Chapter 14. Regulations for Mitigation Monitoring and Reporting Programs

Article 1. General

Sec. 10-14.101 Purpose and Authority.

(a) The purpose of this Chapter is to establish the procedures and requirements for a mitigation monitoring and reporting program for applicable projects as set forth in Section 10-14.102. The program is necessary to ensure than an applicant for a project subject to the California Environmental Quality Act (CEQA; Public Resources Code Section 21000 et seq.) will properly and timely implement mitigation measures identified in the environmental document prepared for the project.

(b) The procedures and requirements of this Chapter are adopted under the authority of Public Resources Code Section 21081.6.

(c) The applicant shall submit and the City shall approve a reporting and monitoring program for changes to the project which it has adopted or made a condition of project approval in order to mitigate or avoid significant effects on the environment. The reporting and monitoring program shall be approved prior to or contemporaneous with project approval and be designed to ensure compliance during project implementation. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.102 Applicability.

(a) The procedures and requirements of this Chapter are applicable to all projects requiring measures to be adopted which mitigate significant environmental effects as identified in a final environmental impact report or a negative declaration with mitigations.

(b) The procedures and requirements of this Chapter apply to all projects which do not receive their final discretionary approval before January 1, 1989, including phased projects and projects requiring multiple discretionary approvals.

(c) The requirements of this Chapter are not applicable to:

(1) Any project not having one or more significant environmental effects as identified in the initial study; or

(2) Any changes incorporated into a project at the request of an agency having jurisdiction by law over natural resources affected by the project. The City may require such agency to submit a proposed reporting and monitoring program and to be the responsible agency to ensure compliance with those mitigation measures, whether required as changes to the project or as conditions of project approval. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.103 Definitions.

(a) All terms as defined in CEQA (Public Resources Code Sections 21060 through 21069) are applicable to this Chapter and are incorporated by reference herein.

(b) “Applicant” refers to the applicant for a project which is subject to CEQA.

(c) “Monitoring” refers to inspection activities conducted by the City or private consultant, to ascertain whether mitigation measures identified in the environmental document for the project have been implemented or complied with by the applicant in development of the project.

(d) “Reporting” refers to the submitting of reports to the City by the applicant or private consultant demonstrating implementation or compliance with mitigation measures identified in the environmental document.

(e) “Private consultant” refers to a qualified individual or firm hired by the applicant, but subject to approval by the City, to render assistance in performing all procedures and requirements of this Chapter. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.104 Fees.

The applicant shall pay fees to the City in an amount not exceeding the reasonable costs for providing the services to administer the requirements of this Chapter. The fees shall be placed and maintained in a deposit account, against which the City shall charge staff time and expenses. (Ord. 287 Div. 1 (part), 1990)

Article 2. Mitigation Monitoring and Reporting Program

Sec. 10-14.201 Program Contents.

A mitigation monitoring and reporting program shall be prepared by the applicant for all projects in this Chapter and shall consist of all of the following:

(a) Mitigation Implementation Plan. A plan, submitted by the applicant to the City, which outlines in detail the manner in which mitigation measures will be implemented during pre-construction, construction and post-construction phases of the project;

(b) Compliance Schedule. A schedule, submitted by the applicant to the city, indicating the phase of the project (pre-construction, construction or post-construction) in which mitigation measures will be implemented;

(c) Compliance Reports. Reports submitted by the applicant to the City, specifying how and when each mitigation measure was implemented; and

(d) Verification Report(s). Report(s) made by the City pursuant to an inspection of the project to determine if the applicant has properly and timely implemented mitigation measures identified in the environmental document for the project as set forth in the mitigation implementation plan and compliance schedule. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.202 Submittal and Approval of Program.

(a) The applicant or private consultant on behalf of the applicant shall submit:

(1) A draft mitigation monitoring and reporting program to the Planning Director within forty-five (45) days of a draft environmental impact report being circulated for public review; or

(2) A mitigation monitoring and reporting program to the Planning Director at the time the City adopts a negative declaration for a project.

