CC 2024-11-12_10b Domestic Well_Harris Revision65501.00015\42902931.1
Item 10.b.
MEMORANDUM
TO: City Council
FROM: Brian Pedrotti, Director of Community Development
SUBJECT: Consider a Resolution Revising the Conditions of Approval for PPR
23-001 Which Approved the Installation of One (1) Domestic Well on
Property Zoned Planned Development; Applicant – Michael Harris;
Representative – Richard Burde, SLO Civil Design
DATE: November 12, 2024
RECOMMENDATION:
1) Adopt a Resolution revising the conditions of approval of Plot Plan Review 23-001,
which approved the installation of one new domestic well on an unaddressed property on
Noyes Road (APN: 007-781-055) northeast of the intersection of Noyes Road and
Equestrian Way (“Project”); and
2) Determine that the Project, with the proposed revised conditions, is categorically
exempt from CEQA under the Class 3 exemption, which applies to the construction and
location of limited numbers of new, small facilities or structures; installation of sm all new
equipment and facilities in small structures; and the conversion of existing small
structures from one use to another where only minor modifications are made in the
exterior of the structure. (State CEQA Guidelines, § 15303.).
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
There is no direct impact to the City’s financial or personnel resources anticipated as a
result of this item.
BACKGROUND:
The Project was originally scheduled on a public hearing for October 23, 20231, but was
continued to November 28, 2023, January 9, 2024, and February 27, 2024. On February
27, 20242, the City Council held a continued public hearing to consider a resolution
denying the installation of a domestic well on a vacant parcel on Noyes Road. Following
submittal of approximately 1,500-pages of additional documentation to the City two hours
prior to that hearing, the City Council continued the hearing to March 26, 2024. The City
1 https://pub-arroyogrande.escribemeetings.com/filestream.ashx?DocumentId=8966
2 https://pub-arroyogrande.escribemeetings.com/filestream.ashx?DocumentId=10148
Page 116 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 2
Council subsequently approved a continuance from the March 26, 20243 hearing, to allow
the applicant and staff time to work on procedural matters associated with the application.
A new hearing was ultimately set for May 28, 20244, and the City Council approved the
Project subject to fifteen (15) conditions of approval (the “Original Conditions”).
Following approval of Plot Plan Review 23-001, the applicant’s attorney, Paul Beard, sent
a letter to the City on June 19, 2024 (the “June 19 Letter”), shown in Attachment 2,
challenging the legal basis for some of the conditions of approval of the Project. While the
City did not agree with each legal assertion, the City Attorney met with the applicant’s
attorney several times between July and September of 2024 to discuss, with the applicant
proposing revisions to the conditions of approval. The result of these negotiations and
tracked revisions to the Original Conditions is shown in Attachment 3 to this staff report.
Ultimately, City staff determined that the negotiated conditions of approval discussed
between City and applicant were acceptable and lawfully protect the health and safety
interests of the public. Accordingly, City staff are willing to recommend the negotiated,
amended conditions of approval attached to the accompanying Resolution.
City staff have also made factual findings supporting the conditions, contained in the
administrative record. The City has invested heavily in a public water system that
maintains stringent state and federal health and safety standards. Allowing residential
homeowners to opt-out of the City’s water supply based on the private cost to an individual
homeowner must be weighed against the larger cost to all residential rate-payers.
Connecting to the public water supply includes additional benefits like regulated water
quality standards, consistent supply, lower maintenance requirements, and reductions in
the risk of water contamination. Accordingly, the City has consistently imposed conditions
on well permits to mitigate health and safety impacts from residents who draw their water
supply from wells rather than the City water system. Many of those standard conditions
remain within the attached, amended Conditions of Approval and were not contested by
the applicant’s attorney.
The application and corresponding proposed conditions are being considered based on
the application currently before the City. The applicant’s civil engineer, in a May 15, 2023,
email, stated that his client had no plans to further subdivide the property and intended to
build one single-family residence with no subdivision or lot split. No other development is
currently anticipated for the site beyond the installation of the well. More detailed factual
findings relating to the conditions are provided in the “Analysis” section below.
3 https://pub-arroyogrande.escribemeetings.com/filestream.ashx?DocumentId=10415
4 https://pub-arroyogrande.escribemeetings.com/filestream.ashx?DocumentId=11037
Page 117 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 3
ANALYSIS OF ISSUES:
The June 19 Letter challenged seven of the fifteen Original Conditions. Subsequent
discussions between City and the applicant’s attorney have resulted in agreement on a
revised set of conditions, that applicant’s attorney has represented are acceptable . As
revised, the proposed conditions are designed to address particular potential impacts to
public health, safety, and welfare from the drilling and operation of the well. This is
consistent with the mandate and purpose of Arroyo Grande Municipal Code (AGMC)
Chapter 13.08 to “provide for the construction, repair, modification and destruction of
wells in such a manner that the groundwater of the city will not be contaminated or
polluted and that water obtained from wells will be suitable for beneficial use and will not
jeopardize the health, safety or welfare of the people of the city.” (AGMC section
13.08.010.) The proposed conditions limit the well approval to the parcel identified, and
limit future development, such as what could be created through future subdivisions, and
prevents the impact of significant water usage. The revised conditions bear an essential
nexus to the proposed project because they allow the applicant to develop the property
pursuant to the existing municipal code land use regulations while protecting the interests
of the community who rely on a safe and reliable water supply. The proposed revised
conditions are roughly proportional to the impacts of the Project because they are
consistent with other requirements associated with single-family development throughout
the City, including those with domestic wells.
