§ 83.05.070  Waiver or Modification of Dedication and/or Street Improvement Requirements.
   (a)   Request for Waiver or Modification of Dedication and/or Street Improvement Requirements.  The Director and the Director of the Department of Public Works shall have the authority to approve a request for a waiver or modification, in whole or in part, of the dedication and/or street improvement requirements as defined in § 83.05.050(b).  Requests for a waiver or modification may be made by the applicant on the form made available by the Land Use Services Department or may be initiated by the Director or the Director of the Department of Public Works.  Waivers or modifications initiated by the Director or the Director of the Department of Public Works may be made at any time during the development approval process.  The waiver or modification must be approved by both the Director and the Director of the Department of Public Works.
      (1)   Findings Required.  Prior to granting any waiver or modification to the required dedication and/or street improvement requirements, the Director and the Director of the Department of Public Works shall make all of the following findings:
         (A)   The waiver or modification would not adversely affect the environment, public health or safety.
         (B)   The waiver or modification would not create a financial impact to the County of San Bernardino or the San Bernardino County Flood Control District within ten years from the date of the waiver or modification.
         (C)   The request for a waiver or modification is not based solely on the financial hardship to the applicant.
         (D)   The waiver or modification would not conflict with other County departments’ or notified agencies’ dedication and/or improvement requirements, or any foreseeable future needs for access or infrastructure.
         (E)   There is good cause shown for the waiver or modification and such waiver or modification would serve a public purpose.
      (2)   No Findings Required Under Certain Circumstances. Notwithstanding § 83.05.070(a)(1), a waiver or modification may be granted and no findings are required when the dedication and/or street improvement requirements of this Code, as applied to a particular project, would violate Federal or State law or the United States Constitution or the State of California Constitution.
   (b)   Appeal of Action Taken by the Director and the Director of the Department of Public Works.
      (1)   A decision by the Director and the Director of the Department of Public Works pertaining to a request to waive or modify required dedications and/or street improvements may be appealed to the review authority of the subdivision or the development project’s land use decision within ten calendar days of receipt of the decision made by the Director and the Director of the Department of Public Works.
      (2)   In the event the development project is not subject to any discretionary land use decision, an appeal of the decision made by the Director and the Director of the Department of Public Works pertaining to a request to waive or modify required dedications and/or street improvements may be made to the County’s Chief Executive Officer or designee within ten calendar days of receipt of the decision made by the Director and the Director of the Department of Public Works.
      (3)   Any appeal of the decision of the Director and the Director of the Department of Public Works under this Subdivision (b) may be appealed by the applicant or other affected party in compliance with the following provisions:
         (A)   Appropriate Forms.  Applications for an appeal shall be made on forms supplied by the Land Use Services Department.
         (B)   Appeal Submittals.  Applications for appeals shall be addressed and submitted to:
            (I)   For appeals described in § 83.05.070(b)(1), to the review authority of the subdivision or the development project’s land use decision.
            (II)   For appeals described in § 83.05.070(b)(2), to the County’s Chief Executive Officer.
         (C)   Grounds for Appeal.  Applications for an appeal shall include a written statement of the grounds upon which the appeal is based.
         (D)   Contents of Appeal Application.  The appeal application shall identify:
            (I)   The subject development project;
            (II)   The specific decision being appealed;
            (III)   The date of the appeal;
            (IV)   The justification for the appeal; and
            (V)   Any remedy or solution for which the appellant petitions.
         (E)   Appeal Shall Stay All Proceedings.  A properly filed application for appeal shall stay the proceedings in the matter appealed until a decision is rendered on the appeal.
         (F)   Notice of Appeal Required.
            (I)   For appeals described in § 83.05.070(b)(1), the review authority shall consider the appeal at the time it considers the subdivision or development project’s land use decision.  Within 30 calendar days of the acceptance of an application for an appeal, the review authority shall set the matter for hearing and shall give notice of the date, time, and place of the hearing to the appellant, the applicant, and to any other party who has requested in writing to be so notified.  In addition, notice shall also be given in the same manner and to the same entities as notice was given for the land use decision.
            (II)   For appeals described in § 83.05.070(b)(2), within 30 calendar days of the acceptance of an application for an appeal, the County Administrative Office, on behalf of the Chief Executive Officer, shall set the matter for hearing and shall give notice of the date, time, and place of the hearing to the appellant, the applicant, and to any other party who has requested in writing to be so notified.
         (G)   Action on Appeal.
            (I)   For appeals described in § 83.05.070(b)(1), upon hearing the appeal, the review authority shall consider the record and any additional evidence that may be offered, and may affirm, reverse, or modify, in whole or in part, the decision appealed.
            (II)   For appeals described in § 83.05.070(b)(2), upon hearing the appeal, the County’s Chief Executive Officer shall consider the record and any additional evidence that may be offered, and may affirm, reverse, or modify, in whole or in part, the decision appealed.
         (H)   Applicable Criteria, Findings, and Requirements.  The review authority and the County's Chief Executive Officer are subject to all of the criteria, findings, and requirements imposed by this Code upon the original decision maker.
         (I)   Withdrawal of Appeal.  An appeal may be withdrawn before the time that the review authority or the County’s Chief Executive Officer issues a decision. The appellant or the appellant’s representative shall notify the Land Use Services Department, and in the event of appeals under § 83.05.070(b)(2) to the Chief Executive Officer, in writing that they wish to withdraw the appeal.
         (J)   Appeal of the Land Use Decision.  If there is a land use decision for the development project, any appeal of the decision of the review authority, other than a decision by the Board of Supervisors which is final, regarding the waiver or modification may be further appealed by the applicant or other affected party along with the land use decision in compliance with Chapter 86.08 (Appeals).
         (K)   Judicial Review.  No person shall seek judicial review of a County decision on the waiver or modification decision until all appeals have been first exhausted in compliance with the County Code.
(Ord. 4011, passed - -2007; Am. Ord. 4098, passed - -2010; Am. Ord. 4242, passed - -2014)