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ITEM: |
PUBLIC
HEARING |
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15. |
CONSIDER APPEAL OF DISTRICT GENERAL MANAGER’S DECISION TO
DENY A WATER PERMIT FOR A THIRD BATHROOM ADDITION
TO 905 OCEAN VIEW BLVD., PACIFIC GROVE (APN 006-031-004) – CONTINUED FROM THE
FEBRUARY 22, 2007 MEETING |
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Meeting
Date: |
March 19, 2007 |
Budgeted: |
N/A |
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From: |
David A.
Berger, |
Program/ |
N/A |
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General
Manager |
Line Item
No.: |
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Prepared
By: |
Stephanie
Pintar |
Cost
Estimate: |
N/A |
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General Counsel Approval: This report has been reviewed by District Counsel. |
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Committee Recommendation: N/A |
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CEQA Compliance:
Denial does not constitute a Project.
Approval would be exempt under Section 15301, Class 1. |
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THIS ITEM WAS CONTINUED FROM THE FEBRUARY 22, 2007 MEETING TO THE MARCH
19, 2007 MEETING AT THE REQUEST OF THE APPLICANT.
SUMMARY: Steve McDannold is appealing a decision of the District General Manager denying a water permit for a third bathroom at his home in Pacific Grove (Exhibit 15-A). Mr. McDannold’s water permit application was denied because the property added a second bathroom in 2003 using the second bathroom provision of Rule 24, and was therefore limited to no more than two bathrooms. The second bathroom provision was implemented in 2001 to allow a second bathroom to be added to a less-than-two-bathroom home to respond to modern quality-of-life standards that recognize that a second bathroom in a home is primarily for convenience and would not add significant water use. The second bathroom allowed by Rule 24 does not result in a debiting of the jurisdiction’s water allocation. The addition of a third bathroom would result in more than two bathrooms on the site and would be contrary to District Rule 24-A-3-j (Exhibit 15-B). Mr. McDannold’s Application for Appeal is attached as Exhibit 15-C.
The water permit issued to Mr. McDannold by the District in 2003 included recordation of a Deed Restriction Regarding Limitation On Use Of Water On A Property (Exhibit 15-D). The deed restriction clearly lists the water fixtures that are allowed on the site, and clearly states that “credit shall not be granted for removal or retrofit of any fixture added pursuant to the second bathroom accounting protocol allowed by Rule 24C…” The deed restriction also states that present and/or future water use is restricted by the District’s Rules and Regulations and that approval of future water permits “may be withheld by the Water Management District, in accord with then applicable provisions of law.” The District’s rules have been clarified since the water permit for the second bathroom was issued in 2003 to require debiting the respective jurisdiction’s water allocation (or offset with on-site water credits) for the second bathroom if a third bathroom is proposed.
DISCUSSION: This appeal deals with a permit to install a third (3rd) bathroom pursuant to Rule 24, as enacted in July 2004 under Ordinance No. 114 “Amending District Rule 24 to Clarify Special Fixture Unit Accounting for Second Bathrooms”, for a residence that had previously obtained a permit to install a second (2nd) bathroom pursuant to Rule 24, as enacted in May 2001 under Ordinance No. 98, the “Bathroom Fixture Ordinance.” The rule as it now stands (Rule 24-A-3) limits a property utilizing the second bathroom protocol to two bathrooms on a site. In addition, the rule upholds the two bathroom restriction “unless the second bathroom is permitted by debit to a jurisdiction’s water allocation.” The applicant’s 2006 water permit application to add a third bathroom was based on the use of on-site water credits. The denied application proposed to offset the third bathroom by installation of ultra-low consumption appliances, removal of a utility sink, retrofit of the two existing toilets to half-gallon per flush, and installation of a 1.0 gallon per flush toilet in the proposed third bathroom. The application did not propose to offset the water capacity of the second bathroom as required by District Rule 24-A-3. For this reason, the application was denied. Applications are subject to the rules in effect at the time a complete application is received.
The second bathroom provision was amended in 2004 to clarify that a property adding a second bathroom under this rule was limited to two bathrooms unless the second bathroom was permitted with a debit to a jurisdiction’s water allocation or offset with on-site credits. Quoting from the staff report from the first reading of Ordinance No. 114 in April 2004, “As the ability to add a second bathroom without debiting the jurisdiction’s allocation is voluntary for convenience only, those choosing to use the special fixture unit accounting will be restricted by requiring full permitting (e.g. water from a jurisdiction’s allocation or on-site water credits) of the second bathroom allowed by this provision before additional bathrooms can be added.” The amendments to the second bathroom provision were discussed during three public hearings of the Board (in February April and May 2004), were published in the local newspaper and on the District’s website, and were sent to each of the jurisdictions within the District. In addition, the issues addressed in the amendment ordinance were discussed at length in public meetings of the Water Demand Committee, beginning in June 2003.
