10. CONTINUATION
OF SECOND READING OF ORDINANCE NO. 109 – REVISING RULE 23.5 AND ADOPTING
ADDITIONAL PROVISIONS TO FACILITATE THE FINANCING AND EXPANSION OF THE CARMEL
AREA WASTEWATER DISTRICT (CAWD)/PEBBLE BEACH COMMUNITY SERVICES DISTRICT
(PBCSD) RECYCLED WATER PROJECT, APPROVAL OF RELATED CEQA FINDINGS
Program/Line Item No.: N/A
Staff
Contact: David
Laredo Cost
Estimate: N/A
Action on First Reading: The Board passed Ordinance No. 109 on October 20, 2003 on First Reading by the unanimous vote of 7– 0 (Motion by Henson, Second by Edwards).
General Counsel Approval: Yes
Committee Recommendation: The Administrative Committee reviewed this item on September 10, 2003 and October 14, 2003, but made no formal recommendation.
SUMMARY:
The public hearing on the second reading of Ordinance No. 109 – an
ordinance that would enable upgrades to the Carmel Area Wastewater District
(CAWD)/Pebble Beach Community Services District (PBCSD) Recycled Water Project
– was convened on November 17, 2003. At
the second reading, staff and counsel made presentations and public testimony
was thereafter received. The hearing
was closed, and Board discussion ensued.
The Board of Directors provided general direction as to language
modifications to be made in Ordinance No. 109, and further consideration and
final action on the Ordinance, including approval of related CEQA Findings, was
continued to the meeting of November 24, 2003.
The
effect of Ordinance No. 109, as drafted, would enable water entitlements
presently held by the Pebble Beach Company to be made available to properties
throughout Del Monte Forest, rather than only to properties owned by the Pebble
Beach Company (PBC) in order to finance the Project Expansion. The Board approved the first reading
version of this ordinance on October 20, 2003 by the unanimous vote of
7-0 (moved by Henson, second by Edwards).
The Board closed the Public Hearing on
this item.
The
attached Exhibit 10-A is a red-lined version of Ordinance No. 109
that shows text changes as discussed by the Board on second reading, as
compared to the first reading version presented to the Board in the meeting
packet of November 17, 2003.
Draft
CEQA Findings, modified to address issues raised by the Board, are attached as Exhibit
10-B. These findings support the Board’s determination that the
criteria of CEQA Guideline Section 15162 enable the Board to rely on the prior
EIR certified for the original recycled wastewater project. The Board is required to review and approve
the final set of CEQA before it takes its roll call vote on the second reading
of Ordinance No. 109.
RECOMMENDATION: Staff
recommends that the Board take the following actions:
1.
Consider
approval of the CEQA Findings (Exhibit 10-B) supporting enactment
of Ordinance No. 109. The Board may
vote to adopt Ordinance No. 109 only after it approves the CEQA Findings.
2.
a. Consider approval of the second reading of
Ordinance No. 109 shown in Exhibit 10-A. If Ordinance No. 109 is approved on second
reading as presented – or without substantive change from the version presented
– the ordinance would then take effect on December 17, 2003, subject to the
execution of the related agreements; or in the alternative,
b.
Consider of approval the first reading of Ordinance No. 109, but with
substantive modification to the version shown above. Any version of Ordinance No. 109 that incorporates substantive
change from the version approved on October 20, 2003 must be approved at first
reading, followed by a second reading and public hearing. The earliest date for the second reading to
incorporate substantive changes from the version approved on October 20, 2003,
absent a special meeting, would be on December 15, 2003.
3.
Direct
staff and counsel to continue efforts to negotiate and modify the Supplemental
Financing Agreement, Supplemental Construction and Operation Agreement, and
Agreements for Sale of Recycled Water in order to implement Ordinance No.
109. Staff should be directed to return
these revised documents to the Board for review and approval.
BACKGROUND: A
more complete characterization of the CAWD/PBCSD Wastewater Reclamation Project
issues is be found in the staff note for the November 17, 2003 Board
packet.
With
respect to the Board’s consideration of Ordinance No. 109 at Second Reading, a
key issue arises relating to whether or not changes are made that effect
substantive differences from the draft ordinance approved on First Reading on
October 20, 2003. The Board may make
non-substantive changes to this version, and enact the Ordinance on Second
Reading at the meeting of November 24, 2003.
In
general, changed language in Ordinance No. 109 improve the accountability of
the participants on the proposed Project Expansion, particularly with regard to
the use of the proceeds expected to be received by PBC and the use of water
pursuant to the Water Entitlement. Most
– but not all – of the proposed changes appear to be non-substantive in effect.
If the Board determines to make substantive changes to Ordinance No. 109 at
this time, however, the Board is then legally required to give the Ordinance
No. 109 – as substantively revised – another First Reading at the November 24,
2003 Board meeting, or thereafter.
Special Counsel and General Counsel agree that this procedure would be
required, for example, if the Board determines to delete the phrase “through
issuance of a Water Use Permit” from the provisions of Rule 23.5 A(5). (A
footnote set forth in the body of the draft Ordinance No. 109 highlights this
issue.)
The text shown in the proposed draft of Ordinance No. 109 does not include a substantive change, and therefore can be enacted on Second Reading at the November 24, 2003 Board meeting.
Letters received after Board packet was produced. 1) November 20, 2003 letter from LLoyd Lowrey and 2) November 21, 2003 letter from Mark Stilwell.
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