Merced Municipal Code Ch. 19.28 Mitigation Monitoring and Reporting Program

In 1988, the Legislature added to CEQA a requirement contained in Public Resources Code Section 21081.6 that a public agency, in approving feasible mitigation measures contained in EIR's and mitigated negative declarations, must also adopt a mitigation monitoring or reporting program. Such a program is to be designed to ensure compliance with the adopted changes to a project or the conditions of approval of a project which were required by the public agency in order to reduce or avoid significant environmental effects.

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

(Ord. 1805 § 1 (part), 1992).

For this chapter, the following definitions shall apply:

A. "Applicant" means the person listed as the applicant on an application for a project and includes the record owner of the real property that is the subject of the project at the time of the application for the project. "Applicant" also includes successive record owners 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.

B. "Approving body" means the Merced city council, the planning commission, the site plan approval committee, or any other City of Merced entity having discretionary authority under the Merced Municipal Code to approve a project.

C. "Mitigation monitoring and reporting program" or "Program" means a program adopted by the approving body pursuant to Public Resources Code Section 21081.6 and this chapter to ensure compliance with adopted or required changes to mitigate or avoid significant environmental effects.

D. "Environmental coordinator" means the City of Merced community development director or his designee.

E. "Program completion certificate" means a certificate issued by the environmental coordinator to certify completion of all or a designated phase of an adopted mitigation monitoring or reporting program.

(Ord. 1805 § 1 (part), 1992).

The environmental coordinator shall prepare and ensure compliance with adopted mitigation monitoring or reporting programs. The environmental coordinator is authorized to promulgate and enforce regulations consistent with the purposes, intent, and express terms of this chapter as she or he deems necessary. No regulation promulgated by the environmental coordinator, or amendments thereto, shall be enforced or become effective until thirty (30) calendar days following the date on which the proposed regulations are filed with the clerk of the City of Merced.

(Ord. 1805 § 1 (part), 1992).

For each project for which a mitigation monitoring or reporting program is required by this chapter 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(s) have been issued for that projector phase of a project.

(Ord. 1805 § 1 (part), 1992).

A. Preparation. The environmental coordinator shall prepare or cause to be prepared a proposed mitigation monitoring or reporting program for any project for which mitigation measures are listed in an environmental document adopted by the approving body.

B. The proposed program shall contain the following elements:

1. A statement that the requirements of the adopted program shall 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.

2. 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.

3. A statement which specifies the responsibilities of the applicant and the environmental coordinator, or his or her designee, as well as whether professional expertise is required for completion or evaluation of any part of the program.

4. The time requirements, schedule, phases or tasks that will, upon completion, result in issuance of a program completion certificate from the environmental coordinator.

5. A statement of the civil remedies and criminal penalties permitted by this chapter for non-compliance with an adopted mitigation monitoring and reporting program.

6. A copy of the proposed program shall be included in the draft EIR or draft mitigated negative declaration and shall be subject to public review and comment.

C. 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.

D. Adoption. When making, findings required by Public Resources Code Section 21081 or adopting a mitigated negative declaration, the approving body shall adopt a mitigation monitoring or reporting program as proposed or modified pursuant to this chapter.

E. 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 or reporting program if one is required under CEQA and this chapter.

F. Upon adoption, the applicant shall subscribe to 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 may forward the adopted program to the county recorder for recordation.

G. In conjunction with the adoption of a mitigation monitoring or reporting program for a project the approving body may require that a bond or similar security be posted by the applicant to assure performance of all mitigation measures, including 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, the amount established by the approving body and shall be deposited with the city prior to commencement of any work on the real property that is the subject of the project.

H. Compliance. Whenever a mitigation monitoring or 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 report in writing to the environmental coordinator the progress achieved 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 (10) business days of the receipt of a report of progress the environmental coordinator shall verify that the project is in compliance with the adopted program. Any non-compliance shall be documented and reported in writing to the applicant within ten (10) business days of the discovery.

3. The applicant shall, within ten (10) business days of receipt of a notice of non-compliance, correct any non-compliance and, provide written notice to the environmental coordinator of the correction. The ten (10) day limit may be extended an additional five (5) business days by the environmental coordinator upon a showing of good cause.

(Ord. 2049 § 1, 2000: Ord. 1805 § 1 (part), 1992).

A. Upon the determination of the environmental coordinator that compliance with the terms of the mitigation monitoring or 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 environmental coordinator shall issue and, for all adopted programs that have been recorded, the city clerk shall cause the recordation of a program completion certificate for that project or phase.

(Ord. 2049 § 2, 2000: Ord. 1805 § 1 (part), 1992).

A. The fee for a mitigation monitoring or reporting program shall be the amount determined by the environmental coordinator to be the actual direct and indirect costs incurred by the city for that mitigation monitoring or reporting program.

B. Until compliance with a specific mitigation monitoring or reporting program is finally achieved and a program completion certificate issued, fees shall be estimated by the environmental coordinator.

1. After adoption of a program by the approving body, adjustments to the initial estimated fee shall be made by the environmental coordinator as necessary to accurately reflect the direct and indirect costs incurred by city for that program.

2. Approval of a project for which a program is required pursuant to this chapter shall be conditioned on payment of the initial estimated fee and all other fees required by this chapter. Adjustments to the initial fee shall be paid by the applicant not later than thirty (30) 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 environmental coordinator determines that the estimated fee paid exceeds the actual direct and indirect costs incurred by the city of Merced 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 environmental coordinator determines that the estimated fee paid is less than these costs, the applicant shall remit the difference to the city within thirty (30) days of his or her receipt of notice that the estimated fee is insufficient to reimburse the city for its costs.

