CONSIDER APPEAL OF HEARING OFFICER’S DETERMINATION – BARDIS WATER DISTRIBUTION SYSTEM -- APN 169-181-051
January 27, 2005
David A. Berger,
Line Item No.:
General Counsel Approval: Yes.
Committee Recommendation: N/A (quasi-judicial decision)
CEQA Compliance: November 24, 2004 action exempt per CEQA Guidelines 150303.
SUMMARY: The Board will consider an appeal by Christo Bardis (Exhibit 14-A), represented by attorney Christine Kemp, of a November 24, 2004 determination by the MPWMD Staff Hearing Officer (Exhibit 14-B) regarding an application to create a single-parcel connection water distribution system (WDS) on a 10-acre parcel in Carmel Valley at Schulte and Carmel Valley Roads (Exhibit 14-C). Based on a District public hearing held on November 19, 2004, the Hearing Officer approved Application #20040426BAR to create the Bardis WDS, subject to 20 conditions (Exhibit 14-D). The appeal centers on Condition No. 3, which reads:
3. The system capacity (water production) limit for the Bardis WDS is hereby set at 14.910 acre-feet per year (AFY) divided as follows: 0.444 AFY for residential uses, including landscape irrigation, and 14.466 AFY for agricultural irrigation. The expansion capacity (connection) limit is set at no more than one connection in order to serve uses allowed by Monterey County zoning regulations and permitted by County authorities on the subject parcel. No municipal unit (jurisdiction) allocation is associated with this permit.
The applicant does not question the total production limit of 14.910 AFY set by the Hearing Officer. The applicant requests that the amount of 0.444 AFY for residential uses be increased to 0.50 AFY for indoor use only, or alternatively, 0.70 AFY if both indoor use and associated landscaping for the home are considered together (see Exhibit 14-A, Attachment 1).
question is how much water should be allowed for the potable residential uses
on the Bardis parcel, keeping in mind its lengthy litigation history, described
in Exhibit 14-E. Typically, an MPWMD water distribution system
permit for a single-parcel system does not specify limits for potable and
non-potable uses from one well. The
Bardis situation is unusual because the Bardis parcel must comply with Monterey
County Superior Court Case No. M43343 (Save Our
Paragraph 3 states that
Condition G states, “In the event that any
application is filed in the County for non-agricultural development of the remainder
[property], water consumption associated with such non-agricultural development
shall be evaluated and conditioned consistent with applicable water demand
analyses contained in the November 1994 report of Grice Engineering, prepared
in connection with the
Paragraph 4 states, “The County shall use its
best efforts to ensure that current and future staff of all land use
departments (including Planning & Building Inspection, Monterey County
Water Resources Agency, Environmental Health Division, and Public Works) are
aware of the limitations on water consumption on the
Associated questions relevant to the MPWMD Board action are addressed in the “Discussion” section below. The questions include:
Ø Must MPWMD comply with the Court Order for Case No. M43343?
Ø How much discretion by the MPWMD Board is allowable, while remaining consistent with the Court Order? Specifically, must the exact numbers in the 1994 Grice Report be used?
Ø What are the CEQA implications of approving or denying the appeal?
Ø What other options are available to the applicant if the appeal is denied?
District General Counsel and staff believe the Board has only two basic options available to it at this time -- denial or continuance, as described below. Approval of the appeal at this time, without first completing additional CEQA review, exposes the District to legal challenge. Staff does not believe an action to approve the appeal should be done under a CEQA exemption given the legal history and June 7, 2002 Court Order affecting the Bardis parcel. There could be different interpretations of the Court Order, but CEQA Guidelines 15064 direct agencies to err on the side of caution (that is, higher level of CEQA review) when uncertainty exists.
