SATURDAY, MARCH 21, 2009
A. CALL TO ORDER/ROLL CALL
President Boucke called the Regular meeting of the Board of Directors of the Stinson Beach
County Water District to order on Saturday, March 21, 2009 at 9:37 a.m., at the District Office
located at 3785 Shoreline Highway in Stinson Beach, California.
Barbara Boucke, President
Lawrence Baskin, Vice President
Scott Tye, Director
Jim Zell, Director
Elizabeth Sapanai, Director
District Legal Counsel Present:
General Manager present:
District Engineer, Rich Souza
District WW Inspector, Chris Kelley
B. PUBLIC EXPRESSION
Rich Souza gave the Board an update on Assembly Bill AB885.
C. SETTING OF AGENDA
Director Zell made the motion to adopt the Agenda as presented. Director Tye seconded the
motion. The motion was approved by unanimous vote.
D. PUBLIC HEARING
Consideration of appeal of Revocation of Discharge Permit by
Tim Peterson, 12 Marine Way.
The General Manager reviewed the Revocation background for the Board. He stated that this
has been an ongoing matter for over a year. The end result is that the system was found in
violation of the Stinson Beach County Water District Ordinance # 2007-01. Specifically, failure
to demonstrate that all of the existing septic system components meet the requirements set
forth in Title IV of the SBCWD Onsite Wastewater Management Code, as required by section
4.01.410 (Alterations and additions amounting to new construction). The General Manager
suggested that the Board listen to the appeal of Mr. Peterson, appellant/owner, and then open
the hearing for public comment.
Director Baskin disclosed that Tim Peterson was a former client of his from a few years ago,
regarding an unrelated matter. Director Baskin stated that he did not believe it would present
any conflict of interest with regard to this public hearing. Director Baskin asked if the appellant
had any objection to him sitting on the Board and participating in the hearing process. Mr.
Peterson stated he had no problem with Director Baskin remaining as part of the Board.
Riley Hurd introduced himself as legal counsel, representing Tim Peterson. He stated there
were three specific categories he wanted to review and present to the Board. First, the work
at the garage does not constitute new construction as defined in the SBCWD Code. Secondly,
there are legal issues with the way in which this matter was handled. Third, there is not an
additional load being put on the septic system with what has taken place.
Mr. Hurd reviewed the history of events. Mr. Hurd stated that Mr. Peterson purchased the
property in 2006. In January 2007, Mr. Peterson applied for a Permit through the County to
upgrade the foundation and the roof of the existing garage. During that process, concerns
were raised by unknown parties regarding the nature of work to the existing garage. In
September 2007 the County recommended to Mr. Peterson that he resubmit plans to create a
workshop. These plans were sent to the District, signed off by the District and Mr. Peterson
was charged $240.00. Mr. Hurd stated that after Mr. Peterson submitted the plans to the
District he heard nothing in return and Mr. Peterson then proceeded to build the structure. Mr.
Hurd stated the structure is built precisely to the County and District approved plans. In 2008 a
neighbor wrote a letter expressing concern and suggested that the structure would be used as
a second unit. Mr. Hurd stated that Mr. Peterson has no intention of ever using this as a
second unit. "This structure, workshop, has no plumbing, no heating, and no air conditioning.
None of these things trigger the Water District's definition of conditioned space". Mr. Hurd
stated after the letter of complaint was received, the District wrote a letter stating the structure
is new construction and conditioned space. Mr. Hurd stated that Mr. Peterson attended a
Waste Water Committee meeting to discuss this issue and a very interesting solution was
proposed. The Committee recommended that Mr. Peterson drill holes in the wall so the
Committee could see if there was insulation in the wall. The inspection did not happen.
Mr. Hurd stated that a citation was issued and recorded against Mr. Peterson's property
without due process rights. For the record, "this was a very strong violation of Mr. Peterson's
due process rights". Mr. Peterson contacted Mr. Hurd and the District was sent a letter by Mr.
