EXHIBIT
5-A
DRAFT
FINDINGS
OF DENIAL
CONSIDER APPEAL OF GENERAL MANAGER’S DECISION
TO REQUIRE A WATER PERMIT FOR TWO SHOWERHEADS PURSUANT TO DISTRICT RULE 20, PERMITS
REQUIRED – 951 CORAL DRIVE, PEBBLE BEACH (APN: 007-254-005)
1. FINDING: Mr. Richard Thum and Ms. Sharlene Thum
(appellants) appealed a decision of the General Manager regarding a Notice of
Non-Compliance for two unpermitted Showerheads documented during a July 6,
2010, District inspection at 951 Coral Drive, Pebble Beach.
EVIDENCE: Record of Application for Appeal received July 29, 2010, and supplemental information submitted by the appellant as provided to the Board of Directors for the April 18, 2011, Public Hearing regarding this matter. The staff report and exhibits from the April 18, 2011, Public Hearing are included as Attachment 1. The Application for Appeal can be found at Exhibit 17-B and the supplemental information at Exhibit 17-F of Attachment 1.
2. FINDING: On July 6, 2010, the District conducted an inspection at 951 Coral Drive, Pebble Beach, to verify compliance with Water Permit No. 30234 for a Bathroom addition.
EVIDENCE: MPWMD
inspection report dated July 6, 2010, (Exhibit 17-A of Attachment 1) identifying
the inspection as a final inspection for Water Permit No. 30234.
3. FINDING: In reviewing all interior water fixtures on the Site, the District’s inspector noted two independently operating Showerheads in one Bathtub and in one Shower enclosure that were not recorded during a District inspection in 2007.
EVIDENCE: MPWMD inspection report dated August 15, 2007 (Exhibit 17-D of Attachment 1).
4. FINDING: Both the Water Permit (No. 30234) and the fixture-specific deed restriction recorded when the Water Permit was issued list only single Showerheads in the bathing enclosures.
EVIDENCE: Water Permit No. 30234 (including the deed restriction) is provided
as (Exhibit 17-C of
Attachment 1).
5. FINDING: After reviewing the information related to the property, including reviewing all Water Permits, inspection reports, Water Release Forms, Water Permit Applications, and previous District deed restrictions to confirm that there was no record of a Water Permit for the two additional Showerheads, District staff sent an Immediate Action Required letter to the appellants, notifying them that the property was not in compliance with the Water Permit and that an amendment was required to permit the two additional Showerheads.
EVIDENCE: On July 9, 2010, District staff sent an Immediate Action Required letter to Richard and Sharlene Thum (Exhibit 17-E of Attachment 1). The letter was sent after staff verified that there was no record of two showerheads in two bathing enclosures on the Site by reviewing the District’s inspection reports from 1992 and 2007; the Water Release Forms from 2000, 2007, and 2009; and the two Notice and Deed Restrictions Regarding Limitation of Use on a Property that were recorded in 2000 and in 2010 that list all water fixtures on the Site.
6. FINDING: District Rule 20 requires a Water Permit before installing new water fixtures or modifying existing water fixtures.
EVIDENCE: District Rule 20 attached as (Exhibit 17-G of Attachment 1).
7. FINDING: The Notice and Deed Restriction Regarding Limitation on Use of Water on a Property for Water Permit No. 30234 that was recorded by the County Recorder on January 21, 2010, was signed by the appellants. This document acknowledges that no water use fixtures other than those listed on the deed restriction have been approved or authorized for use on the Subject property. In addition to the other water fixtures on the Site, the deed restriction lists: “1 Standard Bathtub (may have Showerhead above)” and “2 Showers, Separate Stall (One Showerhead)”.
EVIDENCE: The Notice and Deed Restriction Regarding Limitation on Use of Water on a Property for Water Permit No. 30234 attached as (Exhibit 17-C of Attachment 1).
8. FINDING: In August 2007, the District performed an inspection of the property to finalize Water Permit No. 24754 for a remodel done by the former property owner. At that time, the District also conducted a water fixture inventory. The inspector noted:
5 Washbasins
3 Toilets
1 Large Bathtub
1 Standard Bathtub
2 Showers, Separate Stalls with one Showerhead each
2 Kitchen Sinks
1 Clothes Washer
1 Utility Sink
EVIDENCE: MPWMD inspection report dated August 15, 2007, attached as (Exhibit 17-D of Attachment 1).
