Sec. 26A-07-010. - Applications and processing.

(a)

Applications for use permits for surface mining activities and/or reclamation plan approvals shall be submitted in writing to the permit and resource management department (PRMD) on standard application forms prepared by PRMD. The completed forms shall be accompanied with other supporting text and exhibits as is required by this chapter or SMARA or is otherwise found necessary by PRMD to adequately describe the proposed mining and/or reclamation plan and assess the environmental impacts of the proposal. A processing fee shall be submitted with each application in accordance with the current fee requirements adopted by the board of supervisors. PRMD shall be responsible for determining the completeness of each application within thirty (30) days of its submittal. PRMD may request additional information or clarification from the applicant if, in the judgment of the department, the application is incomplete for the proposed project.

(b)

At the time of submitting an application for a discretionary approval which is the subject of this chapter, the applicant shall agree, as part of the application, to defend, indemnify and hold harmless the county and its agents, officers, attorneys and employees from any claim, action or proceeding brought against the county or its agents, officers, attorneys or employees to attack, set aside, void or annul an approval of the county, its advisory agencies, appeal boards or board of supervisors, which action is brought within the applicable statue of limitations. The indemnification shall include damages awarded against the county, if any, costs of suit, attorney fees and other costs and expenses incurred in connection with such action.

(1)

In the event that a claim, action or proceeding discussed in subsection (a) of this section is brought, the county shall promptly notify the applicant of the existence of the claim, action or proceeding and will cooperate fully in the defense of such claim, action or proceeding. Nothing set forth in this section shall prohibit the county from participating in the defense of any claim, action or proceeding if the county elects to bear its own attorney fees and costs and defends the action in good faith.

(c)

Within thirty (30) days of acceptance of an application for a surface mining use permit and/or a reclamation plan as complete, PRMD shall notify the appropriate responsible agencies pursuant to Section 2770.5 of SMARA.

(d)

The final decision-making body on all requests for surface mining permits, use permits, and/or reclamation plan approvals made pursuant to this chapter shall be the planning commission unless:

(1)

The mining or reclamation request requires concurrent approval of a rezoning or a plan or ordinance amendment, in which case the planning commission will make a recommendation and the board of supervisors shall be the decision-making body;

(2)

The planning commission decision is appealed to the board of supervisors pursuant to Section 26A-07-020 (b) of this chapter;

(3)

The State Mining and Geology Board acquires original jurisdiction over the project pursuant to SMARA or project appeals; or

(4)

The board of supervisors, by a majority vote, decides to exercise original and immediate jurisdiction over an application to decide upon it.

(e)

Prior to final approval of a reclamation plan, financial assurances (as provided in this chapter), or any amendments to the reclamation plan or existing financial assurances PRMD shall certify to the State Department of Conservation that the reclamation plan and/or financial assurance complies with the applicable requirements of state law, and submit the plan, assurance, or amendments to the State Department of Conservation for review. Where the reclamation plan and/or financial assurances are associated with a use permit pursuant to the requirements of this chapter, the county may conditionally approve the use permit with the condition that the approval for mining operations shall not be issued until cost estimates for financial assurances have been reviewed by the department of conservation and final action has been taken on the reclamation plan and financial assurances.

Pursuant to PRC Section 2774(d), the State Department of Conservation shall be given thirty (30) days to review and comment on the reclamation plan and forty-five (45) days to review and comment on the financial assurance. PRMD shall evaluate written comments received, if any, from the State Department of Conservation during the comment periods. Staff shall prepare a written response describing the disposition of the major issues raised by the state for the county's approval. In particular, when the county's position is at variance with the recommendations and objections raised in the state's comments, the written response shall address, in detail, why specific comments and suggestions were not accepted. Copies of any written comments received and responses prepared by the county shall be promptly forwarded to the operator/applicant.

(f)

Prior to deciding to approve, conditionally approve, or deny a request for a surface mining permit and/or reclamation plan, the decision-making body shall conduct a duly noticed public hearing for purposes of hearing public testimony on the proposal. A hearing shall be considered duly noticed if such notice is given in the same manner set forth in Section 26A-07-040 of this chapter.

(g)

PRMD shall forward a copy of each approved mining permit, reclamation plan, and/or financial assurance to the State Department of Conservation.

(Ord. No. 5165 § 1, 1999.)

Sec. 26A-07-015. - Original jurisdiction.

This section provides the procedures for the board of supervisors, upon its own initiative, to exercise original jurisdiction over applications filed pursuant to this chapter.

(a)

Request to Exercise Original Jurisdiction. Any member of the board of supervisors may request the board to exercise original jurisdiction over any application filed pursuant to this chapter, except in cases where state law requires a recommendation of the planning commission prior to action by the board on the matter.

(b)

Timing and Form of Request to Exercise Original Jurisdiction. A request to exercise original jurisdiction shall be made orally at a board of supervisors meeting, or filed in writing with the clerk of the board, prior to any decision by a lower level decision maker approving or denying the subject application. A request to exercise original jurisdiction need not state the reasons for the request.

