Hemet Municipal Code Art. V Mitigation Monitoring and Reporting Programs

Footnotes:

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Cross reference— Model mobile source air pollution reduction program, § 30-91 et seq.

(a) The California Environmental Quality Act, commonly known as CEQA, and found at Public Resources Code § 21000 et seq., was enacted in 1970 with the finding that the maintenance of a quality environment is a matter of statewide concern. The legislature, in adopting CEQA, declared as a matter of policy that public agencies are not to approve projects as proposed if the significant environmental effects of such projects can be substantially reduced through feasible alternatives or feasible mitigation measures.

(b) CEQA procedures were established by the legislature to assist public agencies in the systematic identification of the significant environmental effects of proposed projects. These effects are identified in two types of environmental documents: environmental impact reports and negative declarations. Environmental impact reports (EIR's) containing findings of significant impacts are required to identify mitigation measures needed to reduce impacts to a less than significant level. Negative declarations can also identify mitigation measures that reduce impacts to a less than significant level.

(c) In 1988, the legislature added to CEQA a requirement that a public agency, in approving feasible mitigation measures contained in EIR's and negative declarations, must also adopt a mitigation monitoring and reporting program. Such a program is to be designed to ensure compliance with the changes to a project and the conditions of approval of a project which were required by the public agency in order to reduce or avoid significant environmental effects.

(d) The purpose of this article is to set forth the procedures and requirements to be followed in the city with regard to the preparation and adoption of and compliance with mitigation monitoring and reporting programs for proposed projects when those programs are necessary to meet the requirements of CEQA.

(e) In adopting this article, the city council is mindful of the legislature's intent in enacting CEQA. Protection of the public health, safety and welfare was a fundamental reason for the passage of CEQA.

(f) This article is in furtherance of the legislative intent of CEQA. In that regard, it is necessary to the protection of the public health, safety and welfare that civil enforcement measures be utilized in addition to criminal penalties when this article is violated. In particular, when there is noncompliance with an adopted mitigation monitoring and reporting program and when that noncompliance presents a serious and immediate threat to the public health, safety and welfare, a stop work order is the best possible means of minimizing this threat. Other civil and administrative remedies such as injunctive relief, revocation of permit or abatement of a nuisance will serve to protect the environment and the health, safety and welfare of the people of the city when a stop work order is either not required, not observed or not sufficient by itself.

(Ord. No. 1427; Code 1984, § 6900)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Applicant means the person listed as the applicant on an application for a project, and includes the owner of record of the real property that is the subject of the project at the time of the application for the project. The term "applicant" also includes successive owners of record or other persons who obtain an interest in the subject real property, or a portion thereof, after submission of the application for the project but prior to the issuance of a program completion certificate certifying completion of all requirements of a program.

Approving body means the city council, the city planning commission or any other city entity having discretionary authority under this Code or state law to approve a project.

Mitigation monitoring and reporting program and program mean a program adopted by the approving body pursuant to Public Resources Code § 21081.6 and this article to ensure compliance with adopted or required changes to mitigate or avoid significant environmental effects.

Program completion certificate means a certificate issued by the planning director to certify completion of all or a designated phase of an adopted mitigation monitoring and reporting program.

Project means a project as defined in the California Environmental Quality Act (CEQA), found at Public Resources Code § 21000 et seq.

(Ord. No. 1427; Code 1984, § 6901)

Cross reference— Definitions and rules of construction generally, § 1-2.

(a) The applicant shall prepare the mitigation monitoring and reporting program.

(b) The planning director is authorized to promulgate and enforce regulations consistent with the purposes, intent and express terms of this article as deemed necessary to implement such purposes, intent and express terms. No regulation promulgated by the planning director, or amendments thereto, shall be enforced or become effective until 30 calendar days following the date on which the proposed regulations are filed with the city clerk.

(Ord. No. 1427; Code 1984, § 6902)

For each project for which a mitigation monitoring and reporting program is required by this article and adopted by the approving body, full compliance with the adopted program for the project shall be a condition of approval of the project, and the applicant shall obtain a program completion certificate within the time requirements set forth in the adopted program. No project or phase of a project shall be considered to be in compliance with its adopted program until the required program completion certificate has been issued for that project or phase of a project.

(Ord. No. 1427; Code 1984, § 6903)

(a) Contents. The applicant shall prepare or cause to be prepared a proposed mitigation monitoring and reporting program for any project for which mitigation measures listed in an approved environmental document were adopted by the approving body. Final review and approval of the mitigation monitoring program shall lie with the approving body.

