Objection to the Negative Declaration and Categorical Exemption

Facts and Analysis of the CEQA Categories

Executive Summary

STR/Homestays have no realistic scenario where they supply the affordable accommodations near the coast desired by the CCC in the Greater Point Lobos area.

STR/Homestays will destroy still-occupied affordable worker housing in the Greater Point Lobos area.

The California Coastal Commission and the California League of Cities and Counties (July 12, 2019) were clear in their comments that Homestay/STR's are not residential-equivalent uses, and that they are Visitor Serving Units.

The California Coastal Commission and the California League of Cities and Counties (July 12, 2019) were unanimous in their comments that Homestay/STR's are forcing longer and longer commutes for workers, and driving up rents and home prices.

We endorse responsible access for everyone, and affordable housing near the jobs. But the Draft Ordinances with have the opposite effect - drive worker housing away from the coast, and make visiting for them and their families prohibitively expensive.

STR's not required by CCC if other low-cost options are available - such as those available in abundance in Big Sur, Carmel Valley, and the Greater Point Lobos area like campgrounds, RV parks, and low-cost hotels. We are open to exploring further such options in ways compatible with the infrastructure, water and other capacities of this area.

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Huge Increases in Day Visitors has made access to the coast difficult for everyone including residents. STR's will not increase access to the coast because there are not enough parking spaces, bathrooms, road capacity and other infrastructure to handle the existing and projected loads. STR's just add to the problem.

The Draft Ordinances are inconsistent with the Carmel Area Land Use Plan and other laws and plans governing the Greater Point Lobos Area, and the PC Staff analysis on this point is wholly deficient because it ignores clear and unequivocal language in the CALUP.

The Consensus Position which was endorsed by MPCPA and Preserve Carmel Highlands is also endorsed by CHMPDA. In summary:

First – if you want to rent your house or apartment for car week, or the AT&T, or the U.S. Open – you can still do that. Nothing prevents anyone from renting their house once a month.

Second - if you are a person and live here full-time and want to rent out a room in your home, while you live there, you can do that. But, only if there is room in the Master Plan for more hotel rooms and somebody else didn’t get their first.

Third - really serious enforcement, or no rentals allowed.

None of the County's claimed exemptions withstand scrutiny. Furthermore, claiming the project is exempt from environmental review eliminates any opportunity for further evaluation and discussion of the serious environmental impacts the project will generate.

For the above reasons, the County must comply with CEQA by conducting environmental review for the project.

In the interim period the current ordinance prohibiting short term rentals less than 30 days in the coastal zone with the exception of licensed bed-and-breakfasts must be aggressively enforced.

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TABLE OF CONTENTSXXXXXXXRe-do

DEFINITIONS...............................................................................................................................................................7SUMMARY OF THE EFFECT OF THE DRAFT ORDINANCE ON LONG-TERM HOUSING COSTS, AFFORDABILITY, AND PROXIMITY TO JOBS IN MONTEREY COUNTY.................................................................................................................................................9THE CONSENSUS POSITION OF CARMEL VALLEY ASSOCIATION, PRESERVE CARMEL HIGHLANDS, MAL PASO ASSOCIATION AND RESIDENTS OF BIG SUR................................................................................................................................................12

When is a Negative Declaration Sufficient Under CEQA? Must a full Environmental Impact Review be conducted?.......................................................................................................................................................17CEQA Requires Analysis of all Reasonable Alternatives – Not Just a select few that justify the Agency Position.........................................................................................................................................................................17The Coastal Commission, and Cities around Monterey County have regularly required EIR’s from hotel projects of far smaller size and impact than Homestay/STR’s..........................................................................17Areas of Potentially Significant Impact.............................................................................................................17Categorical Exemption.....................................................................................................................................18

LAND USE AND PLANNING................................................................................................................................ 20

Under the Draft Ordinance the impact of Homestay/STR’s are dramatically above the Threshold for Significance both for Unincorporated Monterey, and even more so on a cumulative basis for the County as a whole...............................................................................................................................................................20See the recent article: A Teaching Exodus: Teachers are being forced to move out of Monterey County.........57

4. MONTEREY COUNTY CONTAINS NUMEROUS ENVIRONMENTALLY SENSITIVE TERRESTRIAL PLANT, WILDLIFE, AND MARINE HABITATS..................................................................................................................................................................61

III. AIR QUALITY................................................................................................................................................ 68

Evidence for, and Analysis of the Air Quality Impact of the Draft Ordinance....................................................69Cars Driven by Tourists Staying in STR’s...........................................................................................................69Increased Commutes by Workers.....................................................................................................................71NOTES..............................................................................................................................................................71

IV. BIOLOGICAL RESOURCES.............................................................................................................................. 73

Condors and Monarch Butterflies in Carmel Highlands....................................................................................73Conclusion: There is a fair argument that the Significance Threshold for damage to Biological Resources is exceeded from Tourists Staying in Homestay/STR’s, in biologically sensitive areas. This deserves further study and consideration of mitigation options.................................................................................................75

GEOLOGY AND SOILS – SEPTIC TANKS LEAKING.................................................................................................76

AND THAT ASSUMES COMPLIANCE WITH THE LAW. ONE OF THE MOST FREQUENT COMPLAINTS OF COMMUNITIES ABOUT HOMESTAY/STR ARE THAT THEY OFTEN EXCEED THE LEGAL LIMITS. AND IT IS REASONABLY FORESEEABLE THAT OF VACATION RENTERS SHOW UP WITH A COUPLE OF EXTRA PEOPLE, OR DEMAND IS HIGH, OR THE RENTERS REQUEST IT, MORE PEOPLE THAN THE LEGAL LIMITS ARE CLEARLY FORESEEABLE BASED ON CURRENT PRACTICES WITHIN THE STR INDUSTRY..................................................76

Conclusion: There is a fair argument that the Significance Threshold for damage to the environment from leaking leach fields from Tourists Staying in Homestay/STR’s, in biologically sensitive areas.........................78

FIRE AND OTHER HAZARDS............................................................................................................................... 80

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CEQA Guidelines VII. HAZARDS AND HAZARDOUS MATERIALS........................................................................80The Mal Paso Creek area, the Carmel Highlands and the Big Sur Coast generally are all designated as “Very High Risk” and also as a “Very High Wildfire Severity Zone” for wildfires by the California Department of Forestry and Fire Protection (CALFIRE).............................................................................................................81

FIRE........................................................................................................................................................................ 81

HYDROLOGY AND WATER QUALITY................................................................................................................... 82

Also see the Carmel Highlands Onsite Wastewater Study................................................................................82Conclusion: There is a fair argument that the Significance Threshold for damage to the environment from overuse of available water resources and sewage disposal from Tourists Staying in Homestay/STR’s. This deserves further study and consideration of mitigation options......................................................................84

POPULATION AND HOUSING............................................................................................................................. 85

See the recent article: A Teaching Exodus: Teachers are being forced to move out of Monterey County.........85STR’s Cause Sky-High Home and Long-Term Rental Prices; Washington Post..................................................85There are currently more than 1,500 Rooms illegally for Rent from STRs/Home Stays than are allowed by the Carmel Valley Master Plan, Big Sur Land Use Plan , and the Carmel Area Land Use Plan. Most, if not all, were long-term rentals taken off the market. There is now a housing shortage for workers, who are being forced in to longer commutes and higher prices for the homes or apartments they rent...........................................85

MONTEREY PENINSULA CITIES GRAPPLE WITH BOOM OF SHORT-TERM RENTALS,.....................................................................86STRs squeeze the paychecks of working families which violates the LUP’s that require provision for workforce and low income housing...................................................................................................................................87

MONTEREY BAY EMPLOYERS SAY LACK OF AFFORDABLE HOUSING A CONCERN................................................87

OTHER ARTICLES............................................................................................................................................... 92

CONCLUSION: THE DRAMATIC, EXTREMELY SIGNIFICANT EFFECT OF HOMESTAY/STR'S ON LONG-TERM HOUSING REQUIRES AN ENVIRONMENTAL IMPACT REPORT UNDER CEQA. A NEGATIVE DECLARATION IS INSUFFICIENT.. .93

TRANSPORTATION AND TRAFFIC PROBLEMS.....................................................................................................95

Carmel Area State Parks Concerns...................................................................................................................95Big Sur/Highway 1 Protections.........................................................................................................................97Carmel Valley Area Plan:..................................................................................................................................97Conclusion: The traffic problems on Highway 1 are above the Significance Threshold and need to be studied..........................................................................................................................................................................98

WATER USE, UTILITIES AND SERVICE SYSTEMS...................................................................................................99

a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board?.....99d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed?....................................................................................................99Monterey County Total Numbers of STR’s, and Bedrooms for Rent in STR’s....................................................99

FOR FURTHER DETAILED INFORMATION SEE: MONTEREY REGIONAL WATER SUPPLY PROJECT EIR...................101

The Coastal Commission and Committee positions are in direct conflict with the “Water Availability” provisions of the Carmel Land Use Plan, Local Coastal Plan...........................................................................102

CALCULATION OF USAGE BY STRS...............................................................................................................................104WATER: ADDITIONAL ARTICLES AND DOCUMENTS..........................................................................................................104CONCLUSION: THIS VIOLATES ALL OF THE LAND USE PLANS, AND MONTEREY COUNTY’S FILINGS WITH THE PUBLIC UTILITY COMMISSION IN CONNECTION WITH THE MONTEREY PENINSULA WATER SUPPLY PROJECT....................................................105

MANDATORY FINDINGS OF SIGNIFICANCE:......................................................................................................106

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ONE STR OR HOMESTAY HAS A SMALL IMPACT, BUT THE THOUSANDS OF STR/HOMESTAYS MADE LEGAL AND ENCOURAGED TO DEVELOP BY THE DRAFT ORDINANCE HAVE A CUMULATIVE IMPACT THAT EXCEEDS THE SIGNIFICANCE THRESHOLD. THE DRAFT ORDINANCE WILL CAUSE SUBSTANTIAL ADVERSE EFFECTS ON HUMAN BEINGS, BOTH DIRECTLY OR INDIRECTLY..........................................................................................................106

Substantial adverse effects on human beings, either directly or indirectly:....................................................107CONCLUSION: The inescapable conclusion is that the Draft Ordinance approves and encourages vacation rentals in the form of STR/Homestays that massively discriminate against the handicapped, and require and EIR be conducted. More importantly, it requires the County to re-think its entire approach and stop this discrimination against the handicapped in our community............................................................................110

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Facts, Analysis and Comments of the Carmel Highlands - Mal Paso Defense Alliance

Preserve Carmel Highlands and Mal Paso Creek Property Association (MPCPA) and have formed a new association called "Carmel Highlands - Mal Paso Defense Alliance" ("CHMPDA"). The geographic area of CHMPDA is between the Carmel River and the Big Sur line, and we refer to it as the "Greater Point Lobos" area.

The Project of the Draft Ordinance is to:

1. Convert single family homes and apartments in residential neighborhoods and commercial areas to visitor accommodations.

2. Make visitor accommodations near the coast more expensive in the Greater Point Lobos area, where STR's already cost more than many hotel rooms, and all campgrounds and RV parks.

3. Amend the purpose and intent of the Land Use Plans to prioritize unlimited conversion of homes to businesses over other stated purposes and priorities.

4. Take housing taken off the market decreases the supply for people who live and work in Monterey, driving up costs to workers in the form of increased housing costs and longer commutes; employers in the form of increased recruiting and employee retention costs; and, the County in the form of enforcement costs.

5. That will legalize 3,000 to 6,000 rooms for rent to visitors that are currently not legal under Land Use Plans reviewed and approved by the Coastal Commission.

6. To add the largest number of new rooms for visitor accommodation in the history of Monterey County.

7. Use all of the water allocated to other growth in the desalination plants currently undergoing permitting and environmental review.

8. In much of Monterey County there is a moratorium on new water connections, which means that there are very few places to build new residences for people displaced by the Draft Ordinance, forcing people who work in Monterey to commute from outside the County.

9. Change or eliminate the meaning of Visitor Serving Units in the Land Use Plans. 10. Change or eliminate the affordable housing, neighborhood noise norms, parking, fire,

water, density, biological, air, handicapped discrimination, and other protections central to the existing Land Use Plans in favor of unlimited expansion of visitor accommodations.

11. To establish three new categories of visitor accommodations, one of which - Homestays has no limits on expansion, density in neighborhoods, parking, discriminates against the

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handicapped, does not require adequate wastewater capacity, could bring many hundreds of strangers per year in to residential neighborhoods.

12. Allows hedge funds, LLC’s, and any other form of ownership of “Homestays” in residential areas that have presented almost insurmountable obstacles to enforcement in other cities and counties.

13. A Negative Declaration or Categorical Exemption cannot possibly be sufficient for a Project that will result in a massive decrease in long-term affordable housing reasonably near the jobs, costing workers hundreds of millions of dollars.

Definitions

LUP's: STRs/Homestays Conflict with applicable land use plans, policy, and regulations of the agencies with jurisdiction. Collectively they are referred to in this document as the"LUP's" and/or “Land Use Plans.” These include:

The Americans with Disabilities Act, Big Sur Land Use Plan , Big Sur Coast Land Use Plan, Highway 1 Big Sur Coast Highway Management Plan , CalFire Very High Wildfire Severity Zone, California Coastal Act, Carmel Area Land Use Plan – Local Coastal Program , Carmel Area Coastal Implementation Program , Carmel Area State Park Plan . Carmel Highlands and Carmel Riviera Master Plan , Carmel Riviera Mutual Water Company, Carmel Valley Planning Area of the Monterey County

Community General Plan, Carmel Valley Master Plan , Environmentally Sensitive Habitat Areas (ESHA) including:

The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area,

Monterey County Coastal Implementation Plan – Title 20 Zoning Ordinance,

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Monterey County Title 21 – Inland Zoning Ordinance , Monterey County General Plan , National Marine Reserve , Monterey Peninsula Water Supply Project .

Draft Ordinance: Collectively those documents issued by the Resource Management Agency of Monterey County on or around April 19, 2019. Specifically:

Combined_ENV_Vacation Rental Ordinances Public Review and Notice_2019.04.19;

Combined_Vacation Rental Ordinances Public Review and Notice_2019.04.19;

Combined_Vacation Rental Ordinances Public Review and Notice_2019.04.19;

Vacation Rental Ordinance_Title 20_2019.04.19 Public Draft; Vacation Rental Ordiance_Title 21_2019.04.18 Public Draft; ATTACHMENT D_Coastal Table_040519_Final; and, ATTACHMENT E_Non-Coastal Table_040519_Final.

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Summary of the Effect of the Draft Ordinance on Long-Term Housing Costs, Affordability, and Proximity to Jobs in Monterey County

Only a small percentage of short-term rentals are somebody renting a spare bedroom anymore. The vast majority are investment companies buying homes, and kicking out the long-term tenants so they can rent short-term. Hedge Funds, and companies like Air BnB get the profit – Monterey’s workers, neighborhoods, businesses and institutions foot the bill. Homestays/Short-term rentals as defined in and made legal by the Draft Ordinance - can increase without limit in the form of Homestays. There is no substantive difference in the effect on Monterey between short-term rentals and homestays as defined by the Draft Ordinance except that Homestays have one less bed for rent.

There is also no difference between Homestays and Short-Term Rentals, as defined and regulated by the Draft Ordinance, in terms of negative impacts on neighborhoods, water and other infrastructure demands, and the hundreds of millions of dollars of costs to Monterey County and its residents.

The only significant difference is that Homestay permits are cheaper, faster and easy to obtain, provide no way for neighbors to voice concerns and complaints, and are difficult or impossible to prove violations.

The Project of the Draft Ordinance already costs Monterey County workers between $78 and $235 million per year, and this will go up without limit under the Draft Ordinance, costing Monterey County and its residents billions of dollars over the life of the project;

and increases traffic as employees have to commute farther, and more visitors stay – causing thousands of tons of greenhouse gas emissions.

Uses most, possibly all of the water now that might be available for growth in the future;

Other major issues that are already happening and will be made significantly worse by the Draft Ordinances:

Short-term rentals have failed to pay more than 70% of their taxes; Over 90% of short-term rentals in the unincorporated County are illegal, and operate

openly despite its illegality because the County can’t or won’t enforce the law;

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This suggests that, while there are a number of good citizens doing short-term rentals, there are also a lot of entities willing to break the law to run their businesses.

Enforcement is therefore crucial, and the Draft Ordinance allows:o untraceable entities to own Homestay/DTR's;o requires residence that only be disproven by 24/7 monitoring;o puts number of renter limits that have proven impossible to prove to the RMA

over the last 7 years by neighbors of STR's. The RMA has suggested no way it can enforce this provision.

Employers have trouble recruiting and retaining employees because they know they will never be able to afford a decent place to live or buy a house anywhere near their place of employment;

We have to worry even more about wildfire; Short-term rentals violate numerous County and State General and Local Plans including

the Carmel Valley Master Plan, The Carmel Area and Big Sur Area Land Use Plans. Dozens, sometimes more people move in and out every day who have no connection to

the neighborhood.

The Draft Ordinances allows Homestays hosted by anyone as long as they live there at least half the year. They need have no connection to the community other than hosting the Homestay. They could be an employee of a company that buys homes and converts them to vacation rentals. They can be an employee of a commercial vacation rental company whose job is to rent out the property. They need have no ties to the community other than living in the property half the year. They can be changed at will by the owner.

Enforcement of this provision is essentially impossible as there is no easy way to determine if someone actually lives someplace more than half the year, or if they are even present during the Homestay.

Further the onsite person doesn’t have responsibility for managing the vacation renters – that is left to some other person who is on-call 24 hours per day and can arrive at the site within ½ hour. That person might be managing dozens of STR's.

Principal Resident Effect on long-term housing: Allowing anyone to be the “Principal Resident” even if they have no ties to the community other than renting out STR/Homestays invites owners to take more properties off the long-term rental market and use the home for vacation rental purposes only. The assertion that Homestays will not have an effect of long-term housing is without merit, evidence to support that view, or even plain logic.

Also, the position that all of the illegal STR/Homestays have a path to legality through the Draft Ordinance is to permanently take that long-term housing off the market. Historically the number of STR/Homestays in the Draft Ordinance will decrease the availability of long-term

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affordable housing for the craftsman, teachers and nurses and other workers this community depends on, but whose rents and living costs have skyrocketed. This applies to Homestays as well as Commercial and Limited STR’s.

Allowing LLC's and other corporate ownership forms makes finding the real owner difficult or impossible, and will require major commitments of time and personnel by the RMA to regulate.

Given the RMA’s announcement it has neither personnel, budget or priority to regulate Homestays/STR’s this is an open invitation to abuse by entities with no ties to the community.

Home Stays and Low-Frequency STR’s will rent their bedrooms to tourists and other visitors, and have the same impacts on the community that any other hotel room or other visitor/tourist serving accommodation has.

The Draft ordinance is not designed to avoid intensification of the residential use – it will certainly allow intensification. The Staff intent may be different, but the Draft ordinance fails to achieve the stated objective and will result in environmental impacts (within the meaning CEQA) that far exceed the threshold levels on a cumulative basis. They already do.1

1 The following point is one with which we vigorously disagree. “However, home stays and low-frequency STRs are designed such that they would not intensify the planned residential use; and therefore, could be considered exempt from these regulations under Monterey County Code Section 21.64.320.4.e.”

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The Consensus Position of Carmel Valley Association, Preserve Carmel Highlands, Mal Paso

Association and residents of Big Sur

Date: July 10, 2018To: Board of Supervisors, Planning Commission MembersFrom: Pris Walton, President, Carmel Valley AssociationSubject: Short-Term Rental Ordinance.

Our Consensus Position

The Carmel Valley Association and the Coalition strongly recommend that Short Term Rentals (STRs) be limited to Owner's Spare Room Rentals ("OSRR"). “OSRR” are defined as short-term rentals that are owner occupied and managed. No absentee owners, property management companies, corporations, or LLC’s would be permitted. The owner would be required to be a permanent year round resident, and the home would be his or her primary residence. The owner would be required to live in, and be present on site, during the OSRR rental period. Owners would be limited to no more than one OSRR.

The CVA and the aforementioned groups and organizations will support only hosted OSRR (subject to Visitor Serving Unit Limitations) as defined above with a strong enforcement system, close supervision and accountability. We categorically oppose all non-hosted STR’S.

Specifically, we recommend the following for an STR Ordinance:

1. Owner must be a natural person, or Living Trust for a Natural Person who is a permanent year-round resident, and the home is his or her primary residence.

2. No absentee owners, property management companies, corporations, LLC’s , or other forms of ownership is permitted.

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3. The owner be required to live in and be present on site during the STR/Home Stay rental period.

