Council and the Planning Commission’s own judgment, all support
the conclusion that the building qualifies as having special character-defining features that
make it architecturally and visually distinctive. Upon demolition, the loss of architectural
diversity can be mitigated; the loss of great architecture cannot. Therefore, approval of the
project would result in a significant impact on visual quality.
Evidence:
• American Institute of Architects, Monterey Bay Chapter appeal letter, dated 12/14/05
• City Council Minutes dated, 6/6/06, 8/8/06, 10/3/06 and 11/7/06.
• Findings, evidence and testimony documented in The Findings for Decision adopted by
the City Council, dated 11/7/06.
• City Council Findings and Minutes, adopted 2 December 2008
• Chapter 3.8 of the Revised Draft and Final Environmental Impact Report
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• Planning Commission Minutes, dated 12/13/06, 1/10/07, 10/9/08, 10/9/08, 11/2/09
• Staff Reports dated, 6/6/06, 8/8/06, 10/3/06, 11/7/06, 12/13/06, 1/10/07.
Finding #8: Pursuant to CEQA, when a project will have a significant adverse impact on the
environment the choices available to the City are to:
• Deny the project.
• Adopt feasible mitigation measures or a project alternative that avoids or substantially
lessens the significant impact.
• Determine that mitigating the significant effect is infeasible and adopt findings of
overriding consideration explaining why the project is being approved in spite of the
significant effect.
Evidence:
• CEQA Guidelines Sections 15091, 15092 and 15093
Finding #9: The EIR identifies one project alternative that would address the significant
environmental impact but this alternative has been found to be not feasible.
Discussion: The EIR evaluates an adaptive reuse alternative wherein the Burde Building
would not be demolished; it would be adapted for reuse. Although this addresses the
significant impact it would then be physically infeasible to excavate the two-level garage in the
area occupied by the Burde Building. An economic analysis was performed on the feasibility
of constructing the project without the underground garage, keeping the existing building,
altering the site design and reducing unit sizes. The analysis shows that even with favorable
assumptions, the project would not be profitable. Therefore the adaptive reuse project is not
economically feasible.
Evidence:
• Final Environmental Impact Report
• Economic Feasibility Study prepared by BMR Construction
• Real Estate analysis by Alain Pinel Realtors, dated 7/14/09
• Planning Commission Minutes, dated 8/12/09
• Applicant’s correspondence, dated 6/20/09
Finding #10: The Planning Commission has determined that the benefits of the project would
not outweigh the environmental impacts to the City’s visual quality.
Discussion: Project benefits include just two units of affordable housing, five units of highincome
housing, five parking spaces in excess of the number required for onsite uses at the
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first garage level plus an unspecified number of valet parking spaces in the lower garage level.
These project benefits are insufficient to warrant the loss of the Burde Building.
Evidence:
• Staff Report dated 8/12/09
• Planning Commission Minutes dated 8/13/08, 9/10/08 and 8/12/09
V. STATE AND LOCAL HOUSING POLICY
Finding #11: The State legislature has declared that California has a critical shortage of
housing and has enacted numerous laws and programs to encourage or mandate the increased
production of housing.
Discussion: Each city is required to adopt a Housing Element that addresses issues unique to
each community—including issues related to affordable housing. Housing Elements also must
demonstrate that the City has zoned sufficient land, at adequate densities, to meet housing
targets established for the city by the regional Council of Governments.3
Evidence:
• Division 1, Chapter 3, Article 10.6, California Government Code
Finding #12: The City has adopted a General Plan Housing Element and implementing
ordinances that respond to local conditions.
Discussion: After a thorough public process the City adopted its Housing Element. The State
Department of Housing and Community Development (HCD) certified the Element as
complete and fully in compliance with State law. One local issue identified in the Element
involves the shortage of rental housing in the City. To address this market imbalance, the City
adopted a requirement that for each new condominium unit built, an equal or greater number of
apartment units also must be built. A second local issue involves the lack of vacant land
resources to accommodate the City’s assigned housing production targets. In response to this
issue the City adopted policies and ordinances that (1) allow high densities, (2) encourage
mixed-use housing within the downtown area and (3) provide floor area, parking and other
incentives for the production of affordable housing.4 These measures overcome the lack of
vacant land by fostering additional housing construction on developed sites.