(1) The proposed program shall contain at a minimum the following elements:

a. A statement that the requirements of the adopted program run with the real property that is the subject of the project, and that successive owners, heirs and assigns of this real property are bound to comply with all of the requirements of the adopted program.

b. A statement that, prior to any lease, sale, transfer or conveyance of any portion of the real property that is the subject of the project, the applicant shall provide a copy of the adopted program to the prospective lessee, buyer, transferee, or one to whom the conveyance is made.

c. A statement which specifies the responsibilities of the applicant and the planning director or his designee, as well as whether professional expertise is required for completion or evaluation of any part of the program.

d. The time requirements, schedule, phases or tasks that will, upon completion, result in issuance of a program completion certificate from the planning director.

e. A statement of the civil remedies and criminal penalties permitted by this article for noncompliance with an adopted mitigation monitoring and reporting program.

(2) Where a project is approved with mitigation measures that have been modified during the hearing process from those originally recommended in the environmental document, the proposed mitigation monitoring and reporting program shall be modified to maintain consistency with the project as approved. The proposed program may also be modified at the discretion of the approving body.

(b) Adoption and recording. When making findings required by Public Resources Code § 21081 or adopting a negative declaration containing mitigation measures, the approving body shall adopt a mitigation monitoring and reporting program as proposed or modified pursuant to this article.

(1) Notwithstanding any other city ordinance or regulation to the contrary, approval of the project shall not be final until the adoption of a mitigation monitoring and reporting program if one is required under CEQA and this article.

(2) Upon adoption, the applicant and the chairperson of the approving body shall execute the adopted program as legally necessary for the adopted program to be recorded with the county recorder. After the execution of the adopted program, the city clerk or appropriate commission secretary shall forward the adopted program to the county recorder for recordation. After recordation, the adopted program shall be returned to the planning director for safekeeping until at least a program compliance certificate has been issued and recorded certifying compliance with all of the requirements of the adopted program.

(3) In conjunction with the adoption of a mitigation monitoring and reporting program for a project, the approving body may require that a bond or similar security be posted by the applicant to ensure performance of any construction, alteration, repair or other work required by the program. The bond or similar security shall be in a form approved by the city attorney, in an amount established by the approving body, and shall be deposited with the city clerk prior to commencement of any work on the real property that is the subject of the project.

(c) Verification of compliance. Whenever a mitigation monitoring and reporting program is adopted for a project, the applicant for that project shall comply with the adopted program. In general, compliance shall include the following:

(1) The applicant shall provide written notice to the planning director of the progress toward compliance with the mitigation measures in accordance with the schedule set forth in the adopted program.

(2) Unless a different time period is specified in the adopted program, within ten business days of the receipt of a notice of progress, the planning director shall verify that the project is in compliance with the adopted program. Any noncompliance shall be documented and reported in writing to the applicant within ten business days of the discovery.

(3) The applicant shall, within ten business days of receipt of a notice of noncompliance, correct any noncompliance and provide written notice to the planning director of the correction. The ten-day limit may be extended an additional five business days by the planning director upon a showing of good cause.

(Ord. No. 1427; Code 1984, § 6904)

(a) Upon the determination of the planning director that compliance with the terms of the mitigation monitoring and reporting program adopted by the approving body for a project or phase thereof has been achieved, and that there has been full payment of all fees for the project, the planning director shall issue and the city clerk shall cause the recordation of a program completion certificate for that project or phase.

(b) More than one program completion certificate may be required or issued for a project whenever there are multiple phases to a project which need to be implemented over different periods of time.

(Ord. No. 1427; Code 1984, § 6905)

(a) The fee for a mitigation monitoring and reporting program shall be the amount determined by the planning director to be the actual direct and indirect costs incurred by the city for that mitigation monitoring and reporting program.

(b) Until compliance with a specific mitigation monitoring and reporting program is finally achieved and a program completion certificate issued, fees shall be estimated by the planning director.

(1) Initially, an estimated fee for a proposed program shall be established by the planning director. After adoption of a program by the approving body, adjustments to the initial estimate shall be made by the planning director as necessary to accurately reflect the direct and indirect costs incurred by the city for that program.

(2) Approval of a project for which a program is required pursuant to this article shall be conditioned on payment of the initial estimated fee and all other fees required by this article. Adjustments to the initial fee shall be paid by the applicant not later than 30 business days after receipt of written notice of any adjustments to the initial fee.

(3) If, after compliance with the adopted program, but prior to issuance of a program completion certificate, the planning director determines that the estimated fee paid exceeds the actual direct and indirect costs incurred by the city for that program, then the difference shall be refunded to the applicant. If, after compliance with the adopted program, but prior to issuance of a program completion certificate, the planning director determines that the estimated fee paid is less than these costs, the applicant shall remit the difference to the city within 30 business days of his receipt of notice that the estimated fee is insufficient to reimburse the city for its costs.

