Regardless of recent changes on the Local Agency Formation Commission, the fate of the Carmel Valley incorporation effort will still likely be decided by a judge.

Last week, County Supervisor Dave Potter, exercising his role as chairman of the Board of Supervisors, appointed himself to the LAFCO board, following fellow Supervisor-slash-Commissioner Jerry Smith’s medical leave.

Potter has repeatedly said he supports residents’ right to vote on whether to create a town of Carmel Valley. Because of this, incorporation supporters saw Potter’s move as the potential saving grace for the would-be town.

The group that wants to incorporate Carmel Valley had sued LAFCO earlier this month. The complaint, filed by the Carmel Valley Forum, charges the agency with illegally stopping the incorporation process and blocking citizens’ right to vote on the issue.

Should the EIR issue come back before the board, Potter, along with commissioners Vince DiMaggio and Anne McGowan, would vote against requiring an EIR. They would only need one more vote to reverse LAFCO’s position, and incorporation supporters hoped that the fourth vote would come from Salinas Mayor Dennis Donohue, another new commissioner.

Donohue won’t say which way he would, theoretically, vote on the issue. “The answer is, without being coy, I don’t know.”

One thing he’s adamant about, however, is that the fight isn’t about the public’s right to vote. “The question is: What’s the process to getting to a vote?” he says, “For me, it’s on the fence. I go back and forth.

“The process seemed to indicate than an EIR wasn’t necessary. On the other hand, I share the concerns of the mayors who commented that there are some genuine reasons to be concerned about the fiscal elements of the plan.”

As it turns out, Donohue’s politics are likely a moot point.

“It’s destined for court,” Potter says, “like so many other things seem to be these days. One side will sue for an EIR or the other side will sue against an EIR.”

Potter says he’d like to see the commission reconsider the issue, as opposed to a judge’s decision. But in order to bring it back to LAFCO, one of the commissioners who voted to require an EIR—and against allowing Carmel Valley residents to vote on incorporation—would have to make a motion to reconsider the issue.

“I don’t know who would have the courage to do that,” Potter says, “but I would think it’s the right thing to do. I’d support the public’s right to vote on the issue.”

The five commissioners who voted to require an EIR—and incorporation opponents—have also argued that the studies that showed a town of Carmel Valley would be financially viable aren’t accurate.

“Certainly in my mind the EIR is not an issue,” Potter says, “and my suspicion is that the financial data is contemporary.”

The LAFCO board met in closed session on Monday, March 26, to discuss the lawsuit. Attorneys for both LAFCO and the CV Forum will meet in early April.

“It may be pro forma, it may be substantive, we just don’t know,” says Glenn Robinson, who advocates putting the issue to a vote. “The other front is we’re trying to convince LAFCO to reconsider. We’ve hoping that over the course of the next couple month, LAFOCO will do the right thing. There are a couple of new faces on the commission. No matter what course of action they take, we need four votes. That’s the bottom line: Do we have four votes?”