Original Conditions 1-5 were not challenged by the applicant, and those are maintained
in the proposed conditions based on the City’s general police power, and are standard to
all applicants. Condition 1 relates to the requirement that the applicant complete the
project in compliance with the law, a general requirement applicable to any project
approved in the City. This condition acts as a reminder that the City does not identify
every law with which the applicant is obligated to comply, but the permit approval is
subject to the well-being operated lawfully. Condition 2 requires the applicant to complete
the project as it was submitted to the Community Development Department — this reflects
the fact that the project must be built as proposed and prevents unauthorized deviations
from the expectations of the City Council in approving this project. Condition 3 requires
compliance with the conditions of approval in the proposed Resolution and the
requirements of the County of San Luis Obispo Public Health Department, which are both
other legal requirements applicable to the permitting and operation of the well . A minor
revision has been made to reflect the date that the proposed resolution would be
approved. Condition 4 requires the applicant to indemnify the City for claims relating to
this permit, such that any legal costs resulting from the approval of this permit are borne
by the applicant since those legal fees would arise as a result of the well permit approval.
Condition 5 notes that the approval expires unless the applicant obtains the required
drilling permit from San Luis Obispo County Public Health Department, reflecting that
conditions giving rise to the City’s approval at this time may change over a two year
Page 118 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 4
period. A minor revision has also been made to this condition to reflect the date of the
anticipated Resolution approval.
Proposed Condition 6 as revised is imposed to reflect that the well permit approval is valid
as to the current APN, and the well permit is being approved based on the representation
of use in the May 15, 2023, email from applicant’s engineer. Proposed Condition 7 as
revised requires that the applicant install a water meter on his well and engage in annual
reporting, which is used to monitor water usage of the well an d help aid in City’s water
conservation efforts, as well as detect any defects in the performance of the well. The
meter is used for tracking to verify that water usage is within normal domestic ranges and
not stressing the water basin, and it also is beneficial for water planning purposes.
Proposed Condition 8 as revised requires compliance with Section 13751 of the California
Water Code, an existing legal obligation of the applicant. Proposed Condition 9 as revised
requires permitting for all electrical connections required for the new well pumps, which
is necessary to ensure that the connections are done in accordance with electrical codes
and to prevent an electrical or fire safety hazard, as well as prevent groundwater
contamination from faulty wiring. Proposed Condition 10 as revised provides that the
applicant must locate the well 100 feet from any septic system, which is designed to
prevent contamination of the well from wastewater polluted by human use. Proposed
Condition 11 as revised is intended to merely put the applicant on notice that
noncompliance with the well permit conditions may result in penalties and remedies of
the Arroyo Grande Municipal Code. The applicant has represented to the City via legal
counsel they are amenable to accepting the conditions as revised.
Each proposed revision to the Original Conditions are also detailed below:
Scope of Approval Conditions (Revised and Consolidated)
Original Condition 6. This approval shall only be valid for the residential construction of
up to one (1) single family home, one (1) accessory dwelling unit, and one (1) junior
accessory dwelling unit. Any additional development of the property will be required to
connect to the City’s water infrastructure at the sole cost of the property owner at the time
of proposed development.
Original Condition 7. This approval shall only be valid for the existing legal parcel and
shall not extend to any future parcels created through subdivision of the property. Prior to
recordation of any subdivision of the property, the owner shall abandon the well in
accordance with County Environmental Health Standards.
Page 119 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 5
The proposed revised condition is:
This domestic well approval is valid for the parcel identified by APN 007 -781-055 and for
any beneficial use on said parcel allowed by law.
Staff and the applicant’s attorney have agreed that the consolidation of conditions #6 and
#7 help to clarify what is allowed on the existing parcel in terms of development, which
includes those land uses allowed under the existing municipal code and reflects that some
approvals authorized under State law (including on ADUs) are ministerial. Most notably,
this limits the well approval to the existing parcel identified by the relevant APN, and any
future subdivision requiring discretionary entitlements would be assigned new APNs to
the subdivided parcels. Any additional development of the property would require the City
and applicant to review the requirements within the Municipal Code as it related to
approvals associated with City’s water infrastructure. The City has a legitimate state
interest in ensuring the safety and availability of the City water supply, and Harris’s
property has greater land area, and therefore greater development potential than other
lots that have received well permits. Accordingly, it is reasonable to apply conditions that
differ from those conditions imposed on smaller plots of land.
