ITEM:		PUBLIC HEARING
9.	CONSIDER APPEAL OF DECISION TO ISSUE WATER PERMIT #34741 FOR 150 SEA FOAM, MONTEREY, (APN 011-462-039)
Meeting Date:			August 15, 2016	Budgeted:	N/A
From:			David Stoldt,	Program/	N/A
			General Manager	Line Item No.:
Prepared By:			Stephanie Locke	Cost Estimate:	N/A
General Counsel Review: N/A
Committee Recommendation: N/A
CEQA Compliance: N/A

SUMMARY: On July 5, 2016, the District received an Application for Appeal of Water Permit 34741 (issued June 13, 2016 for 150 Sea Foam Avenue, Monterey) from Alan Cleaves, Marc Cusenza and Jayme Fields (Exhibit 9-A). The appellants allege that the District errantly issued Water Permit 34741 (Exhibit 9-B) for construction of a new house in error by applying Water Credits to offset the new Water Use Capacity from the removal of (allegedly) unpermitted water fixtures[1] (four Showerheads and one Utility Sink) from the adjacent house at 149 Spray Avenue, Monterey. The appellants are appealing to the Board to revoke the Water Permit pursuant to Rule 25-C (Exhibit 9-C) and find “the property owner or permit applicant has misrepresented intentionally or negligently any material fact in the Water Permit application or in any supporting documents.”

The appeal documents include written statements from Saundra Randazzo, Trustee for the Robert Bullock Trust (seller of both Parcels), and from Tom Loorz, the California State Certified General Real Estate Appraiser who appraised both properties for the Robert Bullock Trust. Floor plans and a review of the City’s building records at the City of Monterey (Exhibit 9-D) support the statements of these witnesses who claim the water fixtures in question (i.e., four additional Showerheads and a Utility Sink) were not installed at 149 Spray Avenue, Monterey, or installed with proper permits at the time of sale. Finally, the appraisals for both properties (Exhibit 9-E and Exhibit 9-F) were provided to the District by Ms. Randazzo to further support her statement[2]. Exhibit 9-F provides notes in the appraisal citing a lack of water for the site.

If the Board determines that the extra Showerheads and Utility Sink that were removed to establish a Water Credit at 149 Spray Avenue, Monterey, were installed without benefit of a Water Permit, the Water Credit used to offset the Water Use Capacity for the new home at 150 Sea Foam Avenue, Monterey, should be revoked. If revoked, the Water Permit is invalidated. At this time, the City of Monterey has been requested to cease action on processing the building permit pending a decision by the District’s Board of Directors. The hearing was properly noticed by posting on and around the Site for a minimum of ten days, and the property owner was sent notice of the hearing.

District Rule 70, Appeals, Exhibit 9-G, provides a setting whereby a ministerial decision can be reconsidered. The Board may deny, approve or continue any appeal. In applying for an appeal, the appellant must reference the provision of the Rules and Regulations which has been violated. The Board must then determine whether the General Manager (or his designee) made the decision in error.

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 will provide an overview of the process.

RECOMMENDATION: The Board should receive public comment before considering the information provided. In coming to a conclusion on this matter, the Board should provide direction to staff on the preparation of findings either denying or approving the appeal. Staff will prepare draft findings for adoption at the next meeting.

BACKGROUND: On February 27, 2014, following a February 4, 2014 transfer of ownership of 149 Spray Avenue, Monterey, (along with the vacant adjacent lot) staff performed an inspection to verify compliance with District Rule 144, Retrofit Upon Change of Ownership or Use, for water efficiency requirements. A count of the existing water fixtures was included on the inspection report as a standard practice of the District. The property was in compliance with the water efficiency requirements for a Change of Ownership.

On June 19, 2014, the District received a Water Release Form and Water Permit Application from the Dale Hogan Family Trust (buyer) to remove four Showerheads and a Utility Sink (Exhibit 9-H) from 149 Spray Avenue. District Rule 25.5-F-3-a limits Water Use Credits for multiple Showerheads to a maximum of one extra fixture per Separate Stall Shower or Bathtub. Therefore, although the application anticipated a Water Use Credit of eight fixture units for the Showerhead removals, the District granted only four fixture units. Water Permit 33370 documented these credits.

A subsequent Water Permit application was received on June 6, 2016, to retrofit water fixtures at 149 Spray Avenue with all ultra-high efficiency water fixtures to establish an additional Water Use Credit. This application resulting in Water Permit 34723 (Exhibit 9-I) included retrofitting two toilets to Ultra-High Efficiency Toilets, installing an High Efficiency Dishwasher and Clothes Washer, and an Instant-Access Hot Water System. This resulted in an additional four fixture units of credit. A Site inspection was conducted on June 9, 2016, to verify the installation of the high efficiency appliances and removal of fixtures.

An application for a Water Permit for a new Single Family Dwelling was received on June 8, 2016 (Exhibit 9-B). The application states that water for the new Water Use Capacity is based on “credit from 149 Spray.” The application also included an application for sub-metering, as Ordinance No. 170, prohibiting sub-metering of Single Family Dwellings, was not effective until June 14, 2016.

Prior to the issuance of Water Permit 34741, staff verified that Water Use Credits were available at the adjacent property, and confirmed that 149 Spray Avenue and 150 Sea Foam Avenue, Monterey met the criteria of a “Site.” A Site is defined in Rule 11 as “any unit of land which qualifies as a Parcel or lot under the Subdivision Map Act, and shall include all units of land: (1) which are contiguous to any other Parcel, and (2) which have identical owners, and (3) which have an identical present use.” “A valid Water Use Credit may provide the basis for a Water Permit for new, modified, or Intensified Water Use on that Site” (Rule 25.5). Staff determined that ten Water Use Credits were available.

The District issued Water Permit 34741 for a new Single Family Dwelling utilizing sub-metering at 150 Sea Foam Avenue, Monterey, on June 13, 2016. The appeal was submitted in a timely manner on July 5, 2016.

EXHIBITS

9-A Application for Appeal with Attachments

A-1 MPWMD Inspection Report for 149 Spray Avenue

A-2 Water Release Form to Document Removal of 3 Showerheads at 149 Spray Avenue

B Statement from Sandra Randazzo, Trustee for Robert Bullock Trust

C Statement from Tom Loorz, Property Appraiser

D Photographs from the MLS Listing of 149 Spray

9-B Water Permit 34741 Including Water Release Form/Application

9-C District Rule 25, Cancellation, Expiration, Suspension, Abandonment and Revocation of Water Permits

9-D Supplemental Email from Applicant with Building Department Records

9-E Appraisal for 149 Spray Avenue, Monterey

9-F Appraisal for 0 Spray Avenue, Monterey (AKA 150 Sea Foam Avenue)

9-G District Rule 70, Appeals

9-H Water Permit 33370 Including Water Release Form/Application

9-I Water Permit 34723 Including Water Release Form/Application

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[1] District Rule 25.5-F-3 allows a Water Use Credit for permanent removal of water using fixtures provided that the fixture was properly and lawfully installed.

[2] Statement of Saundra Randazzo, Trustee of the Robert Bullock Trust, can be found as “Exhibit B” to the Appeal Application (Exhibit A).