(A) Purpose and intent. The purpose and intent of this section is to provide an administrative procedure for determining whether a land use that is normally not allowed in compliance with § 19.21.031 (Compliance with the Protect Our Water and Health: Ban Fracking Initiative), § 25.29.161 (Prohibition of Land Uses Supporting High-Intensity Petroleum Operations), or § 25.29.162 (Prohibition of Land Uses Supporting Petroleum Operations in Rural and Residential Districts) is exempt from the prohibitions of those sections as allowed by Measure J: the Petroleum Initiative which the Board of Supervisors voted to submit without alteration to the voters on May 6, 2014 ("the Initiative"). This section only codifies an administrative process for claims of exemption that neither enlarges nor narrows the exemptions contained in the Initiative as set forth below:
(1) Section 5 of the Initiative (Exemptions for Certain Projects) provides that the provisions of the Initiative shall not be applicable to the extent, but only to the extent, that they would violate the constitution or laws of the United States or the State of California.
(2) Section 5 of the Initiative (Exemptions for Certain Projects) provides that in the event a property owner contends that application of the Initiative effects an unconstitutional taking of property, the property owner may request, and the Board may grant, an exception to application of any provision of this Initiative if the Board of Supervisors finds, based on substantial evidence, that both (1) the application of any aspect of this Initiative would constitute an unconstitutional taking of property, and (2) the exception will allow additional or continued land uses only to the minimum extent necessary to avoid such a taking.
(3) Section 3 of the Initiative provides in proposed § 25.29.162, that "This § 25.29.162 shall not apply to any land use in support of Low Intensity Petroleum Operations that has obtained a vested right (including any legal nonconforming operations) as of this section's effective date.
(4) Section 2 of the Initiative provides in Proposed Policy 21, that:
(a) "Within one year of the effective date, the owners and operators of all vested High-Intensity Petroleum Operations" shall bring land uses into conformity with this Policy. Land uses may support Low-Intensity Petroleum Operations, in compliance with all applicable law, on properties formerly supporting High-Intensity Petroleum Operations.
(b) The one-year amortization period may be extended on a case-by-case basis if the Planning Commission determines that a well owner or operator has shown that one year is not a reasonable amortization period pursuant to state law. Any extension shall not exceed two years (in addition to the initial one-year period for a total of three years) and may be only for the minimum length of time necessary to provide a reasonable amortization period.
(c) All Planning Commission determinations made under this Policy must be made at a duly noticed public hearing.
(B) Applicability.
(1) Persons subject to the Initiative may file applications for exemption determinations associated with divisions (A)(2), (3), and (4) above. This § 19.21.032 (Determination of Exemption) applies to any person seeking such exemption determinations.
(2) Review authority.
(a) The review authority for a Determination of Exemption is identified in Table 19.21.032(1) (Determination of Exemption Review Authorities) below.
Table 19.20.032(1) Determination of Exemption Review Authorities
Role of Review Authority | |||
Type of Exemption | Director | Planning Commission | Board of Supervisors |
Determination of Exemption Associated with § 19.21.032(A)(2) (Exceptions to Avoid Unconstitutional Takings) | Decision | ||
Determination of Exemption Associated with § 19.21.032(A)(3) (“Low Intensity Vested Rights” Determinations) | Decision | Appeal | Appeal |
Determination of Exemption Associated with § 19.21.032(A)(4) (“High Intensity Vested Rights” Amortization Requests) | Decision | Appeal | |
(b) Applications. A separate application for a determination of exemption shall be filed for each type of exemption requested.
(C) Contents of application and review for completeness.
(1) Any application for a determination of exemption allowed in compliance with division (B) (Applicability) shall be submitted by the applicant seeking the exemption.
(2) (a) The applicant for any exemption shall submit as part of the application any and all evidentiary support reasonably available sufficient to establish the basis for the claim of exemption.
(b) The filing of an application for a Determination of Exemption associated with § 19.21.032(A)(2) shall be accompanied by an application for the development project for which the exemption determination is requested.
1. The Director may waive the requirement to submit the application for the development project for good cause.
2. Where the Director has waived the requirement for a development application, if the Board determines such an application is necessary to determine if the exemption applies, the Board may require such application to be filed and processed before the County will take final action on the application for the exemption.