(c)

Effect of Request to Exercise Original Jurisdiction. A request to exercise original jurisdiction shall stay any proceedings of lower level decision makers until the board of supervisors takes action in compliance with subsection (d) of this section.

(d)

Consideration of Request to Exercise Original Jurisdiction. A request to exercise original jurisdiction shall be considered by the board of supervisors at a public meeting. Notice of the meeting shall be given, and the meeting shall be conducted, in compliance with applicable law.

(1)

If the board of supervisors approves the request to exercise original jurisdiction, the board shall assume jurisdiction over the matter and take action in compliance with subsection (e) of this section.

(2)

If the board of supervisors denies the request to exercise original jurisdiction, the appropriate lower level decision maker shall resume jurisdiction over the matter and take action in compliance with applicable law.

(e)

Hearing and Decision. Any matter that is the subject of original jurisdiction shall be heard and decided by the board of supervisors at a public hearing. Notice of the hearing shall be given, and the hearing shall be conducted, in compliance with applicable law. The board may approve, conditionally approve, or deny the subject application.

(f)

Participation by Initiator of Request to Exercise Original Jurisdiction. Any member of the board of supervisors who initiates a request to exercise original jurisdiction shall have full participation rights in determining whether to approve the request and, if the request is approved, in hearing and deciding upon the matter, including the right to vote, unless actual bias or prejudice is otherwise shown.

(Ord. No. 5537 § 3(b), 2004.)

Sec. 26A-07-020. - Appeals.

(a)

(1)

Any interested person may appeal any administrative order, requirement, or determination made by the director pursuant to this chapter to the planning commission. An appeal shall be filed in writing with the director within ten (10) days after the decision that is the subject of the appeal. The appeal shall specifically state the basis for the appeal and shall be accompanied by the required filing fee.

(2)

Upon the filing of an appeal pursuant to this subsection, the planning commission shall set and hold a public hearing on the appeal. Notice of the hearing shall be given pursuant to Section 26A-07-040. The hearing shall be a hearing de novo. Upon conclusion of the hearing, the planning commission may sustain, modify, reject, or overrule the action of the director. The planning commission shall render its decision within ninety (90) days after hearing is first opened. In the event that the planning commission fails to act within the ninety (90)-day period, the action of the director shall be deemed upheld. The ninety (90)-day time limit established by this paragraph may be extended, with the consent of the planning commission, only upon the request of either the appellant or the applicant.

(3)

The filing of an appeal pursuant to this subsection shall operate as a stay on the administrative action with respect to which the appeal is taken. The stay shall remain in effect until the planning commission has taken final action of the appeal.

(4)

Any appeal filed pursuant to this subsection may be withdrawn where the appellant requests such withdrawal and the planning commission consents.

(b)

(1)

Any interested person may appeal any decision made by the planning commission pursuant to this chapter to the board of supervisors. An appeal shall be filed in writing with the director within ten (10) days after the decision that is the subject of the appeal. The appeal shall specifically state the basis for the appeal and shall be accompanied by the required filing fee.

(2)

Upon the filing of an appeal pursuant to this subsection, the board of supervisors shall set and hold a public hearing on the appeal. Notice of the hearing shall be given pursuant to Section 26A-07-040. The hearing shall be a hearing de novo. Upon conclusion of the hearing, the board of supervisors may sustain, modify, reject, or overrule the decision of the planning commission. The board of supervisors shall render its decision within ninety (90) days after the hearing is first opened. In the event that the board of supervisors fails to act within the ninety (90) day period, the decision of the planning commission shall be deemed upheld. The ninety (90)-day time limit established by this paragraph may be extended, with the consent of the board of supervisors, only upon the request of either the appellant or the applicant.

(3)

The filing of an appeal pursuant to this subsection shall operate as a stay on the planning commission decision with respect to which the appeal is taken. The stay shall remain in effect until the board of supervisors has taken final action on the appeal.

(4)

Any appeal filed pursuant to this subsection may be withdrawn where the appellant requests such withdrawal and the board of supervisors consents.

(Ord. No. 5537 § 3(c), 2004: Ord. No. 5165 § 1, 1999.)

Sec. 26A-07-021. - Direct review.

This section provides the procedures for the board of supervisors, upon its own initiative, to review the decisions of lower level decision makers on applications filed pursuant to this chapter.

(a)

Request for Direct Review. Any member of the board of supervisors may request the board to review a decision of a lower level decision maker approving or denying any application filed pursuant to this chapter.

(b)

Timing and Form of Request for Direct Review. A request for direct review shall be made orally at a board of supervisors meeting, or filed in writing with the clerk of the board, prior to the expiration of the appeal period for the decision of the lower level decision maker on the subject application. A request for direct review need not state the reasons for the request. A request for direct review shall not be deemed to be an allegation of any flaw in or a pre-judgment of the decision of the lower level decision maker.

(c)

Effect of Request for Direct Review. A request for direct review shall stay the decision of the lower level decision maker until the board of supervisors takes action in compliance with subsection (d) and, if applicable, until the board of supervisors takes action in compliance with subsection (e). The stay shall not extend the time for filing an appeal of the decision of the lower level decision maker.