Hurd. At that time the District unrecorded Mr. Peterson's Discharge Permit. In January 2009,
the abatement process was suspended and the Discharge permit was reissued.
Mr. Hurd stated the next letter received by Mr. Peterson from the District said that the structure
is not conditioned space but habitable space. Mr. Hurd stated that this project was built
precisely according to the plan submitted. Mr. Hurd stated no one will be living there and it is
not going to be rented. Finally, each year Mr. Peterson submits to a diagnostic testing of his
septic system, which has never failed to this date. Mr. Hurd asked for questions and
comments from the Board.
President Boucke asked if any of the Directors had questions for Mr. Hurd. Director Baskin
stated he was concerned by the claims made in Exhibit A, a garage foundation repair, then in
Exhibit B the plan changed to convert the garage to a workshop. Director Baskin stated that
the plans show bikes, beach equipment, boats, kayaks, windows, and workbench. Mr.
Peterson explained to Director Baskin that this space is a place for his kids to do artwork, his
wife to make jewelry, and a space kids can circulate in and out from the patio.
Mr. Peterson explained that the existing garage was an eyesore and dangerous. "When we
tried to improve the structure, more upgrades were necessary". Mr. Peterson stated that he
spoke to Debra Poiani, Senior Code Enforcement Specialist, Marin County Community
Development Agency, regarding the neighbors concern about the garage becoming a second
unit. Mr. Peterson asked what he could do to resolve the issue.
Director Baskin stated that the plan does not reflect what the structure looks like today. Mr.
Hurd stated that structurally everything was built according to the plan submitted, but finished
in a way that some people would not associate with a garage.
President Boucke asked if the Board had any additional questions for Mr. Hurd or Mr.
President Boucke then introduced members of the audience who came into the meeting at
Mr. Moritz stated that he lives across the street from Mr. Peterson and he was the one who
filed the complaint at the County. He stated his first letter was written in August 2006. He
stated that the building in the best case, could be a family room, bedroom, addition to the
house. The worst case it could be an apartment. Mr. Moritz stated his concerns, the location
of the leach field, protection of the creek and parking. Mr. Moritz stated that this is new
construction and until it came to the attention of the Water District it was being used as a
separate unit. Mr. Moritz stated his issue was to bring attention to the regulatory agencies, the
Water District and the County so he will not have an apartment building across the street. Mr.
Moritz stated that he didn't care what was done out there, but he didn't want it turned into an
apartment. He stated that he had no concerns about it being a bedroom, just being turned into
Mr. Hurd stated, this is not going to be a second unit, the parking is permitted, there has been
no change to the footprint of the garage, and no grade change. Mr. Hurd stated some of the
issues Mr. Moritz brought up, are issues not before this Board. Mr. Hurd asked the Board not
to confuse these issues with the appeal that is being heard.
President Boucke introduced Mr. Harrington a member of the audience and asked if he had
any questions regarding the public hearing. Mr. Harrington had no comment.
President Boucke closed the public comment period of the hearing.
President Boucke asked if staff would like to comment on the matter.
The General Manager discussed the request of the Wastewater Committee; the discussion
was about the exposure of the walls to look at the possibility of insulation. Mr. Peterson was
asked to demonstrate that there was no insulation in the wall. The General Manager
explained that when he, the District Engineer, Rich Souza, and Wastewater Technician, Chris
Kelley went to inspect the property, they interpreted it to be living space, not a workshop. They
viewed it as living space because it has nice flooring, windows, special molding, furniture etc.
The General Manager stated that one of his biggest concerns was that the septic system
would not incur any additional wastewater load. The General Manager stated that part of the
District's responsibility is the environmental protection of the creek.
District Engineer, Rich Souza explained how he reviews plans at the County.
The General Manager explained that he tried to get the County to invite him to an inspection of
the new construction, but the County never responded.