3 The Council of Governments applicable to Carmel-by-the-Sea is the Association of Monterey Bay Area
Governments (AMBAG)
4 Allowed densities are eleven dwellings per acre in the Single-family Residential District and up to 44 dwellings per
acre in all three of the Commercial districts.
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Evidence:
• General Plan Housing Element
• Title 17 of the Municipal Code
Finding #13: The Project conflicts with City ordinances regarding increased production of
rental housing.
Discussion: The project includes five market-rate condominiums but just two rental units.
This violates the City ordinance that requires at least a 1:1 ratio and would fail to help alleviate
the shortage of rental housing in Carmel. Permit approval would violate the City’s ordinance.
Evidence:
• Project plans
• Application submittals
• Staff Reports dated 9/11/08, 8/12/09
• Title 17 of the Municipal Code (land use table)
Finding #14: The low number of dwelling units in the project fails to meet the intent of City
policies and ordinances regarding density and would impede attainment of housing targets
identified in the adopted and certified General Plan Housing Element.
Discussion: The zoning capacity of the site is 17 dwelling units, but the project includes just
seven dwellings—less than half the density allowed. This would represent a significant underdevelopment
of the property and foreclose the opportunity to better use this site to meet the
housing production targets assigned by AMBAG. This would shift the burden of meeting these
targets to other properties.
Evidence:
• General Plan Housing Element (fair share housing provisions)
• Title 17 of the Municipal Code (density provisions)
• City Council Findings on Appeal, dated 2 December 2008
VI. CALIFORNIA’S AFFORDABLE HOUSING DENSITY BONUS STATUTE
Finding #15: To encourage the production of affordable housing, the State has enacted a
density bonus statute (Section 65915) as part of the California Government Code. This statute
provides extraordinary measures to facilitate increased housing, and particularly affordable
housing.
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Discussion: Under defined circumstances, the Density Bonus Statute allows developers to
build at greater densities than local zoning ordinances otherwise allow. It mandates that cities
grant incentives or concessions to enhance project feasibility when a project seeks a density
bonus and includes specified amounts of affordable housing. Such incentives and concessions
may include waivers from local zoning standards and General Plan policies. Given the
primacy of General Plans in local planning and decision-making, and the importance placed by
the legislature on maintaining General Plans, this mandate is an extraordinary departure from
normal practice.
Evidence:
• California Government Code Section 65915.
Finding #16: The project does not qualify for concessions/incentives.
Discussion: As a concession for building two units of low-income housing, the applicant has
requested the City to waive its requirements for preserving significant trees and complying
with the City’s 1:1 apartment-to-condominium ratio.
Section 65915(a) states:
When an applicant seeks a density bonus for a housing development …[the] local
government shall provide the applicant incentives or concessions for the
production of [affordable] housing…”
The Project is not seeking a density bonus. As identified in Finding #14, the Project would
build less than half of the units allowed by the zoning ordinance. Since there is no need for a
density bonus the provisions related to granting concessions and incentives is inoperative.5
The Statute’s extraordinary mandate for cities to waive local zoning and General Plan
requirements only applies when a project will deliver an equally extraordinary amount of
housing.
Evidence:
• Correspondence from applicant, dated 8/11/09
• California Government Code 65915
• City Council Findings and supporting evidence, dated 2 December 2008
• Staff Report and Addendum, dated 12 August 2009
• Planning Commission Minutes, dated 12 August 2009
5 As understood by the Planning Commission, the City cannot lawfully grant the requested concessions. If a project
does not meet the qualifications for concessions established by Section 65915, the City is obligated by the California
Government Code to follow its adopted General Plan when acting on permits.
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VII. APPLICATION OF CALIFORNIA’S HOUSING ACCOUNTABILITY ACT
Finding #17: The project is not a Housing Development Project, as defined in the HAA, and
therefore does not qualify for special treatment stipulated by the Act.6
Discussion: The HAA was adopted to increase the production of housing affordable to lowand
very-low income households. Except under limited circumstances, projects that qualify as
Housing Development Projects must be approved by local jurisdictions even if such projects
are inconsistent with local General Plan and zoning provisions.7
The HAA defines a Housing Development Project as being composed entirely of residential
units or as a mixed-use project wherein non-residential uses are limited to neighborhood
commercial uses located on the first floor. “Neighborhood Commercial” is defined as “small
scale general or specialty stores that furnish goods and services primarily to residents in the
neighborhood”.