(d)

Consideration of Request for Direct Review. A request for direct review shall be considered by the board of supervisors at a public meeting. Notice of the meeting shall be given, and the meeting shall be conducted, in compliance with applicable law.

(1)

If the board of supervisors approves the request for direct review, the board shall assume jurisdiction over the matter and take action in compliance with subsection (e).

(2)

If the board of supervisors denies the request for direct review, the decision of the lower level decision maker shall stand unless an appeal of the decision was timely filed.

(e)

Hearing and Decision. Any matter that is the subject of direct review shall be heard and decided by the board of supervisors at a public hearing. Notice of the hearing shall be given, and the hearing shall be conducted, in compliance with applicable law. The hearing shall be de novo. The board may affirm, wholly or partly, modify, or reverse the decision of the lower level decision maker on the subject application.

(f)

Participation by Initiator of Request for Direct Review. Any member of the board of supervisors who initiates a request for direct review shall have full participation rights in determining whether to approve the request and, if the request is approved, in hearing and deciding upon the matter, including the right to vote, unless actual bias or prejudice is otherwise shown.

(Ord. No. 5537 § 3(d), 2004.)

Sec. 26A-07-022. - Simultaneous appeal and direct review.

When a decision by a lower level decision maker is both appealed and jurisdiction is taken by the board of supervisors through direct review, both the appeal and the direct review shall be heard and considered concurrently.

(Ord. No. 5537 § 3(e), 2004.)

Sec. 26A-07-030. - Appeals to state mining and geology board.

(a)

Appeal to State Board. An applicant whose request for a permit to conduct surface mining operations in an area of statewide or regional significance, as defined in the Surface Mining and Reclamation Act, has been denied by the county board of supervisors, or any person who is aggrieved by an action of the board of supervisors to approve a permit to conduct surface mining operations in an area of statewide or regional significance, may appeal to the state board within fifteen (15) calendar days of the county's final determination. If the state board determines the decisions of the county are not supported by substantial evidence in light of the whole record, the board of supervisors shall schedule and hold a public hearing to reconsider its action.

(b)

Any party finding that the county has not reviewed and approved a reclamation plan or financial assurance in a timely fashion or has denied such approval contrary to the approval requirements or procedures set forth in SMARA, or has failed to act according to due process, may appeal that action or inaction to the State Mining and Geology Board. Pursuant to SMARA, the state board may decline to hear the appeal if it raises no new substantial issues or may accept the appeal and schedule a public hearing to determine whether the subject reclamation plan or financial assurance satisfies the applicable requirements of SMARA. Reclamation plans or financial assurances which are found to be deficient by the state board shall be returned to the applicant with a notice of the deficiencies so that they can be revised to meet the standards and resubmitted to the county for review and approval.

(Ord. No. 5165 § 1, 1999.)

Sec. 26A-07-040. - Notice of hearing.

(a)

When a provision of this chapter requires notice of a public hearing to be given pursuant to this section, notice shall be given by the director in all of the following ways:

(1)

Notice of the hearing shall be mailed or delivered at least ten (10) days prior to the hearing to the owner of the subject property and the applicant, if different from the owner.

(2)

Notice of the hearing shall be mailed or delivered at least ten (10) days prior to the hearing to all owners of real property within three hundred feet (300′) of the subject property as shown on the latest equalized assessment roll. If the number of owners to whom notice would be mailed or delivered pursuant to this subsection or subsection (a)(1) of this section is greater than one thousand (1,000), the director, in lieu of mailed or delivered notice, may provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation within the county at least ten (10) days prior to the hearing.

(3)

If the notice is mailed or delivered pursuant to subsection (a)(2) of this section, notice of the hearing shall also be published pursuant to Government Code Section 6061 in at least one newspaper of general circulation within the county at least ten (10) days prior to the hearing.

(4)

Notice of the hearing shall be posted at least ten (10) days prior to the hearing in at least three (3) public places on or near the subject property.

(b)

The notice required by this section shall include the date, time and place of the public hearing, the identity of the hearing body, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the subject property.

(c)

Notwithstanding subsection (a) above, where a hearing is to be held to consider the adequacy of an environmental document prepared pursuant to the Environmental Quality Act (CEQA), the ten (10) day notice period shall be extended as necessary to comply with the notice requirements of CEQA.

(d)

In addition to the notice required by this section, the director may give notice of the hearing in any other manner he or she deems necessary or desirable.

(Ord. No. 5165 § 1, 1999.)

Sec. 26A-07-050. - Amendments.

Proposed amendments to an approved mining permit or reclamation plan may be submitted to PRMD at any time, detailing the proposed changes from the original plan. Deviations from the original plan or permit shall not be undertaken until such amendment application has been filed with, and approved by, the county consistent with Article 26A-07. Such amendments to reclamation plans shall be submitted to the department of conservation for its review and comments. The director or his/her designee may determine that such amendments are minor in nature, in which case he/she may grant approval.

(Ord. No. 5165 § 1, 1999.)