Chapter 20.02
MITIGATION MONITORING AND REPORTING PROGRAM
Sections:
20.02.030 Environmental Planning Manager responsibilities.
20.02.040 Mitigation monitoring and reporting program compliance requirement.
20.02.050 Processing of mitigation monitoring and reporting programs.
20.02.060 Program completion certificate.
20.02.090 Civil and administrative remedies.
20.02.010 Purpose.
The California Environmental Quality Act (commonly known as CEQA and found at Section 2100, et seq., of the Public Resources Code) 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.
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 (2) types of environmental documents: environmental impact reports and negative declarations. Environmental impact reports (“EIRs”) 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.
In 1988, the Legislature added to CEQA a requirement that a public agency, in approving feasible mitigation measures contained in EIRs 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.
The purpose of this chapter 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 and reporting programs for proposed projects when those programs are necessary to meet the requirements of CEQA.
In adopting the ordinance codified in this chapter, 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.
This chapter 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 chapter 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 this City when a stop work order is either not required, not observed, or not sufficient by itself. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.020 Definitions.
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 Elk Grove City Council, the Planning Commission, the Development Services Director, or any other City of Elk Grove entity having discretionary authority under the Elk Grove Municipal Code or State law to approve a project.
C. “Mitigation monitoring and reporting program” or “program” means a program adopted by the approving body pursuant to Section 21081.6 of the Public Resources Code and this chapter to ensure compliance with adopted or required changes to mitigate or avoid significant environmental effects.
D. “Environmental Planning Manager” means the Environmental Planning Manager of the City of Elk Grove Development Services Department or his or her designee.
E. “Project” means a project as defined in the California Environmental Quality Act (“CEQA”) found at Section 21000, et seq., of the Public Resources Code.
F. “Program completion certificate” means a certificate issued by the Environmental Planning Manager to certify completion of all or a designated phase of an adopted mitigation monitoring and reporting program. [Ord. 24-2015 §9 (Exh. G), eff. 2-12-2016; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.030 Environmental Planning Manager responsibilities.
The Environmental Planning Manager shall prepare and ensure compliance with adopted mitigation monitoring and reporting programs. The Environmental Planning Manager is authorized to promulgate and enforce regulations consistent with the purposes, intent, and express terms of this chapter as she or he deems necessary to implement such purposes, intent, and express terms. No regulation promulgated by the Environmental Planning Manager or amendments thereto, shall be enforced or become effective until thirty (30) days following the date on which the proposed regulations are filed with the City Clerk. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.040 Mitigation monitoring and reporting program compliance requirement.
For each project for which a mitigation monitoring and 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 project or phase of a project. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.050 Processing of mitigation monitoring and reporting programs.
A. Preparation. The Environmental Planning Manager 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.
1. The proposed program shall contain 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 Environmental Planning Manager 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 Environmental Planning Manager.
e. A statement of the civil remedies and criminal penalties permitted by this chapter 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. When making findings required by Section 21081 of the Public Resources Code 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 chapter.
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 chapter.
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 Sacramento County Clerk-Recorder. After the execution of the adopted program, the City Clerk shall forward the adopted program to the Sacramento County Clerk-Recorder for recordation. After recordation, the adopted program shall be returned to the Environmental Planning Manager for safekeeping until at least a program completion certificate has been issued and recorded certifying completion 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 assure 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. 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 Environmental Planning Manager 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 (10) business days of the receipt of a notice of progress the Environmental Planning Manager 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 (10) business days of the discovery.
3. The applicant shall, within ten (10) business days of receipt of a notice of noncompliance, correct any noncompliance and provide written notice to the Environmental Planning Manager of the correction. The ten (10) day limit may be extended an additional five (5) business days by the Environmental Planning Manager upon a showing of good cause. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.060 Program completion certificate.
A. Upon the determination of the Environmental Planning Manager 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 Environmental Planning Manager shall issue and the City Clerk shall cause the recordation of a program completion certificate for that project or phase.