(D) Processing.
(1) Applications under the jurisdiction of the Board. The following applies to the processing of applications for determinations of exemption associated with § 19.21.032(A)(2).
(a) The Board shall hold at least one noticed public hearing on the application and shall approve, conditionally approve or deny the request.
(b) At least ten days prior to the public hearing, the Clerk of the Board shall give notice thereof by at least one publication in a newspaper of general circulation. Additionally, notice of the hearing shall be given by mail or delivery to all persons including businesses, or other public or private entities shown on the last equalized assessment roll as owning real property within 300 feet of the property which is subject of the proposed development project.
(c) The hearing shall be held within 180 days of the determination that the application is complete. For good cause the Director may delay the holding of the hearing for an additional 180 days.
(d) The Board may continue the hearing to allow or require the applicant or Department to submit additional information or legal analysis.
(e) The action of the Board shall be final.
(2) Applications under the jurisdiction of the Director. The following applies to the processing of applications for determinations of exemption associated with § 19.21.032(A)(3).
(a) The Director shall approve, conditionally approve or deny the application for the determination of exemption. A public hearing is not required.
(b) The Director shall act on the application within 60 days after the application is determined to be complete. However, the Director may extend this period of time to allow or require the applicant or Department to submit additional information or legal analysis or other good cause.
(c) The action of the Director is final subject to appeal in compliance with the San Benito County Code, Chapter 25.47 (Appeals).
(d) Any person may make a written request to the Director to receive notice of exemption determinations made under this section. Within five business days of the Director's determination of an exemption, notice of the determination shall be provided by direct notice by first class mail (or email if requested by requestor) to persons who have submitted written requests for such notice.
(3) Applications under the jurisdiction of the Planning Commission. The following applies to the processing of applications for determinations of exemption associated with § 19.21.032(A)(4).
(a) The Planning Commission shall hold at least one noticed public hearing on the application and shall approve, conditionally approve or deny the application for the determination of exemption.
(b) At least ten days prior to the public hearing, the Planning Director or his or her designee, shall give notice thereof by at least one publication in a newspaper of general circulation. Additionally, notice of the hearing shall be given by mail or delivery to all persons including businesses, or other public or private entities shown on the last equalized assessment roll as owning real property within 300 feet of the subject.
(c) The hearing shall be held within 180 days of the determination that the application is complete. For good cause the Director may delay the holding of the hearing for an additional 180 days.
(d) The Planning Commission may continue the hearing to allow or require the applicant or Department to submit additional information or legal analysis.
(e) The action of the Planning Commission shall be final subject to appeal in compliance with the San Benito County Code, Chapter 25.47 (Appeals).
(E) Findings required for approval. A determination of exemption application shall be approved or conditionally approved only if the review authority first makes one of the following findings, as applicable.
(1) Applications for determinations of exemption associated with § 19.21.032(A)(2). There is sufficient evidence in the record to determine that approving or conditionally approving the application is required in order to avoid an unconstitutional taking of property and that the application, as approved, will allow additional or continued land uses only to the minimum extent necessary to avoid such a taking.
(2) Applications for determinations of exemption associated with § 19.21.032(A)(3). There is sufficient evidence in the record to establish that the applicant obtained prior to the effective date of the Initiative, a vested right to conduct a Low- Intensity Petroleum Operation.
(3) Applications for determinations of exemption associated with § 19.21.032(A)(4). There is sufficient evidence in the record to establish that (1) the applicant obtained prior to the effective date of the Initiative, a vested right to conduct a High Intensity Petroleum Operation; (2) approving or conditionally approving the application is required because the applicant has shown that a one year amortization period is not a reasonable amortization period pursuant to state law; and (3) that the extension, not to exceed two years, is no longer than the minimum length of time necessary to provide a reasonable amortization period.
(F) Enforcement. The Director shall not take any action to enforce the Initiative against any owner or operator of an existing facility if an application for a determination of exemption has been filed in compliance with this § 19.21.032 (Determination of Exemption) and the application has not expired, or final action to deny the application has not occurred.
(Ord. 930, § 1, 2014)