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ITEM: PUBLIC
HEARING |
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17. |
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) |
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Meeting
Date: |
April 18, 2011 |
Budgeted: |
N/A |
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From: |
Darby
Fuerst, |
Program/ |
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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 Review: N/A
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Committee Recommendation: N/A
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CEQA Compliance:
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SUMMARY: Mr. Richard Thum and Ms. Sharlene Thum (appellants) are appealing 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 (Exhibit 17-A). The appelants’ appeal application is Exhibit 17-B.
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 (Exhibit
17-C).
The inspector documented two unpermitted Showerheads that were not
listed during a District inspection in 2007 (Exhibit 17-D). Water Permit No. 30234 permitted one Showerhead
in each Bathtub and Shower. The
inspector noted two independently operating Showerheads in one Bathtub and in
one Shower enclosure. Both the Water
Permit and the fixture-specific deed restriction recorded when the Water Permit
was issued list only single Showerheads in the bathing enclosures. Both additional Showerheads require a Water
Permit.
On January 4, 2010, the appellants obtained a Water Permit to add a Bathroom to 951 Coral Drive, Pebble Beach. The Bathroom was permitted using Pebble Beach Entitlement water and High Efficiency Appliance Credits resulting from the installation of a High Efficiency Clothes Washer and an Instant-Access Hot Water System.
As stated previously, staff conducted a final inspection to verify compliance with water efficiency requirements and Water Permit conditions on July 6, 2010. As a standard practice during an inspection, all other existing water fixtures on the Site are revisited to verify compliance with efficiency requirements. Occasionally, unpermitted water fixtures are noted during a subsequent inspection. Following the July 6, 2010, inspection, District staff reviewed the information related to the property, including a review of all Water Permits, inspection reports, Water Release Forms, Water Permit Applications, and previous District deed restrictions. There is no record of a Water Permit for the two additional Showerheads. The District 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 (Exhibit 17-E).
An appeal of the July 6, 2010, determination was received on July 29, 2010. The appeal has been delayed in coming to the Board due to a request for continuation by the applicant in October 2010, followed by an extensive Public Records Act request. Additional information submitted by the applicant on March 25, 2011, can be found as Exhibit 17-F.
DISCUSSION: District Rule 20 (Exhibit 17-G) requires a Water Permit before installing new water fixtures or modifying existing water fixtures. The former owner (Mr. Paul Felice) has submitted a statement (included in Exhibit B) that there were no modifications to the water fixtures at the property between the date of the District’s August 15, 2007 inspection, and the date the property was sold to the appellent in June 2009. The appellants state that the two additional Showerheads documented during the 2010 District inspection had to have been installed in 2007 when the District performed an inspection of the property. The appellants further state that the property should not have been non-compliant with District Rules. However, neither the District inspection reports from 1992 and 2007; the Water Release Forms from 2000, 2007, and 2009; nor the Notice and Deed Restrictions Regarding Limitation of Use on a Property that were recorded in 2000 and in 2010 listing all water fixtures on the Site indicate the presence of multiple Showerheads.
The appellants contend that they were not notified that any District requirement might apply to the property when the 2010 Water Permit was issued to add a Bathroom. The appeal contends that because the appellants paid for the water fixtures that were added in the new Bathroom, they were not specifically notified of the need to permit multiple Showerheads in the existing Bathrooms. Therefore, they should be entitled to maintain the double Showerheads, and the property should be found in compliance. However, as stated above, the appellant signed a Deed Restriction that clearly stated that there was only one Showerhead in each Shower or Bathtub. The appellant had the opportunity to address discrepancies in the number and/or type of water fixtures prior to executing the deed restriction document.
The Notice and Deed Restriction Regarding Limitation on Use of Water on a Property was completed 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)”. The appellants unconditionally accepted the terms of the deed restriction. The deed restriction was recorded with the Recorder’s Office on January 21, 2010. Both documents that were executed by the applicants clearly identify that only one Showerhead is permitted in the Shower and in the Bathtub.
Previous Inspections
The District has been involved with this property for various reasons over the past twenty years (Exhibit 17-H). 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:
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. Photographs of the plans prepared for the 2000 bathroom remodel are included as (Exhibit 17-I). Water Permit No. 24754, 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). Incidently, the 2000 deed restriction also lists only one Showerhead per Bathtub and Shower.
At the completion of the August 2007 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 no second Showerheads) was inaccurate. Therefore, the two additional Showerheads were presumably not installed and operational at the time of the inspection.
Remedy
In an attempt to resolve this situation, staff has reviewed the file and has proposed several options that would correct the Water Permit. The appellant has the option of removing the two Showerheads (two fixture units or 0.02 acre-foot annually (AFA) each), or they may obtain a Water Permit. The following options are available:
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.
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.
The Showerheads can be permanently removed. This option requires removal of plumbing and refinishing the tile shower wall. If this option is selected, a re-inspection is required to verify the removal.
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).
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.
RECOMMENDATION: Staff recommends the Board find the Site requires a Water Permit for two Showerheads. This recommendation is consistent with the District’s position in similar situations involving an unpermitted water fixture. Staff has found no evidence to support a finding that the two additional Showerheads were installed and operational on the Site when the District documented water fixtures in 1992 or in 2000, or that the two Showerheads were ever permitted by the District in one of the Site’s Showers and one of the Site’s Bathtubs. Staff therefore recommends the Board deny the appeal and require the appellants to permit the two Showerheads, or remove them.
PROCESS: The consideration of an appeal of a decision of the General Manager, pursuant to District Rule 70, is a quasi-judicial action of the Board of Directors. At the outset, Legal Counsel may provide an overview of the process.
Appellants will be allowed to make a brief opening statement to characterize their case, followed by a statement by District Staff. The Board will then open the public hearing to receive documentary evidence, including the Staff report, party submissions, factual testimony and any rebuttal by the parties. The Board may ask questions of fact.
At the conclusion of evidence, the Board must close the evidentiary phase of the hearing, and allow the parties a reasonable amount of time to provide a summary statement. No rebuttal is allowed. The matter will be opened for public comment, limited to three minutes per speaker. At the conclusion of the public comment period, the Board will close the hearing. No additional questions may be posed to Appellants or to Staff without re-opening the hearing. The Board may, however, seek guidance from Legal Counsel on law or process and can direct Legal Counsel to prepare findings for approval or denial. Findings may be adopted by the Board at a future meeting or if necessary, the matter may be continued.
17-A July 6, 2020 MPWMD Inspection Report
17-B Application for Appeal
17-C Water
Permit No. 30234 (including deed restriction)
17-D 2007 MPWMD Inspection Report
17-E MPWMD Immediate Action Required Letter
17-F Supplemental Appeal Information from
Applicant
17-G MPWMD Rule 20
17-H MPWMD Chronology for 351 Coral, PB
17-I Archictectural Drawings
17-J 2000 Deed Restriction
U:\staff\word\boardpacket\2011\20110418\PubHrngs\17\item17.docx