ITEM: PUBLIC HEARING
18.	CONSIDER APPEAL OF GENERAL MANAGER’S DECISION TO DENY A LAWN REMOVAL REBATE PURSUANT TO DISTRICT RULE 141-D, - 1179 WARING STREET, SEASIDE (APN: 012-401-082)
Meeting Date:		May 16, 2011		Budgeted:	N/A
From:			Darby Fuerst,	Program/	N/A
			General Manager	Line Item No.:
Prepared By:			Stephanie Pintar	Cost Estimate:	N/A
General Counsel Review: N/A
Committee Recommendation: N/A
CEQA Compliance: N/A

SUMMARY: Ms. Emily Anne Smith (appellant) is appealing a decision of the General Manager to deny a Lawn Removal Rebate dated March 28, 2011, for 1179 Waring Street, Seaside (Exhibit 18-A). The appellants’ appeal application is provided as Exhibit 18-B.

The District received a Rebate Application from Ms. Smith on April 5, 2010 (Exhibit 18-C). On April 15, 2010, prior to a preinspection of the Lawn on April 21, 2010, the District sent an Incompleteness Letter informing the appellant of additional actions on the applicant’s part that were required before the application could be deemed complete (Exhibit 18-D). The following items were needed to complete the application:

ü A Site plan of the current landscaping; include detailed measurements of the Lawn area.

ü A Site plan showing the area and what will be installed in place of the Lawn.

ü A second inspection after the Lawn replacement was installed.

ü Receipts of purchased replacement materials.

ü A District- prepared Notice and Deed Restriction for Limitation of Use of Water pertaining to Lawn Removal and Replacement had to be prepared and signed for recordation on the property title.

The appellant did not provide or complete the items listed on the April 15, 2010, letter within six months as required by District Rule 141-D, and the application remains incomplete. According to the Appeal Application, the Lawn removal project is still not complete. The appellant is appealing the decision to deny a Rebate because the appellant “was not told the work needed to be complete in six months.”

Ms. Smith received a final denial letter for her Rebate Application on March 28, 2011. An appeal of the March 28, 2011, determination was received on April 4, 2011.

DISCUSSION: At the time the Rebate Application was submitted in April 2010, District Rule 141-D (Exhibit 18-E) stated that a complete Rebate Application and recordation of a Deed Restriction for Lawn removal must occur within six (6) months to qualify for a Rebate.

The appellants contend that they were not notified by the District of the six month timeframe to complete the application process. The Appeal Application contends that because the April 15, 2010, incompleteness letter did not indicate the time limitation set by the Rule, the appellant was not notified of the need to complete the application process within a set time. Therefore, the appellant should be entitled to a Rebate at this time.

The appellant signed a Rebate Application on April 5, 2010, that states that complete applications will be processed in the order received, subject to available funding. The application refers applicants to the District’s website where the Rules and Regulations can be found or to the Permit and Conservation Office to determine eligibility. As May 1, 2011, the Rebate application remains incomplete and no funding is available for Lawn removal Rebates.

On March 21, 2011, the Board suspended the Lawn Rebate Program. On April 18, 2011, the District Board adopted Ordinance No. 148 to modify District Rule 141, the Water Conservation Rebate Program. Newly adopted guidelines for Lawn Removal Rebates are included in the ordinance. Ordinance No. 148 went into effect on May 1, 2011.

RECOMMENDATION: Staff recommends the Board uphold the General Manager’s decision to deny the Rebate Application and adopt the Findings of Denial (Exhibit 18-F). This recommendation is consistent with the District’s position in similar situations involving incomplete applications. The appellant does not have a complete Rebate Application and the time for completing the application has expired.

PROCESS: The consideration of an appeal of a decision of the General Manager, pursuant to District Rule 70, is a quasi-judicial action of the Board of Directors. At the outset, Legal Counsel may provide an overview of the process.

Appellants will be allowed to make a brief opening statement to characterize their case, followed by a statement by District Staff. The Board will then open the public hearing to receive documentary evidence, including the Staff report, party submissions, factual testimony and any rebuttal by the parties. The Board may ask questions of fact.

At the conclusion of evidence, the Board must close the evidentiary phase of the hearing, and allow the parties a reasonable amount of time to provide a summary statement. No rebuttal is allowed. The matter will be opened for public comment, limited to three minutes per speaker. At the conclusion of the public comment period, the Board will close the hearing. No additional questions may be posed to Appellants or to Staff without re-opening the hearing. The Board may, however, seek guidance from Legal Counsel on law or process and can direct Legal Counsel to prepare findings for approval or denial. Findings may be adopted by the Board at a future meeting or if necessary, the matter may be continued.

EXHIBITS

18-A Denial of Rebate Application

18-B Application for Appeal

18-C Rebate Application

18-D April 15, 2010 Incompleteness Letter

18-E MPWMD Rule 141-D (as of April 2010)

18-F Findings of Denial

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