It was all good cheer and glad tidings when the Board of Supervisors held its last meeting of the year on Dec. 8. Certificates of appreciation were handed out to retiring county employees, outgoing District 3 Supervisor Tom Perkins was lauded with heartfelt thanks and appreciation for his years of service, and District 5 Supervisor Dave Potter was praised for his leadership prior to relinquishing chairmanship of the board to District 2 Supervisor Judy Pennycook.
For longtime observers, that meeting stood in stark contrast to the board''s Dec. 1 meeting, when a 3-2 majority approved the controversial September Ranch development project despite the pleas of supervisors Pennycook and Potter for a one-week extension to further review the project.
Critics both within and outside the county approval process charge that the September Ranch vote, along with many other favorable votes on development projects in years past, was symptomatic of the board''s failure to make development decisions based on broad policy guidelines or adherence to county and local general plans.
"I don''t understand the rush to closure, given the potential long-range ramifications of the project," comments Potter. "This is not serving the public well when we are in the preliminary phases of rationing and have got 107,000 water users that could be directly impacted, yet we''re going to allow 100 [new] homes. There is no policy basis for this decision."
One planning commissioner suggests county supervisors'' apparent propensity to ignore the recommendation of the Planning Commission may have to do with the Board of Supervisors'' broader mandate when considering development proposals.
"Our purview is to only look at a project from a land use perspective," explains a commissioner, speaking off the record. "Beyond that there are political issues and policy decisions to be made. The board looks at land use as a component of economics and whatever else is on the table at the time, and in some cases, politics is played, like Chualar II, which was Perkins'' baby."
Some critics of the approval process say political in-fighting between supervisors, a seeming unwillingness to follow the recommendations of the county Planning Commission, and the willingness of county staff members to pander to the desires of influential development interests at the expense of the community-at-large, have in fact become the basis for most development decisions in the county.
Within the context of the September Ranch vote, which would allow developer Jim Morgens to construct 94 upscale homes and 15 inclusionary units on the 900-acre parcel in Carmel Valley, critics also charge that the quick vote and denial of an extension for further review represented a "political payback" against Potter and Pennycook for voting against the Chualar II project, which was approved by the same 3-2 majority last year.
In addition, there is speculation the board majority rushed a vote through to avoid having a decision carried over to the following term, when incoming District 3 Supervisor Lou Calcagno, who is on record as opposing the kind of water transfers approved for September Ranch, could have been the swing vote against the project.
Although supervisors Perkins and Edith Johnsen could not be reached for comment, Supervisor Salinas contends the vote was based strictly on the merits of the project itself, and that all the information necessary for an informed decision was before the supervisors.
"I think we had enough documentation, and from my perspective it always happens with major projects that folks want extra time," explains Salinas. "There was no new information to justify waiting a week and frankly, the majority of the board has to speak at some time.
"For me, the developer had done a good job being sensitive to the views from Carmel Valley Road so everything was tucked away, and the overall low-density of development was cut more than half," adds Salinas. "I was convinced they had water, and taking a water offset from lots that were already zoned residential was a way to mitigate impacts."
Whatever his rationale, in comments made by Salinas at the board meeting on Dec. 1, Salinas did make veiled reference to Chualar II and the failure on the part of some supervisors to support low-income housing in the Salinas Valley, implying that if low-income housing wasn''t going to be approved for South County, the Peninsula could very well pick up the slack.
Another issue raised by critics concerned about the politicization of the approval process is the role county counsel Doug Holland plays in advising the county on approving projects. Critics contend that in a Nov. 25 memo sent to the Board of Supervisors, Holland crosses the line from being a voice of impartiality to being an advocate for the September Ranch developer.
In the memorandum, Holland laid out an argument which in effect said the Board of Supervisors was legally compelled to approve the project, without laying out arguments by which the board could also consider denying the project.
In arguing against the Planning Commission''s decision in favor of a reduced project for September Ranch using on-site water only, Holland contended the Board of Supervisors could only approve an alternative that was "economically feasible." Holland nevertheless then admitted that the developer did not "substantiate or validate" the economic loss resulting from a scaled-back project.
In the same memo, Holland also argued in favor of the developer''s contention that a judicial ruling certified the right to water for the project, stating, "There exists a judicial decree which arguably [emphasis added] confirms the existence of riparian rights." This despite assertions by Monterey Peninsula Water Management (MPWMD) General Manager Darby Fuerst that September Ranch developers may not have clearly established their water right, nor the historic water use level they claim.
"What has emerged lately is a peculiar developer-inspired notion, alarmingly repeated by some of our own supervisors, that because someone has been trying to get a project approved for a long time, and has ''jumped through all the hoops'', somehow they deserve approval for that project regardless of the project''s consequences," says Gillian Taylor, conservation chair of the Ventana Chapter of the Sierra Club.
