Special MEETING Minutes

BOARD OF DIRECTORS

MONTECITO WATER DISTRICT

583 SAN YSIDRO ROAD, MONTECITO, CALIFORNIA

Monday, May 24, 2010

9:30 A.M.

1. CALL TO ORDER, ROLL CALL, DETERMINATION OF QUORUM

President Morgan called the meeting to order at 9:30 a.m.

Directors Present:

Jan E. Abel, Samuel Frye, W. Douglas Morgan, and Larry Wilson

Directors Absent:

Richard Shaikewitz

Staff Present:

Tom Mosby, General Manager

Chip Wullbrandt, District Counsel

Lois Werner, Recording Secretary

Guests Present:

Patrick Nesbitt, District Customer

Jessica Elliott, Assistant to Mr. Nesbitt

2. PUBLIC FORUM

There were no members of the public present who wished to speak on matters not on the agenda.

3. Appeal Hearing

A. Account Reclassification Appeal by Mr. Pat Nesbitt, 2800 Via Real, Account No. 17-3000-00

Mr. Mosby and Mr. Wullbrandt introduced this item. Director Morgan introduced Mr. Nesbitt who presented his appeal against his reclassification. Mr. Wullbrandt, Mr. Mosby, and Mr. Nesbitt answered Directors’ questions. The hearing was closed at 11:05 a.m.

Following discussion, it was moved by Director Frye, seconded by Director Wilson, and carried unanimously to deny Mr. Nesbitt’s appeal with the following findings:

1. District Ordinance 90 modified the District’s use classifications and definitions based in part upon a determination that an adjustment in classifications would enable the District to “continue to maintain an equitable distribution of the water supply while meeting the health and safety needs of the District.” The Board finds that staff’s reclassification of the Nesbitt property was fully supported by evidence and that staff applied Ordinance 90 uniformly and fairly, without prejudice to Mr. Nesbitt.

2. District Ordinance 90 defines agricultural use as “the exclusive use of at least two contiguous acres of land, under one ownership, to grow crops for human consumption or as floriculture.” Mr. Nesbitt has described his purported agricultural use as an “experimental sod farm” for which he received County approval in 1994. He has explained that the sod is stoloniferous, meaning that it is propagated by extension of stolons rather than by pollination. He also has stated that the sod is ideally suited for athletic facilities because it produces a saltwater-tolerant and impact-resistant turf. The Board finds that the sod described by Mr. Nesbitt is neither a crop for human consumption nor floriculture. The Board has accepted a definition of floriculture provided in Webster’s Third New International Dictionary, which defines floriculture as “the cultivation and management usually on a commercial scale of ornamental and flowering plants.” While Mr. Nesbitt also has claimed that the turf he produces can be used as an “ornamental” grass, the Board rejects this contention based on the definition of “ornamental” as “a decorative object” and, when applied to a plant, “a plant cultivated for its beauty rather than for use.” By Mr. Nesbitt’s own account, the sod is grown for utilitarian purposes. Mr. Nesbitt’s second purported agricultural use – the raising, training, and sale of horses – is specifically excluded from the District’s definition of agricultural use. Therefore the Board finds that Mr. Nesbitt is not engaged in agriculture within the meaning of Ordinance 90.

3. District Ordinance 90 defines agricultural use as “the exclusive use of at least two contiguous acres of land, under one ownership, to grow crops for human consumption or as floriculture.” Mr. Nesbitt has provided evidence that the entirety of his property is under the ownership of Carpinteria Valley Farms Ltd. He has represented that he is growing sod on his property in an area greater than two contiguous acres. He also has represented to the County of Santa Barbara that his “so-called ‘Experimental Sod Farm’ is and always has been a dual use facility.” The second use of this area is for his recreational polo enjoyment, pursuant to a Conditional Use Permit and Coastal Development Permit issued by the County of Santa Barbara. The Board finds that no single area of the Nesbitt property measuring at least two acres is used exclusively for any agricultural pursuit, and particularly not for any agricultural use qualifying under the District’s definition.

4. District Ordinance 90 provides that the agricultural use classification is available only to properties “for which the customer has provided satisfactory evidence as may be required by the District from time to time to confirm that the property is used principally and predominantly for the cultivation and harvest of crops suitable for human consumption or for use as floriculture.” Mr. Nesbitt has provided an itemized description of the uses on his property included in the Negative Declaration associated with his 2008 applications to the County, which include the following:

Single family dwelling and basement 19,579 sf

Guest house 941 sf

Pool house 904 sf

Attached garage 1,119 sf

Barn and office building 10,911 sf

Two ag employee dwellings 2,578 sf

Driveways and motor courts 52,348 sf

Site and retaining walls

Swimming pool and spa

Waterfall

Putting Green

Fountains

Polo Field (non-regulation)

New ag storage facility 4,410 sf

Mr. Nesbitt has represented that the polo field, used simultaneously as an experimental sod farm, is less than ten acres of the 19.78 acre property, and the “sod production” appears to be at most incidental to its use for recreational polo matches and the raising and training of horses. While he has represented that he engages in the “harvest” and sale of his sod, he has provided no evidence of ongoing commercial activity. The Board accepts the definitions provided in Webster’s Third New International Dictionary, which defines the adjective “principal” to include “most important, consequential, or influential; relegating comparable matters, items or individuals to secondary rank.” This dictionary defines the adjective “predominant” means holding an ascendancy, having superior strength, influence, authority or position; with synonyms including “controlling,” “dominating,” and “prevailing.” Accepting these definitions, the Board finds that a “principal” or “predominant” use consists of more than a slight quantitative difference. The terms “principally” and “predominantly” describe a use that is superior or primary in a way that makes something else clearly secondary or lesser and they include consideration of other factors, such as intensity and frequency of use. Accordingly, the Board finds that Mr. Nesbitt’s use of his property is principally and predominantly as a residential estate, with any purported agricultural activities clearly secondary to the principal and predominant residential use.

