Time Permitting

Residents of the community of Las Lomas told Coastal Commissioners in 2017 they are located far from county facilities and think a new housing project might fill that need.

Emotions ran high at a California Coastal Commission hearing on November 8, 2017, as about 60 residents of the Las Lomas community of North Monterey County implored commissioners to approve the 54-unit Rancho Los Robles housing development. They wore white T-shirts that read, “Las Lomas Residents United for a Better Community.” Some took the day off of work to speak, and were bused 162 miles by developer Heritage/Western Communities, after the company promised the project would include a soccer field and a library – things Las Lomas is lacking.

Environmentalists who made the same trip were adamant that the groundwater basin was overdrafted, as a Coastal Commission staff report laid out. Attorney Molly Erickson, representing Friends, Artists and Neighbors of Elkhorn Slough (FANS), reminded commissioners that earlier that year they had voted down other smaller developments in the area based on that premise. Developers disagreed with a staff geologist and testified water recycling would make their project “water positive.”

Commission staff recommended denial, but with little discussion or explanation, the commissioners voted 7-5 in favor of Rancho Los Robles. “It doesn’t make any sense that they would suddenly reverse and make this decision, which seems to be coming from an emotional place,” FANS co-chair Mari Kloeppel said after the vote.

FANS, along with nonprofit LandWatch, sued Heritage/Western on Dec. 28, 2017. It’s two years later, and the lawsuit is still ongoing – and the developer’s two-year building permit from the Coastal Commission was on track to expire this month.

While FANS’ substantive claims, partly about the question of whether there is enough water, are still ongoing in Monterey County Superior Court, on Oct. 22 Judge Lydia Villarreal issued a ruling that resolves the question of timing. She ruled in favor of stopping the clock as of the date the lawsuit was filed, meaning once the lawsuit is completed, Heritage/Western will have 23 months to build.

It’s a victory for the developer: “You might get a one-year extension if the politics are still the same, but that means anybody who has enough resources to sue you can defeat your permit procedurally even if they cannot do it on substance,” says Mark Blum, an attorney for Heritage/Western.

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Next on the schedule is a Dec. 6 hearing, when the focus turns to FANS’ demand that the judge overturn the commission’s 2017 vote. A brief filed by FANS’ attorneys outline how they believe that not only was that vote wrong, a decision in 2018 to accept findings after the fact – changing the original staff report to say there will be no negative impact on the groundwater basin – is also incorrect.

In the brief, FANS’ attorneys argue that a condition that Heritage/Western prepare a water use audit prior to issuance of the last 40 percent of the residential building permit is a strong indication that there “is no identifiable, available, long-term water supply because if that were the case, there would be no need” for the audit. “It certainly highlights no one is sure. And once the project is built, it is too late to do anything about the lack of water,” the brief states.

Editor's note: This story has been updated to reflect the following clarification. In addition to FANS, LandWatch is also a plaintiff in this case. 

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