Even without the CEQA
constraints, staff believes District action should be consistent with the Court
Order regarding this parcel, especially given that
The options are:
Option 1, Deny the Appeal. Adopt the January 2005 Draft Findings of Denial of Appeal (Exhibit 14-H), including reference to previous CEQA compliance. The current approval of November 24, 2004 is based on a CEQA Notice of Exemption (Exhibit 14-I), which in turn, is based in part on previous litigation and Court Order (Exhibit 14-F). Direct staff to continue processing the permit as approved on November 24, 2004 (Exhibits 14-B and 14-D). The Board should change the January 2005 deadlines for required signatures in the original November 2004 Conditions of Approval (Exhibit 14-D) to March 2, 2005.
Denial of the
appeal allows the applicant to use the Bardis WDS permit approved on November
24, 2004 to build a quality home and to enjoy the use of the property,
including potential subdivision in the future (with amended District WDS
permit). It is notable that Option 1
does not preclude a future hearing before the MPWMD Board to consider an
application to amend the Bardis WDS permit. The permit amendment hearing would take place
when new environmental, technical and/or legal information are made available
by the applicant in compliance with CEQA and consistent with the Court
Order. The new information might include
a new Court Order directing that a revised hydrology/engineering report with
updated water consumption information be prepared to the satisfaction of the
Court, including technical review and concurrence by MPWMD,
2B, Continue Hearing to Allow Applicant to Secure Revised Court Order and/or
CEQA Compliance by
Option 2B, Continue Hearing Until CEQA Compliance is Completed by MPWMD to Enable Board Approval. Direct District staff and general Counsel to take the necessary steps (to be fully paid by applicant) to ensure that the District approval of the appeal complies with CEQA. These actions include:
(a) Assess additional CEQA review needed, in
light of Monterey County Superior Court Case No. M43343 (Save Our
(b) Prepare Findings of Approval of Appeal once CEQA compliance has been attained.
(c) Set a public hearing to formally consider approval of the appeal. Amend the November 2004 Conditions of Approval (Exhibit 14-D) to read 0.70 AFY for residential uses (including landscaping associated with the home) and 14.21 AFY for agricultural irrigation uses (Condition No. 3); and change the January 2005 deadlines to a date within 60 days of the Board approval. Staff prefers using a water use amount that combines residential indoor and landscaping needs (0.70 AFY), consistent with worksheets used by the MPWMD Water Demand Division and other water distribution system permits.
Staff recommends that the Board select Option 1, with Option 2A as the second choice. These options best protect the interests of the District while responding to the concerns of the applicant. Option 1 is preferred because it is less complicated from a procedural perspective. Option 1 also is best for the applicant because a valid WDS permit would be in hand (assuming required documents are signed by March 2, 2005) until the applicant is ready to apply for an amended permit. Option 2A may put the permit approved on November 24, 2004 in limbo until a new appeal hearing is held. The actions required of the applicant are similar for both Options 1 and 2A.
The applicant asserts that the 1994 Grice Engineering Report is outdated and does not adequately address the applicant’s current needs. Options 1 and 2A properly put the burden on the applicant to provide clear documentation to support the applicant’s contentions, rather than subjecting the District to potential litigation and significant staff time to resolve CEQA and legal issues on a controversial project. Options 1 and 2A would allow the Superior Court, County of Monterey and litigants (rather than the District) to resolve a basic legal question raised by this appeal, which is, “Assuming no further CEQA review, should the residential water allotment in the Court Order be changed to accommodate a large home desired by the applicant, or should the applicant amend his construction plans to comply with the restrictions imbedded in the Court Order?”
Staff does not recommend Option
2B because staff does not have the time to take on a new CEQA task with the
current District priorities and workload.
Staff believes the CEQA process should be carried out by
After District legal counsel review, District staff contacted the applicant’s attorney about Options 1, 2A and 2B the afternoon of January 13, 2005. The attorney was advised of a 9:00 AM deadline on January 14, 2005 for a response to be included in this staff note. The attorney indicated that this was not enough time to contact the client and formulate a written response for inclusion in the staff note. The applicant’s attorney indicated that she will prepare comments on the staff recommendations for presentation to the Board on January 27, 2005, and may potentially prepare a written response prior to the hearing.
