BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 291
                                                                  Page 1

          Date of Hearing:  April 13, 2009

                       ASSEMBLY COMMITTEE ON NATURAL RESOURCES
                                Nancy Skinner, Chair
                    AB 291 (Saldana) - As Amended:  March 26, 2009
           
          SUBJECT  :  Coastal development permits:  penalties.

           SUMMARY  :  Prohibits any person subject to an enforcement action  
          of the California Coastal Commission (Commission) from  
          submitting a coastal development permit (CDP) application until  
          the action has been resolved.

           EXISTING LAW  :

          1)Pursuant to the California Coastal Act of 1976, requires any  
            person wishing to perform any development in the coastal zone  
            to first obtain a coastal development permit.

          2)Authorizes the Commission, after a public hearing, to issue a  
            cease and desist order if it determines that someone is  
            undertaking or threatening to undertake any activity that  
            requires a CDP or that may be inconsistent with a previously  
            issued permit.

          3)Authorizes the Commission, a local government, or port, after  
            a public hearing, to issue a restoration order if it finds  
            that development has occurred without a CDP and the  
            development is causing continuing resource damage.

          4)Authorizes a superior court to impose civil penalties on any  
            person in violation of the Coastal Act between $500 and  
            $30,000; additional penalties between $1,000 and $15,000 per  
            day for each day in which a violation persists may be imposed  
            when anyone knowingly and intentionally violates the Coastal  
            Act.

           THIS BILL  : 

          1)Prohibits any person who has been issued a notice of intent,  
            cease and desist order, restoration order, or notice of  
            violation from submitting a CDP application until the action  
            has been resolved.  

          2)Provides that the above prohibition does not apply if the  








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            executive director of the Commission determines that a CDP  
            application would fully resolve the violation.

          3)Provides that an unresolved dispute between the executive  
            director and an applicant must be resolved by the Commission  
            at a noticed public hearing.

           FISCAL EFFECT  :  Unknown

           COMMENTS  :  According to the author's office, "The [Commission]  
          is currently understaffed and backlogged by 1,300 enforcement  
          cases.  This bill seeks to relieve the Commission of an  
          overwhelming amount of work in the face of limited resources by  
          allowing the Commission to require applicants to fix outstanding  
          Coastal Act violations before their CDP is processed.  In  
          addition to saving the Commission time and resources, the bill  
          also serves as an incentive for Coastal Act violations to be  
          cleaned up, subsequently helping preserve coastal resources."

           1)Should violators be rewarded with a CDP?  

          Under existing law, anyone can apply for a CDP even if the  
          proposed development occurs on a parcel subject to a violation  
          or an alleged violation of the Coastal Act.  Furthermore, the  
          Commission must consider the application without regard to this  
          violation even if it is directly relevant to the proposed  
          development.  Procedurally, this results in a perverse,  
          bifurcated process even though it would make more sense to  
          address both issues concurrently.  According to Commission  
          staff, "This is more expensive for all parties, and can delay  
          resolution of even violations with serious and ongoing effects  
          on coastal resources for years, or indefinitely given the  
          shortage of Commission staff."  In these instances, review of  
          CDP applications are often prioritized over violations since  
          existing law imposes deadlines for the review of the former.

          In contrast, many other state agencies and some local  
          governments have the authority to require that an applicant  
          resolve outstanding issues at the same time as an application,  
          in order to save resources and create an incentive to  
          voluntarily resolve outstanding violations.  In fact, according  
          to Commission staff, Humboldt, Mendocino, Marin, San Luis  
          Obispo, Monterey, Santa Barbara, Ventura Counties all have  
          similar authorities.  State agencies such as the Departments of  
          Food and Agriculture, Health Services, Motor Vehicles,  








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          Corporations, Fish and Game, Forestry and Fire Protection,  
          Consumer Affairs, and Insurance similarly have authority to  
          require resolution of a violation prior to consideration of an  
          application for a permit, license or other approval.

           2)Bill could result in process- and cost-efficiency
           
          This bill would provide applicants the incentive to resolve  
          violations more quickly since they would otherwise be ineligible  
          to pursue any additional development.  At the same time, the  
          bill would give the Commission the ability to resolve  
          outstanding violations as part of a CDP application, something  
          that can only be accomplished voluntarily under existing law.   
          In turn, the applicant would likely not be subject to penalties  
          and an expensive enforcement proceeding.