Scope of Approval Condition (Removed)
Original Condition 13. This well approval is conditioned on the stated planned
development of a single family home, Accessory Dwelling Unit and Junior Acc essory
Dwelling Unit on the subject parcel. If the residential use on the site is intensified, such
as a subdivision or additional housing units are created, applicant must return to the City
Council for a new hearing and approval to use the well pursuant to the City’s Municipal
Code existing at the time of such intensification of use.
Staff and the applicant agree that this condition is encompassed by the consolidated
conditions #6 and #7, which resolves the concern that the well permit would be used to
significantly expand water usage on the parcel, and is thus recommended for removal.
Backflow Device Condition (Removed)
Original Condition 9. “An approved backflow device shall be installed per City standard
on the water meter service.
Staff and the applicant agree that this condition is unnecessary because backflow devices
are intended to prevent contamination to the City’s water supply. The proposed well will
not connect to the city water system and therefore no contamination is anticipated.
Page 120 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 6
General Legal Requirements Condition (Removed, Addressed by Condition 1)
Original Condition 14. The well must comply with all general legal requirements imposed
by the California Department of Water Resources, State Water Resources Control Board,
and any other applicable state or federal law.
Staff and the applicant’s attorney agree that condition #14 may be removed, as it is
duplicative of condition #1 which requires compliance with all State, County and City laws
applicable to the project.
Noncompliance Condition (Revised)
Original Condition 15. During any period of noncompliance with these conditions, the well
will constitute an unapproved use of land subject to the penalties and remedies of the
Arroyo Grande Municipal Code.
Staff and the applicant’s attorney have agreed to modifications to this condition to remove
the term, “constitute an unapproved use of land” to simplify and clarify that the
noncompliance with the conditions will be enforced through the Arroyo Grande Municipal
Code. The modified condition is as follows:
During any period of noncompliance with these conditions, the well will be subject to the
penalties and remedies of the Arroyo Grande Municipal Code.
As stated above, the intent of this condition is to put the applica nt on notice of potential
consequences for noncompliance with the conditions that the applicant negotiated with
the City.
Ultimately, the City Council has discretion to consider all the evidence and testimony
presented and make a final determination on the proposed revisions to the approved W ell
Application. The City Council will consider all evidence and testimony presented at this
hearing in its decision on the Well Application and the revised Conditions of Approval,
and any appeals are limited to the issues raised in this hearing.
ALTERNATIVES:
1. Adopt the Resolution revising the conditions for approved Plot Plan 23 -001
approving the installation of one (1) new domestic supply well;
2. Do not adopt the resolution so that the original approval stands and no changes to
the challenged conditions of approval are made; or
3. Provide other direction to staff.
Page 121 of 174
Item 10.b.
City Council
Consider a Resolution Revising the Conditions of Approval for Plot Plan Review
23-001 Which Approved the Installation of One (1) Domestic Well on Property
Zoned Planned Development (PD); Applicant – Michael Harris; Representative –
Richard Burde, SLO Civil Design
November 12, 2024
Page 7
ADVANTAGES:
Approval of the resolution will revise the conditions of approval applicable to Plot Plan 23-
001 as negotiated by staff and the applicant.
DISADVANTAGES:
Denial of the resolution would still allow the applicant to submit a well application under
the original conditions of approval.
ENVIRONMENTAL REVIEW:
The project is categorically exempt from CEQA under the Class 3 exemption, which
applies to the construction and location of limited numbers of new, small facilities or
structures; installation of small new equipment and facilities in small structures; and the
conversion of existing small structures from one use to another where only minor
modifications are made in the exterior of the structure. (State CEQA Guidelines, § 15303.)
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2. A Public Hearing Notice for the November 12, 2024
Public Hearing was published on October 31, 2024.