As proposed, the project is not limited to a single floor of nonresidential use. Both the street
level shops and the lower level parking garage would be commercially operated as
independent businesses. The project also is not limited to neighborhood commercial uses. The
lower level parking garage would serve visitor-occupied motels on other properties with a
valet parking operation. Further, the applicant is unwilling to limit occupancy of the retail
businesses to local, resident-serving uses. Without this limitation, the retail spaces could be
occupied by visitor-serving uses otherwise allowed within the District by the zoning ordinance
(e.g. art galleries, jewelry stores).
Evidence:
• California Government Code Section 65589.5
• Project plans
• Planning Commission Minutes, dated 12 August 2009
Finding #18: The HAA does not override the City’s obligations under the California
Environmental Quality Act.
Discussion: Section 65589.5(e), of the HAA states:
6 The Planning Commission acknowledges the City Council’s direction on this issue but, after further deliberation,
respectfully disagrees for the reasons stated in the discussion of this issue, above.
7 The applicant has argued that the PDM project qualifies as a Housing Development Project and, therefore, the City is
obligated to waive zoning and General Plan conflicts. Given this dispute, Findings #19 and #20, below, address other
issues related to the HAA. Each of these findings is an independent basis for permit denial.
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This section also does not relieve the local agency from making one or more of the
findings required by section 21081 of the Public Resources Code, or otherwise
complying with CEQA.
The HAA does not interfere with the mandates contained in the California Environmental
Quality Act. The City must consider a project’s significant environmental impacts and either
mitigate them or adopt an alternative that avoids them. If this is not feasible, the City must
deny the project unless it can make special overriding findings. In all of these determinations,
the HAA preserves the City’s discretion regarding how best to respond to significant
environmental impacts.
Evidence:
• Housing Accountability Act
• City Council Findings, dated 2 December 2008
• CEQA Guidelines Sections 15091, 15092 and 15093
Finding #19: The HAA does not override the City’s obligation to implement the California
Coastal Act.
Discussion: Section 65589.5(e) of the HAA, states:
Nothing in this section shall be construed to relieve the local agency from complying
with…the California Coastal Act…
The City’s LCP was certified by the California Coastal Commission as the document to
implement the Coastal Act in Carmel-by-the-Sea. The City is required to deny Coastal
Development Permits for projects that do not conform to the requirements of the certified LCP.
Evidence:
• Housing Accountability Act
• Planning Commission Minutes, dated 12 August 2009
Finding #20: Denial of the project is required in order to comply with specific State laws and
there is no feasible method to comply without rendering the development unaffordable to lowand
moderate-income households.8
8 The text of this Finding follows the required language in Section 65589.5(d)(3).
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Discussion: The HAA requires approval of projects containing affordable housing unless one
or more special findings are made. The HAA does not obligate a city to approve a project if
doing so would violate a State or Federal law.
As documented above in Findings #4 and #5, the Plaza del Mar Project has direct conflicts
with the LCP. The project does not conform to LCP requirements related to appropriate
development patterns in the core area of the commercial district and to preserving significant
trees. Therefore, the City is obligated to deny the Coastal Development Permit if it is to fulfill
its responsibility to implement the California Coastal Act.
The Planning Commission’s CEQA determinations (Findings #7, #9 and #10) and Sections
15091(a) and 15092(b) of the CEQA Guidelines obligates the City to deny the project. A
project with significant environmental impacts that cannot feasibly be mitigated must be
denied unless the City finds the impacts “acceptable” due to overriding project benefits or
other considerations. The Plaza del Mar project benefits are insufficient to support such a
finding.
Evidence
• CEQA Guidelines
• Public Resources Code
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CITY COUNCIL FINDINGS FOR DECISION
Appeal of the Planning Commission’s Approval of the Plaza del Mar Project
Adopted by the City Council 2 December 2008
BACKGROUND FINDINGS
1. The Plaza del Mar project includes the following elements:
4,958 square feet of commercial space
5 market-rate condominiums
2 apartments affordable to low-income households, and
2 levels of underground parking, including a level of valet parking that will be a commercial
business.
2. The project was reviewed through a lengthy public process that included two Environmental
Impact Reports (EIRs) and three appeals. This action constitutes a fourth appeal.
3. The Revised Final EIR identified eight impacts. Seven of these were less-than-significant or
could be mitigated to less-than–significant. The remaining impact was on the City’s visual
quality resources that would result from demolition of the Burde Building. The EIR classified
this impact as significant. The public, professional architects and the local chapter of the
American Institute of Architects identified this building as an important architectural resource1.