          As mentioned above, the Commission has an existing backlog of  
          over 1,300 enforcement cases.  Not considering new cases, at the  
          current rate of processing, it would take the Commission more  
          than 100 years to resolve these cases.  Given drastic budget  
          cuts over the past few years, this bill would give the  
          Commission another tool to resolve violations in the most  
          efficient, cost-effective manner possible.  According to  
          Commission staff, "Applicants are well aware of the Commission's  
          staffing limitations, and far too many conclude that it is more  
          cost-effective to ignore unresolved violations, on the  
          assumption that the Commission will be unable to summon the  
          resources to pursue enforcement on the vast majority of open  
          cases."

           3)Does bill contain sufficient due process for applicants?
           
          A coalition of opponents has raised concerns that the bill does  
          not contain sufficient due process and would thus unfairly  
          penalize an applicant based on the mere assertion by staff that  
          a violation had occurred.  Existing law provides that either the  
          executive director or Commission may issue a cease and desist  
          order.  In the first instance, an order may be issued only after  
          a person has failed to respond to an oral and written notice;  
          moreover, the order is only valid for 90 days.  If a violation  
          remains unresolved after this period, staff usually schedules  
          the order for Commission consideration at a duly noticed public  
          hearing.  Only the Commission may issue a restoration order  
          after a noticed public hearing.  Only after the executive  
          director determines, based on substantial evidence, that  








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          property has been developed in violation of the Coastal Act, the  
          Act authorizes the executive director to mail a "notification of  
          intent to record a notice of violation" to the property owner.   
          If the owner submits an objection to this notice within 20 days,  
          the owner is entitled to a public hearing to plead his cause.   
          Only after the Commission finds, based on substantial evidence,  
          that a violation has occurred, the executive director can record  
          the notice.  

          Finally, the bill provides that any unresolved dispute between  
          the executive director and applicant regarding the bill's  
          implementation must be resolved by the Commission at a noticed  
          public hearing pursuant to its regulations, which require the  
          executive director to schedule the dispute at the next  
          Commission hearing.  Thus, it is clear that existing law does  
          not permit staff to behave arbitrarily or capriciously, even  
          when alleging that a violation has occurred.  

          4)Proposed amendments
           
          The following amendment addresses the concern that 

          Page 2, lines 3-8 should be amended to read:

          30825. (a)  The commission shall not file or act upon an  
          application for a coastal development permit from any   A  person  
          who has been issued a notice of intent, cease and desist order,  
          restoration order, or a notice of violation pursuant to Section  
          30809, 30810, 30811, or 30812, in addition to any other  
          penalties  , shall be ineligible to submit an application for a  
          coastal development permit  until the violation has been  
          resolved  , as determined by the executive director and consistent  
          with this division  .

          Page 2, lines 12-16 should be amended to read:

          (c) Any unresolved dispute between the executive director and an  
          applicant regarding the implementation of this section  may   shall   
          be resolved by the commission at a noticed hearing pursuant to  
          subdivision (d) of Section 13056 of Title 14 of the California  
          Code of Regulations.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 








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          American Federation of State, County, and Municipal Employees,  
          AFL-CIO
          Buena Vista Audubon Society
          California Coast Keeper Alliance
          California Coastal Protection Network
          California Coastal Commission
          Committee for Green Foothills
          Clean Water Action
          Endangered Habitats League
          Heal the Bay
          Madrone Audubon Society of Sonoma County
          Natural Resources Defense Council
          Planning and Conservation League
          San Diego Coastkeeper
          San Diego Audubon Society
          Sea and Sage Audobon
          Sierra Club California
          Vote the Coast
          Wild Heritage Planners

           Opposition 
           
          American Council of Engineering Companies of California
          California Association of REALTORS
          California Building Industry Association
          California Business Properties Association
          California Chamber of Commerce
          California Council for Environmental and Economic Balance
          California Manufacturers and Technology Association
          City of Newport Beach
          League of California Cities

           
          Analysis Prepared by  :  Dan Chia / NAT. RES. / (916) 319-2092