ATTACHMENTS:
1. Proposed Resolution
2. June 19, 2024 Letter
3. Redline Conditions (for reference purposes only)
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65501.00015\42788974.6
ATTACHMENT 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE REVISING THE CONDITIONS OF
APPROVAL FOR PLOT PLAN REVIEW 23-001 WHICH
APPROVED THE INSTALLATION OF ONE (1) NEW DOMESTIC
SUPPLY WELL ON PROPERTY ZONED PLANNED
DEVELOPMENT LOCATED NORTHEAST OF THE
INTERSECTION OF NOYES ROAD AND EQUESTRIAN WAY
(APN: 007-781-055) AND FINDING THAT SAID ACTION IS
CATEGORICALLY EXEMPT FROM CEQA PURSUANT TO
STATE CEQA GUIDELINES SECTION 15303 (APPLICANT:
MICHAEL HARRIS)
WHEREAS, Michael Harris has submitted an application to drill and install one (1)
new domestic supply well at a property on an unaddressed parcel on Noyes Road in
Arroyo Grande (“Well Application”); and
WHEREAS, the Well Application would be on unaddressed property on Noyes Road
(APN: 007-781-055), northeast of the intersection of Noyes Road and Equestrian
Way (“Subject Property”); and
WHEREAS, Arroyo Grande Municipal Code (“AGMC”) Chapter 13.08 requires City
Council to discretionarily review and approve or deny all new or replacement wells in
the City; and
WHEREAS, the purpose of Chapter 13.08 is to provide for the construction, repair,
modification, and destruction of wells in such a manner that the groundwa ter of the
City will not be contaminated or polluted and that water obtained from wells will be
suitable for beneficial use and will not jeopardize the health, safety or welfare of the
people of the City; and
WHEREAS, by virtue of its police power, the City has the authority to impose
conditions of approval on new or replacement wells to protect the public health,
safety, and welfare; and
WHEREAS, specifically, AGMC section 13.08.040 requires the City Council to
consider, in its discretion, approval for new or replacement wells or abandonment of
existing wells. Approval to drill a well within the City boundaries may be granted if the
City Council determines: 1) the well will neither deplete nor contaminate the City
water supply; and 2) service from the City’s water system is neither practical nor
feasible; and
WHEREAS, the City Council held a noticed, continued public hearing on May 28,
2024, to consider the Well Application; and
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65501.00015\42788974.6
RESOLUTION NO.
PAGE 2
WHEREAS, the City Council approved the Well Application on May 28, 2024, subject
to certain conditions of approval (“Original Conditions”) in the resolution adopted by
City Council on May 28, 2024; and
WHEREAS, following the approval of the Well Application, Michael Harris’s newest
legal counsel, Paul Beard II, sent a letter on June 19, 2024, to the City objecting to
certain Original Conditions imposed (Original Conditions 6, 7, 8, 9, 13, 14, 15), and
those conditions were subsequently negotiated between the parties; and
WHEREAS, Michael Harris, through his legal counsel, proposed and has
represented agreement with revised conditions of approval, attached hereto as
Exhibit “A”; and
WHEREAS, Michael Harris, through his legal counsel, requested that the conditions
of approval be heard again by City Council so that the conditions of approval could
be revised and approved, which requires a new public hearing; and
WHEREAS, the City Council held a noticed new public hearing on the Well
Application on November 12, 2024, to consider revising the conditions of approval;
and
WHEREAS, City Staff has conducted a thorough review of the Well Application and
the City Council incorporates the analysis of the Staff Report dated November 12,
2024, prepared by the Community Development Director as part of the passage of
this Resolution and relating to the same Well Application; and
WHEREAS, the Resolution imposes conditions of approval on the Well Application
to mitigate potential impacts of the proposed well, and requires compliance with laws
relating to the construction, repair, modification, and destruction of wells ; and
WHEREAS, the City finds that the conditions of approval are reasonable, clearly
articulated, and bear an essential nexus and rough proportionality to t he impacts of
the proposed project; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have
occurred.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Arroyo
Grande, as follows:
1. RECITALS. The foregoing recitals are true and correct and are incorporated
herein.
2. CEQA FINDINGS. The City Council finds that the revision to the conditions of
approval for the installation of a domestic water well is categorically exempt
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65501.00015\42788974.6
RESOLUTION NO.
PAGE 3
from further review under the California Environmental Quality Act (CEQA) per
State CEQA Guidelines Section 15303, Class 3 (New Construction or
Conversion of Small Structures.) This Project falls within the Class 3
exemption because approval of the Project would result in the installation of
one small well structure. Furthermore, none of the exceptions outlined in State
CEQA Guidelines section 15300.2 apply here. There is no possibility of a
significant cumulative impact because only one domestic well is necessary to
serve any future proposed residential use on the Project site. There is no
unusual circumstances such as unusual resources, an unusual location, or
unusual physical qualities inherent to the Project site that might result in
significant impacts. The Project area is developed and does not contain any
environmentally sensitive areas. The Project would not damage any scenic
resources, including trees, historic buildings, rock outcroppings or similar
resources, within a highway officially designated as a state scenic highway.
The Project is not located on a hazardous waste site or any other site included
on a list compiled pursuant to Government Code section 65962.5 and the
Project will not cause a substantial adverse change in the significance of a
historical resource because there are no historical resources near the
proposed Project. Therefore, the Project is categorically exempt from CEQA
and no further environmental review is required.
City Council directs staff to file a Notice of Exemption with the County Clerk
and State Clearinghouse within five days of this Resolution.
3. Well Application. This resolution revises the conditions of approval for the
approved application to drill and install one (1) new domestic supply well at
the property located northeast of the intersection of Noyes Road and
Equestrian Way (APN: 007-781-055), subject to the revised conditions as set
forth in Exhibit "A", attached hereto and incorporated herein by this reference.
4. Findings. The revisions to the conditions and approval of the well application
is based on the findings required by AGMC Section 13.08.040 and made
below, and no other changes are proposed to the City Council’s May 28, 2024
approval of the well application with the exception of the revised conditions set
forth herein:
a. The drilling and operation of the well will neither deplete nor
contaminate the City water supply because:
i. The proposed well does not access the same aquifer utilized
by the City’s wells, and no interference or depletion of the
City’s water system is anticipated.
ii. The proposed well will not impact adjacent properties
because the owner will be required to obtain County
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RESOLUTION NO.
PAGE 4
Environmental Health approval, be located at least 100 feet
from septic system areas, and be metered to determine
annual water usage.
iii. The conditions of approval limit the well approval to the
parcel identified and do not allow development that would be
created through future subdivisions, which prevents the
impact of significant water usage expansion and protects the
interests of the community who rely on a safe and reliable
water supply.
b. Service from the city water system is neither practical nor feasible
because:
i. The proposed well is on property that is predominantly
covered by native oak woodland, includes steeper slopes
and includes significant existing rock outcroppings, which
when taken together require significant construction
challenges in avoiding impacts from a City water system
infrastructure extension for a single family residence.
ii. Although the Subject Property is immediately adjacent to the
City's Reservoir No. 5 and is within the City’s boundaries, and
would not require any easements or improvements to
existing City infrastructure, a direct water service connection
for a single-family residence would necessitate construction
of a service line that would have potential impacts to sensitive
resources such as native oak woodland and existing rock
outcroppings.
iii. The proposed well would require minor infrastructure that
would not impact sensitive resources on the property.
5. CUSTODIAN OF RECORDS. The documents and materials associated with
this Resolution that constitute the record of proceedings on which these
findings are based are located at City Hall, 300 E Branch St Arroyo Grande
CA 93420. The Director of Community Development is the custodian of
records for the record of proceedings.
On motion of Council Member , seconded by Council Member ,
and on the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
The foregoing Resolution was passed and adopted this 12th day of November 2024.
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65501.00015\42788974.6
RESOLUTION NO.
PAGE 5
_________________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
________________________________________
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
________________________________________
MATTHEW DOWNING, CITY MANAGER
APPROVED AS TO FORM:
________________________________________
ISAAC ROSEN, CITY ATTORNEY
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RESOLUTION NO.
PAGE 6
EXHIBIT "A"
REVISED CONDITIONS OF APPROVAL
ONE (1) NEW DOMESTIC SUPPLY WELL
NORTHEAST CORNER OF NOYES ROAD AND EQUESTRIAN WAY
APN: 007-781-055
GENERAL CONDITIONS:
1. The applicant shall ascertain and comply with all State, County and City
requirements as are applicable to this project.
2. The project shall occur in substantial conformance with the application and
plans on file in the Community Development Department office.
3. The applicant shall comply with all the conditions of the City Council
Resolution adopted on November 12, 2024, as well as the terms, conditions,
and standards specified in the written permit issued by the County of San Luis
Obispo Public Health Department.
4. To the extent permitted by law, Applicant shall defend, indemnify and hold
harmless the City of Arroyo Grande, its City Council, its officers, employees
and agents (the “indemnified parties”) from and against any claim, action, or
proceeding brought by a third party against the indemnified parties and the
applicant to attack, set aside, or void any permit or approval for this project
authorized by the City, including (without limitation) reimbursing the City its
actual attorney’s fees and costs in defense of the litigation. The City may, in
its sole discretion, elect to defend any such action with attorneys of its choice.
The Applicant shall reimburse the City for any court and attorney's fees which
the City may be required to pay as a result of any claim or action brought
against the City related to this permit or approval. Although the Applicant is
the real party in interest in an action, the City may, at its sole discretion,
participate at its own expense in the defense of the acti on, but such
participation shall not relieve the Applicant of any obligation under this
condition.
5. This approval shall expire on November 12, 2026 unless a drilling permit is
obtained from the County of San Luis Obispo Public Health Department. Time
extensions may be requested in conformation with the Arroyo Grande
Municipal Code.
6. This domestic well approval is valid for the parcel identified by AP N 007-781-
055 and for any beneficial use on said parcel allowed by the law.
7. The applicant shall install a meter on the well head that monitors all water
drawn from the well and report annual pumping amounts as of December 31st
to the City Public Works Department by January 31st of the following year.
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RESOLUTION NO.
PAGE 7
8. A copy of the well/driller report required by the provisions of Section 13751 of
the Water Code of the State shall be submitted to the Public Works
Department upon completion of the construction of the well.
9. The applicant shall obtain permits for all electrical connections required for the
new well pumps.
10. The applicant shall produce survey verification that the distance of the well to
any septic system (leach field) is greater than 100 feet to the satisfaction of
the Director of Public Works.
11. During any period of noncompliance with these conditions, the well will be
subject to the penalties and remedies of the Arroyo Grande Municipal Code.
Page 129 of 174
CALIFORNIA COLORADO DELAWARE FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MICHIGAN NEW JERSEY NEW YORK NORTH CAROLINA
OHIO PENNSYLVANIA TEXAS WASHINGTON WASHINGTON, D.C.
June 19, 2024
VIA ELECTRONIC MAIL
Isaac Rosen, Esq.
City Attorney, City of Arroyo Grande
Best Best & Krieger LLP
300 S. Grand Ave., 25th Fl.
Los Angeles, CA 90071
Email: isaac.rosen@bbklaw.com
Re: Plot Plan Review 23-001 / Applicant – Michael Harris
Dear Mr. Rosen:
This Firm has been retained by applicant Michael Harris with respect to the City’s recent
approval of a permit to install a well on his property. As explained below, a number of the City’s
permit conditions are unlawful and should be struck. Given the short time within which to file a
court action challenging those conditions, we respectfully request that the City promptly advise
Mr. Harris whether it will remove the offending conditions.
I.
Legal Background
A.City Code
The City has the authority to require and approve a permit for water wells pursuant to
Chapter 13.08 of the City Code. “The council may approve the application if, in its discretion, the
drilling and the operation of the well will not deplete nor contaminate the city water supply and
service from the city water system is neither practical nor feasible.” City Code § 13.08.040(A).
Significantly, if the City approves a well permit, the sort of condition it can impose on said
approval is strictly limited:
“If the council approves the granting of a permit, it may be issued subject to such
reasonable conditions as the council imposes to prevent the depletion and
contamination of the city water supply . . . .”1
Id. (emphasis added).
1 A well permit is also issued “subject to compliance with the standards provided by the county of
San Luis Obispo.” But there is no dispute here that the subject permit is consistent with County
standards. Nor do the challenged conditions discussed below implicate any County standard or
requirement.
PAUL BEARD II
PARTNER
453 S. Spring St., # 400-1458
Los Angeles, CA 90013
Direct: 818-216-3988
Email: paul.beard@pierferd.com
ATTACHMENT 2
Page 130 of 174
June 19, 2024
Page 2 of 5
Pierson Ferdinand LLP
Notably, section 13.08.040(A) identifies only one kind of permissible condition. It thereby
excludes any other kind of condition on a well permit. People v. Salas (2017) 9 Cal.App.5th 736,
742 (“[T]he principle [of] expressio unius est exclusio alterius, . . . the enumeration of things to
which a statute applies is presumed to exclude things not mentioned.”).
“To be valid, an administrative action must be within the scope of authority conferred by
the enabling statutes.” Terhune v. Superior Court, 65 Cal.App.4th 864, 872-73 (1998). A
“governmental agency that acts outside of the scope of its statutory authority acts ultra vires and
the act is void.” California DUI Lawyers Assn. v. Dept. of Motor Vehicle, 20 Cal.App.5th 1247,
1264 (2018). The City Code does not authorize any condition imposed on a well permit that is not
for the specific purpose of preventing the depletion or contamination of the city water supply.
Attempts to invent conditions outside the scope given to the City by the Code are ultra vires and
void.
B. The Federal Unconstitutional Conditions Doctrine
The Federal Constitution imposes significant limitations on the ability of land-use
agencies, like the City, to exact property interests from owners as the condition of exercising their
right to use and develop their properties. Under a trio of United States Supreme Court decisions, a
land-use agency must prove—as a matter of federal constitutional law—that an “essential nexus”
and “rough proportionality” exists between the exaction of a property interest and a project’s
public impacts. Nollan v. California Coastal Commission (1987) 483 U.S. 825, 837; Dolan v. City
of Tigard (1994) 512 U.S. 374, 391; Koontz v. St. Johns River Water Management District (2013)
570 U.S. 595, 612. If the requisite nexus and proportionality are absent, then the exaction effects
an unconstitutional taking of private property—or, as the Supreme Court aptly has put it, “an out-
and-out plan of extortion.” Nollan, 483 U.S. at 837.
C. Equal Protection
The City has the constitutional obligation to treat similarly situated citizens equally. “Both
the Fourteenth Amendment to the United States Constitution and article I, section 7 of the
California Constitution guarantee to all persons the equal protection of the laws. The right to equal
protection of the laws is violated when ‘the government … treat[s] a s[similarly situated] group of
people unequally without some justification.’” People v. Jackson, 61 Cal.App.4th 189, 195 (2021).
If the City treats some similarly situated well applicants different from others, without any
rational basis, the City violates the disfavored applicants’ equal protection rights.
D. Due Process
The City has a constitutional obligation to write and enforce permit conditions that are clear
and unambiguous; if such conditions are unclear, they are void for vagueness. This obligation
arises from the Due Process Clause of the Fourteenth Amendment to the United States
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Constitution. As the Court of Appeal has explained, “The concern underlying the void for
vagueness doctrine is the due process requirement of adequate notice. (U.S. Const., 14th Amend.;
Cal. Const., art. I, § 7.)” In re R.P., 176 Cal.App.4th 562, 566 (2009). The standard is whether
“terms are so vague [that] people of common intelligence must guess at its meaning.” Id. (cleaned
up). “To survive a challenge on the ground of vagueness,” a permit condition “must be sufficiently
precise for the [permittee] to know what is required of him, and for the court to determine whether
the condition has been violated.” Id.
II.
Several of the Well Permit’s Conditions Are Unlawful
A. Conditions 6, 7, 8, 9, and 13 Are Ultra Vires and Void
Conditions 6, 7, and 13 purport to anticipatorily alter his well rights based on speculative
development that may or may not occur in the future. Condition 6 would arbitrarily eliminate Mr.
Harris’s well rights if “[a]ny additional development of the property” beyond a single-family
home, one accessory dwelling unit, and one junior accessory dwelling unit is built. It would force
Mr. Harris “to connect to the City’s water infrastructure at the sole cost of the property owner at
the time of the proposed development.” Similarly, Condition 7 would require Mr. Harris to
“abandon the well” upon the property’s subdivision. Condition 13 would require Mr. Harris to
return to the City Council “for a new hearing and approval to use the well”—in light of the then-
current City Code requirements—if he intensifies use of his property through additional
development or subdivision.
Condition 8 requires Mr. Harris to install a meter on the well head to monitor all water
drawn from the well and annually report the amounts to the City. Condition 9 requires him to
install an approved backflow device.
Section 13.08.040(A) authorizes none of these conditions. None of the conditions
“prevent[s] the depletion and contamination of the city water supply.” The reason is simple. As
the City’s own findings for Mr. Harris’s well permit state: “The drilling and operation of the well
will neither deplete nor contaminate the City water supply,” precisely because “[t]he proposed
well does not access the same aquifer utilized by the City’s wells.” Resolution No. 5366, ¶ 3(a)
(emphasis added). Mr. Harris’s well is a private well will not draw from the City’s water supply.
Thus, even if the speculated intensification of Mr. Harris’s property occurred in the future, the
permitted well would not affect the City’s water supply, let alone deplete or contaminate it. And,
with respect to Conditions 8-9, the City to our knowledge does not supervise private domestic well
use that does not affect the City water supply. Thus, there is no reason or authorization to require
the improvements mandated in Conditions 8-9.
Conditions 6, 7, and 13 also violate the unconstitutional conditions doctrine. The conditions
seek to destroy, in the future, a vested right in the well—which Mr. Harris will commit significant
resources to install. Any permit condition purporting to take a property interest must bear an
essential nexus and be roughly proportional to the adverse public impacts caused by the project.
Here, the City cannot make such a showing. The project as proposed creates no public impacts that
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would justify the well’s abandonment in the future. The conditions therefore violate Nollan and
Dolan and threaten the uncompensated taking of Mr. Harris’s property.
Next, Conditions 6, 7, and 13 appear to be unique to Mr. Harris. No other well permit we
have identified contains such conditions, even though other well applicants have proposed the
same or similar project as Mr. Harris. See, e.g., Resolution No. 5054 (well permit for Louis
Moscardi, dated January 12, 2021). There being no rational basis for such discrimination against
Mr. Harris, the conditions violate his equal-protection rights.
Finally, Conditions 6, 7, and 13 create barriers to further residential development that state
law affirmatively encourages. For example, Senate Bill 9 streamlines the process for a homeowner
to create a duplex or subdivide an existing lot. The City’s conditions are in strong tension with
Senate Bill 9, as they discourage Mr. Harris from subdividing and building additional residential
units in the future. This is particularly true given the prohibitive cost of connecting to the City’s
water infrastructure—about $300,000—which Condition 6 would require upon further
development of Mr. Harris’ 27 acres. Indeed, the City specifically found that “[s]ervice from the
city water system is neither practical nor feasible,” including because it would require
“construction of a service line that would have potential impacts to sensitive resources such as
native oak woodland and existing rock outcroppings.” Resolution No. 5366, ¶ 3(b). The
impracticality and infeasibility of connecting to the city water system will remain in the future.
Conditions 6, 7, and 13 in particular are based on speculative impacts associated with
hypothetical scenarios in the future. Permit conditions should be based on current impacts
associated with the project actually before the City—in this case, a private domestic well. In the
future, if there is additional development proposed, the City can consider impacts associated with
the actual proposal before it.
For all these reasons, Conditions 6, 7, 8, 9, and 13 are ultra vires and void, and they should
be struck from the permit approval.
B. Conditions 14 and 15 Are Void for Vagueness
Condition 15 states that “[d]uring any period of noncompliance with these conditions, the
well will constitute an unapproved use of land subject to the penalties and remedies of the Arroyo
Grande Municipal Code.” This is a bizarre condition that is unintelligible. The permit has been
approved. It cannot be unilaterally rescinded, ipso facto, without due process—including a hearing
and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“This Court
consistently has held that some form of hearing is required before an individual is finally deprived
of a property interest. The right to be heard before being condemned to suffer grievous loss of any
kind, even though it may not involve the stigma and hardships of a criminal conviction, is a
principle basic to our society. The fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful manner.” (cleaned up)).