President Boucke asked Water District legal counsel Mr. Ray McDevitt if he had any
comments at this time? Mr. McDevitt asked the General Manager to comment on areas and
items observed inside the building. Mr. McDevitt asked if he observed the following things;
insulated windows, sheet rocked walls, wainscoting, nicely scored flooring, recessed lighting,
and furniture in the building? The General Manager responded yes. Mr. McDevitt asked if the
General Manager observed a workbench, a large number of tools, bicycles, kayaks, or a wine
cooler in the middle of the space. The General Manager responded that he did not remember
seeing any of these items. Mr. McDevitt asked if it is reasonable to conclude, based on the
facts that this constitutes new construction and/or is it habitable space. Mr. McDevitt stated
that the District Code doesn't directly define habitable space; the District Code refers to the
Uniform Building Code. The Uniform Building Code defines habitable space as, "space in a
structure for living, sleeping, eating, or cooking". "Bathrooms, toilet compartment, closets,
storage or utility space in similar areas are not considered habitable space". Mr. McDevitt
reviewed the fundamental concern of the District, which the expansion of habitable space,
which then becomes a trigger to upgrade the septic system. He stated the premise behind the
code, is the larger amount of habitable space the larger the occupant load can be on the
wastewater system. Therefore, whatever the intent was, as built, this structure constitutes
habitable space. Mr. McDevitt stated the District has no control through the Wastewater Code
to determine how the space is going to be used. Although the owners could agree that they
would not rent it with a recorded document. Mr. McDevitt stated, the Board might ask Mr.
Peterson if he is willing to make enforceable commitments restricting the use of the structure
so the Board will have assurance that the load will not impact the property. President Boucke
then asked Mr. Peterson if he would agree to record with the County, deed restrictions
preventing the structure from being used as a second unit and/or a rental. Mr. Hurd
responded that they would be willing to sign a deed restriction that says there will be no
Director Zell stated that he has looked at the outside of the structure and through the windows
and was very impressed. Director Zell stated, in his opinion this was not a workshop and it
looked completely habitable. Director Zell stated his concern was the enforceability of any
agreement reached with the District. Director Zell stated his concern was people using the
structure to sleep in and impacting the wastewater system and he had serious concern with
President Boucke called on Mr. Moritz. Mr. Moritz stated that this building is a brand new
building, not a garage.
President Boucke asked the appellant and members of the public if there was anything else to
Director Tye asked Mr. Peterson if anyone at the County told him that the project would reach
the threshold for a Coastal Permit. Mr. Peterson answered, no.
President Boucke closed the public hearing portion of the meeting.
E. BOARD ACTION
Appeal of Revocation of Discharge Permit by Tim Peterson, 12
Director Baskin asked for testimony from Chris Kelley, Wastewater Technician and Rich
Souza, District Engineer regarding insulated windows, observation of the premise workshop or
garage. Both responded regarding the windows and that it looked like habitable space.
Director Baskin asked Chris Kelley what he knew about the septic system on the property. Mr.
Kelley responded that it is an older disposal system and that no treatment occurs there. It is
in close proximity to the creek, and has a 1200 gallon concrete tank with an old steel baffle.
Mr. Kelley stated that the location of the leach field is unknown. President Boucke asked if
there was anything the District should do to try and mitigate this issue. Rich Souza
recommended considering upgrading the septic system.
Director Zell stated this is clearly an increase in habitable space. Director Zell stated he would
agree to stay the appeal. President Boucke stated that her inclination would be to create
deed restrictions. Director Zell stated he could not support that as a resolution because it was
not enforceable. Director Tye stated that he would like the subject to be continued at the next
Board meeting in April. Director Baskin made a suggestion to Mr. Peterson and Mr. Hurd to
continue the appeal, hire a Septic Engineer to review the property and to talk to Rich Souza
about a creative solution to the septic issue. Director Baskin stated that he did not want to
encourage "As Built" variances. Director Baskin would encourage the Board and Mr. Peterson
to continue the appeal to the next Board meeting. Mr. Hurd stated that he and Mr. Peterson
would like the continuance. Mr. Hurd asked for the Board's direction.