4. Pursuant to CEQA, when a project will have a significant adverse impact on the environment
the choices available to the City are to:
Deny the project
Approve an alternative project that avoids the impact, or
Determine that no alternative to the project is feasible and approve the project with findings
that document the infeasibility and explain to the public why project benefits warrant
approval in spite of the significant adverse environmental impact (Statement of Overriding
Considerations).
5. On 10 September 2008 the Planning Commission certified the project EIR, approved all project
permits and adopted findings supporting a Statement of Overriding Consideration to explain
why the impact on visual quality was acceptable. The basis for the Commission’s action rested
on two California affordable housing Statutes.
6. The first Statute (codified as California Government Code Section 65915) requires the City to
grant “incentives or concessions” for projects that include specified amounts of affordable
housing. Incentives or concessions can include waivers of City design standards, General Plan
policies or Municipal Code provisions that, if applied, would make the affordable housing
infeasible. The Statute does not specify how a city should determine the feasibility or
1 See Council Findings dated 11 November 2006, Planning Commission Findings dated 10 September 2008 and the
Visual Quality Section in the Final Environmental Impact Report.
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infeasibility of affordable housing in this context. Cities are obligated to approve requested
incentives or concessions unless very specific circumstances apply. The Planning Commission
determined that for the proposed project, none of the special circumstances applied.
7. The Plaza del Mar project needed two incentives/concessions: approval to remove two
significant trees2 and approval to alter the City’s required ratio between condominiums and
apartments3. Given the Statute’s clear mandate to encourage affordable housing, the Planning
Commission accepted at face value the applicant’s statements that affordable housing was
feasible only if the requested incentives/concessions were approved. The Commission granted
the two requested incentives/concessions.
8. The second Statute influencing the Commission’s decision (California Government Code
Section 65589.5) mandates approval of projects that include affordable housing except under
very limited circumstances. The Commission determined that none of the circumstances
applied. The Commission, acting on the recommendation of the City’s planning staff and legal
counsel, believed it was obligated to approve the project.
9. The Commission was faced with the challenge of harmonizing the requirements of the Public
Resources Code (CEQA) and the Government Code (Affordable Housing Statutes). Acting on
the recommendation of the City’s planning staff and legal counsel, the Commission approved
the project and adopted findings to support a Statement of Overriding Considerations. The sole
basis for these findings was the Commission’s perceived mandate to approve affordable housing
projects.
10. On 24 September 2008 the Planning Commission decisions on approval of the demolition,
certification of the EIR and project approval were appealed to the City Council and on 4
November 2008 the City Council heard the appeal.
11. The grounds for appeal4 were:
a. The Planning Commission was not obligated to approve concessions or incentives just because
the project provided affordable housing. The lead sentence in the applicable Government Code
section says “When an applicant seeks a density bonus for a housing development …[the] local
government shall provide the applicant incentives or concessions for the production of
[affordable] housing…” This language obligates approval of incentives or concessions only for
projects that supply so much affordable housing that they require a density bonus. This project
doesn’t.
2 The City’s Local Coastal Program and its Municipal Code prohibit removal of significant trees except under unusual
circumstances that do not apply to the Plaza del Mar project.
3 The City requires at least a 1:1 ratio of apartments to condominiums. This helps implement the General Plan
Housing Element which identifies that the City has abundant opportunities for owner-housing and more limited
opportunities for rental-housing.
4 The original letter of appeal was supplemented by additional letters received on 27 October 2008 and 4 November
2008.
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b. The project is proposing just seven units, just two of which are affordable to low-income
households. The allowable density for the project site is 16 units. Since the Plaza del Mar project
does not need a density bonus Section 65915 does not apply and granting the incentives or
concessions would violate the City’s General Plan. Approving the developer’s request to reduce
the number of required apartments and to build less than half the density allowed on the site runs
counter to the intent of the statute which is to maximize housing production.
c. The section 65915 requires a finding that a requested incentive or concession is necessary to
make the production of affordable housing feasible in the project. There is no evidence in the
record to support such a finding other than the applicant’s own statement.
d. Even if the affordable housing statute does obligate approval of incentives or concessions it does
not trump the requirements of CEQA. Section 65915 limits its own mandate by providing a
caveat acknowledging CEQA: “nothing in this subdivision shall be interpreted to require a local
government to waive or reduce development standards if …[it] would have a specific, adverse
impact…[upon] the physical environment, and for which there is no feasible method to
satisfactorily mitigate the …impact.