BACKGROUND: Exhibit 14-J is the April 2004 application for the Bardis WDS (main application form without attachments). Exhibit 14-K is the staff note for the November 19, 2004 public hearing for the Bardis WDS. Exhibit 14-L contains materials submitted by the applicant at the November 19, 2004 hearing requesting higher water allotments for the residential parcel. Exhibit 14-M is a comment letter opposing the Bardis WDS received on November 19, 2004. No other written or oral comments were received. Exhibit 14-N is the Hearing Record describing questions posed by the Hearing Officer and new information brought to light at the hearing. Exhibit 14-B is the Hearing Officer’s written determination. Exhibit 14-O is the Final Findings of Approval for the Bardis WDS. These exhibits should be carefully reviewed by the Board. The complete file is available for review at the District office.
DISCUSSION: The following paragraphs discuss the four questions posed in the Summary section as well as other issues raised in the appeal (Exhibit 14-A):
Must MPWMD comply with the Court Order and Stipulation for Case No. M43343?
No. The Court Order and Stipulation are for
How much discretion by the MPWMD Board is allowable, while remaining consistent with the Court Order? Specifically, must the exact numbers in the 1994 Grice Report be used?
Assuming consistency with the Court Order and Stipulation is desired, Condition 3-G states that decisions “shall be evaluated and conditioned consistent with applicable water demand analyses contained in the November 1994 report of Grice Engineering, prepared in connection with the Mills College Subdivision” (Exhibit 14-F). The Hearing Officer used his best judgment to do so as described in Exhibit 14-B. The Court Order did not mention use of information other than the 1994 Grice Report.
What are the CEQA implications of approving or denying the appeal?
District General Counsel and staff and believe that additional CEQA analysis will likely be needed if the 1994 Grice Report is not used as a basis for decisions (see Exhibit 14-F). The District’s Notice of Exemption for approval of the Bardis WDS was based in part on consistency and compliance with the Order and Stipulation. If MPWMD chooses not to be consistent with the Court Order, then the Board’s action to approve the appeal could be subject to challenge if it is based on the November 24, 2004 Notice of Exemption. Additional CEQA evaluation may be required if the appeal is approved.
What other options are available to the applicant if the appeal is denied?
If the appeal is denied, the applicant could:
Ø Proceed with Bardis WDS permit as approved on November 24, 2004.
Ø Build a smaller house than the large home currently contemplated to comply with Court Order and County conditions, which may be necessary regardless of MPWMD actions. The County is compelled to comply with the Court Order and Stipulation.
Family Size. Attachment 1, Item 3 of the appeal questions
the residential water use assumptions used in the Grice Report as they relate
to the applicant’s family size. The assumptions used in the 1994 Grice report
were based on information available at that time, such as U.S. Census or
Department of Finance data on average family size expected in
The applicant is correct that the planned home is large and would entail many water-using fixtures that would exceed 0.444 AFY. The fact remains that all parties, including the property owner at the time, signed the June 7, 2002 Court Order and Stipulation, which compels Monterey County to use the values in the 1994 Grice Report when conditioning future non-agricultural land use approvals on the parcel. It would be expected that the applicant was aware of these recorded restrictions when he purchased the property and would plan construction of a home that is consistent with them. Alternatively, the applicant could either (1) convince the Court and County to amend the restrictions, or (2) carry out the CEQA evaluations needed to support higher non-agricultural water use.
Outdated Hydrology Report. The appeal asserts in Attachment 1, Item 3, Footnote 1 that the Grice Report is “now obsolete by its own terms” and infers that this is a reason for higher residential water quantities to be approved by the MPWMD Board. The applicant is correct that the 1994 Grice Report (Exhibit 14-G, page 14, bottom paragraph) includes standard language about possible natural, manmade or regulatory changes that could affect the validity of the report conclusions. Grice suggests a review of the report after three years (i.e., year 1997).
