Last week, the members of the Local Agency Formation Commissioners (LAFCO) seemed to borrow a page from the playbook of the County Board of Supervisors—citing the threat of a lawsuit to deny Carmel Valley residents a vote on incorporation.

Five of the seven commissioners (including County Supervisors Lou Calcagno and Jerry Smith, who also sit on the LAFCO board) voted on Wednesday, Oct. 18, to require an Environmental Impact Report before a vote can go forward.

In doing so, they reversed a unanimous decision they made last December, which said such a report would be unnecessary. They also ignored an independent experts’ report, which said the same thing. And they also ignored their own executive officer’s recommendation.

Commissioners did, however, heed a letter from attorney Tony Lombardo, which said “an environmental impact report on the proposal to incorporate Carmel Valley must be prepared.” Lombardo represents numerous property owners in and near the mouth of Carmel Valley. While his letter contained no threat to sue, Lombardo warned in a previous letter, dated May 22, that allowing an incorporation vote would “likely violate state law.”

Shortly after receiving that letter, LAFCO officials asked incorporation proponents for an indemnification agreement—intended to protect LAFCO, the county and cities against potential legal challenges—plus a $500,000 deposit as a guarantee. The request for the $500,000 was later withdrawn.

Kate McKenna, LAFCO’s executive officer, said then: “We have received several statements regarding potential litigation from different sources.”

In addition to footing the bill for the EIR, proponents will also have to pay for a fiscal analysis, a service plan update and some LAFCO staff and legal costs. These new costs will total around $365,000, in addition to the $150,000 proponents have spent to date.

Instead of voting on the issue next June, Carmel Valley residents aren’t likely to see the proposal on the ballot for another three and a half years.

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On Monday, Oct. 23, LAFCO commissioners heard testimony from incorporation proponents demanding that they reconsider last week’s decision and allow the proposal to go to a public vote. Instead, commissioners railed against the opinion that they are trying to kill the residents’ right to vote.

Commissioner Ralph Rubio, who is also mayor of Seaside, said he didn’t believe the studies to date, including the fiscal analysis that said Carmel Valley would be financially feasible as a town.

“I believe the financial data is wrong,” he said. “Sure, they’re experts, and they can be wrong.”

Commissioners directed staff to produce a plan to move forward quickly with the EIR and other new reports. But they didn’t convince many that their intentions were pure.

“We’ve tried to play by the rules. We’ve done it for six years. Now, they want us to start from scratch,” said incorporation proponent Mike McMillan. “It’s going to be long and expensive.”

Incorporation proponents say they haven’t ruled out filing a lawsuit against LAFCO.

In 2005, attorney Michael Stamp, on behalf of the pro-incorporation group Carmel Valley Forum, sent letters to LAFCO arguing that the incorporation is “categorically exempt” from laws requiring an EIR because it is not a project that will have an environmental impact.

Experts from PMC, an independent land-use consulting firm hired by LAFCO, agreed that leaving the jurisdiction of Monterey County to form a separate town is not a development project.

“It’s a paper transaction,” says incorporation proponent John Dalessio. “There is nothing to analyze. Once the town gets started, the first thing it has to do is a General Plan, and that requires an EIR. That is the logical time for it.”

At the Oct. 23 meeting, Commissioner Anne McGown, a Carmel Valley-based environmental attorney, cited the California Environmental Quality Act, which sets the rules for EIRs. “As a seasoned CEQA lawyer, I do not recall any evidence that would require a full EIR,” she told her fellow commissioners.

Ultimately, the majority of the panel paid more attention to Lombardo, who usually argues against requiring EIRs.

“My vote didn’t come as a vote against incorporation,” Calcagno said. “My vote said we need an environmental document. You can say we stopped the election. If we would have had a lawsuit, you wouldn’t have had an election anyway.”

To many meeting attendees, the outcome looked familiar.

“They are four for four now,” said Dalessio, referring to three decisions by County Supervisors that had the effect of preventing public votes—on Rancho San Juan, Butterfly Village and the General Plan Initiative.

“And now, the latest one is Carmel Valley,” Dalessio said.