BILL ANALYSIS Ó
SB 110
Page 1
Date of Hearing: June 14, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 110 (Rubio) - As Amended: June 8, 2011
PROPOSED CONSENT (As Proposed to Be Amended)
SENATE VOTE : 39-0
SUBJECT : REAL PROPERTY DISCLOSURES: MINING OPERATIONS
KEY ISSUE : SHOULD A THIRD-PARTY EXPERT REPORT USED BY A SELLER
TO COMPLY WITH REQUIREMENTS TO DISCLOSE INFORMATION ABOUT
NATURAL HAZARDS TO BUYERS OF REAL PROPERTY ADDITIONALLY REQUIRE
DISCLOSURE THAT THE PROPERTY FOR SALE IS WITHIN ONE MILE OF A
MINING OPERATION, AS SPECIFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law requires the seller of real property to make
certain disclosures to the prospective buyer about the proximity
of the property to natural hazard zones designated under the
Public Resources Code. This non-controversial bill would expand
those disclosures by requiring an expert report commonly used to
fulfill the natural hazard disclosure requirements to include a
specified Notice of Mining Operation if the property is within
one mile of a mining operation, as specified. As proposed to be
amended, this bill would no longer condition mining disclosure
requirements upon a Notice of Reclamation Plan Approval recorded
with the county recorder, but instead disclosure would depend on
whether the property is within one mile of a mining operation
that, pursuant to the Surface and Mining Reclamation Act
(commencing with Public Resources Code Section 2710), is
required to annually report certain identifying information
about itself, including longitude, latitude, and boundary
descriptions, to the Department of Conservation. This
information is maintained in a statewide database by the
Department's Office of Mining Reclamation (OMR), a database that
proponents contend offers a more comprehensive and convenient
source of reliable information on mining operations than
available through county recorder offices, and will thus help
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facilitate compliance with the bill's disclosure requirements.
This bill passed through the Senate without any "no" votes, and
as proposed to be amended, has no known opposition.
SUMMARY : Requires seller disclosure to prospective buyers of
real property that the property is located within one mile of a
mining operation. Specifically, this bill :
1)Requires an expert who produces a natural hazard disclosure
report to determine whether the property is located within one
mile of a parcel of real property subject to mine operations
regulated by the Department of Conservation, as specified.
2)Requires the report, if the residential property is within one
mile of the property subject to mine operations, to contain
the following notice:
"NOTICE OF MINING OPERATIONS
This property is located within one mile of a mine operation
regulated by the Department of Conservation pursuant to
Section 2717(b) of the Public Resources Code. Accordingly,
the property may be subject to inconveniences resulting from
mining operations. You may wish to consider the impacts of
these practices before you complete your transaction."
EXISTING LAW :
1)Requires a real property seller, or the seller's agent, to
disclose to buyers any material facts that would have a
significant and measurable effect on the value or desirability
of the property (if the buyer does not know, and would not
reasonably discover, those facts). (Karoutas v. Homefed Bank
(1991) 232 Cal.App.3d 767; Reed v. King (1983) 145 Cal.App.3d
261.)
2)Requires a seller's real estate broker to conduct a reasonably
competent and diligent visual inspection of a property offered
for sale, and to disclose to potential buyers any facts
revealed that would materially affect the value or
desirability of the property. (Civil Code Section 2079.)
3)Requires a seller of real property that is located within one
of several specified hazard zones, to disclose to any
prospective purchaser the fact that the property is located
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within one of these zones. Disclosure is required if either:
a) The seller or agent has actual knowledge that the
property is within a special flood hazard area, an area of
potential flooding, a very high fire hazard severity zone,
a wildland area having substantial forest fire risk, an
earthquake fault zone, or a seismic hazard zone;
b) The local jurisdiction has compiled a list, by parcel,
of properties within the zone, or has created a map that
includes the property, and then posted a notice at the
offices of the county recorded, assessor or planning agency
that identifies the location of the parcel list or map.