(c) For public agency projects, the planning director, when so authorized by the city council on a case-by-case basis, may enter into a written agreement to allow the payment of a mitigation monitoring and reporting program fee to be paid in installments; provided:

(1) The applicant is a public agency;

(2) The project is to serve a public purpose;

(3) The public agency is without sufficient funds to pay the fee in one lump sum; and

(4) The payment period does not exceed one year.

(Ord. No. 1427; Code 1984, § 6906)

Notwithstanding any provisions of this Code to the contrary, any person who violates any of the provisions of this article, or fails to comply with any of the regulatory requirements adopted by the planning director pursuant to this article, is guilty of a misdemeanor, and, upon conviction, may be punished in accordance with section 1-8.

(Ord. No. 1427; Code 1984, § 6907)

In addition to the penalties set forth in section 58-138, the city may carry out or seek such other remedies as permitted by law, including but not limited to the following:

(1) Injunctive relief.

(2) A stop work order, subject to the following:

a. Whenever the planning director finds that there is noncompliance with an adopted program and that this noncompliance presents a serious and immediate threat to the public health, safety and welfare, the planning director shall issue a stop work order, which shall prohibit further work on the project that is the subject of the adopted program.

b. If the planning director issues a stop work order, notice of this order shall be delivered to the address of the project, and to the address of the applicant, if different. The notice shall contain the following:

1. The finding justifying the stop work order.

2. The time and date when the stop work order commences.

3. The time, date and place at which the applicant may appear to respond to the findings in the notice, which shall not be later than 24 hours following the time and date when the stop work order commences.

c. Authority to recommence work on the project that is the subject of an adopted program after issuance of a stop work order may be granted by the planning director upon the establishment of such terms, conditions and requirements as are reasonably necessary to protect the public health, safety and welfare and as are consistent with the terms, conditions and requirements of the adopted program.

(3) Revocation of any special permit granted concurrently with the approval of a program, subject to the following:

a. The planning commission on its own motion may, and if directed by the city council shall, hold a public hearing for revoking any special permit such as a variance, exception, lot reduction permit, special development permit, mobile home certificate of compatibility, certificate of nonconforming use or conditional use permit which has been granted pursuant to the provisions of this Code concurrently with the approval of a program. Notice shall be given in accordance with this Code.

b. The hearing shall be held in accordance with the following:

1. All testimony at the hearing shall be under oath or affirmation. The secretary of the planning commission or his designee shall administer oaths and retain relevant records and all exhibits and documents presented at the hearing.

2. A party shall be afforded the opportunity to present evidence and testimony on all relevant issues. The chairperson may impose reasonable limitations on the number of witnesses heard, and on the nature and length of the testimony. The chairperson may call witnesses and introduce papers on his own volition.

3. The planning commission shall make a full record of the hearing, which may be transcribed on order of the chairperson.

4. Decisions of the planning commission shall be based upon evidence presented during the public hearing. The planning commission shall not rely upon any communications, reports, staff memoranda or other materials prepared in connection with the particular case unless made a part of the record.

c. The planning commission may revoke the special permit if it finds that any of the following exist:

1. Noncompliance by the permittee with any of the terms, conditions or requirements of this article.

2. Noncompliance by the permittee with the terms, conditions or requirements of any regulation promulgated by the planning director pursuant to this article.

3. Noncompliance with any of the terms, conditions or requirements of the mitigation monitoring and reporting program approved in conjunction with the grant of the permittee's special permit.

4. Noncompliance with any stop work order issued by the planning director with regard to the permittee's project.

(4) Abatement of a nuisance in accordance with the following:

a. Any project which is not in compliance with the provisions of this article, any regulations adopted by the planning director pursuant to this article, or any term, condition or requirement of a program approved for that project is hereby declared to be unlawful and a public nuisance. A hearing to abate such a public nuisance may be ordered by resolution of the city council upon a showing by the planning director that there is noncompliance with either a provision of this article, a regulation adopted by the planning director pursuant to this article, or any term, condition or requirement of a program approved for the project.

b. Written notice of the hearing to abate the public nuisance shall be given to the applicant of the project and anyone known to the city council to be in possession of the real property that is the subject of the project. The notice shall be personally served or mailed by certified mail at least ten calendar days prior to the date of the hearing. In instances when the planning director cannot ascertain the address of the applicant or the person in possession of the subject real property, written notice of the hearing to abate the public nuisance shall be posted upon the subject property not later than seven calendar days prior to the date of the hearing and published in a newspaper of general circulation published within the city. Those receiving notice and any other interested persons shall be provided an opportunity to be heard at the hearing.

