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ITEM: |
PUBLIC HEARINGS |
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11. |
CONSIDER APPEAL OF HEARING OFFICER
DETERMINATION – BARDIS WATER DISTRIBUTION SYSTEM, APN 169-181-051
(Continued from January 27, 2005 Hearing) |
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Meeting Date: |
March 21, 2005 |
Budgeted: |
N/A |
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From: |
David A. Berger, |
Program/ |
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General Manager |
Line Item No.: |
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Prepared By: |
Henrietta Stern |
Cost Estimate: |
N/A |
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General Counsel Approval:
Yes |
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Committee Recommendation:
N/A (quasi-judicial decision) |
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CEQA Compliance: Action exempt
per CEQA Guidelines 15303 |
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SUMMARY: The Board is continuing its consideration of an appeal by Christo Bardis (Exhibit 11-A), represented by attorney Christine Kemp, of a November 24, 2004 determination by the MPWMD Staff Hearing Officer (Exhibit 11-B). Based on a District public hearing held on November 19, 2004, the Hearing Officer approved Application #20040426BAR to create the Bardis WDS, a single-parcel connection water distribution system (WDS) on a 10-acre parcel in Carmel Valley at Schulte and Carmel Valley Roads (Exhibit 11-C), subject to 20 Conditions of Approval associated with Permit #S04-03.
This item is a continued public hearing from the January 27, 2005 meeting. The Board has been provided with the January 27, 2005 materials under separate cover, with copies available for public review at the District office. The materials are also available at the District website, http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2005/20050127/14/item14.htm (or go to main website at www.mpwmd.dst.ca and click on Meetings, Board Agendas, January 27, 2005 Regular Meeting, Item 14). Exhibit 11-D lists these previous materials for reference; key exhibits are reproduced herein. New information is provided herein, or is described if the exhibit is a large construction drawing.
The appeal centers on Condition No. 3 of Permit #S04-03, 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 11-A, Attachment 1).
As noted on
January 27, 2005, an MPWMD water distribution system permit for a single-parcel
system does not normally specify limits for potable and non-potable uses from
one well. The Bardis parcel is unusual
due to a lengthy litigation history [Monterey County Superior Court Case No.
M43343 (Save Our
Please see the “Background” and “Discussion” sections below for a review of District action on January 27, 2005, and new information since January 27, 2005 that led to a revised staff recommendation.
RECOMMENDATIONS: Based on the January 27, 2005 hearing record, including the Court Order, a review of new information since January 27, 2005, and a review of CEQA; and in light of the preference voiced by the Board on January 27, 2005 to approve the appeal (pending CEQA review), District General Counsel and staff recommend that the Board take the following actions:
1.
Adopt the Notice of Exemption provided as Exhibit 11-F and direct staff to file it
with the
2. Adopt the Findings of Approval of Appeal shown as Exhibit 11-G.
3. Adopt the Revised Findings of Approval of Application #20040426BAR shown as Exhibit 11-H.
Specifically, Condition No. 3 of Permit #S04-03 sets a production limit of 0.70 AFY for residential uses (including landscaping associated with the home) and 14.21 AFY for agricultural irrigation uses for the same total of 14.91 AFY as described in the Court Order and the November 24, 2004 Hearing Officer Determination. The amount of 0.7 AFY represents residential indoor and landscaping needs (0.678 AFY rounded to the nearest one-tenth acre-foot) consistent with revised MPWMD worksheets submitted by the applicant in February 2005 and revised plans for the proposed home submitted to Monterey County planners. Other changes to the November 24, 2004 Conditions of Approval include revised 60-day deadlines for fee payment and signed forms. As directed by the General Manager, a new standard Indemnity Agreement is also attached (Exhibit 11-J) that will be used for all water distribution system permits as of March 2005. This revised agreement better protects the District against the costs associated with litigation.
Staff has provided the proposed revised Findings and Conditions of Approval to the applicant's legal representative. Staff will include in its March 21, 2005 oral presentation any applicant comments or concerns we receive. The applicant will also speak as part of the public hearing.
BACKGROUND: Application #20040426BAR to create the Bardis WDS was submitted in April 2004. After extensive consultation and correspondence with the applicant’s attorney regarding technical and legal matters, a public hearing was held on November 19, 2004 before the MPWMD Staff Hearing Officer. The Hearing Officer issued his determination to approve the application with 20 Conditions of Approval consistent with MPWMD Rule 22-D. Condition #3 included potable water limits consistent with the 1994 Grice Report referenced in the Court Order, paragraph 3-G. An appeal of the Hearing Officer Determination was filed by the applicant on December 20, 2004. A hearing before the Board was set for January 27, 2005.