(b) Final project approval is dependent upon the applicant submitting a mitigation monitoring and reporting program within the time periods specified in Sections 10-14.202(a)(1) and (2) and receiving approval from the Planning Commission for the mitigation monitoring and reporting program prior to or contemporaneous with final project approval. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.203 Mitigation Implementation Plan.

(a) A mitigation implementation plan shall be prepared by the applicant or private consultant. Approval of a mitigation implementation plan is subject to review and approval by the Planning Commission and shall include all of the following:

(1) A complete list of all mitigation measures for significant impacts identified in the environmental document prepared for the project.

(2) The method of implementation for each identified mitigation measure.

(3) Any additional information that the Planning Director may require to be incorporated into the mitigation implementation plan.

(b) The Planning Director shall, within thirty (30) days of submittal, determine whether the mitigation implementation plan is complete.

(c) Upon determining the mitigation implementation plan is complete, the Planning Director shall, within fifteen (15) days recommend approval or denial of the mitigation implementation plan to the Planning Commission. The Planning Director’s decision is based on how well the mitigation implementation plan satisfies the requirements specified in this Chapter. The Planning Commission shall make a finding that the contents of a mitigation implementation plan satisfies the requirements of this Chapter in granting approval of said plan.

(d) In the case of a recommendation of denial, the Planning Director shall inform the applicant in writing of the recommendation within fifteen (15) days of determining the mitigation implementation plan complete and specify the reasons the mitigation implementation plan does not satisfy the requirements of this Chapter.

(e) An applicant may resubmit a revised mitigation implementation plan within five (5) days of receiving notice of rejection or nonapproval. A resubmitted mitigation implementation plan will only be reviewed if it takes into account and incorporates the previous written comments made by the Planning Director. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.204 Compliance Schedule.

(a) A compliance schedule shall be prepared by the applicant or private consultant. The compliance schedule shall set forth when each of the mitigation measures for significant impacts identified in the environmental document for a project shall be implemented.

(b) The compliance schedule shall specify whether the mitigation measures shall be implemented during pre-construction, construction or post-construction phases of the project construction, or some combination thereof. The compliance schedule shall indicate when compliance reports shall be submitted to the Planning Director.

(c) The Planning Director shall recommend approval or denial of a compliance schedule to the Planning Commission and the Planning Commission shall act in conformity with the procedural requirements set forth in Section 10-14.203. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.205 Compliance Reports.

(a) The applicant shall submit compliance reports to the Planning Director as specified in the compliance schedule. Additional compliance reports may be required at the discretion of the Planning Director.

(b) Compliance reports shall specify how and when a mitigation measure was implemented. Compliance reports shall include facts and findings to substantiate compliance status. Compliance reports shall further indicate whether further implementation of a particular mitigation measure is necessary and which mitigation measures, if any, remain to be implemented. Compliance reports shall also advise whether each particular mitigation measure has been effective in mitigating significant environmental effects.

(c) The Planning Director shall approve or deny each compliance report submitted by the applicant. In the case of disapproval, the applicant shall resubmit a revised compliance report within thirty (30) days of the disapproval of the prior report. Additional extensions require Planning Commission approval. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.206 Verification Reports.

The City may investigate the project site to verify whether the submitted compliance reports accurately reflect the status of mitigation measure implementation. Upon completion of the investigation, the Planning Director may prepare a written verification report to the Planning Commission and the applicant specifying whether the project complies with the required mitigation measure implementation or requires remedial work. A compliance report shall be deemed approved if the Planning Director does not issue a verification report within thirty (30) days of submittal of the compliance report. (Ord. 287 Div. 1 (part), 1990)

Article 3. Mitigation Monitoring Agreement

Sec. 10-14.301 Mitigation Monitoring Agreement.

(a) As a condition of approval of the project, the applicant shall enter into a mitigation monitoring agreement with the City providing the obligations of the applicant to comply with the requirements of this Chapter. The Planning Director shall execute the mitigation monitoring agreement on behalf of the City.

(b) The mitigation monitoring agreement shall be binding upon the applicant and any successors in interest to the project including the underlying real property, and shall be recorded.