4. The “OSRR” version of STR must at all times operate as if it were a residence, and not a hotel, party house, special event location, or other use inconsistent with the zoning in which it is located.

5. STR’s (including OSRR) must, of course, be counted as Visitor Serving Units (VSU’s). Each bedroom of a STR or Home Stay is counted as one VSU (just like for hotels) and must not exceed the remaining limits on the number of new Visitor Serving Units under their Land Use Plans for all areas, including:

⦁ Carmel Area Land Use Plan, Local Coastal Program certified April 14, 1983. This plan allows for only 28 additional VSU’s, all in the Point Lobos area;

⦁ Big Sur Land Use Plan/Big Sur Coast Planning Area. It is the position of the Big Sur LCP Defense Committee that these plans have no room for STRs and/or Home Stays.

⦁ Carmel Valley Master Plan

6. Effective and verifiable self-policing.

a. Monterey County must first complete a study on required personnel and resources to enforce the ordinance, and then provide those resources;

b. Owners must provide multiple forms of proof they are year-round residents; and

c. Electronic evidence available over the internet that they physically resided at the STR during the Home Rental.

d. Verification to be done by Monterey County.

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e. Licenses for STRs/Home Stays are only valid as long as Monterey County provides the personnel and financial resources to enforce the ordinance.

f. If Monterey County fails to provide adequate enforcement resources, STR/ OSRR licenses will be suspended until Monterey County remedies by providing required enforcement resources.

g. The County must adopt pro-active enforcement, using Host Compliance or similar service to locate violators, rather than relying on complaints from residents.

7. No advertising of unpermitted rentals, and Host Compliance or equivalent service is required. Permit numbers must be posted in any ads.

8. The total number of OSRR guests cannot exceed 2 per the number of permitted bedrooms, less one bedroom for the in-residence owner. If the owner resides with their family a suitable number of bedrooms must be set aside for their use.

9. Rentals for more than 30 days or more are permitted but subject to TOT, if rented for 30 day periods, or periods less than a standard one year lease.

10. Owners would be limited to one OSRR regardless of an interest in other properties the owner may have in Monterey County.

11. Parking at OSRR must be provided off-street for both visitors and residents.

12. Fires must be limited to existing barbecue pits and fireplaces.

13. OSRR must be spaced at least 1000 feet from each other, and notice of intent by the Planning Commission to permit an OSRR must be given to all neighbors within a 1,000 foot radius prior to issuance of the permit. If a neighbor objects, a hearing must be scheduled and the objections considered before a permit is issued.

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14. As a condition of approving any application for a OSRR the applicant must provide a letter from the water supplier to that location that there is sufficient water for the maximum possible use of the property; and, the Department responsible for leach field safety states the leach field is adequately sized and properly maintained for the maximum possible use of the property.

15. OSRR must be completely subject to the rules and restrictions of private roads, and may be banned along such roads.

Violation Penalties, Fines, STR’s are a “Nuisance” etc.

16. The remedies provided by this [ordinance] are cumulative and in addition to any other remedies available at law or in equity.

17. It shall be unlawful for any person to violate any provision, or to fail to comply with any of the requirements, of this Chapter. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this Chapter shall be guilty of an infraction. No proof of knowledge, intent, or other mental state is required to establish a violation.

18. Any condition caused or allowed to exist in violation of any of the provisions of this Chapter shall be deemed a public nuisance and shall, at the discretion of County, create a cause of action for penalty pursuant to Chapters 1.22 of this Code, and any other action authorized by law.

19. Each and every violation of this Chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the Monterey County Code or otherwise authorized by law. Additionally, as a public nuisance, any violation of this Chapter shall be subject to injunctive relief, disgorgement of any payment to the County of any and all monies unlawfully obtained, costs of abatement, costs of restoration, costs of investigation, attorney fees, and any other relief or remedy available at law or in equity. The County may also pursue any and all remedies and actions available and applicable under state and local laws for any violations committed by the STR/Home Stay rental activity or persons related thereto, or associated with, the STR/Home Stay rental activity. CEQA Issues, Rules and Summary 15

20. For violations of OSRR stay rental codes, an Enforcement Official may issue to a responsible person an administrative citation that imposes:

a. A fine not exceeding four-hundred percent (400%) of the Advertised Rental Rate per day per violation or one thousand dollars ($1000.00) per day per violation for STR/Home Stay rentals without an Advertised Rental Rate for a first violation;

b. A fine not exceeding six-hundred percent (600%) of the Advertised Rental Rate per day per violation or two thousand five hundred dollars ($2500.00) per day per violation for STR/Home Stay rentals without an Advertised Rental Rate for a second violation of the same ordinance within one year; and

c. A fine not exceeding eight-hundred percent (800%) of the Advertised Rental Rate per day per violation or five thousand dollars ($5000.00) per day per violation for STR/ OSRR rentals without an Advertised Rental Rate for each additional violation of the same ordinance within one year of the first violation.

Carmel Valley AssociationPris Walton, President, Rich Fox, Vice- President

Mal Paso Creek Property AssociationMichael EmmettLynne Boyd

Preserve Carmel HighlandsPreserveMontereyNeighborhoods.CommunityBob DanzigerLorraine OsheaGwyn De AmaralMichele AlwayAdrienne BerryGlenn BerryKatie Coburn

Big SurKen WrightKirk Gafill CEQA Issues, Rules and Summary 16

When is a Negative Declaration Sufficient Under CEQA? Must a full Environmental Impact Review be conducted?

Under CEQA, an EIR is required if substantial evidence supports a fair argument that a project may have a significant impact, even if other substantial evidence indicates that the impact will not be significant.

When an Initial Study indicates that a project has the potential to "significantly" damage the environment, CEQA requires that an EIR be prepared.

All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts.

CEQA Requires Analysis of all Reasonable Alternatives – Not Just a select few that justify the Agency Position 2

2 CVA’s Rancho Cañada Lawsuit Successful ; judge-rejects-carmel-valley-rancho-canada- village-project ; Start over, judge tells Monterey County in Rancho Cañada Village lawsuit. CEQA REQUIRES ATERNATIVES ANALYSIS Decision Rancho Canada CEQA Issues, Rules and Summary 17

The Coastal Commission, and Cities around Monterey County have regularly required EIR’s from hotel projects of far smaller size and impact than Homestay/STR’s. 3

Areas of Potentially Significant Impact

The determination of whether an Environmental Impact Report is required may properly take in to account evidence of racial discrimination, discrimination against the handicapped, safety and security concerns, noise problems, enforceability issues, neighborhood character, local Land Use Plans, and the elements of all Environmental Impact Statements including: Aesthetics, Agricultural resources, Air quality, Biological resources, Cultural Resources, Geology and Soils, Greenhouse gases, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and Planning, Mineral Resources, Noise, Population and Housing, Public services, Recreation, Transportation and traffic, Utilities and Service Systems.

Significant Impacts for Homestay/STR’s are evident under CEQA Guidelines for:o Land Use and Planning o Air Quality o Biological Resources o Geology and Soils (o Fire o Watero Affordable Housingo Traffic, especially in Big Suro Discrimination against the handicapped

The Negative Declaration in the Draft Ordinance is without merit under CEQA Guidelines, and a full Environmental Impact Report is required by CEQA. Experience in thousands of cities since the time other cities and counties issued Negative Declarations that accompanies their Homestay/STR regulations now clearly shows they were wrong to do so.

Categorical Exemption

3 Monterey Bay Shores Ecoresort is buried to the neck in drama. | Cover | montereycounty ; Coastal commission to review Monterey Bay hotel projects ; Seaside Calls for Second EIR on Hotel Project

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The Vacation Rental Ordinances Environmental Analysis Report (April 19, 2019) states:

Pursuant to CEQA Guidelines Section 15061(b)(2), a project is exempt if it qualifies for a categorical exemption and Section 15061(b)(3) states that an activity is covered by the common sense exemption where there is no possibility that the project may have a significant effect on the environment. In addition, CEQA does not apply if the activity is not a project pursuant to CEQA Guidelines Sections 15060(c)(3) and 15378.

. . .

Adoption and implementation of the proposed vacation rental regulations do no present an unusual circumstance. The regulations restrict vacation rentals to existing, legally established, residences within residential and commercial zoning districts. Establishment of homestays and limited short-term rentals are subject to limitations that would ensure they are similar in character, density, and intensity to residential uses through a ministerial approval process for a business license and operation permit.

The Categorical Exemptions claimed by the RMA are without merit. They are not supported by the evidence, the analysis is deeply flawed, and the known facts are often the opposite of that claimed. For example, the RMA claims that there will be no increase in water use for Homestays. Except that the average occupancy of homes in Monterey is around 4 people. The Draft Ordinance permits up to 10 people plus 5 daytime guests. There will of course be increased use. Dramatically increased use. The RMA was apprised of these facts in numerous submittals but chose to ignore them entirely.

The Project will clearly have a significant effect on the environment as this CEQA doc clearly demonstrates. The PC view that this is simply a residential activity, common to all neighborhoods, is erroneous on its face.

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LAND USE AND PLANNINGUnder the Draft Ordinance the impact of Homestay/STR’s are dramatically above the Threshold for Significance both for Unincorporated Monterey, and even more so on a cumulative basis for the County as a whole.

Contents of the Land Use and Planning Section:

1. Section IX CEQA Land Use and Planning Questions

2. STRs/Homestays Conflict with applicable land use plans, policy, and regulations of the agencies with jurisdiction

3. The Land Use Plans require a balance of welcoming tourists and other visitors, the environment, infrastructure, and quiet enjoyment of homes, and the safety of residential neighborhoods

4. The Draft Ordinance purpose and effect is to maximize the total number of people who may visit at the expense of the other priorities and purposes of the Land Use Plans, which is a wholesale change to all of the Land Use Plans that require a high quality of experience on the Coast and in Carmel Valley.

5. Under the Draft Ordinance STR’s defined as Homestays will be as bad or worse in effects on residential areas than the other categories of short-term rentals.

6. Under the Draft Ordinance: Homestays are currently and will have impacts growing different in character, density and intensity than residential uses, could remove long-term housing from the market, and pose hazard to public health, safety and general welfare for known infrastructure limitations.

7. Visitor Serving Units are the critical component of all of the Land Use Plans that balances visitor, resident, infrastructure and environmental needs.

8. ENFORCEMENT: The Resource Management Agency/Planning Commission publicly announced that it does not have the personnel resources or the funding to enforce current law. This has allowed a free-for-all where property owners can operate STR’s and violate a host of LUP standards with impunity.

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98% of the 1700 Homestay/STR’s existing in 2018 in Monterey County were Illegal, suggesting that many will continue to look for ways to maximize profits and avoid the law. The Draft Ordinance does not provide any mechanism to reasonably insure that personnel and budget will be available for the extremely difficult enforcement job it requires. The Consensus Position does have such a mechanism.

9. The Draft Ordinance allows unlimited water consumption at Homestays, which conflicts with the LUP’s.

10. The Draft Ordinance allows use of Wastewater Systems not designed or maintained for the number of People who can stay there, which conflicts with the LUP’s.

11. Homestay/STRs squeeze the paychecks of working families which violates the LUP’s that all require provision for workforce and low income housing.

12. Contravening the LUP’s, and the California Coastal Act, the Draft Ordinance will increase traffic problems in Big Sur and Carmel Highlands

13. There are more than ample rooms for rent in Monterey County. Monterey County and the Coastal Commission have – without exception – required the highest level of environmental scrutiny for hotel projects much smaller than this.

14. Under the Draft Ordinance STR/Homestays are proliferating in Environmentally Sensitive Habitats in violation of habitat conservation plans and natural community conservation plans.

15. Fire

16. Conclusion: CEQA Requires an Environmental Impact Report if the significance of these issues above a certain threshold. A Negative Declaration is insufficient.

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I. CEQA Guidelines: Section IX CEQA Land Use and Planning

Would the project:

a) Physically divide an established community? N/A

b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect?

c) Conflict with any applicable habitat conservation plan or natural community conservation plan?

II. STRs/Homestays Conflict with applicable land use plans, policy, and regulations of the agencies with jurisdiction. 4 Collectively they are referred to in this document as the “Land Use Plans.”

The Americans with Disabilities Act, Big Sur Land Use Plan , Big Sur Coast Land Use Plan, Highway 1 Big Sur Coast Highway Management Plan , CalFire Very High Wildfire Severity Zone, California Coastal Act, Carmel Area Land Use Plan – Local Coastal Program , Carmel Area Coastal Implementation Program , Carmel Area State Park Plan . Carmel Highlands and Carmel Riviera Master Plan , Carmel Riviera Mutual Water Company, Carmel Valley Planning Area of the Monterey County Community General

Plan, Carmel Valley Master Plan , Environmentally Sensitive Habitat Areas (ESHA) including:

4 Including, but not limited to the listed items.Land Use and Planning 22

The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area,

Monterey County Coastal Implementation Plan – Title 20 Zoning Ordinance,

Monterey County Title 21 – Inland Zoning Ordinance , Monterey County General Plan , National Marine Reserve , Monterey Peninsula Water Supply Project .

III. The Land Use Plans require a balance of welcoming tourists and other visitors, the environment, infrastructure, quiet enjoyment of homes, and the safety of residential neighborhoods

a) Monterey County is a jewel we all share. But there are limits to what the area can accommodate before it is overrun. The Draft Ordinance significantly exceeds the limits contemplated and enshrined in the LUP’s which were designed to protect this area both for residents and visitors. A careful balance was and is required. Bixby Bridge is number one on the list “10 Instagram-Worthy Destinations for 2019 Travels.”5 Point Lobos is also one of the top tourist destinations in the world, as is Cannery Row and Pebble Beach.

b) The greater Carmel Highlands community has a rich history and culture. The land and the people who call Carmel Highlands home are perhaps best described in the official record through an early area planning document, the Carmel Highlands–Riviera Master Plan (adopted by the Monterey County Planning Commission: 5/14/1969; and by the Monterey County Board of Supervisors: 7/08/1969). The following are excerpts from the introductory section entitled “And Then Came Man”:

What they found had been there all along, a wild mating of land, of cliffs and reefs and pines and mountains, a mating so fierce, now gentle as a breathless sunset, the sea thrusting deep into the land, the land holding the sea, cradling it in its arms, kneading it to foam between its fingers, locked forever in embrace…

5 https://www.travelpulse.com/news/destinations/10-instagram-worthy-destinations-for-2019-travels.html

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Who were these people who came to make this place their home? Artists and writers were among the first, many of them famous, and botanists, men of science, but look elsewhere for a catalog of the great names, because the Great Importance lies in what they all possessed together and were possessed by. Coming from all walks of life, they bore no common denominator except a respect for this new land, more, a devotion, a worship even of the land and sea which where to become a part of their lives as no other land and no city had ever been before. This was true of the first wave of those who came. It is also true of the last. Life styles and patterns have changed over the fifty years but here perhaps less than elsewhere because of that one great Constant which is the place itself.

This land is vast and strong, but from the first it has needed defending… In the last thirty-five years meetings have had to be held, letters written, protest launched, delegations sent to Salinas to battle short-sighted commercial interests before the Planning Commission and the Board of Supervisors. For the most part these battles have been won, but the threat is always there.

The Carmel Highlands–Riviera Master Plan has specific policy directives that demonstrate the historic context that demonstrates the desire - and need - to limit land use to Low Density Single-Family Residential and to preclude Short-Term Rental operations in the Greater Point Lobos residential neighborhoods, and is built in to the CALUP:

Master Plan - Part 2 (Paragraph 1, Pg. 12):The Master Plan is intended primarily to be a guide for future residential development emphasizing conservation and preservation of the scenic resources found in this location. The guest and tourist accommodations existing are recognized as the only other compatible use for this area. It is the full intent of the residents to retain the charm and beauty of this area as it exists today.

Residential Single Family (Paragraph 3, Pg. 12):

The Master Plan proposes that the existing prominent land use of single family residential be retained in the future.

Residential Multi Family (Paragraph 4, Pg. 12)

Multiple Family Residential as shown on the plan is to be limited to the areas that are presently zoned for multiple residential purposes. It is not

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intended that this area be increased in size. This reflects the desires of the residents of this area, who prefer the existing single family nature of the community. It must be recognized, however, that it is only through the eternal vigilance and consistent of the residents that this low density can be maintained.

Recreation and Open Space (Paragraph 5, Pg. 12):

The Master Plan does not include public recreation facilities within the Plan Area.

Commercial (Paragraph 2, Pg. 14):

Additional commercial designation of property is not compatible with the intent of the Master Plan. Commercial land use should be restricted to that existing which includes the Highlands [Inn] property and a similar portion of the Tickle Pink Motor Inn.

Carmel Highlands – Riviera Master Plan Policy StatementsPrinciples and Standards (pg. 23)

1. The Plan Area is best suited for and shall be limited to single family residential development.

Policy Statements (pg. 24):

3. Land UseNo additional commercial zoning nor industry shall be allowed.

We believe these passages clearly define the legislative history and intent of the CALUP, and that the interpretation of its provisions must be made with respect to these sentiments. This community has historically preserved and protect the spectacular landscapes and natural resources, and continues to do so.

c) This was accomplished in the Land Use Plans by limiting both residential development, and the hotels that serve visitors to those that existed at the time the plans were passed. Growth was limited for both residences and hotels because of infrastructure and environmental constraints – and to preserve the awesome experience that visitors to our area have. For hotels and other things that rent rooms to visitors this growth was limited to

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specific numbers and places for each area. These are called Visitor Serving Units.

d) In contrast the Draft Ordinance creates a gold rush approach to developing and managing our resources. AirBnB and similar companies offer free international advertising for Homestay/STR’s to hundreds of millions of people. This did not exist when the LUP’s were written, and has created a flood of commercial hotel businesses in residential areas.

e) The Draft Ordinance will require much more housing to be built for the people who live and work here as a result of homes being taken off the market to turn them in to vacation rentals. Houses will be remodeled to accommodate more vacation rentals. But in many areas there is no water for new construction, and/or building restrictions because of infrastructure capacity.

f) The Draft Ordinance allows discrimination against the handicapped.

g) The Draft Ordinance prioritizes some goals of the LUP’s, and even adds two, while ignoring the major priorities and purposes of the LUP’s.

h) The Draft Ordinance promotes a constant Influx of Strangers in to Residential Areas changing weekly, possibly daily.

a. Large numbers of persons in excess of regulatory limits have often stayed in the Homestay/STR whether the owner is present or not.6 Guests are frequently unknown – just like a hotel.7

i) The Draft Ordinance ignores the Visitor Serving Unit mechanism used to plan for growth in the Land Use Plans, and instead invites anyone and everyone to rent to up to 10 visitors a day in their homes, in completely residential areas. This is in direct contravention of the Land Use Plans, for example:

6 “In Anaheim, on West Skywood Circle, a six-bedroom home about six miles from Disneyland rents for an average of $617 a night. Under city code, the home can accommodate no more than 20 people. But in a recent online review, a tenant bragged about squeezing 34 people into the home.” https://preservemontereyneighborhoods.files.wordpress.com/2018/08/a-surge-in-short-term-rentals-means-no-rr-for-some-anaheim-residents.pdf

7 https://www.airbnb.com/help/article/523/what-is-instant-bookLand Use and Planning 26

“The high scenic and recreational values of the area have drawn increasing numbers of visitors each year to the point that existing recreational facilities are overused and sensitive coastal resources have been damaged or degraded. Intensified land use and development will inevitably create and aggravate existing problems: wildfires, floods, landslides, pollution of water and air, depletion of water resources, and further destruction of plant, animal, and marine habitats.” - - The Carmel Area Land Use Plan8

j) Maybe the limits in the Land Use Plans, or the locations they allow, need to be revised. We do have an obligation to allow as many visitors to our area as we can consistent with the principles of the Land Use Plans. Maybe the number of Visitor Serving Units should be increased for an area, or more locations include?. Maybe less? Maybe none? Can STR be used affirmatively in some way to help create a lot more of desperately needed affordable housing?

k) We know a lot more than when the Land Use Plans were drafted. But the fact is – that’s the debate we should be having: How many Visitor Serving Units should be allowed in each area?

l) The LUP’s never contemplated that environmental damage is prohibited if it occurs at a hotel, but OK if it happens in an internet-based home rental industry that did not exist at that time.

m) Homestays are available generally and indiscriminately to the public – dedicated to a public, non-residential use – to serve visitors. And while there may be confusion about the term “Visitor Serving Unit”, there is no confusion about the fact that these Home Stays serve visitors.

IV. The Draft Ordinance purpose and effect is to maximize the total number of people who may visit at the expense of the other priorities and purposes of the Land Use Plans, which is a wholesale change to all of the Land Use Plans that require a high quality of experience on the Coast and in Carmel Valley.

