20. CONSIDER SECOND READING AND ADOPTION OF ORDINANCE NO. 104 – AN
ORDINANCE OF THE BOARD OF DIRECTORS OF THE MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT MODIFYING ADMINISTRATIVE APPEAL PROCESSES
General Counsel Approval: Yes
Committee Recommendation: Administrative Committee voted 3 to 0 and recommended approval upon modifications as suggested by the committee.
CEQA
Compliance: Exempt. This ordinance is not a
project under CEQA.
SUMMARY: The Board of Directors will consider the second reading and adoption of Ordinance No. 104, an ordinance modifying the administrative appeal process for Board members. The draft ordinance, as proposed, (1) allows Board members to call up appealable subordinate decisions for Board review without paying an appeal fee, (2) allows a refund of processing fees for appeals when an appeal provides a significant benefit to the public and/or environment and (3) eliminates reference to benefit assessments. Benefit assessments are no longer imposed on any property within the District, making this provision of the existing rules unnecessary. The draft ordinance is presented at Exhibit 20-A.
The following changes have been made to the draft ordinance that was considered at the June 17, 2002 Board meeting:
1.
In
Finding No. 3, second line, the word "clarify" has been replaced with
the word "amend."
2.
Rule
71, section B, line 2, after the words "board member" the word
"set" was deleted and "the Chair shall set the matter for” was
added.
3.
The
following sentence was added to Rule 70 and is shown as a new Section Three:
"No Board member shall be deemed to have a conflict of interest or a
disabling bias solely by making a request for an appeal."
4.
The
last sentence of Rule 71, item C was replaced with the following: "The
board of directors shall transmit a copy of its decision to the applicant and
the appellant."
5.
The
last sentence of Rule 70 was amended to read:
“Upon
hearing the appeal, the Board shall also have the discretion to reduce and
rebate in full or in part the fee for appeal otherwise set by Rule 63 (1) if
the Board finds that the appeal has provided a significant benefit to the
public and/or the environment or in unusual matters.
6.
The
first sentence of Rule 70 was amended to read:
"Determinations of the General Manager or the District Engineer may
be appealed to the District Board, in writing, within twenty-one (21)
days..."
In addition to consideration
of the ordinance, the Board is considering approval of Guidelines for Appeal
Applications. The guidelines are
attached as Exhibit 20-B.
RECOMMENDATION: The Board should consider the second reading of Ordinance No. 104
and consider adoption of the ordinance.
If adopted on July 15, 2002, the ordinance will become effective 30 days
later on August 14, 2002. The proposed
Guidelines for Appeal Applications are expected to be implemented on August 1,
2002, with the first list posted in the District lobby on August 2, 2002.
PAST BOARD/COMMITTEE ACTION: The Administrative Committee reviewed this item on May 13, 2002
and the PAC/TAC reviewed draft Ordinance No. 104 on May 2, 2002.
BACKGROUND: The following decisions are appealable to the Board of Directors:
·
Issuing or denying an
expansion/extension permit (including temporary permits)
·
Classifying a commercial
use (residential, commercial/governmental or industrial)
·
Adjustment of water
permits due to special circumstances that do not require Board approval
o Single-family dwelling unit project which proposes to
irrigate more than two acres
o Other projects which propose to irrigate more than
five acres
o A dual system provides subpotable water for outdoor
use
o The water distribution system supplies dual delivery
of subpotable water for nonconsumptive uses
o Water used in conjunction with a manufacturing process
o Permits for a municipality, county, or other local
governmental agency
o Special circumstances for public projects (does not
require Board approval) are subject to adjustment of connection charges after a
reasonable time. The governmental
entity may appeal the General Manager’s decision to the Board.
o Water permits transferred from one person to another
(name only)
o Well meter variance
o Emergency revision of operational water supply budgets
o River access permits
o River Work Permits (River Work Permits, Minor Work
Permits, Emergency River Works Permits)
o Retrofit and conservation requirements established by
Ordinance No. 30
§
Plumbing fixtures
required for new construction
§
Retrofit requirements
for existing commercial uses
§
Visitor-serving
commercial facility retrofits
§
Retrofit upon change of
ownership or use
§
Retrofit upon expansion
of use
§
Discretionary exemptions
from retrofit requirements
·
Hardship due to a need
to replumb facilities to accommodate low-flow fixtures or unavailability of
low-flow fixtures that match well-defined historic architectural style in locally,
state or federally recognized buildings of historical significance that is
fully fitted with authentic plumbing fixtures.
·
Health, sanitation, fire protection or safety
issues
·
In Lieu compliance
·
Retrofit exemptions when
present technology is not available
·
Misreporting penalty
under the Expanded Water Conservation and Standby Rationing Plan (e.g.
misreporting the number of permanent residents in a dwelling unit)
·
Landscape audits and
budgets that are rejected by the District
·
When a controversy exists
(Rule 11) related to water distribution system permit hearings
·
Action on an application
to create a single-connection water distribution system
·
Determinations of water
distribution system expansion capacity limits
·
Revocation or
termination of Water Use Permits subject to Rule 23.5
The following documents are also considered to be
final decisions of the General Manager and will contain a paragraph stating
such, including notification of the appeal process:
a.
Inspection
reports
b.
Notification
of intent to record a Notice of Non-Compliance
c.
Denial
of a credit
d.
Denial or approval of a
request for a variance to the retrofit and conservation requirements
established by Ordinance No. 30
IMPACT ON STAFF/RESOURCES: The proposed ordinance to
eliminate appeal fees for board directors should have minimal impact on staff
resources, unless additional appeals are generated. Preparing and posting a weekly list of appealable decisions will
require staff resources, particularly as this will involve all District
divisions (Water Demand, Water Resources, Planning & Engineering, General
Manager’s office and Support Services).
The Water Demand Division will be particularly impacted, as it generates
a number of appealable decisions weekly.
It will also take time to prepare and implement the new procedures
outlined in the Guidelines for Appeal.
It is suggested that any new processes be implemented on August 1,
2002. The estimated cost for this new process
is estimated at $2,000 per month at this time.
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