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$5,000 fee discourages appeal of C.V. project

By CHRIS COUNTS  The Carmel Pine Cone
Published: March 18, 2011

WHEN THE Monterey County Planning Commission reversed course March 9 and voted 5-3 to eliminate the requirement of a graywater and cistern system for a Carmel Valley assisted living complex, an appeal of the decision to the board of supervisors seemed likely.

But a week later, Carmel Valley Association President Christine Williams said her group is still wavering over appealing the decision — in large part because of the county’s $5,000 fee for appealing projects located outside of the coastal zone.

“It’s shutting out a lot of people,” said Williams, when asked about the effect of the appeal fee. “There’s only so much money people feel like donating to civic causes.”

County planning director Mike Novo said the fee was implemented to pay for the staff time involved in handling appeals. Yet despite the fact that the fee is one of the highest in the state, Novo said it still doesn’t cover all the costs associated with appeals, which he said average about $7,000 each.

According to Novo, the fee has been charged since at least 2004, although he said he has only recently received complaints about it. He added that about half the appeals his staff deal with lie outside the coastal zone and require that the fee be paid. Appeals along the coast are subject to rules laid down by the California Coastal Commission, which requires that they be free.

The assisted living project, called Cottages of Carmel, includes 78 units on a 4.5-acre parcel at Carmel Valley Road and Val Verde Drive. According to attorney Tony Lombardo, who represents developer Don Houpt, the project is 75 percent complete.

Lombardo insisted at the hearing that Houpt was told by representatives of the Monterey Peninsula Water Management District that he wasn’t required to install the graywater system. And now, according to Lombardo, it’s too late to make him put it in.

“The foundation slabs have been poured, all of the plumbing has been installed, and the walls have been built,” Lombardo reported. If Houpt was forced to go back and install the system, “it would undoubtedly result in his financial ruin,” the attorney predicted.

“Mr. Houpt has signed for a loan of $22 million and $17 million has been spent,” Lombardo continued. “His entire financial situation is at risk because of something he didn’t know he did wrong.”

Lombardo also noted that it was he and the former owner of the property, the Gamboa family, who came up with the idea of installing the graywater system. He insisted the project’s conditions “do not rely on” the system to enforce the project’s limited annual allocation of 4.8 acre-feet of water. If the senior complex is projected to exceed its allocation of water, other “safeguards” would be implemented, such as closing its laundry facility and sending its laundry outside the Carmel River watershed.

Lombardo characterized Houpt as an innocent and somewhat naive victim of a misunderstanding. Commissioner Jay Brown agreed with the attorney’s assessment.

“This points to a hole in the system,” Brown said “I don’t want to break this guy’s back over a misunderstanding.”

But planning commissioner Keith Vandevere questioned how naive the developer really is. “Personally, I don’t find it credible to believe that someone who is building a $22 million project doesn’t know that the conditions mean what they say,” Vandevere said. “I find it even more difficult to believe that it was an innocent mistake when other conditions [regarding trees] were completely ignored.”

Williams, meanwhile, pointed out to The Pine Cone that Houpt’s biography claims he holds a doctorate degree in real estate law.

Before voting on the issue, commissioner Martha Diehl warned her colleagues that a decision to eliminate the requirement of the graywater system could come back to haunt them. “If someone decides that they are not going to abide by some conditions of approval of their project — and they don’t for whatever reason — it’s OK with us, and we will not red tag them,” said Diehl, who predicted the decision would “have some major repercussions in other legal situations that face the county.”

After Vandevere and others sounded off on the graywater issue, the commission voted on a confusing series of motions that ultimately ended in a deadlock. But a motion by Brown to eliminate the graywater system condition passed 5-3 when commissioner Cosme Padilla changed his vote.

Despite the cost of appealing the decision to the board of supervisors, Williams is holding out hope the money can be raised. “If everybody in the valley sends us a dollar, we will appeal,” she added.

The project, which dates back to at least 1993, encountered opposition in 2003 over its plan to use graywater for landscaping. It was finally approved by the Monterey County Board of Supervisors in 2004.

In 2006, the property’s owner, Elvira Gamboa, sold it for $2.1 million to a group of local investors that was later bought out by Houpt.