8 (updated 11/23/1999), section 2.1Land Use and Planning 27

1. The Draft Ordinance is inconsistent with the area LUP’s. For example the Carmel Area Land Use Plan9 states:

“The quality of experience offered by the Carmel coast should have precedence over the number or extent of any permitted uses, whether residential, recreational, or commercial. Any new development should complement the area and be compatible with the objective of careful resource protection and conservation. Conflicting uses should not be introduced. The achievement of these goals must involve restraint and continued responsibility. Both public and private interests will be best served by the continued preservation of the unique natural and cultural resources that make the Carmel coast a scenic jewel.”

The management objective of Highway 1 should be to optimize visitor use levels rather than maximize them. Future decisions pertaining to Highway 1 in the Carmel area must consider current recreational and residential use patterns and future demands for recreational use.

2. These values are also reflected in the current Carmel Area LUP (Adopted by the Monterey County Planning Commission, 3/25/1981; Adopted by the Monterey Board of Supervisors, 10/19/1982; Certified by the California Coastal Commission, 10/23/1984)

Section 2.1, Introduction (Pg. 22):

The natural resources and the constraints of the land are the primary considerations in developing guidelines for use and conservation of the land. The existing community is a resource that can help to protect the environment and enhance the visitor experience. The challenge is how to accommodate increasing numbers of visitors and to maximize the use and enjoyment of the Carmel coast without depleting or further degrading its sensitive resources or reducing the vigor and productivity of the natural systems or impairing the scenic values important to residents and visitors alike.

There is a need to establish limits in all areas private and public development in order to prevent degradation or overuse of resources. The long history of

9 https://preservemontereyneighborhoods.files.wordpress.com/2018/01/carmel-area-land-use-plan-local-coastal-program.pdf; page 22Land Use and Planning 28

stewardship and protection of resources needs to be extended into the future to ensure the continued protection to the land and its high scenic values. The quality of experience offered by the Carmel coast should have precedence over the number or extent of any permitted uses, whether residential, recreational, or commercial. Any new development should complement the area and be compatible with the objective of careful resource protection and conservation. Conflicting uses should not be introduced. The achievement of these goals must involve restraint and continued responsibility. Both public and private interests will be best served by the continued preservation of the unique natural and cultural resources that make the Carmel coast a scenic jewel.

V. Under the Draft Ordinance STR’s defined as Homestays will be as bad or worse in effects on residential areas than the other categories of short-term rentals. Homestay/STR's as defined in the Draft Ordinances are not permitted under CALUP in the Greater Point Lobos area: They are not similar in character to residential uses; and, are subject to the Visitor Serving Unit cap. The County’s Assertion That STRs are Similar to Residential Land Use, Character and Impacts Lacks Any Credible Evidence and is Unsupported by Study or Analysis.

a) STRs/Homestays are hotel equivalent businesses, not residential uses as stated by the Planning Commission.10

b) The first is the contention within the Ordinance is that the various categories of STRs are equivalent in land use impacts as single-family residences. The apparent goal as stated within the draft ordinance was to: “Establish that Homestay and Limited Short-Term Rental uses are similar in character,

10 Court Holding STR Not a Residential Use - 2018 BCSC 752 Nanaimo (Regional District) v. Saccomani; Malibu_s Summer Rental Market Booms – WSJ; WSJ Report on AirBnB March 2017; Top bunk for $30 a day: Life inside one of Airbnb_s modern boardinghouses – The Washington Post; New York City loft-dweller fined $185K for tourist rentals – San Francisco Chronicle; Landlords turned 14 SF apartments into illegal Airbnbs, city attorney says – San Francisco Chronicle; Home-Sharing Hosts Turn to Online Property Management Firms for Help – WSJ; Rental sites like Airbnb aren’t as innocuous as they pretend – LA Times   ; The Business Tycoons of Airbnb – NYTimes.com     ; Hosts with Multiple Units – A Key Driver of Airbnb Growth     ; Taking the Work Out of Short-Term Rentals – The New York Times; How to Run an Airbnb Business from Anywhere in the World! – YouTube; How to Bring the Hotel Spa to Your Airbnb – The New York Times

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density, and intensity to residential use” and that “The structure used as a homestay (or Limited STR) would continue to function as a primary residence and would not likely result in the conversion or loss of long-term housing stock and would not be subject to any applicable visitor serving caps in the respective area they would be located.” The County has not completed any rigorous analysis, surveys or cited any independent studies to backup these assertions or provided any evidentiary support for this position. The County has offered no analysis of the number of residences that will be used for Homestays or Limited STRs. The County has not determined the number of overnight visits that are likely in the Carmel Highlands area. The County has conducted no traffic analyses. There are no studies of water availability, wastewater issues when homes septic systems are used like hotels, or air pollution impacts from Monterey County workers having to live further and further from their jobs. And the County has conducted no economic analysis to determine to what extent vacation rentals will displace long-term renters or result in conversion of affordable housing units. Without any of this information, the County’s entire analysis is invalid.

To the contrary, there have been many studies and articles on how vacation rentals have changed the fundamental character of residential neighborhoods in other areas. Our community’s own experience based on the operations in the current illegal STR market is that they do, in fact, remove existing long-term housing as approximately 80% of the STR market are whole-house rentals. This is further evidenced by the observation that many real estate firms are actively marketing homes as potential STRs.

As stated in the May 24, 2019 letter to the RMA from Big Sur's Counsel Shute, Mihaly and Weinberger:

II. The County’s Assumption that Homestays and Limited Short-Term Rentals Are Sufficiently Similar to Residential Uses Is Incorrect and Unsupported.

The proposed Vacation Rental Ordinance allows for both Homestays and Limited Short-term Rentals in Big Sur. The County attempts to support this decision by arguing that such use is “considered residential.” Categorical Exemption Report, at 6. Specifically, the County’s analysis states that:

“The regulations have been crafted based on the principle that when a vacation rental use is established, it shall not be discernable from existing residential use of the dwelling. This use is considered residential because

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it is similar in character, density and intensity to a residential dwelling and would only be allowed in a legally permitted single family dwelling, duplex dwelling, or a multiple family dwelling. The structure used as a homestay (or Limited STR) would continue to function as a primary residence and would not likely result in the conversion or loss of long-term housing stock and would not be subject to any applicable visitor serving caps in the respective area they would be located.Id. (emphasis added); see also Ordinance, Recital C. This analysis is both incorrect, as a matter of County code and state law, and unsupported by the facts.

A. The County’s Code Recognizes that Residential Use Is Non-Transient.

First, the County’s own code recognizes that residential use and transient occupancy are incompatible. Specifically, and as stated above, Section 20.06.030 defines “Dwelling” as “a structure or portion thereof designed for or occupied exclusively for non-transient residential purposes, including one family and multiple family dwellings, but not including hotels, motels, boarding or lodging houses or other transient occupancy facilities” (emphasis added). Inherent in the code is the idea that a residential dwelling must be used exclusively for long-term use; transient occupancy of any kind is prohibited, even if residential use continues in part.

B. Courts Have Recognized the Difference Between Vacation Rentals and Residential Use.

The County’s imposition of a Transient Occupancy Tax also demonstrates that vacation rentals are not the same as residential uses. Chapter 5.40 states that transient occupancy tax is not to be imposed on “any private dwelling, house, or other individually owned single-family dwelling unit rented only occasionally and incidentally to the normal occupancy by the owner or family.” Section 5.40.020(A) (emphasis added). Yet, the proposed Ordinance states that all vacation rentals must obtain a transient occupancy tax registration certificate (e.g., Section 20.64.290(D)(8), (E)(8), (F)(9)). In other words, the County acknowledges that vacation rentals are something other than normal occupancy of a dwelling unit – they cross over into commercial use and require additional taxation as such.

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This issue has also been considered and rejected by numerous courts. In Ewing v. City of Carmel-By-The-Sea, the California Court of Appeal upheld a short-term rental ban in Carmel against a constitutional challenge brought by a homeowner. (1991) 234 Cal.App.3d 1579. The Court approved of the City’s chief purpose in adopting the ban: “to provide an appropriately zoned land area within the City for permanent single-family residential uses and structures and to enhance and maintain the residential character of the City.” Id. at 1590. Significantly, the Court independently found that short-term rentals have an erosive effect on residential areas, finding that:

It stands to reason that the “residential character” of a neighborhood is threatened when a significant number of homes . . . are occupied not by permanent residents but by a stream of tenants staying a weekend, a week, or even 29 days. Whether or not transient rentals have the other “unmitigatable, adverse impacts” cited by the Council, such rentals undoubtedly affect the essential character of a neighborhood and the stability of a community. Short-term tenants have little interest in public agencies or in the welfare of the citizenry. They do not participate in local government, coach little league, or join the hospital guild. They do not lead a Scout troop, volunteer at the library, or keep an eye on an elderly neighbor. Literally, they are here today and gone tomorrow—without engaging in the sort of activities that weld and strengthen a community. Id. at 1591.

And in Greenfield v. Mandalay Shores Community Association, the California Court of Appeal considered whether a Homeowner Association ban on short-term rentals required a coastal development permit under the Coastal Act. (2018) 21 Cal.App.5th 896. In unequivocal terms, the court determined that a CDP was required, because short-term rentals “change[] the intensity of use and access to single family residences.” Id. at 901. Short-term rentals are not the same as residential use; they represent a different intensity and type of use and must be studied accordingly.

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Finally, the Supreme Court of Pennsylvania recently held that short-term rentals were fundamentally incompatible with single-family residential uses. The Court noted that the definition of a single-family dwelling unit or “single housekeeping unit” “unambiguously excluded . . . purely transient uses of property,” which lack the necessary stability and continuity. Slice of Life, LLC v. Hamilton Township Zoning Hearing Board (Pa., Apr. 26, 2019, No. 7 MAP 2018) 2019 WL 1870562, at *11. The Court further highlighted that such “permanence and stability . . . creates a sense of community, cultivates and fosters relationships, and provides an overall quality of place where people are invested and engaged in their neighborhood and care about each other.” Id. at *12. While this case is not binding on Monterey County, it offers persuasive reasoning for why vacation rentals cannot be properly categorized as a “residential use.”

And, although decided in British Columbia (2018 BCSC 752 Nanaimo (Regional District) v. Saccomani) the Court articulates the clear case that Homestay/STR's are not residential uses:

[32] An examination of the Zoning Bylaw as a whole, together with dictionary definitions, suggests that the broad purpose of the RS1 Zone is to ensure that the residential nature of a neighbourhood is maintained by permitting only compatible uses for properties contained within the RS1 Zone. Indeed, although commercial activities such as a home based business and secondary suite accommodation are permitted in the RS1 Zone, these activities are narrowly defined and must be ancillary to the primary use, which is residential.

[33] The Zoning Bylaw defines the following key terms:residential use means the accommodation and homelife of a person or persons in common occupancy, and shall only be conducted within a dwelling unit;dwelling unit means one self-contained unit contained within common walls with a separate entrance intended for year-round occupancy and the principal use of such dwelling unit is residential with complete living facilities for one or more persons, including permanent provisions for living, sleeping,

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cooking and sanitation;home-based business means an economic activity conducted as an accessory use on a parcel; secondary suite means one or more habitable rooms and a cooking facility for residential accommodation, consisting of a self-contained unit with a separate entrance but which is clearly accessory to a principal dwelling unit located on the same parcel as the secondary suite and may not be subdivided under the Strata Property Act;accessory use means a use combined with but clearly incidental and ancillary to the principle permitted uses of land, buildings or structures located on the same parcel.

[34] The use of the term “homelife” suggests that residential use must be non-transient. It is embodied by those who live on the property and use it as their habitual abode.

[35] Respondents’ counsel relies on the following definition of “home life” found in the English Oxford Living Dictionary, (online):

A person’s family, personal relationships, and domestic interest considered as a whole. ‘A stable home life for their families’

[36] The Concise Oxford Dictionary, 9th ed, defines “home” as follows:

1.a. the place where one lives; the fixed residence of a family or household.b. a dwelling house.

[37] Counsel for the petitioner relies on the definition of “home” from Black’s Law Dictionary, 5th ed. which reads as follows:

One’s own dwelling place; the house in which one lives; especially the house in which one lives with his family; the habitual abode of one’s family; a dwelling house.”

[38] There is a common theme in these dictionary definitions, which suggests that a home is the fixed or habitual residence of a person and their family. “Home life” then consists of more than just the physical activities that are conducted on a property (e.g. cooking, eating, sleeping) – they are activities that are performed by family members or individuals who share a domestic interest.

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[39] The incorporation of a shared domestic interest into the definition of home life is consistent with the broader definition of residential use contained in the Zoning Bylaw, which requires that a person or persons living within a dwelling unit, conduct their home life together in “common occupancy”.

[40] The non-transient interpretation of “home life” is also apparent when the Zoning Bylaw is read as a whole. While various tourist and temporary accommodations are expressly permitted in other zones (e.g. “Inn”, “Hotel”, “Guest Accommodation”) the only tourist accommodation permitted expressly in an RS1 zone is the accessory use of the Property as a home based bed and breakfast business. However such use is permitted only within clearly defined parameters.

[41] Section 3.3(14)(a)(iii) provides that as a part of “home based business activities”, usage of a property for a bed and breakfast is permitted, “provided the activity is contained wholly within the dwelling unit to a maximum of 2 bedrooms in Residential 1 and 3 zones and to a maximum of 4 bedrooms and all other zones where permitted by this Bylaw.” The Zoning Bylaw defines bed and breakfast as follows:

bed and breakfast means the economic activity of providing bedrooms within a dwelling unit and the first meal of the day for the temporary accommodation of the travelling public; provided that the occupancy by a member of the travelling public does not exceed 120 days in any calendar year.

[42] Existing jurisprudence also supports the interpretation of residential activity being non-transient. Numerous courts have held that the definition of “residential” precludes temporary lodging. In Kamloops (City) v. Northland Properties Ltd., 2000 BCCA 344 at para. 15, the Court stated that “it appears the intention of the bylaw is to permit units to be occupied by persons who normally reside there and to prohibit their occupation by tourists, travellers, and other persons who require only temporary lodging…” See also Conconi at para. 30; Regional District Fraser-Fort George v. Norlander (2 April 2014), Victoria 13-2936 (B.C.S.C.) at paras. 15, 24-26, aff’d 2015 BCCA 439.

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[43] In Conconi at para. 14, the Court referred to its decision in Whistler (Resort Municipality) v. Miller, 2001 BCSC 100 at para. 51, aff’d 2002 BCCA 347 [Miller], and noted the importance of residential zoning in order to ensure compatible uses:

The principal purpose of zoning regulations, as with restrictive covenants, is to preserve property values by prohibiting uses which are believed to be deleterious to neighbourhoods mainly residential in character. People living in an area of single family homes naturally want the same type of homes in the district, that is, a use that is compatible. They want to preserve the amenities of their locality. Thus from the standpoint of the rate payers it is the status quo that is sought to be maintained and build up residential areas which are figuratively rimmed with “keep out” signs. Industry, always an unwelcome intruder in a residential community, also favours a zoning wall that bars residential and other incompatible encroachments.

[44] Vacation rental properties can change the character and nature of a residential neighbourhood. Vacationers do not share the same long term goals that residents in a particular zone have – to have a comfortable, stable and secure environment in which they can live, work and play. While members of the travelling public may share the recreational aspects of these goals, their short term focus runs contrary to the long term goals of the residents.

[45] A resident who makes their home life in the dwelling unit is accountable to neighbours. There is strong motivation to be a good neighbour, one who is willing to self-regulate negative behaviours such as excessive traffic and noise. As is evidenced by Ms. Freko’s reports of noise violations, traffic congestion, and safety concerns, the same constraints do not apply to members of the travelling public. Even where owners of the vacation rental property include codes of conduct as part of the rental contracts (such as was done by the respondents), these may have little impact on curbing the behaviour of vacationers. This does not mean that noise violations or traffic congestion do not occur in residential zones that do not have vacation rental properties. To

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the contrary. However, such conduct is constrained when persons feel accountable to the other residents in a neighbourhood. Such accountability simply does not exist for members of the travelling public.

[46] Understandably, then, while s. 3.3(14)(a)(iii) of the Zoning Bylaw permits transient accommodation of bed-and-breakfasts within the residential zone, it does so within clearly defined parameters which dictate that such use must be ancillary, contained within a specific number of rooms, and for a limited time frame.

[48] As noted by the court in Re Convenience Services Ltd. v. City of Sault Ste. Marie et al., 118 D.L.R. (3d) 362 (On SC) to be subordinate, the use must be carried on to enhance the principal use of the property (cited with approval in Re M M Project Management Services Inc., 2012 BCSC 47, at para. 79; and Corman Park (Rural Municipality No. 344), 121 Sask R 212 (SK QB), at paras. 29- 31). In the case at bar, the vacation rental use does not enhance the principal use which is residential; rather it replaces residential use with a vacation rental use that is not permitted in the bylaws.

[49] The respondents’ argument that renting out the Property for temporary accommodation forms part of the normal and customary residential use, is also not supported by the evidence or the case authorities. First, the Property is not their habitual residence. The respondents maintain their primary residence in Alberta. They therefore cannot consider the Property as being a dwelling unit for themselves.

[50] Second, as aptly noted by the Court in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192 at para. 51 [Wright], “[i]n order for property to be used as ‘residential’ property, it must be a fixed place of living, not a revolving door.”

[51] I therefore conclude that the respondents’ use of the Property as a vacation rental is not a permitted use under the Regional District’s Zoning Bylaw. As such, by operating their Property as a vacation home rental, the petitioners are in breach of the Zoning Bylaw.

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[52] As noted by the court in Re Convenience Services Ltd. v. City of Sault Ste. Marie et al., 118 D.L.R. (3d) 362 (On SC) to be subordinate, the use must be carried on to enhance the principal use of the property (cited with approval in Re M M Project Management Services Inc., 2012 BCSC 47, at para. 79; and Corman Park (Rural Municipality No. 344), 121 Sask R 212 (SK QB), at paras. 29- 31). In the case at bar, the vacation rental use does not enhance the principal use which is residential; rather it replaces residential use with a vacation rental use that is not permitted in the bylaws.

[53] The respondents’ argument that renting out the Property for temporary accommodation forms part of the normal and customary residential use, is also not supported by the evidence or the case authorities. First, the Property is not their habitual residence. The respondents maintain their primary residence in Alberta. They therefore cannot consider the Property as being a dwelling unit for themselves.

[54] Second, as aptly noted by the Court in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192 at para. 51 [Wright], “[i]n order for property to be used as ‘residential’ property, it must be a fixed place of living, not a revolving door.”

[55] I therefore conclude that the respondents’ use of the Property as a vacation rental is not a permitted use under the Regional District’s Zoning Bylaw. As such, by operating their Property as a vacation home rental, the petitioners are in breach of the Zoning Bylaw.

Finally, as pointed out by Big Sur in their comments, the California Coastal Commission has also indicated a wariness toward categorizing vacation rentals as akin to residential use. When the issue of vacation rentals was first proposed in 1997, the CCC noted in its response to the County that Section 20.06.360 of the certified LCP states that “dwelling means a structure or portion thereof designed for or occupied exclusively for non-transient residential purposes including one family and multiple family dwellings, but not including hotels, motels, boarding or lodging houses or other transient occupancy facilities.” Exhibit D. In other words, the Coastal Commission has previously recognized that dwelling units are distinct from transient uses.

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The County has yet to provide an accurate list of what has been counted towards this cap. A Public Records Act Request was made on December 1, 2018 of the Planning Commission/Resource Management Agency to provide:

2. RMA or Planning Commission documents showing exactly how many "Visitor Serving Units" there are in Carmel Valley, and the Coastal Zone covered by the Carmel Area Land Use Plan including Carmel Highlands and Big Sur. We have different reports from the Planning Commission showing different numbers. Please indicate which is the current official position of the RMA/Planning Commission.

No documents were produced by PC/RMA staff despite a great deal of effort on their part. This essential information must be obtained by the RMA before any contrary policies are considered.

c) Homestays have no density limits, or limits on the number of times they can be rented, they are allowed to discriminate against the handicapped, do not require a discretionary permit process (including a conditional use or coastal development permit), and will clearly take long-term housing off the market. The only difference is that, if the owner complies with the law, there will be one less bed available for rent in the homestay than an STR.

d) The Draft Ordinance requires Homestays to have someone in residence when the vacation rentals occur. That person will not also be simultaneously holding down a full-time job as a teacher, or a nurse, government worker or craftsperson. By definition this takes long-term housing for people who live and work here off the market. But the Draft Ordinance says:

i. “C. Homestay and Limited Short-Term Rental uses are similar in character, density, and intensity to residential use, are not anticipated to remove long-term housing from the market, and therefore are allowed uses, where applicable, with a business permit.”

ii. But then the Draft Ordinance goes on to say: “D. Regulation of Vacation Rentals is necessary because Commercial Short-Term Rental uses, which may be rented at a greater frequency than Limited Short-Term Rentals and unlike Homestays do not have a Principal Resident residing concurrently when the unit is rented . . . “

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e) There is no substantive difference in effect on the environment, the community or demand on infrastructure between Homestays and Commercial STR’s except the presence of one person who has no responsibilities, need have no ties to the community, and can be an employee of the owner. All they are doing is occupying one bed, that’s all.

