EXHIBIT D-2

 

ITEM:                  PUBLIC HEARINGS

 

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

 

Meeting Date:            July 15, 2002                                    Budgeted: N/A

                                                                                    Program/Line Item No: N/A

Staff Contact:            Stephanie Pintar                                    Cost Estimate: $2,000 per month

                                                                                               

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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