9. FINDING: The fixtures listed on Water Permit No. 24754 were identified on the final approved construction plans reviewed by the District in 2000. The plans do not show two Showerheads.
EVIDENCE: Photographs of the plans prepared for the 2000 bathroom remodel are included as (Exhibit 17-I of Attachment 1).
10. FINDING: Water Permit No. 18570, issued on July 24, 2000, included a Notice and Deed Restriction Regarding Limitation on Use of Water on a Property. The 2000 deed restriction was completed by the former owners, the Felices, acknowledging that no additional water fixtures other than those listed on the deed restriction were approved or authorized for use on the subject property (Exhibit 17-J of Attachment 1). The deed restriction recorded in 2000 lists only one Showerhead per Bathtub and Shower.
EVIDENCE: Notice and Deed Restriction Regarding Limitation on Use of Water on a Property recorded August 1, 2000
11. FINDING: At the completion of the August 2007 MPWMD inspection, the former property owner, Paul Felice, attested to the accuracy of the water fixture count on the inspection report by signing the document. He did not indicate that the fixture count (which noted zero second Showerheads) was inaccurate.
EVIDENCE: MPWMD inspection report dated August 15, 2007, attached as (Exhibit 17-D of Attachment 1).
12. FINDING: In an attempt to resolve this situation, MPWMD staff proposed several options that would correct the Water Permit. The appellant can permanently remove the fixtures or obtain a Water Permit for two Showerheads (two fixture units or 0.02 acre-foot annually (AFA) each). In addition to permanent removal, the following options were presented to facilitate a Water Permit:
1.
County Allocation
The appellants can approach the County of Monterey regarding availability of water from its Allocation. The appellants would then pay for a Water Permit that would debit the County’s water Allocation.
2.
Pebble Beach Entitlement
The appellants can purchase Entitlement water from the Pebble Beach Company. The appellants would then pay for a Water Permit that would utilize Entitlement water.
3.
On-Site Credit
The two Showerheads can be partially offset using High Efficiency Appliance Credits available for the permanent installation of four High Efficiency Toilets (to generate a credit of 1.2 fixture units) and two High Efficiency Dishwashers (resulting in a credit of one fixture unit). The second Showerhead can be offset by the removal of the Utility Sink (two fixture units).
4.
New Diverter
The applicant may permanently replace the existing showerhead diverter with one that prevents the Showerheads from operating simultaneously. A re-inspection will be required to verify replacement of diverter.
EVIDENCE: Staff report to Board of Directors (Attachment 1),
dated April 18, 2011, and titled, “CONSIDER
APPEAL OF GENERAL MANAGER’S DECISION TO REQUIRE A WATER PERMIT FOR TWO
SHOWERHEADS PURSUANT TO DISTRICT RULE 20, PERMITS REQUIRED – 951 CORAL DRIVE,
PEBBLE BEACH (APN: 007-254-005).”
13. FINDING: Following a Public Hearing on this matter on April 18, 2011, Director Potter (second by Director Doyle) moved that the appeal be denied.
EVIDENCE: In making the motion, Director Potter stated that based on what he had read, he found no substance to the allegations that the Showerheads preexisted. In speaking to his motion, Director Potter cited the District’s inspection reports of 1992 and 2007, Water Release Forms of 2000, 2007, 2009, and the deed restrictions regarding limitiation of use on a property that were recorded in 2000 and 2010 listing all water fixtures on the Site that indicate the presence of multiple showerheads. He further stated that the list of remedies outlined in the staff report were multiple (i.e., there were five “very simple” possible remedies) and that the rules are very clear. In conclusion, Director Potter stated that were another case to come before the Board similar to this, he would find the same.
14. FINDING: The Board of Directors unanimously voted to deny the appeal of Mr. Richard Thum and Ms. Sharlene Thum regarding a Notice of Non-Compliance for two unpermitted Showerheads documented during a July 6, 2010, District inspection at 951 Coral Drive, Pebble Beach.
EVIDENCE: Record of April 18, 2011, Board meeting.
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