C. The environmental coordinator, 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 or 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. 1805 § 1 (part), 1992).

Any person who violates any of the provisions of this chapter, or fails to comply with any of the regulatory requirements adopted by the environmental coordinator pursuant to this chapter, is guilty of a misdemeanor. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter, or regulations adopted by the environmental coordinator pursuant to this chapter, is committed, continued, or permitted by any such person, and he or she shall be punished accordingly.

(Ord. 1805 § 1 (part), 1992).

In addition to the penalties set forth in Section 19.28.080, the city may carry out or seek such other remedies as permitted by law, including, but not limited to the following:

A. Injunctive relief;

B. A stop work order subject to the following:

1. Whenever the environmental coordinator finds that there is non-compliance with an adopted program he or she may issue a stop work order which shall prohibit further work on the project that is the subject of the adopted program.

2. In the event the environmental coordinator 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:

(a) The findings justifying the stop work order;

(b) The time and date when the stop work order commences;

(c) The time, date, and place at which the applicant may appear to contest the findings in the notice, which shall not be later than twenty-four (24) hours following the time and date when the stop work order commences.

3. Authority to recommence work after issuance of a stop work order may be granted by the environmental coordinator upon the establishment of such terms, conditions and requirements as are consistent with the requirements of the adopted program.

C. Revocation of any special permit granted concurrently with the approval of a program subject to the following:

1. The planning commission on its own motion may, and if directed by the city council shall, hold a public hearing for the purpose of revoking any special permit such as a variance, special development permit, or conditional use permit which has been granted concurrently with approval of a program. Notice shall be given with as provided in Chapter 20.72.

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

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

(b) All persons 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 or her own volition.

(c) The planning commission shall make a full record of the hearing.

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

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

(a) Non-compliance by the permittee with any of the terms, conditions, or requirements of this chapter;

(b) Non-compliance by the permittee with the terms, conditions, or requirements of any regulation promulgated by the environmental coordinator pursuant to this chapter;

(c) Non-compliance with any of the terms, conditions, or requirements of the mitigation monitoring or reporting program approved in conjunction with the grant of the permittee's special permit;

(d) Non-compliance with any stop work order issued by the environmental coordinator with regard to the permittee's project.

D. Abatement of a nuisance in accordance with the following:

1. Any project which is not in compliance with the provisions of this chapter, any regulations adopted by the environmental coordinator pursuant to this chapter, or any term, condition, or requirement of a program approved for that project shall be and the same 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 environmental coordinator that there is such non-compliance.

2. Written notice of the hearing to abate the public nuisance shall be given to the applicant and anyone known 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 (10) calendar days prior to the date of the hearing. In instances when the environmental coordinator cannot ascertain the address of the applicant or the person in possession of the subject real property, written notice shall be posted upon the subject property not later than seven (7) calendar days prior to the date of the hearing and published in a newspaper of general circulation published within Merced County. Those receiving notice and any other interested person shall be provided an opportunity to be heard at the hearing.

3. The hearing to abate the public nuisance shall be held before the city council and at the conclusion of the hearing, the city council shall determine whether there is non-compliance with a provision of this chapter or a regulation adopted by the environmental coordinator pursuant to this chapter, or any term, condition, or requirement of the approved program. If there is such non-compliance, 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.

4. 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 and anyone known to the city council to be in possession of the subject real property. The notice shall be personally served or mailed by certified mail at least ten (10) calendar days prior to the date of the hearing. In instances when the environmental coordinator 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 (7) calendar days prior to the date of the hearing. In addition to posting, notice of the hearing shall be published once not later than five (5) calendar days prior to the date of the hearing in a newspaper of general circulation published within Merced County. Those receiving notice and any other interested person shall be provided an opportunity to be heard at the hearing.

5. 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 abatement and whether to order that cost specially assessed against the subject real property. If the cost of abatement is ordered to be specially assessed against the subject 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.

6. 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 the date upon which abatement of the nuisance was ordered by the city council and the date the abatement was complete, and include a legal description of the real property subject to the lien and the amount of the abatement cost.

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

(Ord. 1805 § 1 (part), 1992).

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 the fees established pursuant to Section 19.28.070, a determination by the environmental coordinator denying issuance of a program completion certificate pursuant to Section 19.28.060, a stop work order issued by the environmental coordinator pursuant to this chapter, or a revocation by the planning commission pursuant to this chapter.

B. The appeal fee and appeal shall be filed with the clerk of the city within ten (10) calendar days of the date of the notice of the imposed fees, the determination of the environmental coordinator 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 order. The appeal shall be in writing to the Merced city council and shall include a statement of the 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 environmental coordinator and decide the matter after oral argument presented during the hearing, or to admit evidence not previously considered by the environmental coordinator, 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.

1. In deciding an appeal of a fee imposed pursuant to Section 19.28.070 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 environmental coordinator denying issuance of a program completion certificate 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 non-compliance with the adopted program. If the city council finds that there has been compliance with the terms of the adopted program then the city council shall discharge the stop work order.

4. In deciding an appeal from a revocation undertaken pursuant to this chapter, the city council shall deny the appeal if it finds any of the grounds set forth in Section 19.28.090(C)(3) of this chapter exist. If the city council finds that none of the grounds set forth in Section 19.28.090(C)(3) exist, then it shall reinstate the special permit as if the revocation had not occurred.

(Ord. 1805 § 1 (part), 1992).