e. The aesthetic effects of a project are a valid topic for analysis in CEQA and can be the basis of a
significant impact on the environment. The Plaza del Mar project will have a significant adverse
impact on the City’s visual quality and there is no feasible way to mitigate the impact. These
points are conceded in the EIR. Because of the statutory caveat in section 65915, the City is not
obligated to grant the concessions/waivers to facilitate the proposed affordable housing.
f. The City retains its authority to deny the project because of its environmental impact on visual
quality. This is consistent with the CEQA Guidelines. The Commission erred in adopting a
Statement of Overriding Considerations premised solely on a conclusion that Section 65915
compelled project approval.
g. The existing building on the project should be adaptively reused and could accommodate
condominiums and affordable apartments without demolition.
h. The applicant and the Planning Commission cite Section 65589.5 as mandating approval of the
project because it qualifies as a “housing development project” that includes affordable housing.
The Commission erred because the project does not meet the definition of a “housing
development project” specified in the statute. A “housing development project” is either entirely
residential or it is a mixed-use project where non-residential uses are limited to “neighborhood
commercial” and all commercial uses are limited to the first floor. “Neighborhood Commercial”
is defined as “small scale general or specialty stores that furnish goods and services primarily to
residents in the neighborhood”. As approved by the Commission, there are no limits on what can
occupy the first floor commercial space and commercial uses are not limited to the first floor.
There is an entire level of parking that will be operated as a commercial use.
i. The EIR’s conclusion that there are no impacts to historical resources is not based on substantial
evidence.
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12. In response to the original letter of appeal the applicant’s representative submitted a response
letter addressing the following points:
a. The original draft EIR stated that the Burde Building was “...not consistent with the surrounding
architectural style or setting in the project area. …the loss of these buildings is considered to be
a less-than-significant impact. The Planning Commission overrode this conclusion and made
new findings, using its own subjective criteria, that the building was great or exceptional
architecture.
b. These findings were not based on any written criteria or objective standards in the General Plan
and were based merely on subjective statements which are not substantial evidence. Section
65589.5(d)(2) of the California Government Code states: …a local agency shall not disapprove
an affordable housing project …unless it makes written findings based on substantial evidence
in the record [that] the development project… would have a specific adverse impact upon the
public health or safety and there is no feasible method to satisfactorily avoid the significant
impact without rendering the project unaffordable to low and moderate income households.
c. Section 65915 of the Government Code defines “specific adverse impact” as: “A significant,
quantifiable, direct and unavoidable impact, based on objective, identified, written public health
or safety standards, policies or conditions…” Visual quality is not a public health or safety
standard. It is subjective, not supported by evidence in the record, not appropriate for evaluating
this project and not a legitimate basis for an appeal.
d. The Council already settled issues related to historicity and architecture/visual quality when it
acted in 2006 to deny an earlier appeal. Raising architecture/visual quality issues again is barred
by the principles of res judicata and estopple.
13. At the appeal hearing the City Council received additional testimony was received from the
following:
Susan Brandt-Hawley, representing the appellant.
Dennis Boegher, representing the project applicant
Jim Wright
Olaf Dahlstrand
Lucia Dahlstrand, representing Jean Grace
Mike Dawson, representing Monterey Bay Area Preservation
Brian Congleton, representing the American Institute of Architects, Monterey Bay Chapter
Roberta Miller, representing the Carmel Residents Association
Clayton Anderson, representing the Friends of the Forest
Claudine Van Vleet, representing the Carmel Preservation Foundation
Barbara Brooks
Linda Anderson
Richard Rhodes
Ken White
Richard Barrett
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Monte Miller
Anne Bell
Elinor Laiolo
John Mandurrago, project applicant
14. The City Council also received written testimony from the following:
American Institute of Architects, Monterey Bay Chapter
Friends of Carmel Forest
Carmel Residents Association
Alliance of Monterey Bay Area Preservationists
Erling Lagerholm
Jean Grace
CITY COUNCIL FINDINGS AND BASIS FOR DECISION
Finding: The Council concurs with the Planning Commission’s decision to revise the draft EIR
regarding the importance of the Burde Building’s architectural and visual quality.
