BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 291| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 291 Author: Saldana (D), et al Amended: 8/17/09 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 : Existing law: CONTINUED AB 291 Page 2 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. 2. Provides that the above prohibition does not apply if CONTINUED AB 291 Page 3 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 8/28/09) 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 CONTINUED AB 291 Page 4 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 8/28/09) American Council of Engineering Companies of California California Association of REALTORS California Building Industry Association California Business Properties Association California Chamber of Commerce California Farm Bureau Federation California Manufacturers and Technology Association City of Newport Beach 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 statutory deadlines, even those that would affect properties facing current enforcement actions. CONTINUED AB 291 Page 5 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, restoration orders, may only be issued after a noticed public hearing. Only after the executive director determines, based on substantial evidence, that property CONTINUED AB 291 Page 6 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 9/2/09 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED