Photograph by Matthew Suárez

Though state officials have dubbed this pond on private property in Carmel Valley “high quality wetlands,” the Coastal Commission ordered it drained, but insisted the property owner create more wetlands.

More than 17 years ago, land owner Robert Barczewski had a grading crew push a pile of dirt into a dip in a dirt road on his private property in northern Carmel Valley. The dip flooded every rainy season and made the road impassable until it was built up, says Paul Metcalf, a consultant who works for the Barczewski family and its entities. “When he placed the fill there it was to get from one part of his property to another,” Metcalf says.

Luxury homes now cover most of Carmel Valley, which used to be home to several large scale nurseries.

Photograph by Matthew Suárez

Because that land is near the McGonigle Creek, that dammed area filled with water and became an accidental pond over time, turning into what state biologists termed “high quality wetlands.”

This is California, and this is a California story. So when the city and the Coastal Commission looked at the one-acre of high quality wetlands, they ordered Barczewskis to drain the accidental pond and then create bigger replacement wetlands elsewhere.

After what appears to be 15 years of not getting the work done, the Barczewskis found a new friend to help fund the long-delayed corrective action.

This Coastal Commission exhibit shows the pond which was created when the landowner filled in a low section of a road connecting the two halves of the nursery operation.

California Coastal Commission

They’re selling some of their land that’s adjacent to the mitigation wetland to the San Diego Association of Governments, which also has to create and maintain a wetlands to make up for environmental effects of the regional transportation agency’s Rose Creek Bikeway.

The last time the San Diego Association of Governments crossed paths with the Barczewski land business, it was taking land for State Route 56 via eminent domain in 2004. This time the agency is paying more than a half million dollars per acre for Barczewski’s land, Metcalf says. (I told you it was a California story.)

Neither Robert Barczewski, the 82-year-old who bought the 260-acre parcel before 1980 and ran Rancho Del Sol Nurseries, nor his son Chris Barczewski responded to multiple phone messages and emails with questions regarding this matter.

But riches of documents from the State Regional Water Quality Control Board, the California Coastal Commission, the city’s Development Services and its Planning Commission, the community planning group; plus Superior and Appellate Court records tell a convoluted story about arguing, planning, suing, and enforcing — and doing very little for a long time.

In 1983, Robert and Sandra Barczewski decided to try to develop the 260 acres of land they owned just south of where State Route 56 now approaches Interstate 5 — but before 56 was there, at Rancho Santa Fe Farms Road. That’s according to the 1989 appellate court decision from the fight among the Barczewskis, the multiple entities the land ownership traveled through, and investment partners Commonwealth Acceptance Corp. The acceptance corporation sank over the $2.55 million into their joint venture, and, according to the court opinion, “the Barczewskis allegedly diverted and misappropriated the funds for their own personal use;  Rancho Del Sol was not developed.”

Apparently, at some point in the fight over the missing money, Sandra Barczewski asked her title company, which was suing her, to pay for her legal defense against itself as required by the title insurance documents.

The Barczewski suit was dismissed in the state court. A later appeal failed, but the justices drafted the unusually detailed statement of the case that made their perspective public and almost unchallengeable.

In 1984, some of the land was in use as a nursery. Back then, Carmel Valley was full of nurseries including the Evergreen Nurseries mothership, which now may be the last wholesale plant nursery in the upscale neighborhood of million-dollar homes that lie mostly north of State Route 56.

Big home developers — Lennar, Pardee, and Barratt American among them — were interested in building in the valley and the Barczewskis sold some land and worked with some developers.

In 1987, the coastal commission gave the nod to create 37 lots — including the luxe, gated Caminito Mendiola segment’s 12 houses — and to keep part of the nursery operating downhill from the exclusive street.

“Agricultural use on the lots was generally divided into two areas: the eastern portions of the lot(s) were developed with greenhouse and storage structures. The western lot(s) were used as a nursery growing ground and included a large stock of container plants such as palm trees and other ornamental plants,” the commission report says.

The neighborhood that sprang up is now called Costa del Sol West. The L-shaped road, Caminito Mendiola, has a dozen properties built on the edge of a ridge between 1991 and 1999. The houses are walled off on the north and south where they, most unfortunately in a $2.5 million home, overlook a dirt lot with remaining pieces of the nursery, and beyond that, the instant-pond in the valley downhill.

