ORDINANCE NO. 104
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER MANAGEMENT DISTRICT
MODIFYING ADMINISTRATIVE APPEAL PROCESSES
FINDINGS
1. The Monterey Peninsula Water
Management District is a public entity, formed by the California Legislature
pursuant to the Statutes of 1977, chapter 527, as amended. The Monterey Peninsula Water Management
District Law can be found at West’s Water Code Appendix, Chapter 118, et seq.
2. The Monterey Peninsula Water
Management District has general and specific power to adopt reasonable rules
and regulations to carry out its powers and duties consistent with State
law. The Water Management District
established a process under Rule 70, duly enacted and amended by prior
ordinance, by which final discretionary decisions of its General Manager or its
District Engineer may be appealed, in writing, within fourteen (14) days of the
date of any such determination. Rule 70
enables an appeal to be filed by an applicant, the General Manager, or any
other person. Rule 70 was first added
by Ordinance No. 1 (2/11/80), was later amended by Ordinance No. 2 (3/11/80);
and was most recently amended by Ordinance No. 63 (6/15/92). Rule 70 was formerly numbered Rule 600, was
renumbered by Ordinance No. 3 as Rule 700, and was renumbered as Rule 70 by
Ordinance No. 6 (5/11/81).
3. This ordinance is intended
to amend the existing administrative appeal process of the Monterey Peninsula
Water Management District to amend circumstances and processes through which a
member of the board of directors of the Monterey Peninsula Water Management
District may refer a subordinate decision to the board of directors for
review.
4. The Monterey Peninsula Water
Management District also established a process under Rule 71, enacted and
amended by prior ordinance, to govern benefit assessment appeals. Rule 71 was
first added by Ordinance No. 9 (2/14/83), later amended by Ordinance No. 11
(11/14/83), and most recently amended by Ordinance No. 22 (3/11/85). The Water Management District no longer
imposes a benefit assessment on any property within the District. Therefore, the need for Rule 71 has
lapsed. The existing Rule 71 no longer
serves any purpose and can be deleted.
5. This ordinance shall delete
the existing text of Rule No. 71 (Assessment Appeals) of the Rules and
Regulations of the Monterey Peninsula Water Management District in its
entirety.
6.
This
ordinance shall add a new provision as Rule No. 71 (Board Member Policy Review
and/or Appeal) of the Rules and Regulations of the Monterey Peninsula Water
Management District.
NOW THEREFORE be it ordained
as follows:
Section One: Short Title
This ordinance shall be known as the Administrative
Appeal Modification Ordinance of the Monterey Peninsula Water Management
District.
Section Two: Purpose
This
ordinance modifies Rule No. 70 (Appeals) and deletes the entirety of the
existing text of Rule No. 71 (Assessment Appeals) from the Rules and
Regulations of the Monterey Peninsula Water Management District. This ordinance allows a refund of processing
fees for appeals when an appeal provides a significant benefit to the public
and/or environment and adopts and enacts a new administrative review process as
Rule No. 71 (Board Member Policy Review and/or Appeal) of the Rules and
Regulations of the Monterey Peninsula Water Management District.
Section Three: Amendment of Rule 70 (Appeals)
Monterey Peninsula Water
Management District Rule 70 (Appeals) shall be amended as shown below. The amended portions are set forth in strikeout
and bold italics, as follows:
RULE 70. APPEALS
Determinations of the General
Manager or the District Engineer may be appealed to the District Board, in
writing, within fourteen (14) days twenty-one (21) days
after any such determination. Such appeal shall specify in writing the grounds
upon which it is taken, and shall reference the provision of these Rules and
Regulations which have been violated, and shall be accompanied by the fee
prescribed in Rule 63, except where the issues raised in the appeal
concern issues of public interest or environmental protection. Applicability of fee exemptions shall be
determined solely by the General Manager. Within thirty (30) days of receipt of such appeal, the General
Manager shall set a hearing on the appeal before the District Board and notify
the appellant and/or applicant in writing of the time and place of the hearing
at least ten (10) days prior to the hearing and give public notice of the
hearing date. An appeal may be filed by the applicant, the General Manager, or
any other person. At said hearing the
appellant and/or applicant and other persons may present evidence concerning
the appeal. The Board may deny, approve
or continue any appeal. The General
Manager shall notify the appellant and/or applicant within ten (10) days in
writing by mail of the Board action taken; namely continuance, approval,
conditional approval, or denial. Notice
of the action taken shall be deemed to have been given when the written
notification has been deposited in the mail, postpaid, addressed to the address
shown on the application. Unless the Board otherwise determines, any permit
held by a applicant for which an appeal has been filed pursuant to these rules
and regulations shall be deemed suspended until the appeal has been
resolved. 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.