"But in fact, the reason for the ''hoops'' and hearings is to enable the county and the public to determine the impacts of the project. Whether a project is ''less dense'' than allowed by zoning is not relevent if the project impacts are not mitigated--period."
In October, the county Planning Commission rejected the original proposal for September Ranch, voting instead for a reduced project that would rely on on-site water. As far as Planning Commissioner Maryn Pitt-Derdivanis and a majority of the commission are concerned, questions remain not only regarding September Ranch''s riparian water rights, but over the long-term impacts of water transfers on future land use planning.
"I''m opposed to water transfers because they''re growth-inducing, and if in fact we want to grow smartly and in a controlled manner, we shouldn''t let people buy water and move wherever they want to," says Pitt-Derdivanis, who like Taylor, also takes issue with the argument that because a project comes in at a lower density than allowed, it necessarily deserves special consideration from the county.
"Developers come in with applications saying they could have built 1,000 homes but are only asking for 300, but our planning density needs to be driven by resources like water and traffic," says Pitt-Derdivanis. "If you don''t have the ability to sustain development by available resources, then you shouldn''t do it. It''s not a bargain even if it is half the density."
Despite the certainty with which a majority of the Board of Supervisors voted in favor of September Ranch, water availability and the precedent-setting impact of allowing water transfers from non-contiguous parcels remain concerns for local officials.
And, by seeming to dismiss the concerns expressed by the MPWMD and Cal-Am over the validity of September Ranch''s water right and the project''s impact relative to the State Water Resources Control Board''s mandate to back on water use from the Carmel River, supervisors may have made the developer vulnerable to a lawsuit specifically on the water issue.
"I reviewed the [water rights] documents extensively, and I don''t find the applicant''s arguments [regarding their water rights] persuasive," says land use attorney Mark Blum, who spoke in opposition to the project before the Board of Supervisors on behalf of the residents of Del Mesa Carmel.
"Those rights are subordinate to Cal-Am''s, and our position is since Cal-Am is under pumping restrictions and can''t take more water, how can a subordinate right holder increase pumping," adds Blum, who indicated that Del Mesa''s board of directors has not ruled out the possibility of a lawsuit.
While insisting they don''t oppose the September Ranch project, per se, Cal-Am General Manager Judy Almond says the project remains of utmost concern to Cal-Am officials.
"Obviously we''re sympathetic to anyone who needs water, but the potential for intensified use relative to the state order is of major concern," says Almond. "I''m not comfortable commenting on legal recourse, but there is very much concern over its potential for intensified usage.
"The state board was very clear when they reduced us to 11,200 acre-feet of water there was the potential for further restrictions if we don''t have a new project to augment the water supply," adds Almond. "Until we have a dam project on line we are in the position of having grave concerns where the water supply comes from."
The next major hurdle September Ranch faces before it can begin construction is winning approval from the MPWMD for a water system distribution permit, a permit contingent upon "clear proof for any claimed water rights," according to Fuerst in a letter to Planning Commissioner Miguel Errea. "That determination rests with the court system, not with the SWRCB or the MPWMD."
"Where we stand now is September Ranch must submit an application to us to create a water distribution system and go through our environmental review," explains Fuerst. "We will rely on the EIR prepared for the county and then go to our board to decide whether a new system should be created. The key question is whether they have a valid right. They''ve made the argument to the county they have a riparian right as a basis for water distribution.
"The determination our board will make is whether this is not creating or increasing an overdraft of the basin, and not harming existing water users or the environment," adds Fuerst. "That''s a new policy for our board to look at. I don''t know for sure if they do have the right, but it''s been our position the riparian right must be determined by court. Neither this district or the [SWRCB] is competent to make that determination. I wouldn''t say they don''t have a riparian right."
Fuerst''s openness to the water right issue stands in contrast to earlier comments he made to Coast Weekly back when the Planning Commission was considering the project in October. At that time, Fuerst insisted that September Ranch had not proved their riparian rights, and that there was no reported water usage to the water district prior to 1992.
"In the last reporting year , they used just over 20 acre-feet of water for pasture, and that was the basis for what was recommended for the environmentally superior project," said Fuerst.
According to MPWMD attorney David Laredo, September Ranch has yet to file for its permit from the water district. Without characterizing the validity of their claims, Laredo concedes the debate over those rights will be hot and heavy.
"Based on anecdotal information, and without viewing the actual documents, there is no doubt the questions and issues are intense on this project," says Laredo. "We''ve been asked to develop answers to those questions." cw