The staff report for the January 27, 2005 hearing to consider the appeal recommended denial due to legal and CEQA concerns. The applicant’s attorney submitted a letter explaining her rationale for approval of the appeal on January 19, 2005 (Exhibit 11-K). On January 26-27, 2005, suggested Findings of Approval were submitted by the applicant, as allowed by MPWMD Rule 70, along with a worksheet that estimated home and landscape use at 0.678 AFY (Exhibit 11-L). These materials were considered by the Board at the January 27, 2005 hearing. At the hearing, staff expressed concerns about discrepancies between the anticipated fixture needs and the description of the planned home in the appeal materials (i.e., fixture units associated with six bathrooms were proposed for a four-bedroom home serving five people with no verification by site/elevation plans).
At the January 27, 2005 hearing, the Board majority voiced a preference to approve the appeal, pending CEQA review. The specific motion was to continue the item until District staff has determined whether CEQA review would be required in order to approve the non-agricultural development water consumption above and beyond that described in the 1994 Grice Report, as requested by Mr. Bardis.
DISCUSSION: On January 27, 2005, the Board addressed the following questions:
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?
In brief, Counsel and staff advised the Board that:
Ø the Court Order does not bind MPWMD;
Ø the MPWMD Board has discretion in setting water production limits for potable and non-potable use;
Ø the CEQA Notice of Exemption issued on November 24, 2004 would need to be revised for the Board to approve the appeal because part of the Exemption is based on compliance with the Court Order; and
Ø various options are available to the applicant.
Please see the January 27, 2005 packet for more detailed information and discussion of these issues.
In the week of January 24, 2005,
and subsequent to the January 27, 2005 hearing, District staff communicated with
Monterey County Planning staff and the applicant’s attorney regarding the
Bardis water situation, and the proposed Bardis home that is proceeding through
a separate County approval process.
After the January 27 hearing, District staff briefed County staff on the
MPWMD Board’s direction, and requested information about the planned home,
specifically the number of bathrooms and fixtures. The home described by the County planner,
based on drawings submitted by the applicant to the Planning Department at that
time, was much smaller than the six-bathroom home described in the MPWMD water
use worksheet submitted on January 27, 2005 (67.8 fixture units). At that time, District staff believed that
the Bardis home water needs could be met by the production amounts specified in
the November 24, 2004 Hearing Officer ruling.
In early February 2005, staff requested that the applicant consider
withdrawing the appeal for this reason.
Staff advised the applicant that there must be consistency between the
MPWMD worksheet and final approved construction drawings in order to receive an
MPWMD water connection permit and a
On February 17, 2005, MPWMD staff
received the final revised water fixture calculations from
It is notable that the 0.7 AFY production limit in Permit #S04-03 is not tied directly to the exact number of fixtures shown on the home plans, which could change during the County permit process, but should be consistent with a home of the size and scale (i.e., number of bathrooms and associated amenities) shown in the plans. The subsequent water connection permit issued by the District Water Demand Division and associated fees will be tied directly to the number of fixtures shown in the final construction drawings.
Based on the above information, MPWMD staff consulted with MPWMD General Counsel regarding CEQA compliance based on known information as of late February 2005. Counsel advised staff that a CEQA exemption for the action to approve the appeal was appropriate because: (1) the District is not bound by the Court Order, (2) CEQA Sections 15301 and 15303 are applicable, and (3) the construction drawings and worksheet are consistent with MPWMD Rules and Regulations regarding a water connection permit.
Public Notice
Public notice of this appeal and hearing on March 21, 2005 has been provided no later than 10 days prior to this public hearing in three ways: (1) posting at the District office; and (2) posting on the District website via the Board agenda. Previous notices mailed to neighbors within 300 feet of the Bardis parcel for the January 2005 hearing advised readers that separate notice would not be mailed for a continued hearing, and provided sources of information to track this item.
11-A December 20, 2004 application for appeal of Bardis WDS determination
11-B November 24, 2004 Hearing Officer determination for Bardis WDS
11-C Location of Bardis parcel
11-D List of materials and exhibits from January 27, 2005 staff note
11-E June 7, 2002 Superior Court Stipulation and Order re: Water Usage on remainder Parcel, Case #M43343
11-F Revised CEQA Notice of Exemption for Application #20040426BAR (prepared 03/11/05)
11-G Draft Findings of Approval for Appeal (prepared 03/11/05)
11-H Draft Revised Findings of Approval for Application #20040426BAR (prepared 03/11/05)
11-I Draft Revised Conditions of Approval for
Application #20040426BAR (prepared 03/11/05)
11-J Indemnity
Agreement required to be signed by Permittee (prepared 03/11/05)
11-K Applicant submittal dated January 19, 2005; rationale for appeal approval
11-L Applicant submittal faxed January 26-27, 2005; recommended Findings of Approval for Appeal
U:\staff\word\boardpacket\2005\2005boardpackets\20050321\PubHrgs\11\item11.doc