15.78.060 In lieu of payment.
A. An urban development permittee may transfer title to land in lieu of payment of a portion of the H.M.F. applicable to a predetermined area under development if preservation of the proposed land is consistent with the habitat management land acquisition criteria set forth in subsection B of this section, and is acceptable to the implementation trust as set forth in subsection C of this section.
B. Land is appropriate for acquisition as all or part of habitat management lands and may, at the discretion of the implementation trust, qualify in lieu of payment of H.M.F., if it is: (1) within one of the potential habitat management lands acquisition areas identified in the implementation/management agreement, and CDFG, USFWS, the Nature Conservancy, or other habitat management entity approved by CDFG has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for such lands; or (2) in an area determined by the implementation trust and the CDFG advisor and USFWS advisor to the implementation trust to provide benefits to one or more of the species of concern, and CDFG, USFWS, the Nature Conservancy, or other habitat management entity approved by CDFG has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for such lands. Notwithstanding this subsection and subsection C of this section, the transfer of title to land in lieu of the payment of H.M.F. shall not be included in the calculations conducted pursuant to Section 3.1.8 of the implementation/management agreement for the purposes of determining the cumulative amount of habitat management lands, unless the transferred land qualifies as habitat management lands.
C. Landowners proposing transfer of title to land in lieu of payment of mitigation fees shall submit a petition for a transfer consistency determination to the implementation trust. The implementation trust shall be responsible for determining the completeness of the petition. The petition shall provide a description of the land proposed for transfer and, when land is not within a pre-approved area, a report prepared by a qualified biologist on the value of the land as habitat for species of concern. Additional information which may be required by the trust group includes a preliminary title report, or other similar document acceptable by the trust group, a preliminary site assessment for hazardous waste contamination, and correspondence from CDFG, USFWS, or any habitat management entity approved by CDFG and USFWS, regarding their ability and desire to accept title and management responsibilities. The petition shall be processed in accordance with the following time limits:
1. If, upon review of the petition, the implementation trust finds the information provided to be inadequate for determining consistency, the trust shall, within forty-five days of receipt of the petition, provide the landowner with a written statement of the additional information required. The forty-five-day period can be extended if both parties agree.
2. Upon receipt of an adequate petition, the implementation trust shall, within forty-five days of receipt of the petition, issue a written determination with respect to the acceptability and consistency, and amount of credit of the land proposed for transfer with the habitat management lands criteria set forth in subsection B of this section. The forty-five-day period can be extended if both parties agree.
3. If the implementation trust fails to make a written determination of consistency or lack of consistency within the forty-five-day period, the land proposed for transfer will be deemed to be acceptable and consistent with the habitat management land acquisition criteria set forth in subsection B of this section. The forty-five-day period can be extended if both parties agree.
D. The implementation trust is under no obligation to accept land that does not, in its sole discretion, provide benefits to one or more species of concern and does not benefit the MBHCP program.
E. If, in consultation with the USFWS and CDFG as advisors, the implementation trust determines that the land proposed for transfer is acceptable and consistent with the habitat management lands acquisition criteria set forth in subsection B of this section, the transfer may be used in lieu of payment of the portion of the mitigation fee attributable to the estimated cost of acquiring habitat management lands on an acre-per-acre basis. This means that an acre of in-lieu land may be accepted for each acre of the project requiring payment of the H.M.F. Only the acres sufficient to satisfy the H.M.F. for the project shall be permitted to be transferred prior to issuance of an urban development permit. The in-lieu land and payment of the mitigation fees are not transferable to the other project. Failure to develop the project shall not result in a refund of either the in-lieu land or related fees that were previously paid. Therefore, a property owner utilizing land title transfer in lieu of payment of the land value portion of the H.M.F. shall pay a fee in the amount of the H.M.F. attributable in the uncodified ordinance to the cost of fencing the habitat management lands, the cost of ensuring the management and enhancement of the habitat management lands as specified in the implementation/management agreement and the administrative costs attributable to the MBHCP program, as those fees exist at the time of payment. The H.M.F. shall not be satisfied for a project until these fees are paid and a grant deed to CDFG or its designee is recorded. In instances where the implementation trust determines the land being transferred represents unique habitat values or assists in achieving specific preservation or management goals of the MBHCP, the implementation trust may choose to pay all or a portion of these fees. (Ord. 4966 § 1, 2019; Ord. 4046 § 2, 2002)