EXHIBIT 12-J

DRAFT

FINDINGS OF DENIAL

CONSIDER REQUEST FOR VARIANCE FROM DISTRICT RULE 20,

PERMITS REQUIRED, FOR A CHANGE OF USE FROM A DELI (GROUP II) USE TO A RESTAURANT (GROUP III) 484 WASHINGTON ST., MONTEREY

(APN: 001-692-011)

MARCH 17, 2014

1. FINDING: Mr. Uwe Grobecker requested a variance from District Rule 20, Permits Required, to allow continued operation of 484 Washington St., Monterey, as a Group II (deli) use. In requesting a variance, the appellant cited the following reasons the Board should allow him (and future tenants) to continue the existing business operations:

· The District’s regulations are unclear regarding limitations on Group II food service;

· There was no notice of violation (or inspection) until after the business had been in operation for more than 15 years;

· There has been no change to the number of fixtures or equipment that would increase water use once the business opened in 1997;

· It is unlikely that a Group II use at this site would exceed the water use capacity due to the small size of the lease space.

EVIDENCE: Application for Variance.

2. FINDING: A Commercial Water Release Form/Water Permit Application was submitted to the District by the appellant on February 11, 1997. This document identified the proposed project as “deli/retail food” and not as “restaurant.” Both types of use were options on the application.

EVIDENCE: Commercial Water Release Form/Water Permit Application and Water Permit No. 15856 dated February 11, 1997.

3. FINDING: The appellant unconditionally accepted the terms of the Water Permit issued February 11, 1997. Both the Water Permit and the Water Release Form/Water Permit Application were signed by the appellant and clearly identify the proposed use as deli/retail.

EVIDENCE: Commercial Water Release Form/Water Permit Application and Water Permit No. 15856 dated February 11, 1997.

4. FINDING: Water Permit 15856 states that a final inspection is required. As the District does not know when the project is completed, it relies on the permit holder to contact the District to arrange for the final inspection. In this case, the District was not contacted.

EVIDENCE: Commercial Water Release Form/Water Permit Application and Water Permit No. 15856 dated February 11, 1997.

5. FINDING: The appellant described the business in the late 1990’s as a deli use. The business consisted of mostly retail and take-out sales, including meats, cheeses and coffee, and offered deli items for consumption. The appellant stated that after the business had been in operation for some time, he removed the meat and cheese counters and replaced them with tables and chairs. The appellant also hired waitresses and expanded his menu as the business developed into a full-service eating establishment. The business is currently for sale as a full-service restaurant.

EVIDENCE: Statements made by the appellant at meetings with District staff in October 2013 and in January 2014.

6. FINDING: MPWMD Rule 20, Permits Required, states: “A Water Permit is required for every Change in Use, including any Change of Use and any expansion of a Non-Residential use to a more intensive use as shown on Table 2 (Rule 24).”

EVIDENCE: MPWMD Rule 20, Permits Required, on file at the District office.

7. FINDING: Santa Lucia Market is currently operating as a full-service Group III restaurant with 46 seats, and is not operating as a Group II deli as permitted.

EVIDENCE: MPWMD’s Inspection Report dated January 30, 2014.

8. FINDING: Under District rules, the Change of Use from a Group II (deli) use as permitted by Water Permit No. 15856 to a full service restaurant (Group III) is a Change of Use and results in an Intensification of Use.

EVIDENCE: MPWMD Rule 20 and MPWMD Rule 24, Table 2: Non-Residential Water Use Factors.

9. FINDING: Although the District’s rules and internal memorandums and directives do not specify that a Group II Non-Residential water use must use disposable serving items (i.e., plates, utensils, etc.) and may not provide full table service, staff has consistently applied this criteria to Water Permits in the past.

EVIDENCE: Testimony of MPWMD District staff.

10. FINDING: Granting a variance defeats the purposes of the MPWMD Rules and Regulations as it would mean that the Water Use Capacity for 484 Washington St., Monterey, had not been properly accounted for from the City of Monterey’s water Allocation and that the appellant had not paid the appropriate Capacity Fee.

EVIDENCE: MPWMD Rules and Regulations Rule 23 and Rule 24. Rule 24, Table 2: Non-Residential Water User Factors, provides evidence that 2,277 square-feet of Group II use has a Water Use Capacity of 0.4554 acre-feet annually (AFA) and a 46-seat restaurant has a Water Use Capacity of 0.92 AFA.

11. FINDING: A variance allowing continued operation as a full-service restaurant would inappropriately allow for potential Water Use Capacity above that expected from a Group II deli use. The District does not have the resources to regularly confirm compliance with the Conditions of Approval. Actual water use could increase as a result of increases in the number of customers, changes in management, menus, hours, etc.

EVIDENCE: MPWMD Rules and Regulations, Rule 24, Table 2: Non-Residential Water User Factors, provides evidence that 2,277 square-feet of Group II use has a Water Use Capacity of 0.4554 acre-feet annually (AFA) and a 46-seat restaurant has a Water Use Capacity of 0.92 AFA.

12. FINDING: The District does not ration or restrict a water User to the amount of water permitted on the Water Permit. The water User may use more or less water than calculated using the Non-Residential Water Use Factors.

EVIDENCE: MWPMD Rule 23.

13. FINDING: Without the water meter account holder’s authorization, MPWMD does not have the ongoing authority to monitor and enforce the amount of water consumed by a water User.

EVIDENCE: California-American Water policy.

14. FINDING: Granting a variance defeats the purposes of the Rules and Regulations by allowing a Group II deli use to operate as a Group III restaurant.

EVIDENCE: MPWMD Regulation II, Permits.

15. FINDING: Denial of a Variance supports the Rules and Regulations of the District by enforcing a distinction between Group II water uses and Group III water uses.

EVIDENCE: Denial of a variance requires the appellant to change business practices (and reduce Water Use Capacity) by ceasing use of china and silverware and ceasing full table service. Alternatively, the appellant may obtain a Water Permit to continue these practices, but will be required to reduce the number of seats by half (from 46 to 23).

16. FINDING: The Board finds that Special Circumstances do not exist in this particular case, and that practical difficulties or Undue Hardship would not result from the strict interpretation and enforcement of any such standard, and (c) that the granting of such a variance tends to defeat the purposes of these Rules and Regulations.

EVIDENCE: The above stated facts.

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