By 1991, the Barczewskis, at least four family members, and a half dozen trusts and entities were passing parcels of Carmel Valley land around among themselves, buying a bit and selling more. They were engaged in deals with Pardee Homes, Lennar, Barratt American and a half dozen other groups. It’s important to note that it’s quite common for land developers to place project land into limited-purpose entities for legal and financial reasons.

There are more than a dozen lawsuits among the Barczewskis and companies and people they did business with in the late 1990s and early aughts, until 2002, when the city and state of California together went after Pardee, the Barczewskis, and their ventities. That action was over the bermed road and accidental pond, at the south-of-Highway-56 property, which had been approved for development by the city council in February 2001.

Court and city documents say that Pardee sued the Barczewskis in 2003 over flooding from that illegal grading that allegedly damaged Pardee’s projects in Pacific Highlands Ranch. Pardee and the Barczewski entities settled the matter.

In the settlement a year later, the Barczewskis committed to showing the city their plan to undo and remediate for the berm and pond, which they did in June 2008. Through fits and starts, the project remains incomplete.

In June 2004, SANDAG was buying up land to build the State Route 56 freeway between Interstates 5 and 15. San Diego City Council minutes discuss the eminent domain cases used to get land for Highway 56. Among the more than two dozen parties whose land was taken — with compensation — is some kind of partnership between developer Barratt American and the Barczewski entities. The eminent domain actions — at the time budgeted for $73.5 million — were all being led by the San Diego Association of Governments, which sought money from the city.

By 2008, the Water Quality Control Board and the city were working on a settlement for the illegal grading, detailed briefly in plans before the Carmel Valley Planning Group, the city’s development services processes, the city council, and eventually the California Coastal Commission.

In any event, the 900 to 1200 cubic yards of soil positioned in 2001 to stabilize the dirt road that also blocked drainage, remained in place. It’s still there, coastal commission documents show.

“Since 2000, the ponded area has matured and become a high-quality wetland, potentially suitable for nesting of (the endangered bird) Least Bell’s Vireo. However, as a result of a stipulated judgement and a restoration order, the pond must be drained and the tributary restored. It is estimated that the draining of the pond will result in the loss of the entire 1.05-acre pond and 0.69-acres of riparian vegetation surrounding the pond,” the coastal commission documents say. “The pond currently supports a number of biological resources including open water, southern riparian scrub, and emergent freshwater marsh, and is classified as both State and Federal wetlands.”

The current Barczewski plan involves creating about 14.3 acres of wetland and riparian habitat, but didn’t take into account that the .37 acre illegal dirt road had somehow become a resource as well as a forbidden obstacle, so the coastal commission reworked the number of acres required to mitigate for draining the pond and added the dry land affected by removing the soil.

“As only 6.39 acres of mitigation is required to mitigate for the impacts associated with the project, excess habitat created by the applicant may in the future be utilized for other habitat-dependent purposes as consistent with the certified City of San Diego Local Coastal Plan,” the commission decided.

That will leave just under eight acres to sell as mitigation credits. But getting the land into mitigation banking isn’t a sure thing, the coastal commission report notes.

Metcalf downplayed the idea that remaining acres would be sold as mitigation land, noting it has to be a functioning wetland with the approval of a multitude of government agencies before it’s useful. “It’s costly and time consuming,” Metcalf said.

Michael McCollum, who runs a statewide mitigation bank, estimates the value of a functioning acre of wetlands at more than $500,000. He noted that it will take no less than five years for the land to be restored and approved by the half dozen agencies that sign off on such projects.

That the San Diego Association of Governments is claiming it doesn’t surprise him. “SANDAG needs a lot of wetlands, and they’re glomming onto any (mitigation) project they can find,” he says. “Wetlands in San Diego County tend to be a lot more expensive because there’s so little water.”

He noted that, while mitigation bank land held by the established land banks is frequently audited, mitigation land banked by individuals is rarely inspected simply because of low agency staffing. The projects still have to get a permit for the mitigation bank from the city of San Diego, but that shouldn’t be too difficult. Though the development permit first funded in 2008 expired in May 2018, the department of development services has granted the Barczewskis an extension until December 2020 to finish.

In the meantime, though Robert and Sandra Barczewski still own about 30 acres in Carmel Valley, they moved to the Austin, Texas area Metcalf said. “They’ve spent a lot of money doing mea culpas for what they thought was a reasonable thing to do on their own property,” Metcalf said.