Meeting Date:           May 3, 2004                                      Budgeted: N/A

                                                                                                Program/Line Item No.:  N/A

Staff Contact:             Gabriela Ayala                                   Cost Estimate: N/A



General Counsel Approval: N/A

Committee Recommendation: N/A

CEQA Compliance: N/A 


SUMMARY: Mr. Jonathan D. Ryan of 1050 Marcheta Lane, Pebble Beach, is appealing a decision of the General Manager to deny a Water Use Credit for removal of an outdoor fountain/pond.  Mr. Ryan’s Application for Appeal is attached as Exhibit 3-A.  Around January 2004, Mr. Ryan contacted the District about extending a Water Use Credit for a fountain/pond on his property.  An advance credit letter sent to Mr. Ryan on February 8, 1999 indicated the credit could be reused on the same site for 60 months (five years) from the date of installation or removal.  Mr. Ryan contacted the District in January 2004 to inquire about extending a credit for the outdoor fountain and ultra-low consumption dishwasher that had been noted on the advance credit letter.  District staff informed Mr. Ryan that credit was no longer available for removal of outdoor water fixtures, and he followed up the conversation with a letter to the District (Exhibit 3-B). 


Staff’s reply to Mr. Ryan’s January 15, 2004 letter is attached as Exhibit 3-C.   The response states, “On February 8, 1999, the District documented that a credit of two fixture units would result if the fountain/pond was permanently removed.  You would now like to receive a water credit for two fixture units.”  As of July 16, 2001, the District no longer grants credit for removal of outdoor fixtures.


MPWMD Resolution 2001-09 modified Rule 24, Table I: Residential Fixture Unit Count, in July 2001, eliminating water credits for outdoor water fixtures (Exhibit 3-D).  In March 2004, the provisions of Resolution 2001-09 were added to the District’s Rules and Regulations.  As of March 1, 2004, Rule 24 exempts fountains/ponds from the water permit requirement, and allows these to be added without a water permit.  Similarly, no credit is established for removing one. 


RECOMMENDATION:   Staff recommends the Board deny the appeal and adopt the Findings of Denial attached as (Exhibit 3-E).  District Rule 24 would allow Mr. Ryan to obtain a water credit for the permanent removal of the fountain/pond only if credible evidence is available to show that the fountain/pond was lawfully installed with a District permit that debited a jurisdiction’s allocation and that the applicant had paid a connection charge to the District.  However, staff was unable to locate a water permit for the legal installation of the fountain/pond, including a debit to the jurisdiction’s allocation and payment of connection charges. 


Water permit applications are subject to the Rules and Regulations that are in effect at the time the complete application is received.  The District’s Rules and Regulations are subject to change by action of the Board of Directors.  This appeal applicant received a water use credit using an older set of rules that was in place in 1999.  The rules have changed since the owner’s last contact with the District.  Mr. Ryan is now subject to the current rules.


Similar appeals were heard in April 2003, when Bruce Zanetta and Therese Beauclaire appealed staff’s denial of credit for multiple showerheads.  In that case, Resolution 2001-09 had eliminated water credit for multiple showerheads.  The Board ruled that the applicant was subject to the Rules in effect at the time the complete application is received.  In another case, in November 2003, the Board of Directors found that a unique and special circumstance existed when Mr. Greg Hanlon appealed staff’s denial of credit for an outdoor spa.    In this case, the District had evidence that Mr. Hanlon obtained a water permit, an allocation was debited and a connection charge paid for the fixture.  Resolution 2001-09 had disallowed spas/hot tubs for credit.  


BACKGROUND:  Staff conducted an inspection to verify compliance with District conservation requirements on October 20, 1998 (Exhibit 3-F).  At that time, staff indicated on the inspection report that there was an existing outdoor fountain/pond at the property.  Mr. Ryan submitted a Water Use Credit Application (Exhibit 3-G) requesting credit in advance of the removal of the fountain/pond to the District on February 1999.  (Advance application ensures the credit is valid for 60 months and can be extended for 60 months.) 


The District responded on February 8, 1999, formally documenting credit in the amount of two fixture units when the fountain/pond is permanently removed (Exhibit 3-H).  A subsequent inspection on March 16, 1999 (Exhibit 3-I) indicated that the pond was still in place.  In January 2004, Mr. Ryan telephoned the District to request a renewal of 60 months for the documented Water Credit for the fountain/pond.  District staff informed Mr. Ryan that a Water Use Credit was no longer available for removal of the fountain/pond as a result of Resolution 2001-09. 


Mr. Ryan is currently working with an architect and is planning an addition to his home.  Mr. Ryan states that because he has a Water Use Credit letter from the District documenting the two fixture units when the fountain/pond is removed, he should be entitled to the former fountain/pond fixture unit value.  


District Resolution 2001-09, adopted by the Board on July 16, 2001 following a public hearing, modified District Rule 24, Table 1: Residential Fixture Unit Count to disallow water use credits for outdoor water fixtures.  A reasonable time was allowed (from July 16, 2001 until December 31, 2001) for a completed application to be filed with the jurisdiction to utilize any water fixture credits that were changed by the Resolution.  Notice of the window of opportunity was posted on the District’s website and in the District offices.  The District allowed water credits during the window of opportunity for water fixtures/credits that were documented prior to the date of the Resolution.  To use the water credits previously documented by the District, a completed application had to have been on file by December 31, 2001 with the planning and/or building department in the jurisdiction where the property was located.    On January 29, 2004, the Board of Directors adopted Ordinance No. 111, amending District Rule 24, which now states that “The District shall grant a Water Use Credit for the permanent removal of water using fixtures providing that the fixture was properly and lawfully installed. Credit shall only be received upon evidence of a water permit showing a debit to a jurisdiction’s allocation and payment of related connection charges.