Section Four: Deletion of Rule 71 (Assessment
Appeals)
Monterey Peninsula Water
Management District Rule 71 (Assessment Appeals) shall be deleted in its
entirety, as shown below. The portion
set forth in strikeout type (strikeout) is hereby deleted:
Any determination concerning
the calculation of a benefit assessment, or concerning the calculation of an
assessment credit may be appealed to the Board of Directors. Such an appeal shall specify in writing the
grounds upon which it is taken, reference the provision of these Rules and
Regulations violated, shall be submitted in typewritten form, shall be
accompanied by the fee prescribed in Rule 63, and shall be initiated within
(14) days after the property owner has received notice pursuant to Rule 120 B
(4) of the final assessment. Within
thirty (30) days of receipt of such appeal, the General Manager shall set a
hearing on the appeal before the District Board and notify the appellant and/or
applicant in writing of the time and place of the hearing at least ten (10)
days prior to the hearing and give public notice of the hearing date. An appeal may be filed by the applicant, the
General Manager, or any other person.
At said hearing the appellant and/or applicant and other persons may
present evidence concerning the appeal. The Carmel River Advisory Committee may
forward its recommendation regarding this matter. The Board may deny, approve or continue any appeal. Should the Board grant an appeal which seeks
an assessment credit for prior works, the Board shall adopt findings consistent
with Rule 121 B (3). The General Manager shall notify the appellant and/or
applicant within ten (10) days in writing by mail of the Board action taken. Notice of the action taken shall be deemed
to have been given when the written notification has been deposited in the
mail, postpaid, addressed to the address on the application. Upon approval of an appeal by the Board of
Directors, the fee submitted with the appeal shall be returned to the appellant
and/or applicant within thirty (30) days of this action.
Section Five: Addition of Rule 71 (Board
Member Policy Review and/or Appeal)
Monterey Peninsula Water
Management District Rule 71 (Board Member Policy Review and/or Appeal) shall be
added, as follows:
RULE 71 (BOARD MEMBER POLICY REVIEW AND/OR APPEAL)
A. Any member of the board of directors of the Monterey
Peninsula Water Management District, may refer an appealable subordinate
decision to the board of directors for review on the basis that the
determination affects, impacts, or deals with matters of general policy of the
Monterey Peninsula Water Management District, or may have a significant
environmental, economic, or physical impact on a District facility or
service. The general procedures of Rule
70 shall apply, insofar as practical.
However, there shall be no fee for such a review.
B. The board of directors of the Monterey Peninsula Water
Management District may elect to take no action, making the subordinate
decision final, or, upon the request of any board member, the Chair shall set
the matter for hearing as an appeal, which shall be heard and determined in
the same manner as other appeals taken pursuant to Rule 70. No board member shall be deemed to have a
conflict of interest or a disabling bias solely by making a request for an
appeal. There shall be no fee for such
an appeal.
C. Upon hearing the appeal, the board of directors of the
Monterey Peninsula Water Management District shall consider the record and such
additional evidence as may be offered and shall find whether, in its opinion,
error was made. The board of directors may affirm, reverse, or modify the
action appealed as it deems just and equitable, and may exercise all rights of
any other officer or commission. The
board of directors shall transmit a copy of its decision to the applicant and
the appellant.
The provisions of this
ordinance shall cause the republication and amendment of the permanent Rules
and Regulations of the Monterey Peninsula Water Management District.
A. This ordinance shall take effect at 12:01 a.m. on the 30th
day after it has been enacted on second reading.
B. This ordinance shall be reviewed in February 2003 and August
2003 by the Board of Directors.
Section Eight: Severability
If any subdivision,
paragraph, sentence, clause or phrase of this ordinance is, for any reason,
held to be invalid or unenforceable by a court of competent jurisdiction, such
invalidity shall not affect the validity or enforcement of the remaining
portions of this ordinance, or of any other provisions of the Monterey
Peninsula Water Management District Rules and Regulations. It is the District's express intent that
each remaining portion would have been adopted irrespective of the fact that
one or more subdivisions, paragraphs, sentences, clauses, or phrases be
declared invalid or unenforceable.
On motion by Director Henson, and second by Director Lehman, the foregoing ordinance is adopted upon this 15th day of July 2002, by the following vote:
AYES: Directors Erickson, Henson, Lehman
and Lindstrom
NAYS: Directors Edwards and Pendergrass
ABSENT: Director Potter
I, Ernesto A. Avila, Secretary to the Board of Directors of the Monterey Peninsula Water Management District, hereby certify the foregoing is a full, true and correct copy of an ordinance duly adopted on the 15th day of July 2002.
Witness my hand
and seal of the Board of Directors this ______ day of ________ 2002.
Ernesto
A. Avila, Secretary to the Board
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