VI. Under the Draft Ordinance: Homestays are currently and will have growing impacts different in character, density and intensity than residential uses, could remove long-term housing from the market, and pose hazard to public health, safety and general welfare for known infrastructure limitations.

1. STRs/Homestays that are illegal11 under Title 20 and Title 21, are advertised internationally to hundreds millions of customers on sites like Air BnB and VRBO.

2. When the Land Use Plans were drafted and approved the internet based STR industry did not exist. STR’s and other home rentals were advertised through local newspapers, and locally by a small number of real estate agencies.12

3. The Land Use Plans do not allow “Intensification” of uses. However, this is exactly what happens when a home in a residential area is converted to a Homestay/STR. Indeed the Draft Ordinance states as one of its purposes:

a. Establish regulations that provide opportunity for homeowners and residents to participate in the sharing economy by offering vacation rentals for visitors that have the potential to provide financial benefits to offset the high cost of living in Monterey County

b. The Draft Ordinance will in fact have the opposite effect.

11 STRs and Home Stays are commercial uses of residential properties for visitor-serving purposes for which Monterey County’s land use plans (LUPs) that can be regulated by the County (Lewis v. Monterey County 2016, 15CV000782 Superior Court; Johnston v. City of Hermosa Beach 2018 B278424, California Appellate Court;). Specific LUP’s include Monterey County Land Use Plan including the Carmel Valley Master Plan, Carmel Area Land Use Plan, and the Big Sur Land Use Plan

12 The Land Use Plans regulate STR’s after the date of the Plan. STR’s that existed before than are grandfathered and not subject to these arguments. They were already accounted for in the LUP’s and associated environmental documents.Land Use and Planning 40

VII. Visitor Serving Units are the critical component of all of the Land Use Plans that balances visitor, resident, infrastructure and environmental needs.

1. Carmel Valley – Visitor Serving Units

a. Carmel Valley allows for 110 “Visitor Units” east of Via Mallorca.

b. Carmel Valley had 198 listings for STR’s representing at least 600 rooms for rent. (February 2018)13

c. Less than 20 have received required permits even though there is a clear path to do so.14

d. Over 154 of the 198 STR’s in Carmel Valley representing over 500 rooms for rent are whole house rentals by absentee landlords.15

2. Carmel Area Land Use Plan (Mal Paso/Carmel Highlands border with Big Sur to the area surrounding Carmel-by-the-Sea)16 – Visitor Serving Units

a. Carmel Area Land Use Plan allows for 28 additional Rooms for Rent, all in the Point Lobos area.17

13 Although STR’s in Carmel Valley have been legal under some circumstances [see - https://preservemontereyneighborhoods.files.wordpress.com/2017/12/title-21-inland-administrative-permits-for-transient-use-of-residential-property.pdf], the premise of the change was that STRs were largely spare bedrooms rented on occasion by an owner-occupant. This has proven to be wrong. See https://preservemontereyneighborhoods.community/carmel-valley-supports-bishop-ordinance-for-monterey-county/

14 Staff Discussion https://preservemontereyneighborhoods.files.wordpress.com/2018/08/attachment-1-discussion.pdf

15 https://preservemontereyneighborhoods.community/carmel-valley-supports-bishop-ordinance-for-monterey-county/

16 https://preservemontereyneighborhoods.community/demographic-data/

17 Local Coastal Program certified (by the Coastal Commission) April 14, 1983 and https://preservemontereyneighborhoods.community/critical-chart-summarizing-limits-to-visitor-serving-units-in-Land Use and Planning 41

b. As of July 2018 there were 309 listings representing over 1,000 rooms in the Carmel Land Use area.18

c. Less than 20 have received required permits even though there is a clear path to do so.19

3. Big Sur Planning Area – Visitor Serving Units

a. There are no additional Rooms-for-Rent allowed under the Big Sur LCP because the amount of traffic vastly exceeds the capacity in Big Sur, resulting in daily extended traffic jams. Big Sur traffic is severely impacted by traffic as a result of visitor accommodation increases anywhere in the general Monterey area because of it is a major worldwide visitor destination.

b. As of July 2018 there were 43 Listings representing over 100 rooms.20

c. Less than 20 have received required permits even though there is a clear path to do so.21

4. The County’s Contention that STR’s Are Not Visitor Serving Units and not Subject to Caps and/or Restrictions Violates the Spirit and Intent of LCPs, County Ordinances and Common Sense that Restrict Numbers and Locations of Visitor Serving Units.

Without a doubt, the designated Commercial Short Term Rental operations are clearly outside the permitted activities and policies within the single family residential land use areas as outlined in the CALUP for the Greater Point Lobos area. Commercial activities

carmel-highlands-and-nearby-areas/

18 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/host-compliance-carmel-area-and-big-sur-land-use-area-data-07-15-2018.pdf

19 Staff Discussion https://preservemontereyneighborhoods.files.wordpress.com/2018/08/attachment-1-discussion.pdf

20 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/host-compliance-carmel-area-and-big-sur-land-use-area-data-07-15-2018.pdf

21 Staff Discussion https://preservemontereyneighborhoods.files.wordpress.com/2018/08/attachment-1-discussion.pdfLand Use and Planning 42

and Visitor Serving Units are specifically limited in number and required to be located in very limited and specially zoned areas within the Carmel Area per the Coastal Plan. It should be noted that all of the permitted expansion of new Visitor Serving Units are outside of the single-family residential areas within the CALUP and are located in areas specifically zoned for commercial or mixed use. Therefore, both Home Stay and Limited STRs are also inconsistent with the restrictions within the CALUP.

The "Vision Statement" for the Carmel Area LCP is an amplification of the Carmel Highlands Carmel Riviera master plan22 clarifies the intent of these documents and is useful in resolving ambiguities:

The desired vision for the future of the Carmel Coastal Planning Area is that development during the next twenty years retains the existing character of our area. Development of existing legal lots of record must require strict adherence to general plan directives, to retain its current forested and rural character. The trees, the rural twisty road, the cliffs, the meeting of land and sea, and the vistas along the Pacific Ocean, must be preserved for generations to come. The challenge is to protect the quality of life and treasures of this area while continuing to provide needed housing for its workforce.

Carmel Coastal Policy #1 – Conflicting Land UsesIntensive recreational uses such as golf, cinemas, mechanized recreation other than non-motorized bicycling and scenic driving, boating facilities; industrial and energy development - offshore or onshore; large-scale mineral extraction and commercial timber harvesting; and manufacturing other than cottage industry or art production are inappropriate and conflicting land uses in the Carmel Coastal area. Only land uses of a scale or level consistent with the goal of preserving the coast’s natural beauty and tranquility shall be considered.

Carmel Coastal Policy #3 – Commercial UsesCommercial uses existing as of the date of adoption of this General Plan may continue in their present use or, if discontinued, another commercial use of the same nature shall be allowed upon being granted a use permit. If no other similar commercial use is proposed, then the property shall revert to single-family residential use.

22 (dated April 24, 1969 approved and recommended for adoption by the County of Monterey resolution number 69 -133 on May 14, 1969) https://preservemontereyneighborhoods.community/wp-content/uploads/2019/07/Excerpts-from-Carmel-Highlands-Carmel-Riviera-master-plan-dated-April-24-1969-approved-and-recommended-for-adoption-by-the-County-of-Monterey.pdf

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Carmel Coastal Policy #5 – Visitor-Serving FacilitiesRecreation and visitor-serving facilities should be of a scale and nature that make them compatible with the natural and scenic character of the area. Proposals for development of new visitor-serving facilities, or expansion of existing recreation and visitor-serving facilities, should be evaluated on a case by case basis. All proposals must demonstrate consistency with the land use plan, and environmental, visual, design and traffic safety requirements. Recreational vehicle campgrounds, additional grocery stores, and new service stations are not appropriate in the Carmel Coastal area, and shall not be permitted.

Carmel Coastal Policy #6 – Overnight Camping FacilitiesOvernight camping facilities in the Carmel Coastal area shall be located where they do not conflict with surrounding land uses and where a buffer can be provided adequately to minimize potential land use conflicts.

Carmel Coastal Policy #17 – Access PrioritiesImportant major access areas to be retained for long-term public use are: the Scenic Road corridor along Carmel Point, Carmel River State Beach and Point Lobos State Reserve. Access to the Carmel Highlands-Riviera area shall be provided by vehicular access on Highway 1, Yankee Point Drive and Spindrift Road.

Carmel Coastal Policy #18 – Scenic and Natural ResourcesIn areas of existing or potential public access where habitat and resource protection are identified as a major concern, studies should be conducted by qualified individuals or agencies to determine maximum acceptable levels of public use and methods by which resource values can best be protected. The conclusions of these studies should guide management of public access at such locations. To this end, theState Department of Parks and Recreation should give priority to the implementation of the resource-monitoring program for Point Lobos Reserve, as recommended by the State Park's General Plan for the area.

The specific limits on the location and number of Visitor Serving Units (referred to in the CALUP as Visitor Service Facilities) within the CALUP are listed below:

4.4.3 Specific Policies

C, 4. Proposals for development of new or expansion of existing recreation and visitor-serving facilities should be evaluated on an individual basis. All proposals

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must demonstrate consistency with the land use plan, maximum site and parcel densities, and environmental, visual, design and traffic safety constraints. The expansion and development of recreation and visitor-serving facilities should be of a scale and nature that is compatible with the natural and scenic character of the area.

Maximum intensity for "Recreation and Visitor-Serving" sites not specified elsewhere in the Plan are as follows: 86 visitor units and 12 employee units for Carmel River Inn150 visitor units and 12 employee units for Highlands Inn35 visitor units and 4 employee units for Tickle Pink16 visitor units and 2 employee units for Sandpiper Inn

In addition, the CALUP section 4.6 clearly limits additional VSU's to: Recreation and Visitor Serving Commercial: Lower Area of Point Lobos Ranch (“Flatlands”) (28 new units)

Allowing additional units for tourists to rent on a transient basis is clearly inconsistent with the language and intent of the CALUP - because there is now, and was then, insufficient infrastructure and location to accommodate more. The "Gold Rush" approach to Land Use Planning embodied in the Draft Ordinances could not be more violative of the spirit and intent of the CALUP.

Vacation rentals must be counted toward the existing visitor-serving cap in the CALUP. Each room should count as a Visitor Unit, in accordance with the definitions in the TOT Code. The proposed exceedance of the visitor-serving unit cap is a clear inconsistency with mandatory and specific language in the CALUP and is simply unsupportable by the letter and intent of the CALUP.

The efforts within the STR Ordinance and accompanying Environmental Analysis Report to distort the common sense meaning of “dwelling”, “single-family residence” and “visitor serving unit” (also described within the CALUP as a visitor serving accommodation or facility) as currently referenced in existing County ordinances and LUPs is wrong on its face and without merit. No facts were offered to support the County position because there are none. The County contends in various parts of the documents that STR’s “Provide opportunity for visitors to access public access areas of the County through vacation rental opportunities…” yet contends that these very units do not meet the definition of “visitor serving units” as defined (or re-defined), limited and regulated within the various county codes or LUPs. It would appear that these attempts to misrepresent the obvious realities that STRs are not Single-Family Residences but, in fact, are Visitor Serving Units are aimed at circumventing the

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restrictive policies regarding the locations and numerical such as the following provisions in the CALUP:

For example, these equivalency claims are also clearly false if one considers the permitted occupancy limits proposed within the draft ordinance (2 persons per bedroom overnight with a maximum 10 persons per single-family residence plus an additional daytime occupancy of 1.5 times this number - to a maximum of 15 persons) as compared to the normal occupancy rates within Monterey County (3.3 occupants per household according to U.S. Census data) and especially inaccurate when compared to the average occupancy per household in the Carmel Highlands which is even lower than the County average. The County is also re-defining and broadening the definition of a bedroom which could encourage occupancy levels beyond the design capacity of a home’s water, septic or utility services (see below).

Pacific Grove restricts Homestays to two adults and their children: Occupancy: A maximum of one bedroom may be rented to two adults; a second bedroom may be rented to children as part of the same contract. https://www.cityofpacificgrove.org/short-term-rental-program/home-sharing-license

This contention also runs counter to the County’s own code definitions which recognizes that residential use and transient occupancy are incompatible. Specifically, Section 20.06.030 defines “Dwelling” as:

“a structure or portion thereof designed for or occupied exclusively for non-transient residential purposes, including one family and multiple family dwellings, but not including hotels, motels, boarding or lodging houses or other transient occupancy facilities”.

Inherent in the code is the idea that a residential dwelling must be used exclusively for long-term use; transient occupancy of any kind is prohibited, even if residential use continues in part.

It is clear that any development or operation requiring a Business License, Vacation Rental Operation Permit and subject to registering and paying Transient Occupancy Taxes, just like traditional hotel operators, is by definition a commercial entity and not: “…similar in character, density, and intensity to residential use.” Section 5.40.020(A) of the County Code, states that transient occupancy tax is not to be imposed on “any private dwelling, house, or other individually owned single-family dwelling unit rented only occasionally and incidentally to the normal occupancy by the owner or family.” Yet, the proposed Ordinance states that all categories of vacation rentals must obtain a transient occupancy tax registration certificate (e.g., Section 20.64.290(D)(8), (E)(8), (F)(9)). In other

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words, the County acknowledges that vacation rentals are something other than normal occupancy of a dwelling unit – they cross over into commercial use and require additional taxation virtually identical to the definition of a “Hotel” within 5.40.02: “…any structure, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, time share or condominium conversion facility…” County staff is circumventing the plain language of the CALUP that VSU's are limited in number and location within the CALUP.

5. Monterey County Total Numbers of STR’s, and Bedrooms for Rent in STR’s

a. Figures vary from different sources, but the contractor to Monterey County found 799 advertised rentals in January 2018.23 There are a little over 2 bedrooms rented per site,24 and an average of slightly over 2 people per room.25

i. In July 2018 there were over 1,726 rooms for rent in Monterey County – the vast majority on the coast and in Carmel Valley. Not quite a year later, in May 2019, there were 2,692 house listings in Monterey County that fit the STR definition.26

ii. And this vastly understates the total impact of STR on Monterey County because these figures are for the Unincorporated area only.

23 Host Compliance Report, Monterey County Planning Commission Agenda Item No. 2; Legistar File Number: PC 18-009; REF100042/REF130043 – SHORT-TERM RENTAL CODE COMPLIANCE: January 31, 2018

24 The actual number of rooms per STR is 2.16; https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

25 The actual number of people per room per STR is 2.42; https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

26 https://preservemontereyneighborhoods.community/wp-content/uploads/2019/05/Host-Compliance-May-2019-Monterey-County1-CA-Monthly-status-report.pdfLand Use and Planning 47

iii. The County as a whole including the Cities (May 2019) had 2,073 listings that fit the STR definition – with a total of 4,478 rooms for rent.27 These tourists, although they may be sleeping at their rooms in Pacific Grove, Seaside, Marina or other City, go to the same places tourists who stay in hotels go. Big Sur and Point Lobos are two of the prime tourist destinations in the world.

VIII. ENFORCEMENT: The Resource Management Agency/Planning Commission publicly announced that it does not have the personnel resources or the funding to enforce current law. This has allowed a free-for-all where property owners can operate STR’s and violate a host of LUP standards with impunity.

98% of the 1700 Homestay/STR’s existing in 2018 in Monterey County were Illegal, suggesting that many will continue to look for ways to maximize profits and avoid the law. The Draft Ordinance does not provide any mechanism to reasonably insure that personnel and budget will be available for the extremely difficult enforcement job it requires. The Consensus Position does have such a mechanism.

1. By 2018 there were 20 legal and more than 1,500 Rooms illegally for Rent from STRs/Home Stays than are allowed by the Carmel Valley Master Plan, Big Sur Land Use Plan, and the Carmel Area Land Use Plan.

2. Cheating by Homestay/STR operators in other jurisdictions has been extensive, see for example:

a) Carmel-by-the-Sea Commission favors ban on vacation rentals

b) Monterey takes aggressive stand against short-term rentals – Monterey Herald

c) Anonymous Owner, L.L.C.: Why It Has Become So Easy to Hide in the Housing Market – The New York Times

d) Shelter Island has tried to preserve its character by restricting the short- term rental market, angering many homeowners in the quaint Long Island town.

27 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/host-compliance-monterey-county-report-2018-07-24_21-07-21.pdfLand Use and Planning 48

e) Airbnb Tax’ in N.J. Opens New Front in Battle Over Internet Economy - The New York Times

f) AirBnB Loses Legal Challenge

g) Big Sur plea: Tourists, honor our home – Monterey Herald

h) Federal Court Deals Airbnb a Blow in its Fight Against Local Regulations - Route Fifty

i) Political contests erupt as cities and hotel industry struggle to curb Airbnb - The Washington Post

j) The fight over Pacific Grove vacation rentals spills into the ballot box with Measure M.

k) Here Comes the 2nd Wave of Big Money in the “Buy-to-Rent” Scheme

l) Unwelcome guests: Airbnb, cities battle over illegal short-term rentals As L.A. vowed to stop apartments from becoming hotels, this company made it a business

m) Inside the Rise and Fall of a Multimillion-Dollar Airbnb Scheme - The New York Times

n) New York Empire of Illegal Airbnb Rentals Booked 75,000 Guests, Suit Says - The New York Times

o) SF fines Airbnb landlords $2.25 million for illegal rentals - SFChronicle.com

p) WSJ News Alert Marriott to Take On Airbnb in Booming HomeRental Market

q) Landlords turned 14 SF apartments into illegal Airbnbs, city attorney says – San Francisco Chronicle

r) Advertising Illegal Rentals Banned and Heavily Fined: SHORT-TERM RENTALS CRACKDOWN IS WORKING, SAYS CITY ATTORNEY, Illegal STR’s down 90 percent in Carmel by Sea

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s) Advertising Illegal Rentals Banned and Heavily Fined: Airbnb | Santa Monica | Listings Decline

t) Advertising Illegal Rentals Banned and Heavily Fined: Airbnb loses thousands of hosts in SF as registration rules kick in – San Francisco Chronicle

3. The number of STR/Home Stays have been increasing by more than 30% per year. Monterey has been increasing somewhat above the national average in rate of increase.28

a. 98% of STR’s in Monterey County are illegal and increasing at over 30% per year. There are no enforcement efforts to stop increases or reduce the Status Quo.

b. With a public announcement of no enforcement, there is no downside to disobeying the law.

c. The Planning Commission has failed to analyze strict enforcement of the current laws, despite the fact that both City of Monterey and Carmel-by-the-Sea have reduced illegal rentals by more than 90%. Numerous requests were made for the Planning Commission to do this analysis and present it as an option to the Planning Commission and the Board of Supervisors.29

d. City of Monterey and Carmel-by-the-Sea both reduced illegal rentals by imposing hefty fines for advertising of illegal rentals. Then a contractor, Host Compliance, identifies those ads, letters are sent and the advertisers fined. The tax department then goes after them for unpaid back hotel taxes (TOT). They report it takes 3 personnel working part time to enforce the law.

IX. The Draft Ordinance Allows Unlimited Water Consumption at Homestays which conflicts with the LUP’s.

28 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

29 https://preservemontereyneighborhoods.community/response-to-record-acts-request/Land Use and Planning 50

1. The largest provider of water to Monterey County is Cal-Am. In addition there are numerous entities like Carmel Riviera Mutual Water Co.30 that provide well water from aquifers, and others in Big Sur and elsewhere that pump water from rivers. Cal-Am obtains its water from a variety of sources, including the Carmel River.

2. Over pumping from rivers can have a Significant Impact on the ecosystem of the river and adjacent areas. Cal-Am is under a cutback order by the to reduce its pumping from the Carmel River because of environmental damage its overpumping caused.31 Judicially ordered cutbacks for Carmel River water and seawater intrusion into aquifers have resulted in water conservation requirements in numerous coastal cities.32

3. Cal-Am will have inadequate water supply within 3 years unless the Monterey Peninsula Water Supply Project or equivalent is built. There is no water for growth at this time. Even under the Monterey Peninsula Water Supply Project there are only 500 acre-feet per year allocated for growth. STR/Home Stays are currently using close to 500 acre-feet of water per year, and at a 30% annual growth rate will exceed that amount soon.

