BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   AB 291|
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                                 THIRD READING


          Bill No:  AB 291
          Author:   Saldana (D), et al
          Amended:  5/17/09 in Senate
          Vote:     21

           
           SENATE NATURAL RES. & WATER COMMITTEE  :  6-4, 6/23/09
          AYES:  Pavley, Kehoe, Leno, Simitian, Wiggins, Wolk
          NOES:  Cogdill, Benoit, Hollingsworth, Huff
          NO VOTE RECORDED:  Padilla

           SENATE APPROPRIATIONS COMMITTEE  :  7-4, 8/17/09
          AYES:  Kehoe, Corbett, Hancock, Leno, Price, Wolk, Yee
          NOES:  Cox, Denham, Runner, Walters
          NO VOTE RECORDED:  Oropeza, Wyland

           ASSEMBLY FLOOR  :  44-29, 5/28/09 - See last page for vote



           SUBJECT  :    Coastal resources:  coastal development  
          permits:  penalties

           SOURCE  :     Author


           DIGEST  :    This bill prohibits with a specified exception,  
          the California Coastal Commission from acting on a coastal  
          development permit application for development on any  
          property subject to a violation of the Coastal Act.

           ANALYSIS  :    

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          Existing law:

          1. Pursuant to the California Coastal Act (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 California Coastal Commission (CCC),  
             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  
             coastal development permit (CDP) or that may be  
             inconsistent with a previously issued permit.

          3. Authorizes the CCC, 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 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 Act.

          This bill:

          1. Prohibits the CCC from filing as complete or acting upon  
             a CDP application for a project on property, that is  
             subject to, an open, existing violation case for which a  
             violation notification letter has been sent, or a cease  
             and desist order, restoration order, or notice of  
             violation that has been issued or recorded, until the  
             violation has been resolved by the executive director,  
             as specified.

             The above provision does not apply to an action by a  
             local agency that is associated with processing,  
             submitting, certifying, or implementing an amendment to,  
             or original submission of, a local coastal program,  
             public works plan, or component of a local coastal  
             program or public works plan.








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          2. Provides that the above prohibition does not apply if  
             the executive director of the CCC determines that a CDP  
             application will fully resolve the violation.

          3. Authorizes the CCC to resolve a dispute between the  
             executive director and an applicant at a noticed public  
             hearing.

          4. Provides that a CDP application may be filed as complete  
             for property subject to a de minimis violation, as  
             defined; however, the Commission may not act on the  
             application until the violation has been fully resolved.

           Background
           
          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.  The CCC may  
          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.  The CCC may also issue a  
          restoration order if it finds that development has occurred  
          without a CDP and the development is causing continuing  
          resource damage. 

          A superior court may impose civil penalties on any person  
          in violation of the 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 Act. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

           SUPPORT  :   (Verified  6/23/09) (Per Sen. Natural Resources  
          & Wildlife Cmte.)
          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







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          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  :    (Verified  6/23/09) (Per Sen. Natural  
          Resources & Wildlife Cmte.)
          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

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          "The [Commission] is currently understaffed and backlogged  
          by 1,300 enforcement cases.  Given budget cuts, this  
          backlog will not be resolved for 100 years. This bill seeks  
          to relieve the CCC of an overwhelming amount of work in the  
          face of limited resources by allowing the CCC to require  
          applicants to fix outstanding Coastal Act violations before  
          their CDP is processed.  In addition to saving the CCC time  
          and resources, the bill also serves as an incentive for  
          Coastal Act violations to be  cleaned up, subsequently  
          helping preserve coastal resources."

          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.   
          Despite the inefficiency, the CCC must consider the  
          application without regard to this violation even if it is  
          directly relevant to the proposed development.  Moreover,  
          many new permit applications must be reviewed within  







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          statutory deadlines, even those that would affect  
          properties facing current enforcement actions. 

          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.   
          Humboldt, Mendocino, Marin, San Luis Obispo, Monterey,  
          Santa Barbara, Ventura Counties all have similar  
          authorities, according to CCC staff.  State agencies such  
          as the Departments of Food and Agriculture, Health  
          Services, Motor Vehicles, 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. 

          This bill, according to the supporters, gives the CCC  
          another tool to resolve violations in the most efficient,  
          cost-effective manner possible.  According to CCC staff,  
          applicants are aware of the CCC staffing limitations, and  
          many conclude that it is more cost-effective to ignore  
          unresolved violations, on the assumption that the CCC will  
          be unable to summon the resources to pursue enforcement on  
          the vast majority of open cases.

           ARGUMENTS IN OPPOSITION  :    A coalition of opponents argues  
          that the bill imposes a "guilty until proven innocent"  
          approach to certain coastal development permit  
          applications.  In the Assembly, the bill was limited to  
          situations in which a notice of a violation was issued or  
          recorded, or until the violation has been resolved.  It is  
          not clear if these amendments have eliminated or reduced  
          the concerns of the opposition. 

          This concern may also reflect a misunderstanding about how  
          the CCC procedures designate pending violations.  Cease and  
          desist orders issued by the executive director may occur  
          only after a person has failed to respond to an oral and  
          written notice and are valid for only 90 days.  If a  
          violation remains unresolved after this period, staff  
          usually schedules the order for CCC consideration at a duly  
          noticed public hearing.  The other enforcement option,  







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          restoration orders, may only be issued after a noticed  
          public hearing.  Only after the executive director  
          determines, based on substantial evidence, that  property  
          has been developed in violation of the Coastal Act, does  
          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 CCC  
          finds, based on substantial evidence, that a violation has  
          occurred, is the notice recorded. 

          Finally, the bill provides that any unresolved dispute  
          between the executive director and applicant regarding the  
          bill's implementation must be resolved by the CCC at a  
          noticed public hearing pursuant to its regulations, which  
          require the executive director to schedule the dispute at  
          the next CCC hearing.  

           ASSEMBLY FLOOR  : 
          AYES:  Ammiano, Beall, Block, Blumenfield, Brownley,  
            Buchanan, Caballero, Charles Calderon, Carter, Chesbro,  
            Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer,  
            Fong, Furutani, Galgiani, Hayashi, Hernandez, Hill,  
            Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma,  
            Mendoza, Monning, Nava, John A. Perez, Portantino, Price,  
            Ruskin, Salas, Saldana, Skinner, Swanson, Torlakson,  
            Torres, Torrico, Yamada
          NOES:  Adams, Anderson, Bill Berryhill, Tom Berryhill,  
            Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,  
            Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,  
            Harkey, Jeffries, Knight, Logue, Miller, Nestande,  
            Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,  
            Villines
          NO VOTE RECORDED:  Arambula, Fuentes, Hall, Huber, V.  
            Manuel Perez, Solorio, Bass


          CTW:RJG:do  8/19/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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