Mr. McDevitt stated that the Board has plenty of reason to believe this is habitable space. Mr.
MckDevitt defined habitable space as living, eating, sleeping. Mr. Baskin stated that Mr.
Peterson would have the burden of determining what mitigating factors were necessary.
Director Baskin made the motion to continue the hearing at the next Board meeting to allow
the applicant an opportunity to offer mitigation measures with regard to the concerns of the
Board. Director Tye seconded the motion. The motion was approved by unanimous vote.
F. CLOSED SESSION: CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Government Code section 54956.9 (a)}. Name of Case: Mary
Belle O'Brien v. Stinson Beach county Water District, Case Number CIV 090916.
President Boucke closed the meeting at 11:25 a.m. Pursuant to
Government Code section 54956.9(a); President Boucke re-opened the meeting at 12:00p.m.
G. APPROVAL OF MINUTES
Director Tye moved to approve the minutes of November 8, 2008. Director Baskin seconded
the motion. The motion was approved by unanimous vote.
Director Tye moved to approve the minutes of January 19, 2009. Director Baskin seconded
the motion. Director Tye made the following amendments; pg 2, line 20 & 22, O'Brian
should be O'Brien. Director Boucke made the following amendment; pg 2, line 30 esthetics
should be aesthetics. The motion was approved by unanimous vote.
Director Tye moved to approve the minutes of February 11, 2009. Director Baskin seconded
the motion. Director Tye made the following amendments, pg 2 line 31, change Fitzpatrick
to Richard Reasoner, line 32, change Egstrom to Hextrom; line 32&33 remove the word
State when referring to Park. The motion was approved by unanimous vote.
Director Tye moved to approve the minutes of February 21, 2009. President Boucke
seconded the motion. The motion was approved by unanimous vote.
H. APPROVAL OF DISBURSEMENTS
Director Baskin moved to approve the Disbursements of February 18, and for March 5, 2009.
President Boucke seconded the motion. Director Baskin inquired about the invoice from Joe
Bender. The General Manager stated that the costs were due to a new server being installed.
The motion was approved by unanimous vote.
I. GENERAL BUSINESS
Discussion and possible direction to staff regarding: Approval of the District's Black
Rock Water Tanks Replacement Project and direction to file a "Notice of Exemption".
Authorization of solicitation of bids from contractors to fabricate the tanks and
undertake construction work on the Black Rock Water Tanks Replacement Project.
The General Manager recommended to the Board to approve by motion the Black Rock Water
Tanks Replacement Project (the project) and file a Notice of Exemption. Secondly, to
preauthorize by motion the solicitation of bids from water tank manufacturers and construction
contractors for the fabrication and installation of the new water tanks. Director Baskin made
the motion to approve the General Manager's recommendation. Director Tye seconded the
motion. The motion was approved by unanimous vote.
Director Zell left the meeting at 12:05 p.m.
Discussion and preparation for the April 27, 2009 Marin County Community
Development Agency meeting on updating the Local Coastal Program "Review of Public
The General Manager recommended that the Wastewater Committee and the Manager should
meet to prepare a District response to the Draft report on Public Facilities.
H. MANAGER'S REPORT
The General Manager reported that we are very busy in the field as well as the office. The
Korchinsky project is complete. The meter has been set and the water line is in service. The
District has sent in the application for the Economic Stimulus Bill and received a confirmation
that all project applications were received and we should have some kind of answer by April
10. The District has sent out the "Notice of Public Hearing, to implement an excess use
charge, in the form of a revised tiered rate structure, implemented only if the District reached
the "Trigger Point". The General Manager expressed his appreciation regarding the work staff
has been accomplishing. The first draft of the budget has been presented to the Finance
Committee. The General Manager discussed with the Board the amount of work done at the
Water Treatment Plant site.
I. COMMITTEE REPORTS
President Boucke called for a motion to adjourn the meeting. Director Baskin made the
motion. Director Tye seconded the motion. The motion was approved by unanimous vote.
The meeting was adjourned at 12:25 p.m.