(c) The content of the mitigation monitoring agreement, including the mitigation implementation plan and compliance schedule shall be as approved by the Planning Director. Said agreement may include provisions concerning, but not limited to, the following: mitigation implementation plans; compliance schedules; compliance reports; verification reports; qualifications of private consultants; right of City access to project site for investigative purposes; dispute resolution; penalties and sanctions for applicant’s failure to comply with Chapter requirements; liquidated damages; and City authority to impose stop-work orders. The agreement shall provide that the City has the right to enforce this agreement and all penalties and sanctions provided therein, and all other remedies provided by law; and hold the City harmless in enforcement of its provisions. (Ord. 287 Div. 1 (part), 1990)

Article 4. Annual Report

Sec. 10-14.401 Annual Report to City Council.

The Planning Director shall submit to the City Council an annual environmental monitoring report, summarizing the results of the City’s mitigation monitoring and reporting programs. The report may include information on deficiencies, corrective measures taken and suggestions for more effective future mitigation measures. (Ord. 287 Div. 1 (part), 1990)

Article 5. Appeals

Sec. 10-14.501 Appeals to Planning Commission or City Council.

An appeal may be taken by any person, firm or corporation, or by an officer, department, board or commission of any public corporation or political subdivision in the State of California, aggrieved or affected by any decision under this Chapter regarding approval of mitigation implementation plans, compliance schedules, compliance reports or execution of the mitigation monitoring agreement. Such appeals shall be taken by filing a written notice of appeal with the City Clerk within seven (7) calendar days after the decision. A notice of appeal shall clearly and concisely set forth the grounds upon which the appeal is based. The City Clerk shall immediately forward a copy of the notice of appeal to the Planning Director. If the appeal is taken from a decision of the Planning Commission, the Planning Director shall forward a copy of the appeal to that body. A filing of a notice of appeal within the time and the manner specified, shall stay all proceedings by the parties in connection with the matter on which the appeal is taken until determination of the appeal, as provided herein. Appeals of decisions of the Planning Director shall be taken to the Planning Commission. Appeals of decisions of the Planning Commission shall be taken to the City Council.

(b) At the next available meeting following filing of a notice of appeal of a decision of the Planning Director, the Planning Commission shall hold a public hearing and shall review the action of the Planning Director and may do any one of the following:

(1) Refer the matter back to the Planning Director for further consideration, in which case the Planning Director shall conduct further investigations as he shall deem advisable and report his conclusion to the Planning Commission.

(2) Affirm the decision of the Planning Director and deny the appeal.

(3) If, in the opinion of the Planning Commission, the facts warrant further hearing, the Planning Commission shall set the matter for hearing.

(c) Following the hearing, the Planning Commission may reverse or affirm, wholly or partly, or modify any decision, determination or requirement of the Planning Director, and may make decisions and determinations and may impose such conditions as the facts warrant, and may approve all submittals required by this Chapter.

(d) The procedure for the taking of appeals of decisions from the Planning Commission to the City Council shall be the same as set forth in subsections (b) and (c) of this section. (Ord. 287 Div. 1 (part), 1990)

Article 6. Enforcement

Sec. 10-14.601 Pre-Construction Phase.

The City may deny any discretionary approvals, including all submittals required by this Chapter, if plans and specifications of the project submitted by the applicant do not incorporate the mitigation measures of the type that can be incorporated during the pre-construction phase. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.602 Construction Phase.

The City may issue stop-work orders or denial of subsequent approvals necessary to complete and occupy a project if mitigation measures of the type that can be implemented during the construction phase have not been so implemented. The City may also require the applicant to post a performance bond to ensure proper implementation of identified mitigation measures. (Ord. 287 Div. 1 (part), 1990)

Sec. 10-14.603 Post-Construction Phase.

The City may enforce ongoing mitigation measures identified in the mitigation monitoring and reporting program through all legal remedies including but not limited to remedies for breach of the mitigation monitoring agreement. In addition, failure to comply with the requirements of this Chapter is a violation of the City’s Municipal Code and shall constitute a misdemeanor, unless the City Attorney determines to prosecute any violation of this Chapter as an infraction. The City expressly reserves the right to prosecute any violation of its Code in criminal, civil or administrative forums. (Ord. 287 Div. 1 (part), 1990)