EXHIBIT
14-H
DRAFT
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT (MPWMD)
FINDINGS of DENIAL of
APPEAL
CONSIDER APPEAL OF HEARING OFFICER DETERMINATION RE: APPROVAL OF BARDIS WATER DISTRIBUTION SYSTEM; APN 169-181-051
Adopted by MPWMD Board of Directors on
January 27, 2005
Unless otherwise noted, all evidence is on file and
available for public review at the District office,
It
is hereby found and determined as follows:
1. FINDING: Applicant Christo Bardis is the owner of property at the
intersection of
EVIDENCE: Application #20040426BAR, site map and application materials dated April 26, 2004 available for review at District office.
2.
FINDING: Based on a public hearing held on
November 19, 2004, the MPWMD Staff Hearing Officer on November 24, 2004
approved the application to create the Bardis WDS subject to 20
conditions.
EVIDENCE: MPWMD WDS Permit #S04-03 and associated Final Conditions of Approval, Final Findings of Approval and CEQA Notice of Exemption, all dated November 24, 2004. MPWMD Hearing Record for hearing held on November 19, 2004; MPWMD Order Following Hearing prepared by Hearing Officer on November 24, 2004.
3. FINDING: Condition No. 3 of Permit #S04-03
sets a system capacity (production limit) of 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. These numbers were based on
a June 7, 2004 Court Order and Stipulation affecting the Bardis parcel as well
as a 1994 Grice Engineering Report specifically referred to in the Court Order.
EVIDENCE: MPWMD WDS Permit #S04-03 and associated
Final Conditions of Approval dated November 24, 2004. MPWMD Order Following Hearing
prepared by Hearing Officer on November 24, 2004.
4. FINDING: The applicant has appealed the Hearing Officer
determination in accordance with MPWMD Rule 22-A-2 and Rule 70. The applicant agrees with the total parcel
limit of 14.910 AFY, but requests a higher allotment than 0.444 AFY for the
residential indoor and landscape uses.
Specifically, an amount of 0.50 AFY is requested for indoor uses only;
alternatively, an amount of 0.70 AFY is requested for the combined residential
indoor and landscape uses for the home.
The remaining amount would be designated for the agricultural use.
EVIDENCE: December 20, 2004 Application for
Appeal, including cover letter, application form, exhibits, check for $750, and
Disclosure Statement. MPWMD Rules and
Regulations.
Rationale for Denial of Appeal
5. FINDING: MPWMD approval of the appeal, without further CEQA
review, would not comply with CEQA given the unique legal history of the Bardis
parcel and a Court Order and Stipulation addressing CEQA compliance for water
use one the property. The Notice of
Exemption filed by MPWMD for the November 24, 2004 approval of the Bardis WDS
relied in part on compliance with the conditions specified in the June 7, 2004
Court Order and Stipulation (Part 3).
The Court Order stated that further CEQA review would not be required if
the specified conditions were followed.
The applicant’s request for additional residential water allotment goes
beyond the amount specified in Condition G of the Court Order (i.e., the amount
specified in the November 1994 Grice Report).
EVIDENCE: MPWMD WDS Permit #S04-03 and associated
Final Conditions of Approval dated November 24, 2004. MPWMD Order Following Hearing
prepared by Hearing Officer on November 24, 2004. MPWMD Notice of Exemption for
approval of Bardis WDS dated November 24, 2004.
6. FINDING: Though MPWMD is not bound by the Court Order and
Stipulation, MPWMD believes that prudent management includes consistency with
EVIDENCE:
7. FINDING: The MPWMD Hearing Officer properly identified the
quantity of water for residential indoor use and associated landscaping on the
Bardis parcel, based on specific text in the 1994 Grice Report, as directed by
the Court Order and Stipulation (Part 3-G).
EVIDENCE: MPWMD WDS Permit #S04-03 and associated
Final Conditions of Approval dated November 24, 2004. MPWMD Order Following Hearing
prepared by Hearing Officer on November 24, 2004.
8. FINDING: The applicant appeal asserts that the 1994 Grice Report
is outdated and the report assumptions on average family size per parcel are
too low for the applicant’s specific family situation. Although the Grice Report stated it should be
reviewed after three years, the Court Order compels use of the 1994 Grice
Report. No language is contained in the
Court Order that refers to updates, review or alterations to the Grice
Report. The Grice Report could not have
predicted the specific family size of future owners of the parcels evaluated in
1994. MPWMD Rules and Regulations
stress use of water-using fixtures or other more stable units of measurement
(such as regional averages), rather than individual family size at a particular
point in time, due to the ever-changing nature of individual family situations.
EVIDENCE:
December 20, 2004 Application to Appeal Hearing Officer Determination on
Bardis WDS. MPWMD Order Following Hearing prepared by Hearing Officer on
November 24, 2004.
9. FINDING: The applicant appeal cites a September 20, 2004 letter
from Harold Grice that contradicts text in the November 1994 Grice Report. The September 2004 letter asserts that the
water use figures included only indoor use, while the 1994 Report text states
that water use figures represented both indoor and outdoor use. The September 20, 2004 letter offers no
evidence, documentation or rationale to justify the revised statements. The MPWMD Hearing Officer considered, but did
not accept, the changed interpretation in the September 20, 2004 Grice letter.
Also, the Court Order compels use of the 1994 Grice Report. No language is contained in the Court Order
that refers to updates, review or alterations to the Grice Report.
EVIDENCE:
December 20, 2004 Application to Appeal Hearing Officer Determination on
Bardis WDS. Letter dated September 20, 2004 from Harold Grice to Henrietta
Stern. MPWMD Order Following Hearing
prepared by Hearing Officer on November 24, 2004.
10. FINDING: The
applicant appeal asserts that four neighboring parcels involved in the original
Mills College Subdivision received a
EVIDENCE:
December 20, 2004 Application to Appeal Hearing Officer Determination on
Bardis WDS. MPWMD Order Following
Hearing prepared by Hearing Officer on November 24, 2004.
11. FINDING: Denial
of the appeal does not prevent the applicant from enjoying beneficial use of
the property. The approval of the Bardis
WDS on November 24, 2004 would remain in effect. The water quantities are adequate for a reasonably
sized home and extensive agricultural irrigation on the property. Denial of the appeal does not constrain the
applicant from obtaining new information, such as additional CEQA evaluation by
Monterey County, an amended Court Order, or other documentation to support an
application to MPWMD to amend the Bardis WDS pursuant to MPWMD Rule 22-E.
EVIDENCE: MPWMD WDS Permit #S04-03 and associated
Final Conditions of Approval dated November 24, 2004, Condition #11. MPWMD Rules and Regulations, Rules 20-22.
Compliance with CEQA
12. FINDING: An
action to deny an appeal is exempt under CEQA.
In the previous review of this application, MPWMD has followed those
guidelines adopted by the State of
EVIDENCE: CEQA and CEQA Guidelines, Section 15000
et seq. Notice of Exemption for approval
of the Bardis WDS dated November 24, 2004, was transmitted to the
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