The question of report obsolescence is moot in that the June 7, 2002 Court Order and Stipulation remains in place, and refers specifically to the 1994 Grice Report. No language is contained in the Court Order (Exhibit 14-F) that refers to updates, review and alterations to the Grice Report. Thus, staff has recommended in Options 1 and 2A above that the applicant obtain a revised Court Order that addresses this issue, including a revised, updated hydrology report. The applicant’s concern about the report being “obsolete” lends support to Options 1 and 2A.
September 2004 Letter from Grice Engineering. The appeal in Attachment 1, Item 2, references a letter dated September 20, 2004 (contained in Exhibit 14-L) that the applicant submitted on November 19, 2004 for consideration by the Hearing Officer. In the letter, Harold Grice states that the projected water use of “just under 0.5 acre-feet per year” is “for the residence proper and does not include additional outside acreage use.” He further states that these findings are applicable only to the Bardis residence and may not be used for any other site or purpose. Notably, the September 2004 letter directly conflicts with text within the 1994 Grice Engineering Report referred to by the Court Order and Stipulation. The 1994 Report, page 5, assumption #3, states that the average daily water consumption is equally divided between the septic system (i.e., indoor use)
and landscape irrigation for the home. The September 2004 Grice letter offers no evidence, documentation or rationale for the substantive change between the 1994 Report and the September 2004 letter. It does not explain why these changes would pertain only to the Bardis property and not the other parcels evaluated in the 1994 report. This, the Hearing Officer considered, but did not accept, the assertions in the September 20, 2004 letter (see Order Following Hearing, Exhibit 14-B, page 3). Also, the Court Order and Stipulation specifically refers to the 1994 Grice Report and no other document. As noted in Options 1 and 2A, the applicant has the option to convince the Court and other signatories to the Court Order and Stipulation to change the reliance on the 1994 Grice Report, and to bring new information back to the District for consideration.
with Nearby Parcels. The appeal
asserts in Attachment 1, Item 3, bottom paragraph, that surrounding land owners
have received allocations of 1 AFY for household and landscape use, and the
applicant requests “equal treatment.” It
is very important to note that, for unknown reasons, Monterey County approved 1
AFY Cal-Am metered water service for parcels A, B, C and D of the Mills College
Subdivision (a total of 4.0 AFY) in direct violation of MPWMD Ordinance
No. 81, which designated only 2.0 AFY metered sales, or 0.5 AFY per parcel for
residential indoor and outdoor use on these same parcels A-D. This situation is summarized on page 2 of Exhibit 14-E. In the November 19, 2004 staff note for the
Bardis WDS application, an amount of 0.5 AFY was recommended for the home and
associated landscaping to be consistent with Ordinance No. 81 and other WDS
permits issued for similar
Public notice of this appeal and hearing on January 27, 2005 has been provided no later than 10 days prior to this public hearing in three ways: (1) posting at the District office; (2) posting around the subject parcel by District staff; and (3) posting on the District website via the Board agenda.
14-A December 20, 2004 application for appeal of Bardis WDS determination
14-B November 24, 2004 Hearing Officer determination for Bardis WDS
14-C Location of Bardis parcel
14-D Final Conditions of Approval for Application #20040426BAR (dated 11/24/04)
14-E Summary of Site History (prepared 11/5/04)
14-F June 7, 2002 Superior Court Stipulation and Order re: Water Usage on remainder Parcel, Case #M43343
14-G November 14, 1994 report prepared by Grice Engineering (Hydrology Study and Nitrate Loading Assessment for the Mills College Property Minor Subdivision)
14-H Draft Findings of Denial for Appeal (dated January 14, 2005)
14-I Notice of Exemption from CEQA for Application #20040426BAR (dated 11/24/04)
14-J Application #20040426BAR for Bardis WDS (main form dated April 26, 2004)
14-K Staff note for November 19, 2004 hearing for Bardis WDS application
14-L Information submitted by Bardis attorney at November 19, 2004 hearing
14-M Comment letter from Carole Erickson faxed November 19, 2004
14-N Hearing Record for November 19, 2004 hearing dated November 24, 2004
14-O Final Findings of Approval for Application #20040426BAR (dated 11/24/04)