5. District Ordinance 90 specifically excludes from the agricultural use classification “the cultivation of any other crops, ornamental plants grown in containers for onsite retail sale, livestock grazing, polo fields, and the breeding, raising, training or stabling of horses.” District Ordinance 90 also provides that uses “customarily incidental and accessory to single family residential use, such as a guest house, cabana, private recreational facilities, livestock grazing, polo fields, and the breeding, raising, training or stabling of horses” are within the single family residential use classification. Mr. Nesbitt’s property is used residentially, with over 20,000 square feet of structures related to single-family use. In addition, Mr. Nesbitt claims that he stables, breeds and raises horses on his property and he has a Conditional Use Permit from the County to conduct private recreational polo matches. The Board finds that these particular uses make the single-family residential use classification applicable and they exclude the property from the agricultural use classification.

6 District Ordinance 90 provides that any properties failing to meet “all requirements of [section 3.2.2 Agricultural Use] at any time following adoption of this Ordinance will be classified or reclassified based on their primary non-agricultural use.” The Board finds that because the Nesbitt property is not used for the production of crops for human consumption or floriculture, is not used principally and predominantly for such agriculture, and does not commit two contiguous acres exclusively to a qualifying agricultural use, the property does not meet all requirements for classification as Agricultural Use. The Board finds that the primary non-agricultural use of the Nesbitt property is single family residential, with incidental additional uses that are within the Single Family Residential classification. Therefore the Board finds that staff correctly reclassified the Nesbitt property.

7. Mr. Nesbitt has challenged the validity of Ordinance 90 on the ground that the agricultural use classification is arbitrary and inconsistent with the County of Santa Barbara’s definition for zoning purposes and that he did not receive proper notice of the pending ordinance. The Board finds that Ordinance 90 was properly noticed to the public, including but not limited to Mr. Nesbitt, and that it was properly adopted and remains valid. The Board finds that the opportunity to challenge the validity of Ordinance 90 expired with any applicable appeals period and Mr. Nesbitt’s challenge is not timely. The Board finds that the District is authorized by law to adopt classifications and use definitions in order to meet its responsibilities for managing its available water supply and ensuring delivery of water to its customers. The Board finds that the use classifications included in Ordinance 90 were adopted after careful evaluation and consideration and they were not arbitrary. The Board finds that the County’s definition of agriculture, adopted for zoning purposes, serves a purpose different from the District’s and therefore the two need not be identical.

8. Mr. Nesbitt asserts that his property should not be subject to Ordinance 90 because he did not have an opportunity to protest the changes in the District’s definition of Agricultural Use in Ordinance 90. The Board finds that on September 26, 2008, subsequent to the adoption of Ordinance 90, Mr. Nesbitt sought and accepted from the District a Certificate of Water Service Availability associated with the three applications then pending before the county (08DVP-00000-00009, 08CUP-00000-00016, and 08CDP-00000-00137), which included all of the development itemized in Finding #4. In issuing the CWSA, the District made its provision of water to the Nesbitt property subject to all District requirements, including but not limited to Ordinance 90. The Board finds that Mr. Nesbitt certainly was aware of Ordinance 90 in September 2008 if not before, and he accepted water service subject to the requirements of Ordinance 90.

9. Mr. Nesbitt has asserted that the District is prohibited by a Writ of Mandate issued by the Superior Court on March 14, 2003 from “arbitrarily discriminating” against his property in the application of water rates. The Board has reviewed the 2003 decision and finds that the court did not prohibit the District from ever reclassifying Mr. Nesbitt’s property or changing his water rate in accordance with a reclassification. Rather, it ordered the District to set aside a specific decision it had made on February 19, 2002 to apply a “recreational equivalent” water billing rate instead of an agricultural water billing rate to the Nesbitt property, and it required the District to reimburse Mr. Nesbitt for the amount he had paid since February 19, 2002 in excess of the agricultural water rate. In its order, the court specifically added, “[N]othing in this Writ shall limit or control the discretion legally vested in [the District].” The Board finds that the court’s order clearly provided that the District was free to take any and all future actions within its legal discretion, including those that may impact the Nesbitt property. The Board finds that the District appropriately has exercised its discretion in adopting new classifications that demonstrate fundamental fairness in the classification of properties by the similarity of their primary uses, and the District has applied these classifications to all properties in the District.

10. Mr. Nesbitt has asserted that the reclassification of his property is a violation of an agreement between the District and Edgewood Ranch Associates, LTD dated May 10, 1980. Specifically, Mr. Nesbitt claims that the Edgewood property owners gave up all of their groundwater rights in exchange for receiving water at agricultural rates on a continuing basis. The Board has reviewed the Edgewood agreement as well as related documentation of changes that have occurred since 1980, including but not limited to the removal of most of the citrus groves from the Edgewood area and the owners’ voluntary relinquishment in 1993 of the single District agricultural meter serving the area. The Board finds that the only continuing right that Mr. Nesbitt has under the Edgewood Agreement is the right to receive domestic water through a District meter installed for that purpose.

4. ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 11:08 a.m.

Approved:

_____________________________

W. Douglas Morgan, President

Attest:

__________________________________

Tom Mosby, Secretary