4. As Monterey grows and the local economy recovers, there will be no water supply for them unless Cal-Am illegally pumps water from the Carmel River, and thereby continuing the environmental damage that the Monterey Peninsula Water Supply Project is being built to prevent.

5. This violates all of the Land Use Plans, and Monterey County’s filings with the Public Utility Commission in connection with the Monterey Peninsula Water Supply Project.

30 Carmel Riviera Mutual Water Company principally provides water to the Mal Paso and Yankee Point communities

31 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/puc-decision-regional-desal-project.pdf

32 http://www.landwatch.org/pages/issuesactions/waterissues.htmlLand Use and Planning 51

a. There are no limits on water consumption by STR/Homestays.33 The Monterey Peninsula Water Supply Project has had to be developed because of overpumping by Cal-Am from the Carmel River.

b. The proposed desalination project has a maximum of 500 acre-feet per year be available for additional demand for economic recovery of Monterey.34

c. There is no provision in the Monterey Peninsula Water Supply Project for STRs/Home Stays.

d. In July 2018 there were 4,478 or more Rooms for Rent from STR/Home Stays in Monterey County. On average there were 2.42 people per room. (discussed in detail above). Maximum daily number of people in STRs (maximum) is 10,837. By 2019 the numbers had increased around 30%.35

e. The U.S. Geological Survey calculated in 2015 that average daily consumption per individual in our region is 82 gallons per day, of which half is used for landscaping, and the other half for personal uses. The landscaping occurs whether a property is an STR or not, so consumption per STR guest is approximately 41 gallons per day.

f. Total maximum water consumption is 444,307 gallons per day by STR/Home Stay tourists. Annually 162 million gallons which is 498 acre feet per year.

X. The Draft Ordinance allows use of Wastewater Systems not designed or maintained for the number of People who can stay there, which conflicts with the LUP’s.

33 CV-3.20 A discretionary permit shall be required for new wells in the Carmel Valley alluvial aquifer. All new wells shall be required to fully offset any increase in extractions from this aquifer (see Policies PS-3.4 and PS-3.5). These requirements shall be maintained until such a time that the Coastal Water project (or its equivalent) results in elimination of all Cal-Am withdrawals in excess of its legal rights. Monterey County General Plan Carmel Valley Master Plan October 26, 2010 – Amended as of February 12, 2013 Page, CVMP-1

34 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/puc-decision-regional-desal-project.pdf

35 https://preservemontereyneighborhoods.community/wp-content/uploads/2019/05/Host-Compliance-May-2019-Monterey-County1-CA-Monthly-status-report.pdfLand Use and Planning 52

1. Many of the current illegal and potentially permitted STR’s operate septic systems directly adjacent to the National Marine Reserve. The coastal and inland areas of the Carmel Highlands are located within or adjacent to several protected natural resource areas and designated Environmentally Sensitive Habitat Areas (ESHA) including: The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area. In addition, there are several protected preserves in the inland areas as well as protected plant and animal species.

2. Potential environmental damage from sewage and water use is likely to exceed the Significance Threshold for applicable habitat conservation plan or natural community conservation plans.

3. There have been no long-term reviews of the impact of this STR activity on our sewage systems (primarily septic), water systems (public, private and community), and other utilities. Where small units may have had 1 or 2 residents, they are now full to the brim with visitors without regard to occupancy limits. Increasingly, high end “vacation homes” which only used to be visited occasionally by their owners are now booked by visitors and groups at a much higher frequency and occupancy rate. Moreover, transient visitors paying “premium” rental fees are very likely to expect full and unencumbered use of the guest accommodation’s utilities, despite any conservation information or admonitions provided. Higher than normal occupancy rates will inevitably lead to stresses on the available infrastructure.

4. STR’s are advertising36 available occupancy levels far beyond the design capacities of LUP area water and septic systems . . . Even with reasonable restrictions applied to any new ordinance(s), the fragile and hazardous nature of the coastal and wildland areas of our communities are susceptible to severe damage of even a single adverse event such as a sewage spill (many of the current illegal and potentially permitted STR’s operate septic systems directly adjacent to the National Marine Reserve), and other activities like recreating in sensitive tidepools that are damaging to the protected but unsupervised coastal environment.

5. Conflict with Monterey County Coastal Implementation Plan (Chapter 20.146.050):

36 e.g. VRBO, Airbnb, etc.)Land Use and Planning 53

Proof of adequacy of septic systems may be required as a part of the permit application process. This proof of adequacy must document that the system is in working condition and is adequate to serve both the proposed and the existing use.37

Any parcel in the Land Use Plan area proposed for up-zoning shall be tested and approved by the county Health Department for suitability for waste disposal systems prior to approval of the new zoning. Such testing shall be at the expense of the applicant.38

Dual leach fields are required for any new development in Carmel Highlands and other areas in the Camel area Coastal Segment which are not expected to be served by sewers or package treatment plants.39

6. As noted earlier, many of the current illegal STR’s are advertising (e.g. VRBO, Airbnb, etc.) available occupancy levels far beyond the design capacities of these water and septic systems – as high as 8-12 occupants per rental. Our community has been under moratoriums of additional water connections, water rationing (see enclosed Carmel Riviera Mutual Water Co. water conservation notices), new septic system operation and construction restrictions and other development limitations (see the Carmel Highlands Onsite Wastewater Management Study.40 Should these occupancy levels continue or increase under a new STR ordinance with the current inadequate infrastructure conditions and over-capacities, and there is no evidence to suggest that they would not, these newly permitted activities risk potential harmful effects to the coastal environment plus additional public health and safety risks to tourists and the surrounding neighbors.

37 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf (Ref. Policy 2.4.4. B. 3 Water Pollution Control). (CML-23)

38 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf (Ref. Policy 2.4.4.B.4 Water Pollution Control). (CML-26)

39 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf (Ref. Policy 2.4.4.B.6 Water Pollution Control). (CML-27).

40 http://www.co.monterey.ca.us/home/showdocument?id=46532Land Use and Planning 54

7. Wastewater systems do not need to be designed and maintained for the number of guest who may be there. STR’s are advertising41 available occupancy levels far beyond the design capacities of LUP area water and septic systems . . . the fragile and hazardous nature of the coastal and wildland areas of our communities are susceptible to severe damage of even a single adverse event such as a sewage spill or wildfires.

i. A single sewage spill can do lasting damage to The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area.

XI. Homestay/STRs squeeze the paychecks of working families which violates the LUP’s that all require provision for workforce and low income housing.

See the recent article: A Teaching Exodus: Teachers are being forced to move out of Monterey County

1. Increasing rents and longer commutes for workers in Monterey County cost working families more than $78 million per year. Paychecks have not kept pace with this increase, leaving working families to foot the bill for STR/Homestay owners profits.

a. Between July 2011 and July 2018 rent on 2 bedroom apartments increased 85% from $1,195 per month to $2,216 per month.42

b. There are 70,000 rental units in Monterey County.

c. Some portion of this is attributable to STR/Home Stays taking affordable housing off the market. In other cities, studies attribute between 9.2% and 33% of the rent increases to STR/Home Stays.43

41 e.g. VRBO, Airbnb, etc.)

42 https://www.rentjungle.com/average-rent-in-monterey-ca-rent-trends/Land Use and Planning 55

d. Using the lower figure, 9.2%, the annual total cost to workers is $78,902,880.

XII. Contravening the LUP’s, and the California Coastal Act, the Draft Ordinance will increase traffic problems in Big Sur and Carmel Highlands

1. Short-Term renters add to traffic both directly and by taking long-term housing off the market, thereby forcing longer commutes for workers.

2. The Big Sur Coast Highway was declared the first State Scenic Highway in 1965. In 1996 it was designated the first All American Road under the Federal Highway Administration National Scenic Byways Program. Its role in providing affordable, readily available coastal access to millions of annual visitors is recognized in the Big Sur and Carmel Highlands Land Use Plans. The mandate to protect the quality of the recreational driving experience is likewise addressed in the Big Sur and Carmel Highlands Land Use Plans. Management of the use and capacity of Highway I is essential to achieving the goals of the Big Sur and Carmel Highlands Land Use Plans to provide public access to the Big Sur Coast along this scenic route and the protection of the environment and quality of the visitor experience.

43 “Between 2009 and 2016, approximately 9.2 percent of the citywide increase in rental rates can be attributed to Airbnb. . . . Airbnb listings were heavily concentrated in parts of Manhattan and Brooklyn and had a greater impact on these neighborhoods. Approximately 20% of the increase in rental rates was due to Airbnb listings in midtown and lower Manhattan . . . “

The Impact of Airbnb on NYC Rents; May 3, 2018; Scott M. Stringer, New York City Comptroller; https://comptroller.nyc.gov/reports/the-impact-of-airbnb-on-nyc-rents/ - -

And also see “Airbnb listings are concentrated in just seven of the city’s densest, most expensive neighborhoods: Venice, Downtown, Miracle Mile, Hollywood, Hollywood Hills, Echo Park, and Silver Lake. These tourist destinations account for nearly half of Airbnb listings, and 69% of all Airbnb-generated revenue in Los Angeles. In 2014, rents in these neighborhoods were 20% higher, and increased 33% faster, than rents citywide. . . . Airbnb indirectly reduces the affordable housing supply by reducing the overall housing supply. As a result, the pressure that STRs place on rent prices pushes units out of the margins of affordability for low- and middle-income residents, an effect that cascades throughout the city. In 2014, Airbnb removed 1% of the units from Los Angeles’s rental market— and substantially more in some neighborhoods—while monthly rents in- creased by 7.3%. And by reducing the overall housing supply, Airbnb is partially responsible for the citywide rent increases that further reduce the supply of affordable housing.” How Airbnb Short-Term Rentals Exacerbate Los Angeles’s Affordable Housing Crisis: Analysis and Policy Recommendations; Dayne Lee; Harvard Law & Policy Review; Vol. 10; 2016Land Use and Planning 56

3. The Big Sur Coast Highway is required by the California Coastal Act44 to be maintained as a scenic two-lane road in rural areas (south of the Carmel River). As a state and federal scenic road, the Big Sur LUP45 addresses vehicular capacity of the highway and public access to protect environmental quality and visitor experience. Similarly, the Carmel Highlands-Riviera Master Plan seeks to preserve the scenic, rural character of that community through the use of scenic easements, retention of native vegetation, and maintenance of Highway 1 as a scenic two-lane road. However, vehicular capacities are already being exceeded on Highway 1, and visitor damage to roadside habitat is routinely reported in the press.

a. Carmel Area State Parks says:46

i. While not an issue limited just to CASP as a destination, transportation and parking issues have become more urgent as the popularity of parks, reserves, National Forest lands, other public open space, and tourism in the Monterey-to-Big Sur region has grown. Interrelated issues include traffic congestion, vehicle circulation, parking adequacy, and pedestrian access and safety. Currently, the vast majority of visitors must rely on personal autos as the primary transportation mode to reach CASP units and other similar destinations in the region. SR 1 becomes heavily congested during periods of substantial visitation and peak local commute times, causing mobility problems for local residents and visitors alike. Parking on the highway shoulders within the right- of-way of SR 1 near the Reserve and Coastal Area contributes to traffic congestion, creates pedestrian risks, and adds to excessive uncontrolled walk-in visitation to the Reserve.

XIII. There are more than ample rooms for rent in Monterey County. Monterey County and the Coastal Commission have – without

44 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/california-coastal-act.pdf

45 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/big-sur-coast-land-use-plan.pdf

46 https://preservemontereyneighborhoods.community/carmel-area-state-parks-preliminary-general-plan-and-draft-eir/Land Use and Planning 57

exception – required the highest level of environmental scrutiny for hotel projects much smaller than the Draft Ordinance.

1. As STR occupancy has gone up, occupancy in licensed hotels have gone down. A visitor to Monterey County today can choose between an STR/Home Stay, hotel, or camping ground. It is the same visitor, paying to vacation and doing the things that vacationers do. The potential impacts that visitors will have on water use, traffic, air quality, sewage spills environmental damage, wildfire, is the same regardless of which form of hotel they choose.

2. For example, a 231 room hotel in Seaside went through over 30 years of environmental review, and that area is next to a freeway and is significantly less environmentally sensitive than Big Sur, Carmel Highlands and Carmel Valley.47

XIV. Under the Draft Ordinance STR/Homestays are proliferating in Environmentally Sensitive Habitats in violation of habitat conservation plans and natural community conservation plans.

1. The Draft Ordinance is likely to create significant increases in people entering “Areas Not Planned for Public Access” because of Environmental Sensitivity or Hazardous Conditions:

a. “Those paying to stay in STR’s often do not understand the fragile nature of our coastal environment, local environmental regulations and restrictions or the safety risks associated with the hazardous conditions that exist along our coast. This statement is not meant to be

47 “A neighboring proposed Sand City eco-resort project received coastal commission approval this year after two decades of effort . . . Like Ghandour’s Monterey Bay Shores resort, the King Ventures project, dubbed “The Collections,” has gone through numerous iterations and attempts to gain the commission’s approval that span decades. The commission first denied a permit for a 229-unit Sand City-approved project on the site in 1986. In 1989, the city approved a 136-unit project, but a lawsuit challenged its compliance with the California Environmental Quality Act. Next, the city approved a similar project in 1990. The coastal commission approved the project with special conditions in 1991, but a Monterey County court found problems with environmental documents. The city updated the environmental documents in 1993 and re-approved the project. The commission approved it with special conditions in 1994, but asked that an alternative water source be found instead of a city-run desalination plant. After years of setbacks, the commission declined to extend the project in 1999, saying circumstances had changed.” https://preservemontereyneighborhoods.community/articles-about-ceqa-review-of-hotel-projects-in-monterey/Land Use and Planning 58

defamatory in any way, but merely acknowledges the facts as recognized within the LUP’s (see below) and borne out by our own observations; that people visiting from outside the area are just not familiar with the local environmental protection values or the necessary safety precautions. These coastal and protected areas are generally unmonitored and unsupervised which places both the tourists and the environment at risk.”48

b. Many of the current illegal and potentially permitted STR’s operate septic systems directly adjacent to the National Marine Reserve.

2. The coastal and inland areas of the Carmel Highlands are located within or adjacent to several protected natural resource areas and designated Environmentally Sensitive Habitat Areas (ESHA) including: The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area. In addition, there are several protected preserves in the inland areas as well as protected plant and animal species

3. The Mal Paso Creek area, the Carmel Highlands and the Big Sur Coast generally are all designated as “Very High Risk” and also as a “Very High Wildfire Severity Zone” for wildfires by the California Department of Forestry and Fire Protection (CALFIRE).

4. Monterey County contains numerous environmentally sensitive terrestrial plant, wildlife, and marine habitats 49

a. (see attached Map B – Local Coastal Program Environmentally Sensitive Habitats-Known Locations). According to The Nature Conservancy , “…southern Monterey Bay’s coastal habitats face numerous anthropogenic threats, the most significant of which are: erosion and sediment budget disruption; trampling; and conflicting land use in the form of… residential development, commercial use (hotels and businesses)…”50

48 Mal Paso Creek Property Association Comments for the record to the Monterey County Planning Commission, Public Workshop regarding proposed Short-Term Rental ordinance July 02, 2018

49 see Map “Local Coastal Program Environmentally Sensitive Habitats-Known Locations” https://preservemontereyneighborhoods.files.wordpress.com/2018/08/carmel-area-map-b-local-coastal-program-environmentally-sensitive-habitats-known-locations.pdf

50 http://coastalresilience.org/project/monterey-bay/Land Use and Planning 59

b. Conflict with the Monterey County Coastal Implementation Plan (Chapter 20.146.120)51

i. All development and use of land, whether public or private, must conform to the development standards of this ordinance and must meet the same resource protection standards set forth in this ordinance. Where conflicts occur between one or more provisions of the plan, such conflicts shall be resolved in a manner which on the whole is the most protective of significant coastal resources

c. Conflict with the Monterey County Coastal Implementation Plan (Chapter 20.146.040)52

i. Land uses adjacent to locations of environmentally sensitive habitats shall be compatible with the long-term maintenance of the resource. New land uses are considered compatible only in a situation in which the proposal incorporates necessary site planning and design features which protect habitat impacts and which do not set a precedent for continued land development with the potential to degrade the resource.

ii. For projects in or adjacent to environmentally sensitive habitat areas, the County shall refer projects to the California Department of Fish and Game for evaluation of impacts from development and suggested mitigations for those impacts. These impacts shall include but will not be limited to development of new or intensified land uses such as public access, recreation and associated facilities. Recommendations from the California Department of Fish and Game shall be included as conditions of project approval.

51 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf ((Ref. Policy 4.4.2.7). (CML-57); and (Ref. Policy 2.3.3.10). (CML-16)

52 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf - (Ref. Policy 2.3.3.2). (CML-16); also (Ref. Policy 2.3.4; Wetlands and Marine Habitats Policy #5). (CML-20)Land Use and Planning 60

iii. Concentration of recreational development or recreational activities near accessible tidepool communities shall not be permitted.

d. Conflict with the Carmel Area Land Use Plan, Section 5.3.4 (Table)53

i. Malpaso Creek Beach:Sensitive habitat: riparian habitat along mouth of Malpaso Creek and small pocket beach. Discourage informal trails and heavy usage.

ii. Carmel Highlands – Riviera (remaining shoreline):Residential area with a history of low public use. Trespass on private property should be discouraged and low use levels maintained.- Sensitive habitat: relatively undisturbed rocky intertidal area.- Steep cliffs and rocky shoreline pose hazards to shoreline users.- High fire hazard in area east of Highway One.

e. Conflict with the Carmel Area State Park Proposed General Plan54

i. CSP considers the needs of the native flora and fauna, rare and endangered species, sensitive habitats, the natural processes and functions that support sensitive marine, aquatic, and terrestrial communities as critical when defining approaches to manage the recreational uses and operations of CASP. The many special natural resources of the CASP units include, but are not limited to, marine mammals and birds, underwater kelp forests, freshwater lagoon and wetlands of the Carmel River, south- central California coast steelhead and California red-legged frog habitat of San Jose Creek, one of the world’s largest native Monterey pine forests, one of only two places supporting the rare Monterey and Gowen cypress, maritime chaparral, and broad areas of mountain lion habitat.

f. Conflict with the Carmel Area State Park, State Natural Reserve, as defined by Public Resources Code (PRC) Section 5019.65

53 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/carmel-area-land-use-plan-local-coastal-program.pdf

54 https://preservemontereyneighborhoods.community/carmel-area-state-parks-preliminary-general-plan-and-draft-eir/Land Use and Planning 61

i. The Reserve will continue in its current classification as a State Natural Reserve, as defined by Public Resources Code (PRC) Section 5019.65, and will continue to be managed specifically to preserve the terrestrial and marine habitats, ecological processes, sensitive species, cultural resources, and scenic qualities exemplified by the unique land and seascape of Point Lobos.

g. This violates the Carmel Area Land Use Plan that requires strict Growth Management55

i. “A growth management program regulating the rate of recreational and residential development should be instituted in Carmel based upon natural resource protection constraints, the limited road capacity of Highway 1, and limited water systems capacity. Residential growth should be permitted to continue at the historic rate in order to permit adequate time for the County and other interested agencies to perform review of applications including detailed site analysis in cooperation with applicants. A sufficient volume of the County's allotment of Cal-Am water will be reserved for coastal priority uses. The County will request the Carmel Sanitary District to reserve a sufficient proportion of its remaining wastewater treatment capacity for coastal priority uses. In addition, the issue of highway capacity will be reviewed during the implementation phase, and capacity will be reserved for coastal priority uses.”

h. The Carmel Area State Park states:

i. “Dramatic changes affecting the parks have continued since 1979. Visitation to the Reserve, recorded in the 1979 plan as 270,000 people per year, now exceeds 500,000 visitors arriving by auto, plus potentially several hundred thousand additional walk-in visitors. Point Lobos has become popular with both national and international tourists. Carmel River State Beach has become another popular destination, including for special events such as weddings, which take advantage of the spectacular scenery.”56

55 Carmel LUP sec 6.2.2, page 116

56 https://preservemontereyneighborhoods.community/carmel-area-state-parks-preliminary-general-plan-and-draft-eir/Land Use and Planning 62

XV. Fire

1. Even with reasonable restrictions applied to any new ordinance(s), the fragile and hazardous nature of the coastal and wildland areas of our communities are susceptible to severe damage of even a single adverse event such as: . . . wildfires (there have been many illegal beach bonfires observed and reported at our local beaches and coves started by STR tenants) . .