B. More than one (1) 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. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.070 Fees.
A. The fee for a mitigation monitoring and reporting program shall be the amount determined by the Environmental Planning Manager to be the actual direct and indirect costs incurred by the City of Elk Grove 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 Environmental Planning Manager.
1. Initially an estimated fee for a proposed program shall be established by the Environmental Planning Manager. After adoption of a program by the approving body, adjustments to the initial estimate shall be made by the Environmental Planning Manager as necessary to accurately reflect the direct and indirect costs incurred by the City of Elk Grove 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) 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 Environmental Planning Manager determines that the estimated fee paid exceeds the actual direct and indirect costs incurred by the City of Elk Grove 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 Planning Manager determines that the estimated fee paid is less than these costs, the applicant shall remit the difference to the City of Elk Grove within thirty (30) business days of his or her receipt of notice that the estimated fee is insufficient to reimburse the City of Elk Grove for its costs.
C. For public agency projects, the Environmental Planning Manager, 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 (1) year. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.090 Civil and administrative remedies.
In addition to the penalties set forth in EGMC Section 20.02.080, 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 Planning Manager 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 Environmental Planning Manager shall 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 Planning Manager 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 respond to 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 on the project that is the subject of an adopted program after issuance of a stop work order may be granted by the Environmental Planning Manager 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.
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 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 the Zoning Code concurrently with the approval of a program. Notice shall be given in accordance with the Zoning Code.
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. 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 or her own volition;
c. The Planning Commission shall make a full record of the hearing, which may be transcribed on order of the Chairperson;
d. 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.
3. The Planning Commission may revoke the special permit if it finds that any of the following grounds exist:
a. Noncompliance by the permittee with any of the terms, conditions, or requirements of this chapter;
b. Noncompliance by the permittee with the terms, conditions, or requirements of any regulation promulgated by the Environmental Planning Manager pursuant to this chapter;
c. 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;
d. Noncompliance with any stop work order issued by the Environmental Planning Manager 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 Planning Manager 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 Planning Manager that there is noncompliance with either a provision of this chapter, a regulation adopted by the Environmental Planning Manager pursuant to this chapter, or any term, condition, or requirement of a program approved for the project.
2. 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 (10) days prior to the date of the hearing. In instances when the Environmental Planning Manager 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 (7) days prior to the date of the hearing and published in a newspaper of general circulation published within the City of Elk Grove. 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 noncompliance with a provision of this chapter or a regulation adopted by the Environmental Planning Manager pursuant to this chapter, 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.
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 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 or mailed by certified mail at least ten (10) days prior to the date of the hearing. In instances when the Environmental Planning Manager 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) days prior to the date of the hearing. In addition to posting, notice of the hearing shall be published once (1) not later than five (5) days prior to the date of the hearing in a newspaper of general circulation published within the City of Elk Grove. 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 City 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. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
20.02.100 Appeals.
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 EGMC Section 20.02.070, a determination by the Environmental Planning Manager denying issuance of a program completion certificate pursuant to EGMC Section 20.02.060, a stop work order issued by the Environmental Planning Manager 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 City Clerk within ten (10) business days of the date of the notice of the imposed fees, the determination of the Environmental Planning Manager 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 chapter. The appeal shall be in writing to the 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 Planning Manager and decide the matter after oral argument presented during the hearing, or to admit evidence not previously considered by the Environmental Planning Manager, 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 EGMC Section 20.02.070, the City Council shall be authorized to establish a different fee as the amount of actual direct and indirect costs incurred by the City of Elk Grove for a particular program.
2. In deciding an appeal from the determination of the Environmental Planning Manager denying issuance of a program completion certificate pursuant to EGMC Section 20.02.060, 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 chapter, the City Council shall affirm the stop work order if it finds any of the grounds set forth in EGMC Section 20.02.090(C)(3) exist. If the City Council finds that none of the grounds set forth in EGMC Section 20.02.090(C)(3) exist, then it shall reinstate the special permit as if the revocation had not occurred. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]