Down The Drain
Monterey County comes under attack--again--over planning practices.
Thursday, June 17, 1999
The Monterey County Board of Supervisors and Planning Department are being taken to court again. And, again, they are being taken to task for questionable planning and permitting processes.
The suit, which will be heard on Thursday, June 17 in Superior Court by Judge Richard Silver, was filed by attorneys Michael Stamp and Fran Farina on behalf of the environmental group Save Our Carmel River (SOCR).
The suit charges the county with violating state environmental law and its own permitting process by failing to enforce the conditions of approval when it first issued subdivision and water pumping permits for what is known as the Mills College or "Berube" property located at Schulte and Carmel Valley roads.
When the county first approved the 26-acre subdivision in 1995, its decision, claims the lawsuit, was contingent on the property owners reducing total water consumption to just under 20 acre-feet of water. In addition, the owners had to demonstrate a legal right to the water they wanted to pump.
The SOCR lawsuit charges, however, that by early 1999, the county "signed off" on both the required water reduction and proof of an established legal water right. Based on those changes, says SOCR, the county failed to conduct the mandated additional environmental review.
"There were conditions placed on [subdivision] approval regarding proof of water rights," says Farina. "How did the county issue a permit when there was no viable water right? The second issue is what quantity of water can be extracted. What we were told is there was no restriction because it was based on a riparian right. However in 1911, then-owner Roy Martin gave away all the riparian rights to the predecessor of Cal-Am [Monterey County Water Works]. This is something the applicant and his attorney Tony Lombardo knew about. The county also should have known, but it cleared the conditions on the water right restriction and proceeded to issue well permits."
Farina argues that even though an application for an appropriative water right for 41 acre-feet for the property has been filed with the State Water Resources Control Board (SWRCB), the county must abide by the original project conditions.
"This is an issue that has to do with county process whereby approvals are made and conditions issued, and then either ignored, not followed, or modified in violation of CEQA," says Farina. "Just because physically a property is riparian doesn''t mean it has a water right."
A final decision by the SWRCB on all appropriative rights for water from the Carmel River is not expected for at least a year or two pending final study of Cal-Am''s dam proposal and other water rights issues regarding the Carmel River.
What makes the SOCR lawsuit particularly significant--beyond the questions it raises regarding county land use policies and procedures--is its implications for the proposed September Ranch development project.
Developer Jim Morgens is proposing to take a claimed water right of 16 acre-feet from a parcel he owns that is part of the Mills subdivision, and using that water as an "offset" for pumping water at September Ranch. The Mills property is located approximately two miles east of September Ranch, and has been subdivided into four separate homesites, a 2-acre parcel for the All Saints School, and a remainder 10-acre parcel belonging to Morgens.
If Judge Silver rules that the Mills property is limited to a total of approximately 19 acre-feet of water, his decision could undercut Morgens'' ability to secure the 16 acre-feet he needs to establish a legal water right for September Ranch. Questions over the legality of that project''s water rights, as well as county procedural issues, are at the heart of two lawsuits against September Ranch to be heard by Judge Silver beginning July 1.
For SOCR member Pat Bernardi, who also served on the board of the Monterey Peninsula Water Management District, the Mills case is inextricably bound to the September Ranch project.
"When the Board of Supervisors [approved the September Ranch project] on Dec. 1 and accepted the offset, they ignored the fact that the Mills subdivision had been approved with a maximum of 19.91 acre-feet of water," notes Bernardi, who says that would only leave approximately 3 acre-feet of water for the rest of the Mills subdivision.
"This [case] is important to September Ranch," agrees Farina. "How much water they have access to from this offset parcel is a critical issue."