Basis: The Commission’s action was taken in December 2006 following the City Council’s
adoption of findings in November 2006. Although these findings included a consideration of
architectural merit, they did so in the context of determining whether the Burde building is a
historical resource. This is far different from a determination that the Burde building contributes
significantly to Carmel’s visual quality. These findings, in fact, recognized the value of the
building’s architecture even though it is not historical. The Council’s action, its adopted findings
and all supporting documentation constituted new evidence in the record that the Commission
rightfully considered. The basis of the Commission’s action was well-documented in the revised
EIR and in associated Staff Reports.
Finding: Visual quality issues are a valid topic for evaluation in environmental review under
CEQA and can be the basis for finding a significant impact.
Basis: This is consistent with the forms and other supporting documents for the State CEQA
Guidelines.5 This also is consistent with California Appellate decisions affirming that aesthetics and
visual character are important environmental issues worthy of analysis in an EIR and can be the
basis of finding significant environmental impacts.6
5 See: The Environmental Checklist published by the Office of Planning and Research—the State agency charged with
administering CEQA. The Checklist includes a section covering aesthetics.
6 See: The Environmental Checklist published by the Office of Planning and Research—the State agency charged with
administering CEQA. The Checklist includes a section covering aesthetics.
See also: Ocean View Estates Homeowners Association, Inc, v. Montecito Water District, and
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Finding: The Council concurs with the Commission that demolition of the Burde Building would
constitute a significant impact on the City’s visual quality resources and therefore constitute a
significant environmental impact as defined in CEQA.
Basis: The analysis contained in the final EIR.
Finding: The Council reaffirms its 6 February 2007 decision that the 2006 appeal regarding the
historicity of the Burde Building was exclusive to historicity and did not address whether the Burde
building is an important architectural/visual resource.
Basis: The final conclusion of the Council’s 7 November 2006 findings stated in its entirety: The
Historic Resources Board decision is reversed. The Palo Alto Savings and Loan Building (Bank Building)
does not qualify as an historic resource. It shall not be listed on the Carmel Inventory of Historic Resources
and shall not be considered an historic resource for purposes of any environmental review. This action
reached no conclusions about the visual quality or architectural value of the Burde Building.
Finding: The affordable housing statutes in the Government Code and the environmental review
provisions in the Public Resources Code must coexist with equal force. One obligation does not
invalidate or “trump” the other. The decision-making process established by CEQA is to be
followed independently from the decision-making process under the two affordable housing
statutes.
Basis: This is consistent with subsection 65589.5 (e) which states “This section also does not
relieve the local agency from making one or more of the findings required pursuant to Public
Resources Code Section 21081 or otherwise complying with the California Environmental Quality
Act.7 This also is consistent with Government Code Section 65915(d)(1)(B) which states: The
City…shall grant the concession or incentive…unless the City…makes a written finding, based
upon substantial evidence [that] the concession or incentive would have a specific adverse impact,
as defined in Section 65598.5 (d)(2), upon public health and safety or the physical environment or
on any real property that is listed on the California Register of Historical Resources…(emphasis
added). This section is clear that impacts need not be limited to health and safety issues.
COUNCIL ACTIONS ON THE APPEAL
1. The Council denies the appellant’s argument that the Burde Building should be treated as a
historical resource. The appellant presented no evidence in the record that would warrant
revisiting the appeal of 2006 in which the Council determined the building is not historical.
Pocket Protectors, v. City of Sacramento et.al.
7 The referenced findings related to the decision-making process discussed above in Background Finding #4.
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2. The Council grants the appeal regarding certification of the EIR and approval of all project
permits. The Council remands the project to the Planning Commission with the following
determinations and instructions:
The Commission should consider the project’s significant impact on visual quality and take
one of the following approaches:
o Deny the project, or
o Evaluate the feasibility of alternatives and adopt one if found to be feasible, or
o Approve the project with findings that support a Statement of Overriding
Considerations. Such findings may include reference to affordable housing, but
shall not conclude that Section 65915 mandates approval of incentives or
concessions, or that Section 65589.5 mandates approval of the project in spite of
significant adverse environmental impacts.