Mr. McDannold states in his appeal that the two
bathroom restriction should not apply to his application, as he contends his
project began in 2003 and obtained extensive reviews by the City of
Finally, the application for appeal states that the applicant “based years of work on Ordinance 98…” The deed restriction that was recorded on the title when the second bathroom was permitted by the District does not reference Ordinance No. 98. The deed restriction references the District’s Rules and Regulations, including the possibility that the rules can change. Mr. McDannold, in his reliance on Ordinance No. 98, should have been alert to the potential for change.
Between the Adoption of Ordinance No. 98, the “Bathroom Fixture Ordinance” in April 2001 and the adoption of Ordinance No. 114 “Amending District Rule 24 To Clarify Special Fixture Unit Accounting For Second Bathrooms” in May 2004, the District issued 467 water permits. Staff has received numerous inquiries regarding multiple bathroom additions to homes that received the second bathroom under the Ordinance No. 98 second bathroom provision. Staff has consistently responded that an application is subject to the Rules in effect at the time a complete application is submitted, and that properties that added a second bathroom under the second bathroom provisions is restricted to two bathrooms unless the second bathroom is permitted with a debit to an allocation or offset with on-site water credits.
At the February 22, 2007 meeting, the Board received a copy of a letter from Michael Stamp, dated February 21, 2007 (Exhibit 15-E). A response to Mr. Stamp's correspondence on this matter was submitted by Derinda Messinger, attorney for the applicant, and is shown as Exhibit 15-F. District Counsel Laredo concurs only in part with Ms. Messinger's analysis, namely that the matter does not involve a "transfer" of water. Mr. Laredo notes that while action on the appeal does not technically set MPWMD policy, any decision would be precedent setting as others in a like setting may be able to claim a right to equal and uniform enforcement of the law. As such, a cumulative impact may result. Mr. Laredo further observes that Ms. Messinger's CEQA analysis (suggesting that a CEQA Class 1 exemption applies) differs from the District's experience before the Court of Appeal on matters of this type. He is concerned that reliance on a Class 1 exemption for purposes of granting this appeal, may not survive judicial scrutiny.
No additional information was submitted by the applicant to supplement the appeal application.
RECOMMENDATION: Staff recommends that the Board deny Mr. McDannold’s appeal and adopt the Findings of Denial attached as (Exhibit 15-G). Should the Board approve the appeal, approval should be conditioned on the applicant’s
BACKGROUND: In April 2001, the District Board adopted Ordinance No. 98, to allow the addition of a second bathroom to an existing single-family residential dwelling with only one bathroom without debiting the water allocation of the jurisdiction. Ordinance No. 98 modified District Rule 24-C, Residential Expansions, and created a “special fixture unit accounting protocol” that limited the water appliances that could be installed in a new second bathroom to a single water closet, a single standard tub or shower stall, or a single standard tub-shower combination, and one or two washbasins without debiting a jurisdiction’s water allocation for installation of the specified water fixtures. Ordinance No. 98 was adopted with a Negative Declaration based on the assumption that a second bathroom in a home is primarily for convenience and would not increase water use in the residence.
In May 2004, the District Board adopted Ordinance No. 114 to further modify District Rule 24-C and clarify the number of fixtures allowed by use of the special fixture unit accounting protocol. Ordinance No. 114 added the condition that use of the special fixture unit accounting protocol is voluntary and that any property owner who chooses to install a second bathroom under this special fixture unit accounting protocol is limited to two bathrooms, unless the second bathroom is permitted by debit to a jurisdiction’s water allocation. This condition was added to preclude property owners from using the “Second Bathroom” ordinance to add multiple bathrooms to their residences. If an owner of a single-family residence with one bathroom wishes to add more than a second bathroom, the owner must comply with the standard fixture unit accounting protocol and obtain water from the jurisdiction’s allocation or establish on-site water credits for the second bathroom before additional bathrooms can be added. Ordinance No. 114 went into effect on July 1, 2004.
15-A District’s Denial of Water
Permit Application
15-B Application for Appeal and December 1, 2006 letter from Eric
Miller
15-C District Rule 24, Second Bathroom Addition
15-D Deed Restriction Regarding Limitation On Use Of Water On A Property
15-E Letter from Michael Stamp, dated February 21, 2007
15-F Letter from Derinda Messenger, dated March 7, 2007
15-G Findings of Denial
U:\staff\word\boardpacket\2007\2007boardpackets\20070319\PublicHrgs\15\item15.doc