2. The Mal Paso Creek area, the Carmel Highlands and the Big Sur Coast generally are all designated as “Very High Risk” and also as a “Very High Wildfire Severity Zone” for wildfires by the California Department of Forestry and Fire Protection (CALFIRE). As we have seen very recently and from past fires in the region, these wildfires produce tremendous damage to the environment and cause tragic loses to lives and property. These environmental impacts last for years following an event - affecting ecosystems, watersheds, infrastructure, property and lives. Out-of-the-area visitors are generally unaware of these risks and, unfortunately, often behave accordingly. The recent Soberanes fire is a prime example of this. The cause of which has been determined to be from an illegal campfire in a closed and unsupervised section of Garrapata State Park – immediately adjacent to our community. Just one week prior to the Soberanes Fire, STR tenants started a large illegal bonfire on Malpaso Creek Beach. A resident notified our Fire Dept. who responded to put it out. Had this fire gotten out of control or left abandoned, this could have been both a human and environmental tragedy – and this has not been the only incident.

3. Conflict with Monterey County Coastal Implementation Plan (Chapter 20.146.80)

a. Development shall only be permitted on areas of high to extreme (very high) fire hazards if: ...the development will not increase the threat of fire, due to the adequacy of the fire protection measures required by the Fire District and other measures required by the Planning Department.57

57 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf (CML-48).

Land Use and Planning 63

b. Point Lobos State Reserve and Pfeiffer Big Sur State Park are regularly overcrowded and, according to the Point Lobos Foundation, “… rapidly increasing numbers of well-meaning but uninformed visitors are damaging precious natural resources in Point Lobos State Natural Reserve…” 58

c. “Point Lobos – The preserve is being degraded by over-use. Initial reports set a maximum daily attendance at about 2000 in order to avoid further degradation. Peak days last year saw upwards of 5000 visitors per day. This is unsustainable.” – CA State Parks Regional Supervisor, Brent Marshall59

4. Conflict with the Carmel Area Land Use Plan, Section 5.3.2.1-8

a. For areas not appropriate or planned for public access, such access should be discouraged. Where such areas are located on private land, the County and other public agencies should cooperate with landowners to develop effective methods for directing access to appropriate locations.

b. In encouraging public access, the County desires to ensure that the privacy, safety, health, and property of residents are protected. The visiting public (which is generally unaware of the hazards presented by surf and tide) should not be directed into hazardous locations unless professional supervision is provided.

5. Conflict with the Carmel Area Land Use Plan, Section 5.3.3

a. In areas of existing or potential access where habitat and resource protection are identified as a major concern, studies should be conducted by qualified individuals or agencies to determine maximum acceptable levels of public use and methods by which resource values can best be protected. The conclusions of these studies should guide management of access at such locations.

58 https://www.pointlobos.org/plan-your-visit/general-info/be-considerate-visitor

59 See also https://preservemontereyneighborhoods.files.wordpress.com/2018/08/point-lobos-overuse-taking-a-toll-on-the-environment.pdf

Land Use and Planning 64

b. Where highly sensitive plant or wildlife habitat is present, access may be inappropriate and should not be permitted.

XVI. Conclusion: CEQA Requires an Environmental Impact Report because the significance of these issues is considerably above the threshold. A Negative Declaration is insufficient , and there is no applicable Categorical Exemption

Land Use and Planning 65

III. Air Quality

Substantial evidence supports a fair argument that the Draft Ordinance legalizing existing, and promoting unlimited new short-term vacation rentals (called “Homestays or Short-term rentals” by the Draft Ordinance) are a project that may have a significant impact on Air Quality.

CEQA Guidelines: III. AIR QUALITY — Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project:

a) Conflict with or obstruct implementation of the applicable air quality plan?

b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation?

c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non- attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)?

d) Expose sensitive receptors to substantial pollutant concentrations?

e) Create objectionable odors affecting a substantial number of people? N/A

Conclusion: The Significance Threshold is clearly exceeded by Greenhouse Gas Emissions from Tourists Staying in Homestay/STR’s, and Workers Forced in to Longer Commutes as Long-Term Housing is taken off the market. The Significance threshold is already exceeded by homes taken off the long-term housing market through deliberate failure to enforce existing law, these conversions are made legal by the Draft Ordinance. The Draft Ordinance also encourages a massive increase on STR’s the Draft Ordinance calls “Homestays” but are simply STR’s with room for one less person. There is no limit on number or even density of Homestay STR’s.

66

Air Quality

In contrast the Consensus Position limits Homestay/Str’s to the numbers of bedrooms allowed by the Land Use Plans. If limited to these numbers, the greenhouse gas emissions will be well below the Significance Threshold.

Evidence for, and Analysis of the Air Quality Impact of the Draft Ordinance

Greenhouse Gas Emissions from Tourists Staying in STR’s, and Workers Forced in to Longer Commutes as Long-Term Housing is Converted to STR’s and Homestays

Relevant Links:

10000 mT Greenhouse Gas Equivalencies Calculator | US EPA

Greenhouse Gas Equivalencies Calculator | US EPA

Monterey Air Thresholds DEIR_PLN130352_040115_CH4_S4-03

CO2 from 10 mile commute

US EPA CO2 emissions per mile

The Significance Threshold for Greenhouse Gas Emissions in Monterey County is 10,000 Metric Tons of Carbon Dioxide and equivalents.

There are two possible approaches to determine if the Status Quo and/or Draft Ordinance exceed this threshold:

1. Number of vehicles from tourists staying in STR’s

2. Additional Driving by Workers forced to find housing further from their jobs

Cars Driven by Tourists Staying in STR’s

67

Air Quality

The County as a whole including the Cities (July 2018) had 2,073 listings that fit the STR definition – with a total of 4,478 rooms for rent.60

Using the July 2018 data, assuming one car per room that equals 4,476 vehicles. Assuming STRs continue to expand at 30% or more per year (the current rate of expansion), by 2020 there will be over 5,000 vehicles.

CO2 per year for a car is 4.6 metric tonsat 100% capacity factor = 23,000 metric tons/yearat 71% capacity factor = 16,330 metric tons/year Significance Threshold = 10,000 metric tons/year61

Greenhouse gas emissions are over the Significance Threshold.

60 https://preservemontereyneighborhoods.community/wp-content/uploads/2018/08/host-compliance-monterey-county-report-2018-07-24_21-07-21.pdf.

61 County of Monterey Section 4.3. Air Quality and Greenhouse Gas Emissions

Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment; and/or conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases. The 2014 CEQA Guidelines do not establish a quantitative threshold of significance for GHG impacts; instead, lead agencies have the discretion to establish such thresholds for their respective jurisdictions. In Monterey County, the Greenhouse Gas Thresholds and Supporting Evidence prepared by the San Luis Obispo County Air Pollution Control District (SLOAPCD) in 2012 is typically used as a guideline for evaluating GHG emissions for CEQA documents within Monterey County (MBUAPCD 2014). The threshold established by the SLOAPCD is 10,000 metric tons (MT)/year for stationary sources, or 1,150 MT/year or 4.9 MT Service Population (SP)/year (residents +employees). This stationary source threshold is consistent with the threshold established by the BAAQMD, the Sacramento Metropolitan Air Quality Management District, and Santa Barbara County standards.

Therefore, a proposed project would have a significant impact related to GHG emissions if the project would: Generate more than 10,000 MT of equivalent carbon dioxide (CO2e) per year; or Generate 4.9 MT SP per year.

It should be noted that no air district has the power to establish definitive thresholds that will completely relieve a lead agency of the obligation to determine significance on a case-by-case basis (South Coast Air Quality Management District [SCAQMD] 2008). Additionally, SLOAPCD requires that construction emission of a project be amortized over the life of a project and added to the operational emissions. 68

Air Quality

Increased Commutes by Workers

Many complaints about increased commutes are made by workers forced to live farther from their jobs. Over 400 people per day commute to Bug Sur – a commute of over 50 miles each way for many. Many people who work in Monterey have been forced to move in to the Salinas area – an additional commute of 10 to 20 miles each way.

There are more than 70,000 people who commute to work from apartments. For every 5 miles each way they have to commute, greenhouse gas emissions are:

10 miles per day x70,000 vehicles x200 days per year x0.89 pounds of CO2 (404 grams) per mile62

= 56,519 MT (note – there are 2,204.62 pounds per Metric ton)

Greenhouse gas emissions are over the Significance Threshold

NOTES

Monterey County Total Numbers of STR’s, and Bedrooms for Rent in STR’s Figures vary from different sources, but the contractor to Monterey County found 799

advertised rentals in January 2018.63 There are a little over 2 bedrooms rented per site,64 and an average of slightly over 2 people per room.65

62 US EPA CO2 emissions per mile

63 Host Compliance Report, Monterey County Planning Commission Agenda Item No. 2; Legistar File Number: PC 18-009; REF100042/REF130043 – SHORT-TERM RENTAL CODE COMPLIANCE: January 31, 2018;

64 The actual number of rooms per STR is 2.16; https://preservemontereyneighborhoods.community/wp-content/uploads/2018/08/airdna-report-complete-all-cities-and-regions.pdf69

Air Quality

In July 2018 there were 1,726 rooms for rent in Monterey County – the vast majority on the coast and in Carmel Valley. In May 2019 there are between 3,000 and 6,000.

And this vastly understates the total impact of STR on Monterey County because these figures are for the Unincorporated area only.

The County as a whole including the Cities (July 2018) had 2,073 listings that fit the STR definition – with a total of 4,478 rooms for rent.66[ These tourists, although they may be sleeping at their rooms in Pacific Grove, Seaside, Marina or other City, go to the same places tourists who stay in hotels go. Big Sur and Point Lobos are two of the prime tourist destinations in the world. By March of 2019 this increased to 2,425 (5,238 rooms for rent).67

65 The actual number of people per room per STR is 2.42; https://preservemontereyneighborhoods.community/wp-content/uploads/2018/08/airdna-report-complete-all-cities-and-regions.pdf

66 https://preservemontereyneighborhoods.community/wp-content/uploads/2018/08/host-compliance-monterey-county-report-2018-07-24_21-07-21.pdf;

67 https://preservemontereyneighborhoods.community/wp-content/uploads/2019/04/Host-Compliance-MArch-2019-Monterey-County1-CA-Monthly-status-report.pdf70

Air Quality

IV. Biological Resources Tenants have sometimes trespassed in to sensitive protected areas. This is a matter of serious concern for Point Lobos, Carmel Highlands, Big Sur and Carmel Valley. This supports a fair argument that the Draft Ordinance legalizing existing, and promoting unlimited new short-term vacation rentals (called “Homestays or Short-term rentals” by the Draft Ordinance) are a project that may have a significant impact on Biological Resources.

CEQA Guidelines: IV. BIOLOGICAL RESOURCES — Would the project: e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance?

The Monterey Bay Area Marine Sanctuary Management Plan68 is considering a wide variety of management and enforcement options. Condors are seen in Big Sur and Carmel Highlands. Both Big Sur and Carmel Highlands are the major overwintering sites for the challenged, possibly endangered Monarch Butterfly. Pacific Grove is close behind. There is a fair argument that substantially increasing the year-round population of human visitors, unfamiliar with the area and its wildlife, might do damage to the survival of these species and others.

Condors and Monarch Butterflies in Carmel Highlands ADD PICTURES

68 Monterey Bay National Marine Sanctuary Management Plan71

Biological Resources

From Comments by Michael Emmett, President, Mal Paso Property Association

The Carmel Highlands community is completely surrounded by Federal, State and local parks plus natural preserve/protected areas including a number of ocean reserves. I’ve put forward additional anecdotal arguments for increased environmental impacts based on reported behaviors of STR tenants and the lack of adequate supervision and enforcement abilities in these sensitive habitat areas in and around the Carmel Highlands. Again, other communities would need to evaluate whether they have similar concerns.. . . For example, we have observed tenants collecting specimens from tide pools and other onshore/nearshore habitats, climbing down and damaging hazardous and environmentally sensitive cliffs, starting campfires in illegal locations and trespassing onto private property that contain sensitive habitats and cultural artifacts.”

Conclusion: There is a fair argument that the Significance Threshold for damage to Biological Resources is exceeded from Tourists Staying in Homestay/STR’s, in biologically sensitive areas. This deserves further study and consideration of mitigation options.

72

Biological Resources

In contrast the Consensus Position limits Homestay/Str’s to the numbers of bedrooms allowed by the Land Use Plans. If limited to the locations allowed in the Carmel Area Land Use Plan, the Big Sur LCP and the Carmel Valley Land Use Plan and other mitigation measures, the potential damage may be mitigated, although this too must be studied.

73

Biological Resources

Geology and Soils – Septic Tanks Leaking

CEQA Guidelines: VI. GEOLOGY AND SOILS — Would the project: e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water?

Under the Draft Ordinance Wastewater systems do not need to be designed and maintained for the number of guests who may be renting or visiting the Homestay/STR. Both the number of people and the number of days are permitted by the Draft Ordinance to far exceed the average use of homes in residential areas.

And that assumes compliance with the law. One of the most frequent complaints of communities about Homestay/STR are that they often exceed the legal limits. And it is reasonably foreseeable that of vacation renters show up with a couple of extra people, or demand is high, or the renters request it, more people than the legal limits are clearly foreseeable based on current practices within the STR industry.

Available occupancy levels far beyond the design capacities of LUP area water and septic systems pose a real threat to the fragile and hazardous nature of the coastal and wildland areas of our communities that are susceptible to severe damage of even a single adverse event such as a sewage spill or wildfires.

A single sewage spill can do lasting damage to The Monterey National Marine Sanctuary, The California Sea Otter Game Refuge, Carmel Bay State Marine Conservation Area, Pt. Lobos State Marine Reserve, Pt. Lobos Marine Conservation Area.

Many of the current illegal and potentially permitted STR’s operate septic systems directly adjacent to the National Marine Reserve), and other activities like recreating in sensitive tidepools that are damaging to the protected but unsupervised coastal environment.

Septic Tanks, OSWT, Geology and Soils 74

In most neighborhoods in Monterey County the owner (or long-term renter) and their family live there. Any vacation/short-term renters will be an additional use. Also the demographic evidence is 3 persons per home average. Renters would be in addition to that. It should also be noted that Monterey residents were particularly good at conserving water, especially during the drought. Tourists from other areas use significantly more septic system capacity, and water.

Our community has been under moratoriums of additional water connections, water rationing (see enclosed Carmel Riviera Mutual Water Co. water conservation notices), new septic system operation and construction restrictions and other development limitations (see the Carmel Highlands Onsite Wastewater Management Study.

Homestay/STR’s as proposed by the Draft Ordinance conflict with the Monterey County Coastal Implementation Plan (Chapter 20.146.050).69

Statement of Michael Emmett, Mal Paso Homeowners Association

“I . . . highlight the water and septic issues as there is a body of evidence showing environmental concerns under the current land use provisions and “infer” that the addition of STR’s at the level of occupancy being considered will exacerbate an already existing environmental problem. My evidence is in the County’s own documents like the Carmel Highlands Wastewater Management Plan (http://www.co.monterey.ca.us/home/showdocument?id=14904 ) and the CalAm decision of record not to permit new water connections in the Highlands.

69 Conflict with Monterey County Coastal Implementation Plan (Chapter 20.146.050): 

Proof of adequacy of septic systems may be required as a part of the permit application process. This proof of adequacy must document that the system is in working condition and is adequate to serve both the proposed and the existing use.

Any parcel in the Land Use Plan area proposed for up-zoning shall be tested and approved by the county Health Department for suitability for waste disposal systems prior to approval of the new zoning. Such testing shall be at the expense of the applicant.

Dual leach fields are required for any new development in Carmel Highlands and other areas in the Camel area Coastal Segment which are not expected to be served by sewers or package treatment plants.

Septic Tanks, OSWT, Geology and Soils 75

These environmental impacts have to be based on the assumption of increased occupancy and infrastructure stress, or at least, temporary occupancy beyond the limit of existing infrastructure capacity.

In the Carmel Highlands, there has always been a fairly high number of non-resident property ownership. It has ranged between 20% – 30% over the years with most of these properties having historically been either very occasionally or seasonally used vacation properties for their owners. Therefore, for most of the year these properties used to sit vacant and did not have substantial impacts on the environment or local infrastructure. These are the very properties that we now see being utilized as illegal vacation rentals – therefore, causing a higher level of use than existed before with the consequent increased level of environmental impacts. . .

The County is using generally accepted HUD Fair Housing Guidelines to inform their two persons per bedroom occupancy standards for the STR ordinance. These are not firm limitations and HUD has decided on many occasions to allow/enforce higher occupancy limits to redress what they determine to be illegal discrimination. One of the few arguments that can be successfully employed to limit occupancy is the lack of basic infrastructure capacity (water, sewer, etc.).

The Carmel Highlands community is completely surrounded by Federal, State and local parks plus natural preserve/protected areas including a number of ocean reserves. I’ve put forward additional anecdotal arguments for increased environmental impacts based on reported behaviors of STR tenants and the lack of adequate supervision and enforcement abilities in these sensitive habitat areas in and around the Carmel Highlands. . . . For example, we have observed tenants collecting specimens from tide pools and other onshore/nearshore habitats, climbing down and damaging hazardous and environmentally sensitive cliffs, starting campfires in illegal locations and trespassing onto private property that contain sensitive habitats and cultural artifacts.”

Conclusion: There is a fair argument that the Significance Threshold for damage to the environment from leaking leach fields from Tourists Staying in Homestay/STR’s, in biologically sensitive areas.

This deserves further study and consideration of mitigation options. In contrast the Consensus Position limits Homestay/Str’s is limited to the locations allowed in the Carmel Area Land Use

Septic Tanks, OSWT, Geology and Soils 76

Plan, the Big Sur LCP and the Carmel Valley Land Use Plan and other mitigation measures, the potential damage may be mitigated, although this too must be studied.

Septic Tanks, OSWT, Geology and Soils 77

Fire and other Hazards

CEQA Guidelines VII. HAZARDS AND HAZARDOUS MATERIALS — Would the project:

g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? N/A

h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands?

Conflict with Monterey County Coastal Implementation Plan (Chapter 20.146.80)

Development shall only be permitted on areas of high to extreme (very high) fire hazards if: …the development will not increase the threat of fire, due to the adequacy of the fire protection measures required by the Fire District and other measures required by the Planning Department.70

The Draft Ordinance allows outdoor fires in areas and using equipment that will often not be familiar to visitors, and increases risk of the fire spreading, as has happened before in the Soberanes Fire.71 The Consensus Position is “Fires must be limited to existing barbecue pits and fireplaces.”

70 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/monterey-county-coastal-implementation-plan-carmel-area-land-use-chapter-20-146.pdf (CML-48).

71 19. Outdoor fire areas, when not prohibited by state or local fire bans or regulations, may be allowed in approved recreational fire or portable fireplace containers, shall be located not less than 15 feet from a structure provided appropriate provisions have been made to prevent the spread of fire to nearby fuel. Such provisions include, but are not limited to, locating the fire container on a non-combustible surface, covering the fire by a fire screen, and extinguishing the fire as soon as it is no longer in use or by 10:00 p.m., whichever is earlier. The Homestay operation shall adhere to Chapter 18.09 – Fire Code, of the Monterey County Code, as periodically amended.” See Draft 04.18.19 ORDINANCE NO. ____ ; AN ORDINANCE OF THE COUNTY OF MONTEREY, STATE OF CALIFORNIA, AMENDING SECTION 7.02.060 OF THE MONTEREY COUNTY CODE AND ADDING CHAPTER 7.110 RELATING TO VACATION RENTAL ACTIVITIES;Fire and Other Hazards 78

The Mal Paso Creek area, the Carmel Highlands and the Big Sur Coast generally are all designated as “Very High Risk” and also as a “Very High Wildfire Severity Zone” for wildfires by the California Department of Forestry and Fire Protection (CALFIRE).

Fire

Even with reasonable restrictions applied to any new ordinance(s), the fragile and hazardous nature of the coastal and wildland areas of our communities are susceptible to severe damage of even a single adverse event such as: . . . wildfires (there have been many illegal beach bonfires observed and reported at our local beaches and coves started by STR tenants) . .The Mal Paso Creek area, the Carmel Highlands and the Big Sur Coast generally are all designated as “Very High Risk” and also as a “Very High Wildfire Severity Zone” for wildfires by the California Department of Forestry and Fire Protection (CALFIRE). As we have seen very recently and from past fires in the region, these wildfires produce tremendous damage to the environment and cause tragic loses to lives and property. These environmental impacts last for years following an event – affecting ecosystems, watersheds, infrastructure, property and lives. Out-of-the-area visitors are generally unaware of these risks and, unfortunately, often behave accordingly. The recent Soberanes fire is a prime example of this. The cause of which has been determined to be from an illegal campfire in a closed and unsupervised section of Garrapata State Park – immediately adjacent to our community. Just one week prior to the Soberanes Fire, STR tenants started a large illegal bonfire on Malpaso Creek Beach. A resident notified our Fire Dept. who responded to put it out. Had this fire gotten out of control or left abandoned, this could have been both a human and environmental tragedy – and this has not been the only incident. Conclusion:

The Significance Threshold is clearly exceeded for Fire Hazard Risk from Tourists Staying in Homestay/STR’s. An Environmental Impact Report is clearly required. Lives and property are at stake, and these decisions must be taken carefully.