c. The hearing to abate the public nuisance shall be held before the city council. At the conclusion of the hearing, the city council shall determine whether there is noncompliance with a provision of this article or a regulation adopted by the planning director pursuant to this article, or any term, condition or requirement of the approved program. If there is such noncompliance, the city council may take such action as it deems appropriate to abate the public nuisance, including but not limited to ordering the appropriate city officials to undertake the steps necessary to abate the public nuisance.

d. Upon demand by the city, the cost of the abatement shall be paid by the applicant or the person in possession of the subject real property. If the cost of the abatement is not paid upon demand by the city, a hearing shall be held to consider whether to order the cost of the abatement specially assessed against the real property that is the subject of the project. Written notice of the hearing to consider whether to order the cost of the abatement specially assessed against the subject real property shall be given to the applicant of the project and anyone known to the city council to be in possession of the subject real property. The notice shall be personally served by certified mail at least ten calendar days prior to the date of the hearing. In instances when the planning director cannot ascertain the address of the applicant or the person in possession of the subject real property, written notice of the hearing to consider whether to order the cost of the abatement specially assessed against the subject real property shall be posted upon the subject real property not later than seven calendar days prior to the date of the hearing. In addition to the posting, notice of the hearing shall be published once not later than five calendar days prior to the date of the hearing in a newspaper of general circulation published within the city. Those receiving notice and any other interested persons shall be provided an opportunity to be heard at the hearing.

e. The hearing to consider whether to order the cost of the abatement specially assessed against the subject real property shall be held before the city council. At the conclusion of the hearing, the city council shall determine the cost of the abatement and whether to order that cost specially assessed against the subject real property. If the cost of the abatement is ordered to be specially assessed against the real property, then the assessment may be collected at the same time and in the same manner as ordinary city taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary city taxes. All laws applicable to the levy, collection and enforcement of city taxes are applicable to the special assessment.

f. If the city council orders the cost of the abatement to be specially assessed against the subject real property, the council also may cause a notice of abatement lien to be recorded. The notice shall, at a minimum, identify the record owner or possessor of property, set forth the last known address of the record owner or possessor, set forth upon which date abatement of the nuisance was ordered by the city council and the date the abatement was complete, and include a legal description of the property subject to the lien and the amount of the abatement cost.

g. Nothing in this section prohibits the summary abatement of a nuisance upon the order of the city council or upon order of any other city officer authorized by law to summarily abate nuisances, if the council or officer determines that the nuisance constitutes an immediate threat to public health or safety.

(Ord. No. 1427; Code 1984, § 6908)

(a) Upon payment of the appeal fee established by resolution of the city council and the filing of an appeal, an applicant may appeal the imposition of fees established pursuant to section 58-137, a determination by the planning director denying issuance of a program completion certificate pursuant to section 58-136, a stop work order issued by the planning director pursuant to this article, or a revocation by the planning commission pursuant to this article.

(b) The appeal fee and appeal shall be filed with the city clerk within ten business days of the date of the notice of the imposed fees, the determination of the planning director denying issuance of a program completion certificate, the date of issuance of a stop work order, or the date of a revocation undertaken pursuant to this article. The appeal shall be in writing to the city council, and shall include a statement of reasons for the appeal.

(c) Upon receipt of the appeal fee and the appeal, a hearing shall be scheduled before the city council. The city council shall be authorized to deny the introduction of evidence not previously considered by the planning director and decide the matter after oral argument presented during the hearing, or to admit evidence not previously considered by the planning director, or conduct a de novo hearing. The decision by the city council granting or denying the appeal shall be final, and shall be accompanied by findings of fact and conclusions.

(1) In deciding an appeal of a fee imposed pursuant to section 58-137, the city council shall be authorized to establish a different fee as the amount of actual direct and indirect costs incurred by the city for a particular program.

(2) In deciding an appeal from the determination of the planning director denying issuance of a program completion certificate pursuant to section 58-136, the city council shall issue a program completion certificate if it determines that compliance with all of the terms of the adopted program has been achieved, or shall deny issuance of a program completion certificate if it determines that compliance with all of the terms of the adopted program has not been achieved.

(3) In deciding an appeal from the issuance of a stop work order, the city council shall affirm the stop work order if it finds that there has been noncompliance with the adopted program and that this noncompliance presents a serious and immediate threat to the public health, safety and welfare. If the city council finds that there has been compliance with the terms of the adopted program or that any noncompliance does not present a serious and immediate threat to the public health, safety and welfare, then the city council shall discharge the stop work order.

(4) In deciding an appeal from a revocation undertaken pursuant to this article, the city council shall affirm the revocation if it finds any of the grounds set forth in section 58-139 exist. If the city council finds that there has been compliance with the terms of this article, then it shall reinstate the special permit as if the revocation had not occurred.

(Ord. No. 1427; Code 1984, § 6909)