In considering the feasibility of a project alternative (per CEQA) the Commission’s decision
should be supported by evidence in the record. To be credible, the analysis of the evidence
must be adequately reasoned and, if possible, should be provided by an independent third
party. This is consistent with CEQA Guidelines Sections 15091 and 15093.8
At a minimum, an adaptive reuse project alternative that avoids demolition of the Burde
Building (or at least retains the important visual character of the building) should be
considered as an alternative in the EIR even if it does not meet all project objectives. This is
consistent with Section 15126.6 of the CEQA Guidelines.9
In reaching a decision regarding the feasibility of providing affordable housing without the
requested incentives/concessions the Commission should rely on evidence in the record.
This too should be the product of a reasoned analysis.
8 If the Commission determines that the project should be approved in spite of unmitigated, significant impacts, there
must be findings explaining why alternatives or mitigations are not feasible. Section 15091 states that findings
supporting a Statement of Overriding Considerations must be based on “Specific economic, legal, social, technological,
or other considerations, including provision of employment opportunities for highly trained workers, make infeasible
the mitigation measures or project alternatives identified in the Final EIR. And further that: “The findings required
…shall be supported by substantial evidence in the record.” Section 15093 provides additional clarification: When a
lead agency approves a project which will result in the occurrence of significant effects which are identified in the final
EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its
action based on the final EIR and/or other information in the record. The Statement of Overriding Considerations shall
be supported by substantial evidence in the record.
9 Subsection (a): “…An EIR shall describe a range of reasonable alternatives to the project…which would feasibly attain
most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the
project.” and (b) “…the discussion…shall focus on alternatives to the project…which are capable of avoiding or
substantially lessening any significant impacts of the project, even if these alternatives would impede to some degree
the attainment of the project objectives, or would be more costly.”
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For purposes of applying Section 65589.5 of the Government Code, the Planning
Commission should assume that the project does qualify as a “Housing Development
Project”. If the project is approved, the Commission should either limit allowed commercial
land uses to “neighborhood commercial” or should adopt findings explaining why this is
unnecessary or inappropriate.
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Findings for City Council Action on Appeal
Adopted 7 November 2006
In its decision determining that the Palo Alto Savings and Loan building does not qualify as a historical
resource, the City Council adopted 41 findings covering 18 pages. The following ten findings, related
solely to the building’s architecture, are a verbatim excerpt from those findings.
24. The bank building is only 34 years old. In order to consider such a young building
historic it should meet a higher threshold of significance than would be used for a
building 50 years old or older. Using the decision-making framework established
in findings #12 through #16, above, the Council considered whether the bank
building meets the tests for identifying historic resources as laid out in National
Register Bulletin #15 and #22.
Evidence: City Council Meeting Minutes, 6 June 2006.
City Building Records.
National Register Bulletins #15 and #22.
25. The bank building is visually striking. It is an excellent representative of the Second
Bay Area Tradition in architecture. It is modern in design and it reflects a more
recent period in the City’s history. It contrasts with earlier historic styles of design
and it adds to the architectural diversity of the City. At the hearing, architects
characterized it as heroic or monumental in design. There are few buildings in
Carmel that share all of these qualities.
Evidence: City Council Meeting Minutes, 6 June 2006.
Draft and Final EIR.
26. Testimony at the appeal hearing praised the bank building as contributing to the
City’s architectural diversity—a goal strongly supported by the City’s General Plan.
Policy P1-89 of the General Plan states that…particularly rare architectural styles
shall be given special consideration due to their particularly unusual qualities.
Such rare examples, which contribute to diversity in the community, need not have
been designed by known architects, design/builders or contractors. Rather, rare
styles and types that contribute to Carmel’s unique sense of time and place shall be
deemed significant. The Historic Resources Board determined that the bank
building is of exceptional importance, calling it a unique bank of monumental style.
The Board praised the building for the unusually strong contribution it makes to
architectural diversity in the City.
27. While preserving important architecture from each period in the City’s history is
one goal of the historic preservation program, the building’s architectural diversity
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is not relevant to a determination of its historic status if it is not recognized as a rare
style or type. As established below in findings #30 through #33, the bank building
does not qualify as a rare style or type within the meaning of Policy P1-89.
Furthermore, upon demolition a replacement building of the modern period could be
designed that contributes equally to the City’s architectural diversity.
Evidence: City Council Meeting Minutes, 6 June 2006.
Carmel-by-the-Sea General Plan/Local Coastal Land Use Plan.
Historic Resources Board Meeting Minutes, 16 December 2005.
Historic Resources Board Findings, 23 January 2006.