One Homestay could have over 3,000 visitors per year, versus a family that lives here and knows the risks and sensitivities of the area. For example, when the humidity is very low, the winds are up, and the temperatures on the high side, fire risk is extreme. Full-time residents with ties to the community are very sensitive to these situations. If even 1% of the new visitors do not have that sensitivity, the fire risk goes up significantly.

Fire and Other Hazards 79

Hydrology and Water Quality

CEQA Guidelines VIII. HYDROLOGY AND WATER QUALITY — Would the project:

a) Violate any water quality standards or waste discharge requirements?

b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)?

The Draft Ordinance ignores the law, Land Use Plans and other requirements as it has defined Homestays. For example:

[ii]CV-3.20 A discretionary permit shall be required for new wells in the Carmel Valley alluvial aquifer. All new wells shall be required to fully offset any increase in extractions from this aquifer (see Policies PS-3.4 andPS-3.5). These requirements shall be maintained until such a time that the Coastal Water project (or its equivalent) results in elimination of all Cal-Am withdrawals in excess of its legal rights. Monterey County General Plan Carmel Valley Master Plan October 26, 2010 – Amended as of February 12, 2013 Page, CVMP-1

Also see the Carmel Highlands Onsite Wastewater Study . Statement by Michael Emmett of the Mal Paso Homeowners Association

“I . . . highlight the water and septic issues as there is a body of evidence showing environmental concerns under the current land use provisions and “infer” that the addition of STR’s at the level of occupancy being considered will exacerbate an already existing environmental problem. My evidence is in the County’s own documents like the Carmel Highlands Wastewater Management Plan72 and the CalAm decision of record not

72 http://www.co.monterey.ca.us/home/showdocument?id=1490480

Hydrology and Water Quality

to permit new water connections in the Highlands. These environmental impacts have to be based on the assumption of increased occupancy and infrastructure stress, or at least, temporary occupancy beyond the limit of existing infrastructure capacity. I think that the Hwy 1 / Carmel Valley Road traffic issues could also follow the same rationale.In the Carmel Highlands, there has always been a fairly high number of non-resident property ownership. It has ranged between 20% – 30% over the years with most of these properties having historically been either very occasionally or seasonally used vacation properties for their owners. Therefore, for most of the year these properties used to sit vacant and did not have substantial impacts on the environment or local infrastructure. These are the very properties that we now see being utilized as illegal vacation rentals – therefore, causing a higher level of use than existed before with the consequent increased level of environmental impacts. . .The County is using generally accepted HUD Fair Housing Guidelines to inform their two persons per bedroom occupancy standards for the STR ordinance. These are not firm limitations and HUD has decided on many occasions to allow/enforce higher occupancy limits to redress what they determine to be illegal discrimination. One of the few arguments that can be successfully employed to limit occupancy is the lack of basic infrastructure capacity (water, sewer, etc.).

[Editor note: In the Home Stay the owner and his family live there. Any vacation/short-term renters will be an additional use. Also the demographic evidence is 3 persons per home avaerage. Renters would be in addition to that. It should also be noted that Monterey residents were particularly good at conserving water, especially during the drought. Tourists from other areas use significantly more water on average.]

The Carmel Highlands community is completely surrounded by Federal, State and local parks plus natural preserve/protected areas including a number of ocean reserves. I’ve put forward additional anecdotal arguments for increased environmental impacts based on reported behaviors of STR tenants and the lack of adequate supervision and enforcement abilities in these sensitive habitat areas in and around the Carmel Highlands. Again, other communities would need to evaluate whether they have similar concerns.. . . For example, we have observed tenants collecting specimens from tide pools and other onshore/nearshore habitats, climbing down and damaging hazardous and environmentally sensitive cliffs, starting campfires in illegal locations and trespassing onto private property that contain sensitive habitats and cultural artifacts.”

Conclusion: There is a fair argument that the Significance Threshold for damage to the environment from overuse of available water resources and sewage 81

Hydrology and Water Quality

disposal from Tourists Staying in Homestay/STR’s. This deserves further study and consideration of mitigation options.

In contrast the Consensus Position limits Homestay/Str’s is limited to the locations allowed in the Carmel Area Land Use Plan, the Big Sur LCP and the Carmel Valley Land Use Plan and other mitigation measures, the potential damage is eliminated.

82

Hydrology and Water Quality

Population and HousingSee the recent article: A Teaching Exodus: Teachers are being forced to move out of Monterey County

CEQA Guidelines: XII. POPULATION AND HOUSING –– Would the project:

a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)?

b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere?

c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere?

STR’s Cause Sky-High Home and Long-Term Rental Prices; Washington Post

“All those extra visitors must be staying somewhere, and that somewhere is private residences. Bonham estimates there were 14,000 rooms on the vacation-rental market in 2016 (that’s assuming full-time use, so the actual number is probably much higher), and every one of those is another unit that’s not available for residents looking to buy.”

There are currently more than 1,500 Rooms illegally for Rent from STRs/Home Stays than are allowed by the Carmel Valley Master Plan, Big Sur Land Use Plan , and the Carmel Area Land Use Plan. Most, if not all, were long-term rentals taken off the market. There is now a housing shortage for workers, who are being forced in to longer commutes and higher prices for the homes or apartments they rent.

Draft Ordinance Homestays effect on long-term housing: Allowing anyone to be the “Principal Resident” even if they have no ties to the community other than renting out STR/Homestays invites owners to take more properties off the long-term rental market

Population and Housing 83

and use the home for vacation rental purposes only. The assertion that Homestays will not have an effect of long-term housing is without merit, evidence to support that view, or even plain logic.

There are currently 20 legal and more than 1,500 Rooms illegally for Rent from STRs/Home Stays than are allowed by the Carmel Valley Master Plan, Big Sur Land Use Plan, and the Carmel Area Land Use Plan. The number of STR/Home Stays have been increasing by more than 30% per year.73

Working families who cannot afford the rents face the most daunting problems. Very long commutes, and in some cases homelessness. And then when they try to obtain housing for their families after being on the streets, landlords are demanding fees to consider their applications, and higher up-front payments – often citing Air BnB as their reason, their alternative. (Community meeting, Alisal, August 11, 2018.)

The number of STR/Home Stays have been increasing by more than 30% per year.74 There are no enforcement efforts to stop increases.

Monterey Peninsula cities grapple with boom of short-term rentals,Monterey Herald, by JAMES HERRERA

“It’s purely financial,” one Monterey property owner said of her motivation to rent out short term. “To stay in my home, I need this income.” She asked that her name not be used for fear of repercussions from the city. Monterey prohibits rentals for fewer than 30 days.She explained that renting out her extra rooms long term might bring in $600 to $1,000 each per month. But in the last five months she has rented them short term, bringing in $3,400 to $3,800 each per month.

STRs squeeze the paychecks of working families which violates the LUP’s that require provision for workforce and low income housing.

73 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

74 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdfPopulation and Housing 84

Monterey Bay employers say lack of affordable housing a concern

POSTED: 06/18/15, 5:58 PM PDT, by Philip Molinar

Monterey >> A lack of affordable housing for workers emerged as the biggest concern of employers Thursday at a regional economic meeting.

About 70 people attended the Monterey Bay Regional Critical Conversation at Casa Munras Hotel, which focuses on a variety of issues of concern to businesses in Monterey, Santa Cruz and San Benito counties. Similar themes emerged among executives at Scotts Valley-based Fox Shox, Hyatt Regency Monterey Hotel & Spa and Spreckels-based Tanimura & Antle, who together represent about 4,300 workers.

“It is a challenge for the entry-level worker, who often has two jobs, to afford the housing in this area,” said Paula Calvetti, human resource director for Hyatt. “In all honesty, it’s more of a sticker shock.”

Affordability levels in all three counties have hit record lows, driving up the cost of rentals and hampering recruitment efforts. Tanimura & Antle’s human resources director, Larry Silva, said a need for housing is what led it to propose a $10 million, 800-person farmworker housing project in Spreckels.Michael Cowen, human resource director for Fox Shox, said affordability levels in Santa Cruz County needed a special solution, like a light rail. When working for San Jose-based Cisco Systems, young engineers lived in townhouses in more affordable areas and would then take the train to work.

“Some sort of development like that would be really nice to see … so that people could (ride the train) and not have to have multiple jobs,” he said, adding that housing costs are affecting Fox’s ability to recruit high-level engineers.Calvetti said employees are moving farther away than usual for housing, especially in Salinas. Housing costs are also part of the reason why Hyatt and Tanimura & Antle are having a hard time filling entry-level jobs.

Population and Housing 85

“It’s an honorable profession. There’s nothing wrong with being a field worker,” Silva said.

In April, just 22 percent of homes in Santa Cruz County and 29 percent in Monterey County were considered affordable. In Monterey, a minimum qualifying income of $92,170 is needed to afford a home.

Rising home prices have also led to an increase in rents.

In March, Salinas made the top 10 in rent growth for California cities, according to the Apartment List Rentonomics blog.

California Association of Realtors chief economist Leslie Appleton-Young said at Thursday’s event that the state has gone through home affordability issues before but she can’t recall it being this bad. “There are people all over California that probably want to see their grandchildren once in a while and don’t want their kids to move out of state because there’s no affordable housing,” she said.

She said local buyers are also competing with Chinese buyers who are paying more than asking price with cash. Chinese buyers bought 16 percent of all homes purchased by foreign citizens in 2014, according to the National Association of Realtors. About half of those homes purchased were in California.“I don’t really think they have effective budget constraints, which is a fantasy for many of us,” she said.

Increasing rents and longer commutes for workers in Monterey County cost working families more than $78 million per year.

Paychecks have not kept pace with this increase, leaving working families to foot the bill for STR/Homestay owners profits.

Between July 2011 and July 2018 rent on 2 bedroom apartments increased 85% from $1,195 per month to $2,216 per month.75

There are 70,000 rental units in Monterey County.

75 https://www.rentjungle.com/average-rent-in-monterey-ca-rent-trends/Population and Housing 86

Some portion of this is attributable to STR/Home Stays taking affordable housing off the market. In other cities, studies attribute between 9.2% and 33% of the rent increases to STR/Home Stays.76

Using the lower figure, 9.2%, the total cost to workers is $78,902,880.

There is now massive amounts of evidence that STR’s and Home Stays take long-term housing off the market, and drive up the cost of what remains. Below are numerous articles supporting this statement, and many more have been written. Serious governmental and academic articles have been appearing starting a year or so ago.

To Be or Air BnB; Voices of Monterey Bayby Joe Livernois, 12/7/17

76 [ii]“Between 2009 and 2016, approximately 9.2 percent of the citywide increase in rental rates can be attributed to Airbnb. . . . Airbnb listings were heavily concentrated in parts of Manhattan and Brooklyn and had a greater impact on these neighborhoods. Approximately 20% of the increase in rental rates was due to Airbnb listings in midtown and lower Manhattan . . . “

The Impact of Airbnb on NYC Rents; May 3, 2018; Scott M. Stringer, New York City Comptroller; https://comptroller.nyc.gov/reports/the-impact-of-airbnb-on-nyc-rents/ – –

And also see “Airbnb listings are concentrated in just seven of the city’s densest, most expensive neighborhoods: Venice, Downtown, Miracle Mile, Hollywood, Hollywood Hills, Echo Park, and Silver Lake. These tourist destinations account for nearly half of Airbnb listings, and 69% of all Airbnb-generated revenue in Los Angeles. In 2014, rents in these neighborhoods were 20% higher, and increased 33% faster, than rents citywide. . . . Airbnb indirectly reduces the affordable housing supply by reducing the overall housing supply. As a result, the pressure that STRs place on rent prices pushes units out of the margins of affordability for low- and middle-income residents, an effect that cascades throughout the city. In 2014, Airbnb removed 1% of the units from Los Angeles’s rental market— and substantially more in some neighborhoods—while monthly rents in- creased by 7.3%. And by reducing the overall housing supply, Airbnb is partially responsible for the citywide rent increases that further reduce the supply of affordable housing.” How Airbnb Short-Term Rentals Exacerbate Los Angeles’s Affordable Housing Crisis: Analysis and Policy Recommendations; Dayne Lee; Harvard Law & Policy Review; Vol. 10; 2016

Population and Housing 87

BUT AIRBNB, TRUE TO ITS DISRUPTOR REPUTATION, CHANGED EVERYTHING IN CITIES AND NEIGHBORHOODS. THE BUSINESS MODEL BECAME FASHIONABLE IN A HURRY. LONG-TERM TENANTS WERE TURNED OUT OF HOMES TO MAKE ROOM FOR SHORT- TERM VISITORS WHO WERE WILLING TO PAY THE EQUIVALENT OF A MONTH’S RENT FOR A WEEK IN MONTEREY.

THE LOCAL CONCERNS ARE THREE-FOLD. FIRST, AFFORDABLE RENTALS FOR RESIDENTS WHO WORK ON THE CENTRAL COAST ARE HARD ENOUGH TO FIND, HARDER STILL NOW THAT SO MANY OF THEM ARE BEING RENTED TO OUT-OF-TOWNERS FOR SHORT PERIODS OF TIME. . .

Under the Draft Ordinance STR’s defined as Homestays will be as bad or worse in effects on residential areas than the other categories of short-term rentals. STRs/Homestays are hotel equivalent businesses, not residential uses as stated by the Planning Commission.77

The Draft Ordinance requires Homestays to have someone in residence when the vacation rentals occur. That person need not be simultaneously holding down a full-time job as a teacher, or a nurse, government worker or craftsperson. They need have no connection to the community other than hosting the Homestay. They could be an employee of a company that buys homes and converts them to vacation rentals. They can be an employee of a commercial vacation rental company whose job is to rent out the property. They need have no ties to the community other than living in the property half the year. They can be changed at will by the owner.

77 Court Holding STR Not a Residential Use - 2018 BCSC 752 Nanaimo (Regional District) v. Saccomani; Malibu_s Summer Rental Market Booms – WSJ; WSJ Report on AirBnB March 2017; Top bunk for $30 a day: Life inside one of Airbnb_s modern boardinghouses – The Washington Post; New York City loft-dweller fined $185K for tourist rentals – San Francisco Chronicle; Landlords turned 14 SF apartments into illegal Airbnbs, city attorney says – San Francisco Chronicle; Home-Sharing Hosts Turn to Online Property Management Firms for Help – WSJ; Rental sites like Airbnb aren’t as innocuous as they pretend – LA Times   ; The Business Tycoons of Airbnb – NYTimes.com     ; Hosts with Multiple Units – A Key Driver of Airbnb Growth     ; Taking the Work Out of Short-Term Rentals – The New York Times; How to Run an Airbnb Business from Anywhere in the World! – YouTube; How to Bring the Hotel Spa to Your Airbnb – The New York Times

Population and Housing 88

By definition this takes long-term housing for people who live and work here off the market. But the Draft Ordinance says:

o “C. Homestay and Limited Short-Term Rental uses are similar in character, density, and intensity to residential use, are not anticipated to remove long-term housing from the market, and therefore are allowed uses, where applicable, with a business permit.”

o But then the Draft Ordinance goes on to say: “D. Regulation of Vacation Rentals is necessary because Commercial Short-Term Rental uses, which may be rented at a greater frequency than Limited Short-Term Rentals and unlike Homestays do not have a Principal Resident residing concurrently when the unit is rented . . . “

There is no substantive difference in effect on the environment, the community or demand on infrastructure between Homestays and Commercial STR’s except the presence of one person who has no responsibilities, need have no ties to the community, and can be an employee of the owner. All they are doing is occupying one bed, that’s all.

The Draft Ordinance will require much more housing to be built for the people who live and work here as a result of homes being taken off the market to turn them in to vacation rentals. Houses will be remodeled to accommodate more vacation rentals. But in many areas there is no water for new construction, and/or building restrictions because of infrastructure capacity.

The Draft Ordinance promotes a constant Influx of Strangers in to Residential Areas changing weekly, possibly daily.

o Large numbers of persons in excess of regulatory limits have often stayed in the Homestay/STR whether the owner is present or not.78 Guests are frequently unknown – just like a hotel.79

78 “In Anaheim, on West Skywood Circle, a six-bedroom home about six miles from Disneyland rents for an average of $617 a night. Under city code, the home can accommodate no more than 20 people. But in a recent online review, a tenant bragged about squeezing 34 people into the home.” https://preservemontereyneighborhoods.files.wordpress.com/2018/08/a-surge-in-short-term-rentals-means-no-rr-for-some-anaheim-residents.pdf

79 https://www.airbnb.com/help/article/523/what-is-instant-bookPopulation and Housing 89

OTHER ARTICLES1) 2015-2013_Housing_Element City of Monterey 2) Raising the Roof – Voices of Monterey Bay 3) The Impact of Airbnb on NYC Rents : Office of the New York City Comptroller

Scott M. Stringer4) Airbnb gentrification: How the sharing economy drives up housing prices. 5) As the county struggles to address the issue of short-term vacation rentals,

proponents organize while opponents worry about the fabric of their communities. | 0313 | montereycountyweekl

6) Rental housing shortage on Monterey Peninsula prompts call for referrals, finder_s fee of $500

7) Least Affordable Housing Market 8) Hawaii has record-low unemployment and it's not a frozen hellscape. Why are

people leaving? – The Washington Post9) Airbnb Drives Up Rent Costs in Manhattan and Brooklyn, Report Says – The New

York Times10) Hotels, STRs going at a premium during Classic Car Week 11) Here Comes the 2nd Wave of Big Money in the “Buy-to-Rent” Scheme | Wolf

Street 12) Venice has become an epicenter of Los Angeles’ struggle over short-term rentals.

Call it the Airbnb problem13) Carmel-by-the-Sea Commission favors ban on vacation rentals 14) Monterey takes aggressive stand against short-term rentals – Monterey Herald 15) Anonymous Owner, L.L.C.: Why It Has Become So Easy to Hide in the Housing

Market – The New York Times 16) Airbnb Tax’ in N.J. Opens New Front in Battle Over Internet Economy - The New

York Times 17) AirBnB Loses Legal Challenge 18) Big Sur plea: Tourists, honor our home – Monterey Herald 19) Federal Court Deals Airbnb a Blow in its Fight Against Local Regulations - Route

Fifty20) Political contests erupt as cities and hotel industry struggle to curb Airbnb -

The Washington Post 21) The fight over Pacific Grove vacation rentals spills into the ballot box with

Measure M.22) Here Comes the 2nd Wave of Big Money in the “Buy-to-Rent” Scheme

Population and Housing 90

23) Unwelcome guests: Airbnb, cities battle over illegal short-term rentals As L.A. vowed to stop apartments from becoming hotels, this company made it a business

24) Inside the Rise and Fall of a Multimillion-Dollar Airbnb Scheme - The New York Times

25) New York Empire of Illegal Airbnb Rentals Booked 75,000 Guests, Suit Says - The New York Times

26) SF fines Airbnb landlords $2.25 million for illegal rentals - SFChronicle.com 27) WSJ News Alert Marriott to Take On Airbnb in Booming HomeRental Market 28) Landlords turned 14 SF apartments into illegal Airbnbs, city attorney says – San

Francisco Chronicle29) Advertising Illegal Rentals Banned and Heavily Fined: SHORT-TERM RENTALS

CRACKDOWN IS WORKING, SAYS CITY ATTORNEY, Illegal STR’s down 90 percent in Carmel by Sea

30) Advertising Illegal Rentals Banned and Heavily Fined: Airbnb | Santa Monica | Listings Decline

31) Advertising Illegal Rentals Banned and Heavily Fined: Airbnb loses thousands of hosts in SF as registration rules kick in – San Francisco Chronicle

Conclusion: The dramatic, extremely significant effect of Homestay/STR's on long-term housing requires an Environmental Impact Report under CEQA. A Negative Declaration is insufficient

Population and Housing 91

Transportation and Traffic Problems

CEQA Guidelines: XV. TRANSPORTATION/TRAFFIC — Would the project:

a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)?

b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways?c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks?d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)?

e) Result in inadequate emergency access?

f) Result in inadequate parking capacity?

Summary:

1. The Draft Ordinance allows unlimited traffic increases because it allows unlimited Homestays. And there is no mitigation offered for the difficult and hazardous conditions at Point Lobos and in Big Sur.

3. Short-Term renters add to traffic both directly and by taking long-term housing off the market, thereby forcing longer commutes for workers.