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Condition 15 does not specify what constitutes noncompliance with the conditions, and
generalized references to the Code are insufficient to cure the condition’s vagueness. If there is a
permit violation, the Code provides for clear procedures that allow the City to address the alleged
noncompliance. This condition does not adequately put Mr. Harris on notice about what is
prohibited or what it means for a permitted use to suddenly become “unapproved.”
Condition 14 states that “[t]he well must comply with all general legal requirements
imposed by the California Department of Water Resources, State Water Resources Control Board,
and any other applicable state or federal law.” This is exceedingly broad and, like Condition 15,
fails to put Mr. Harris on notice of the requirements he must abide by in order to comply with the
well permit. Because it is vague, Condition 14, like Condition 15, is void for vagueness.
III.
Conclusion
Our hope is to resolve this dispute over the above-described conditions amicably without
court intervention. Accordingly, we request that the aforementioned conditions be struck so that
Mr. Harris can proceed with installation of his well. Time is of the essence, so please let us know,
no later than June 28, whether the City will do so.
Very truly yours,
Paul Beard II
Cc: Brian Pedrotti, Community Development Director (Email: bpedrotti@arroyogrande.org)
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65501.00015\42878941.2
ATTACHMENT 3
Redlined Conditions
(For reference purposes only)
1. The applicant shall ascertain and comply with all State, County and City
requirements as are applicable to this project.
2. The project shall occur in substantial conformance with the application and plans
on file in the Community Development Department office.
3. The applicant shall comply with all the conditions of the City Council Resolution
adopted on November 12May 28, 2024, as well as the terms, conditions, and standards specified
in the written permit issued by the County of San Luis Obispo Public Health Department.
4. To the extent permitted by law, Applicant shall defend, indemnify and hold
harmless the City of Arroyo Grande, its City Council, its officers, employees and agents (the
“indemnified parties”) from and against any claim, action, or proceeding brought by a third party
against the indemnified parties and the applicant to attack, set aside, or void any permit or
approval for this project authorized by the City, including (without limitation) reimbursing the
City its actual attorney’s fees and costs in defense of the litigation. The City may, in its sole
discretion, elect to defend any such action with attorneys of its choice. The Applicant shall
reimburse the City for any court and attorney's fees which the City may be required to pay as a
result of any claim or action brought against the City related to this permit or approval. Although
the Applicant is the real party in interest in an action, the City may, at its sole discretion,
participate at its own expense in the defense of the action, but such participation shall not relieve
the Applicant of any obligation under this condition.
5. This approval shall expire on November 12May 28, 2026 unless a drilling permit
is obtained from the County of San Luis Obispo Public Health Department. Time extensions may
be requested in conformation with the Arroyo Grande Municipal Code.
6. This approval shall only be valid for the residential construction of up to one (1)
single family home, one (1) accessory dwelling unit, and one (1) junior accessory dwelling unit.
Any additional development of the property will be required to connect to the City’s water
infrastructure at the sole cost of the property owner at the time of proposed development.
7. This approval shall only be valid for the existing legal parcel and shall not extend
to any future parcels created through subdivision of the property. Prior to recordation of any
subdivision of the property, the owner shall abandon the well in accordance with County
Environmental Health Standards.
6. This domestic well approval is valid for the parcel identified by APN 007-781-
055 and for any beneficial use on said parcel allowed by law.
7. The applicant shall install a meter on the well head that monitors all water drawn
from the well and report annual pumping amounts as of December 31st to the City Public Works
Department by January 31st of the following year.
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9. An approved backflow device shall be installed per City standard on the water
meter service.
8. A copy of the well/driller report required by the provisions of Section 13751 of
the Water Code of the State shall be submitted to the Public Works Department upon completion
of the construction of the well.
9. The applicant shall obtain permits for all electrical connections required for the
new well pumps.
10. The applicant shall produce survey verification that the distance of the well to any
septic system (leach field) is greater than 100 feet to the satisfaction of the Director of Public
Works.
13. This well approval is conditioned on the stated planned development of a single
family home, Accessory Dwelling Unit and Junior Accessory Dwelling Unit on the subject
parcel. If the residential use on the site is intensified, such as a subdivision or additional housing
units are created, applicant must return to the City Council for a new hearing and approval to use
the well pursuant to the City’s Municipal Code existing at the time of such intensification of use.
14. The well must comply with all general legal requirements imposed by the
California Department of Water Resources, State Water Resources Control Board, and any other
applicable state or federal law.
11. During any period of noncompliance with these conditions, the well will be
constitute an unapproved use of land subject to the penalties and remedies of the Arroyo Grande
Municipal Code.
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