28. Walter Burde and his works are well respected by his peers who consider him an
outstanding architect. Walter Burde was given the AIA’s highest recognition by
bestowing the National Honor Award in 1969 and electing him to the College of
Fellows in the AIA. The evidence in the record supports a finding that Walter
Burde was a very important architect within the local context.
Evidence: City Council Meeting Minutes, 6 June 2006.
Public Comment letters on the Draft EIR
Historic Resources Board Meeting Minutes, 16 December 2005.
Updated DPR 523 and supporting materials, prepared by Rick Janic.
Letter from Brian T. Congleton, AIA, dated 15 December 2005.
29. Evidence in the record relevant to the historic significance of the building includes
both the City as the context of analysis as well as the Monterey Peninsula area at the
context of analysis. However, during the Council’s deliberation, expert testimony
was received from the author of the historic preservation section of the EIR who
explained that the term “local context”, as used in the EIR, meant the Monterey
Peninsula area.
Evidence: Draft EIR.
Public Comment letters and the Final EIR.
Historic Resources Board Meeting Minutes, 16 December 2006.
City Council Meeting Minutes, 6 June 2006.
30. Walter Burde’s works include several buildings of note within the Monterey
Peninsula area, but only two commercial buildings located within the City limits of
Carmel-by-the-Sea. One of these is the bank building; the other is the Shell Service
Station. Within the context of the Monterey Peninsula area, no less than eight
Walter Burde buildings have won awards. Even if the analysis of context is limited
to the City limits of Carmel-by-the-Sea, Walter Burde’s Shell Service Station is
considered more important in professional circles than the bank building; it won the
Governor’s Design Award in 1966. The Bank building won no awards.
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31. The Council concludes that Walter Burde should be considered a very important
architect, but the bank building is not one of his most important works within the
local context—regardless of whether the context is defined as the City limits or as
the Peninsula. Within City limits, the Shell Service Station is of greater
architectural importance than the Bank Building. Therefore, the bank building is
not of exceptional importance using the National Register Bulletin “important
architect/important works” criterion.
32. If the bank building is evaluated as significant for its architecture alone, not
specifically tied to Walter Burde, comparisons between the bank building and other
examples of the Second Bay Area Tradition style of architecture are required. No
such analysis appears in the record. The City’s Historic Context Statement also
provides no guidance because it does not cover the relevant period of history. The
Council incorporates by reference, findings of the Historic Resources Board #12 and
#13 dated 23 January 2006 which are based on the analysis contained in the Draft
and Final EIR. The Council notes that there are hundreds of Second Bay Area
Tradition commercial buildings in California and several are within the local
context. Based on a careful review of the evidence in the record, the Council
concludes that the bank building is not the best representation of its kind within the
local context. The bank building also is not the best example of a particular
historical period or architectural style, within the local context. Therefore, it is not
of exceptional importance under the National Register’s “best example” criterion.
Evidence: Carmel-by-the-Sea Historic Context Statement, 1997.
Historic Resources Board Meeting Minutes, 16 December 2005.
Draft and Final EIR.
33. The building is not unique. There is one other commercial building designed by
Walter Burde in Carmel-by-the-Sea and many more within the Monterey Peninsula
area. There are other commercial buildings within the Monterey Peninsula area, and
within the City limits of Carmel-by-the-Sea, that are designed in the Second Bay
Area Tradition of architecture. There also are other buildings that can be described
as “heroic” or “monumental” within Carmel-by-the-Sea and within the Monterey
Peninsula area. The Council concludes that the building is not of exceptional
importance using the National Register’s “one of a kind” criterion.
Evidence: Significant Buildings Survey.
Draft and Final EIR.
Public Testimony and letters of Richard Barrett, architect, at the City Council
meeting of 6 June 2006 and at the meeting of the Planning Commission of 14
July 2004
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34. Based on Findings #30 through #33, above, and pursuant to eligibility criteria for
the California Register of Historic Resources and the Carmel Municipal Code, the
bank building does not embody distinctive characteristics of a type, period, region
or method of construction, or present the work of an important creative individual or
possess high artistic value, nor does it make an unusually strong contribution to
history, architecture, engineering or culture.
The preponderance of the evidence does not support the Bank building’s designation
as an historic resource. Using the five tests established in National Register
Bulletins #15 and #22, and using the additional test for exceptional importance in
the Carmel Municipal Code, the evidence in the record does not support a finding
that the bank building qualifies as historically significant within the City of Carmelby-
the-Sea.