2. Parking on HIghway 1 by visitors to Point Lobos creates a dangerous situation for them and motorists. In many spots people have to walk on Highway 1 because there is limited room for the car to park, leaving no room to walk off the Highway.

3. Big Sur is experiencing daily traffic jams, limiting access to the Coast and in direct violation of the Big Sur Land Use Plan.

4. This a serious wildfire area, and emergency services has expressed major concerns about traffic hindering response times, and not even having turnaround areas when parking is allowed on both sides of Highway 1 near Point Lobos.

5. The area is already saturated beyond capacity with visitors here to visit our State Parks and other coastal resources. There are no more parking spaces, bathrooms, or other amenities to accommodate an influx of new visitors in Short Term Rentals.

Transportation and Traffic 92

Carmel Area State Parks Concerns

The Carmel Area State Parks recently stated,80 “The 1979 Point Lobos State Reserve and Carmel River State Beach General Plan recognized that dramatic changes had occurred since the Reserve and State Beach were established as public lands decades earlier. Visitation had grown considerably, risking damage to “one of the most beautiful spots in the world.” Landscapes were shifting with the encroachment of Monterey pine forest into coastal meadows. Parking problems were increasing on the Caltrans highway right-of-way of SR 1 at both Point Lobos State Reserve and Monastery Beach (then called San Jose Creek Beach), causing local traffic congestion and safety issues. At that time, the public expressed the strong desire to protect the native qualities of the coast, including its scenery, habitats, wildlife, and “quietness.”

Dramatic changes affecting the parks have continued since 1979. Visitation to the Reserve, recorded in the 1979 plan as 270,000 people per year, now exceeds 500,000 visitors arriving by auto, plus potentially several hundred thousand additional walk-in visitors. Point Lobos has become popular with both national and international tourists. Carmel River State Beach has become another popular destination, including for special events such as weddings, which take advantage of the spectacular scenery. . . . Public input . . . emphasized the urgent need to address how the unique resources of the parks are being “loved to death.”

While not an issue limited just to CASP as a destination, transportation and parking issues have become more urgent as the popularity of parks, reserves, National Forest lands, other public open space, and tourism in the Monterey-to-Big Sur region has grown. Interrelated issues include traffic congestion, vehicle circulation, parking adequacy, and pedestrian access and safety. Currently, the vast majority of visitors must rely on personal autos as the primary transportation mode to reach CASP units and other similar destinations in the region. SR 1 becomes heavily congested during periods of substantial visitation and peak local commute times, causing mobility problems for local residents and visitors alike. Parking on the highway shoulders within the right- of-way of SR 1 near the Reserve and Coastal Area contributes to traffic congestion, creates pedestrian risks, and adds to excessive uncontrolled walk-in visitation to the Reserve.81

80 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/ch0execsummary.pdf

81 https://preservemontereyneighborhoods.community/carmel-area-state-parks-preliminary-general-plan-and-draft-eir/

Transportation and Traffic 93

Big Sur/Highway 1 Protections The Big Sur Coast Highway was declared the first State Scenic Highway in 1965. In 1996 it was designated the first All American Road under the Federal Highway Administration National Scenic Byways Program. Its role in providing affordable, readily available coastal access to millions of annual visitors is recognized in the Big Sur and Carmel Highlands Land Use Plans. The mandate to protect the quality of the recreational driving experience is likewise addressed in the Big Sur and Carmel Highlands Land Use Plans. Management of the use and capacity of Highway I is essential to achieving the goals of the Big Sur and Carmel Highlands Land Use Plans to provide public access to the Big Sur Coast along this scenic route and the protection of the environment and quality of the visitor experience. The Big Sur Coast Highway is required by the California Coastal Act 82 to be maintained as a scenic two-lane road in rural areas (south of the Carmel River). As a state and federal scenic road, the Big Sur LUP addresses vehicular capacity of the highway and public access to protect environmental quality and visitor experience. Similarly, the Carmel Highlands-Riviera Master Plan seeks to preserve the scenic, rural character of that community through the use of scenic easements, retention of native vegetation, and maintenance of Highway 1 as a scenic two-lane road. However, vehicular capacities are already being exceeded on Highway 1, and visitor damage to roadside habitat is routinely reported in the press. Carmel Valley Area Plan:

[i]Carmel Valley Policy #14 – Traffic Triggers If and when any segment of Carmel Valley Road degrades to LOS D, there shall be a freeze on all new development in Carmel Valley. Carmel Valley Planning Area/Monterey County Community General Plan https://preservemontereyneighborhoods.files.wordpress.com/2018/08/community-general-plan-area-plans-e28093-carmel-valley.pdf also http://www.landwatch.org/pages/pubs05/cgp/pdfs/20CarmelValleyAreaPlan.pdf

Also e) Also at five year intervals the County shall examine the degree to which estimates of changes in Levels of Service (“LOS”) in the Carmel Valley Master Plan Area may be occurring earlier than predicted in the General Plan Environmental Impact Report. If the examination indicates that LOS are likely to fall to a lower letter grade than predicted for 2030, then the County shall consider adjustments to the cap on new residential units established in Policy CV-1.6 and/or the cap on new visitor serving units established in Policy CV-1.15 or other measures that may reduce the impacts, including, but not limited to, deferral of development that would seriously impact traffic conditions . . . Monterey County General Plan Carmel Valley Master Plan October 26, 2010 – Amended as of February 12, 2013 Page, CVMP-1

82 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/california-coastal-act.pdfTransportation and Traffic 94

Conclusion: The traffic problems on Highway 1 are above the Significance Threshold and need to be studied.

Transportation and Traffic 95

Water Use, Utilities and Service Systems

CEQA Guidelines: XVI. UTILITIES AND SERVICE SYSTEMS — Would the project:

a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board?

d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed?

The fundamental issue in the RMA analysis of the Draft Ordinance is that STR/Homestays will use the same amount of water and other services as regular homes. We disagree. When more people are using the home than previously, and they are not used to the water conservation lifestyle Monterey residents have become used to, they will use more water. There is no other possible conclusion. With over 5,000 rooms now for rent, this additional use is very significant. In fact: There is no Water Supply for STR’s and they use all of the potential water planned for growth from the Regional Water Supply projects.

Monterey County Total Numbers of STR’s, and Bedrooms for Rent in STR’s Figures vary from different sources, but the contractor to Monterey County found 799

advertised rentals in January 2018.83 There are a little over 2 bedrooms rented per site,84[ii]and an average of slightly over 2 people per room.85

In July 2018 there were 1,726 rooms for rent in Monterey County – the vast majority on the coast and in Carmel Valley.

83 [Host Compliance Report, Monterey County Planning Commission Agenda Item No. 2; Legistar File Number: PC 18-009; REF100042/REF130043 – SHORT-TERM RENTAL CODE COMPLIANCE: January 31, 2018

84 The actual number of rooms per STR is 2.16; https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

85 http://www.landwatch.org/pages/issuesactions/waterissues.htmlWater, Utilities and Service Systems 96

And this vastly understates the total impact of STR on Monterey County because these figures are for the Unincorporated area only.

The County as a whole including the Cities (July 2018) had 2,073 listings that fit the STR definition – with a total of 4,478 rooms for rent.86 These tourists, although they may be sleeping at their rooms in Pacific Grove, Seaside, Marina or other City, go to the same places tourists who stay in hotels go. Big Sur and Point Lobos are two of the prime tourist destinations in the world.

STRs/Home Stays are hotel equivalent businesses, not residential uses as stated by the

Planning Commission.87

[iii]The actual number of people per room per STR is 2.42; https://preservemontereyneighborhoods.files.wordpress.com/2018/08/airdna-report-complete-all-cities-and-regions.pdf

For further detailed information see: Monterey Regional Water Supply

Project EIRThe largest provider of water to Monterey County is Cal-Am. In addition there are numerous entities like Carmel Riviera Mutual Water Co.88[i]that provide well water from aquifers, and others in Big Sur and elsewhere that pump water from rivers. Cal-Am obtains its water from a variety of sources, including the Carmel River.

Over pumping from rivers can have a Significant Impact on the ecosystem of the river and adjacent areas. Cal-Am is under a cutback order by the to reduce its pumping from the Carmel

86 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/host-compliance-monterey-county-report-2018-07-24_21-07-21.pdf

87 Court Holding STR Not a Residential Use– 2018 BCSC 752 Nanaimo (Regional District) v. Saccomani;

88 Carmel Riviera Mutual Water Company principally provides water to the Mal Paso and Yankee Point communitiesWater, Utilities and Service Systems 97

River because of environmental damage its overpumping caused.89 Judicially ordered cutbacks for Carmel River water and seawater intrusion into aquifers have resulted in water conservation requirements in numerous coastal cities. See Water Shortage in Monterey.90

The Planning and Coastal Commissions do not have the authority to divert up to 2.6 million gallons of water per day from existing homes and businesses in Monterey County. Coastal Commission and Committee positions are in direct conflict with the “Water Availability” provisions of the Carmel Land Use Plan, Local Coastal Plan which states:

New development shall be approved only where it can be demonstrated by the applicant that adequate water is available from a water utility or community system or an acceptable surface water diversion, spring, or well. At the County’s discretion, applicants may be required to submit a hydrologic report certifying sustained yield of the water source to serve new development outside of existing water utility service areas.

As part of the permit process, the applicant must also demonstrate that the proposed new water use or use intensification will not adversely affect both the natural supply necessary to maintain the environment, including wildlife, fish, and plant communities, and the supply available to meet the minimum needs of existing users during the driest year. At the County’s discretion, the applicant may be required to support his application through certification by a consultant deemed qualified by the County to make such determinations. The County will request that the Department of Fish and Game provide a written recommendation on each application.

For example, according to Monterey County NOW (April 2, 2009):

Sand Castle

Monterey Bay Shores Ecoresort is buried to the neck in drama.

For the past 16 years, Sonoma-based developer Ed Ghandour of Security National Guaranty has poured a fortune into planning, litigation and wheel-greasing in an effort to secure permits for Monterey Bay Shores, a 341-room, $225 million mixed-use resort on a 32-acre former sand mine in Sand City. . . Almost a decade ago, the Monterey Peninsula Regional Water Management

89 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/puc-decision-regional-desal-project.pdf

90 Cal Am facing potential multimillion-dollar fine over residential water allocation system

Water, Utilities and Service Systems 98

District denied Ghandour’s water distribution permit and the California Coastal Commission quashed the coastal development permit. For the next nine years Ghandour fought back with failed appeals and dead-end design revisions. . . . But last May, Ghandour regained his advantage: The appellate court overturned the Coastal Commission’s decision and ordered it to reconsider the development application based on Sand City’s Local Coastal Plan, an easier standard than the state’s. . . . The water board issued Ghandour a setback last month by denying his water distribution permit, questioning the environmental impacts of a water supply delivered by California American Water. . . . “The Coastal Commission has denied any and all new developments using new water in North County for years, based on the fact that that area has an inadequate water supply. Ghandour has a right to use that water, but he can’t do it without an analysis of the impacts of that use.

The Coastal Commission and Committee positions are in direct conflict with the “Water Availability” provisions of the Carmel Land Use Plan, Local Coastal Plan.

Some areas, such as the Mal Paso Creek and parts of the Walden circle area in Carmel Highlands, and many areas of Big Sur, use well water (and storage is minimal). In the case of Mal Paso the wells are at or near capacity. Intensification of water use in these areas has the potential to create serious problems.

Cal-Am will have inadequate water supply within 3 years unless the Monterey Peninsula Water Supply Project or equivalent is built. There is no water for growth at this time. Even under the Monterey Peninsula Water Supply Project there are only 500 acre-feet per year allocated for growth. STR/Home Stays are currently using close to 500 acre-feet of water per year, and at a 30% annual growth rate will exceed that amount soon.

As Monterey grows and the local economy recovers, there will be no water supply for them unless Cal-Am illegally pumps water from the Carmel River, and thereby continuing the environmental damage that the Monterey Peninsula Water Supply Project is being built to prevent. This violates all of the Land Use Plans, and Monterey County’s filings with the Public Utility Commission in connection with the Monterey Peninsula Water Supply Project.91

91 https://preservemontereyneighborhoods.community/wp-content/uploads/2018/08/puc-decision-regional-desal-project.pdfWater, Utilities and Service Systems 99

There are no limits on water consumption by STR/Home Stays.92 The Monterey Peninsula Water Supply Project has had to be developed because of overpumping by Cal-Am from the Carmel River.

The proposed desalination project has a maximum of 500 acre-feet per year be available for additional demand for economic recovery of Monterey.93

There is no provision in the Monterey Peninsula Water Supply Project for STRs/Home Stays.

In a recent case the Harper Subdivision environmental review overturned because of inadequate water supply analysis. “The ruling noted that the project’s draft environmental impact report failed to properly identify the subdivision’s groundwater source location and adding that the water supply tied to the Salinas Valley groundwater basin is in overdraft.” STRs use far more water than the Harper Subdivision.94

Calculation of Usage by STRs There are 2.42 people per room in STR/Home Stays. They use 41 gallons per day for personal use (not gardening). That’s 12.68 rooms per acre-foot. Or put another way that’s 1,268 rooms for every 100 acre feet of water. To use all of the water allocated for all future growth if all water supply projects are completed would require 6,340 rooms. We are at around 4,000 now and growing at 30% per year. We will reach 6,340 in two years – before the water supply projects are even completed.

In July 2018 there were 4,478 or more Rooms for Rent from STR/Home Stays in Monterey County.On average there were 2.42 people per room. (discussed in detail above). Maximum daily number of people in STRs is 10,837.

The U.S. Geological Survey calculated in 2015 that average daily consumption per individual in our region is 82 gallons per day, of which half is used for landscaping, and

92 CV-3.20 A discretionary permit shall be required for new wells in the Carmel Valley alluvial aquifer. All new wells shall be required to fully offset any increase in extractions from this aquifer (see Policies PS-3.4 andPS-3.5). These requirements shall be maintained until such a time that the Coastal Water project (or its equivalent) results in elimination of all Cal-Am withdrawals in excess of its legal rights. Monterey County General Plan Carmel Valley Master Plan October 26, 2010 – Amended as of February 12, 2013 Page, CVMP-1

93 https://preservemontereyneighborhoods.files.wordpress.com/2018/08/puc-decision-regional-desal-project.pdf

94 See: Harper Canyon subdivision approval overturned in court

Water, Utilities and Service Systems 100

the other half for personal uses. The landscaping occurs whether a property is an STR or not, so consumption per STR guest is approximately 41 gallons per day.

Total maximum water consumption is 444,307 gallons per day by STR/Home Stay

tourists. Annually 162 million gallons which is 498 acre feet per year.

Water: Additional Articles and Documents

HTTP://WWW.MONTEREYHERALD.COM/ENVIRONMENT-AND-NATURE/ 20170807/CPUC-DELAYS-CAL-AM-DESAL-PROJECT-ENVIRONMENTAL-REPORTS-SIX-MONTHS

C O N S E R V A T I O N W A N E S , C A L I F O R N I A W A T E R U S E B A C K T O P R E -D R O U G H T L E V E L S

A M E R I C A N S A R E C O N S E R V I N G W A T E R L I K E N E V E R B E F O R E , A C C O R D I N G T O T H E L A T E S T F E D E R A L D A T A

Conclusion: This violates all of the Land Use Plans, and Monterey County’s filings with the Public Utility Commission in connection with the Monterey Peninsula Water Supply Project.

Water, Utilities and Service Systems 101

Mandatory Findings of Significance: One STR or Homestay has a small impact, but the thousands of STR/Homestays made legal and encouraged to develop by the Draft Ordinance have a cumulative impact that exceeds the Significance Threshold. The Draft Ordinance will cause substantial adverse effects on human beings, both directly or indirectly.

CEQA Guidelines: XVII. MANDATORY FINDINGS OF SIGNIFICANCE

a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? N/A

b) Does the project have impacts that are individually limited, but cumulatively considerable? (“Cumulatively considerable” means that the incremental effects of a project are considerable

Discrimination against the handicapped; cumulative impacts 102

when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)?

c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly?

CEQA Guidelines for Cumulative Impacts: CEQA Guidelines Section 15065 states that a lead agency shall find that a project may have a significant effect on the environment where there is substantial evidence that the project has potential environmental effects that are individually limited but cumulatively considerable. As defined in CEQA Guidelines Section 15065(a)(3) , cumulatively considerable means “that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.”

Conclusion and Cross-Reference for Cumulative Impacts

Cumulative impacts are addressed for each of the environmental topics discussed in earlier sections of this document.

Substantial adverse effects on human beings, either directly or indirectly:

STR’s Are Allowed to Discriminate Against the Handicapped

The Draft Ordinance does not require STR/Homestays to meet the requirements of the Americans with Disabilities Act.

Over the last six years the Planning Commission has been repeatedly asked to include compliance with the Americans with Disabilites Act as a prerequisite for being an STR/Homestay. The Planning Commission has never done so, and in fact has rejected the requirement. So has the Coastal Commission.

Hotels and Motels spend a lot of money and effort to accommodate all of the guests who might wish to stay with them. To allow STR’s to blatantly, and in our view illegally, discriminate against the handicapped is not only unfair competition for existing lodging facilities, it is just plain wrong.

The STR/Homestay industry in Monterey now has over 5,000 rooms for rent – around half the number of all the hotels in Monterey County. The Draft Ordinance legalizes and encourages Discrimination against the handicapped; cumulative impacts 103

more. With the much lower health, safety, security, permitting and handicapped access requirements for STR/Homestays they are likely to proliferate even more.I personally have to use a kind of wheelchair, as did many in our families as they get older. To allow STR without accommodation for the handicapped is infuriating, and beneath our values as a community.

And if this continues, the Coastal Commission and Planning Commission could be fostering in a kind of death spiral for businesses that accommodate the handicapped. Unburdened by the requirements hotels face, STR’s could (and are) putting many out of business. Many hotels and others have had to raise their rates as STR’s take away business. As such, handicapped people could well be forced to pay more to come to Monterey than other visitors, and at some point may have no reasonable access at all.

In November 2013 the city of San Luis Obispo considered the question of whether ADA applies to STR/Homestay and determined it does not.95 In light of subsequent events, that analysis made factual assumptions which have turned out to be wrong, and in fact using the facts as we know them today yield the opposite result.

Council Agenda Report; City of San Luis Obispo; Nov 2013

A question has been raised as to whether the Americans with Disabilities Act (ADA) is applicable to single-family dwellings used as vacation rentals. The ADA regulates places of public accommodation and provides that: A place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories:

(1) Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this part, a facility is a "place of lodging" if it is –

(i) An inn, hotel, or motel; or (ii) A facility that –

(A) Provides guest rooms for sleeping for stays that primarily are short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and

95 SLO determines ADA does not apply

Discrimination against the handicapped; cumulative impacts 104

(B) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following;

(1) On- or off-site management and reservations service;(2) Rooms available on a walk-up or call-in basis;(3) Availability of housekeeping or linen service; and(4) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check in, and without a prior lease or security deposit.

Based on this definition an owner-occupied homestay would clearly not be considered a place of public accommodation as noted in the definition above and would not be regulated by ADA unless there were more than five rooms for rent. In the case of a non-owner occupied vacation rental, ADA requirements would only be applicable if the residence was operated with all the amenities typical of a hotel and that are identified in section (1)(ii)B above.

The report concludes that: ”vacation rentals do not provide all of these listed amenities typical of a hotel or motel, and thus would not be classified as places of public accommodation and are not subject to the provisions of ADA.” While that may have been true at the time, it is no longer the case. STR/Homestays listing on Air BnB and similar sites, some of which are now operated by hotel chains,96 provide all of the listed services that make a room rental equivalent to a hotel:97

(1) On- or off-site management and reservations service;(2) Rooms available on a walk-up or call-in basis;98(3) Availability of housekeeping or linen service; and(4) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check in, and without a prior lease or security deposit.

96 https://preservemontereyneighborhoods.community/wp-content/uploads/2019/05/WSJ-News-Alert-Marriott-to-Take-On-Airbnb-in-Booming-HomeRental-Market.pdf and https://preservemontereyneighborhoods.community/wp-content/uploads/2019/05/Marriotts-New-Expansion-Deepens-Rivalry-Between-Hotels-And-Home-Renting-NPR.pdf

97 https://www.airbnb.com/host/instant-book

98 https://www.airbnb.com/host/instant-book

Discrimination against the handicapped; cumulative impacts 105

CONCLUSION: The inescapable conclusion is that the Draft Ordinance approves and encourages vacation rentals in the form of STR/Homestays that massively discriminate against the handicapped, and require and EIR be conducted. More importantly, it requires the County to re-think its entire approach and stop this discrimination against the handicapped in our community.

Discrimination against the handicapped; cumulative impacts 106