(Civil Code Section 1103.)
4)Requires the above disclosures to be made upon a copy of the
Natural Hazard Disclosure Statement, as specified. (Civil
Code Section 1103.2.)
5)Allows a seller of property to use an expert report or opinion
from a licensed engineer, land surveyor, geologist, or expert
in natural hazard discovery to satisfy the above natural
hazard disclosure requirements with respect to determination
of whether the property, by virtue of its location, is:
a) Within an airport influence area, as defined;
b) Within the jurisdiction of the San Francisco Bay
Conservation and Development Commission;
c) Within one mile of property certain designated farmland
areas. (Civil Code Section 1103.4.)
6)Requires the owner or the operator of a mining operation
within the state to forward to the director of the Department
of Conservation ("Department") annually a report that
identifies specified information, including but not limited
to:
a) The name, address, and telephone number of the person,
company, or other owner of the mining operation.
b) The location of the mining operation, its name, its
latitude, longitude, and approximate boundaries of the
mining operation marked on a specified United States
Geological Survey map.
c) The name of the lead agency. (Public Resources Code
Section 2207.)
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7)Requires the Department to publish at least quarterly in the
California Regulatory Notice Register, or otherwise make
available upon request to any other state or local agency, a
list identifying all surface mining operations for which a
report is required and has been submitted pursuant to Section
2207 (see above), or that otherwise is regulated by the
Department as specified under this section. (Public Resources
Code Section 2717(b).)
COMMENTS : Existing law requires the seller of real property to
make certain disclosures to the prospective buyer about the
proximity of the property to specified natural hazard zones
designated under the Public Resources Code. This bill would
expand those disclosures by requiring an expert report commonly
used to fulfill the natural hazard disclosure requirements to
include a specified "Notice of Mining Operations" if the
property is located within one mile of a mine operation
regulated by the Department of Conservation, pursuant to the
Surface and Mining Reclamation Act, Section 2217(b) of the
Public Resources Code.
Need for the bill : According to California Construction and
Industrial Materials Association (CalCIMA), the sponsor of this
bill, the increased urbanization of California has resulted in
the encroachment of some mining operations by residential
properties or other land uses in areas where these mining
operations formerly operated with few neighbors. CalCIMA
states:
Aggregates are a scarce natural resource . . . needed
to build our cities, homes and roads. Aggregate mining
operations are often permitted on the outskirts of
metropolitan areas. However, homes and other
developments frequently get built up around the
aggregate operations. These owners are often unaware
of the adjacent mining operation. This can result in
conflicts and operations may have to cease early, or be
limited in their operations and supply of materials.
In effect, the ability to utilize available natural
resources has been limited.
This bill will require that new purchasers of property
be notified of adjacent mining operations, just as they
are for agricultural operations. Ensuring that the
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communities around these facilities are aware of their
presence is an important step to ensuring their
continued viability.
According to the author, this bill is intended to ensure that
prospective purchasers have knowledge of adjacent industrial
uses and approved reclamation work use prior to purchasing
property, and are aware of the location of information on
reclamation plans governing the end use configuration of
adjacent mining property.
This bill expands the scope of the existing Natural Hazard
Disclosure Statement to include mining operations . Since 1998,
existing law requires sellers and their agents to issue a
Natural Hazard Disclosure Statement to buyers in real property
transactions. The statement requires the seller or agent to
indicate whether a property is within any one of several
specified natural hazard zones, such as a high fire hazard
severity zone or an earthquake fault zone. The seller may make
the disclosure statement directly to the prospective buyer or by
employing a third-party expert report pursuant to Civil Code
Section 1103.4. When an expert report is used to satisfy the
disclosure requirement, the report must disclose whether the
property is located: (1) within an airport influence area, (2)
within the jurisdiction of the San Francisco Bay Conservation
and Development Commission, or (3) within one mile of designated
farmland properties.
In order to facilitate the informed purchase of property that
may be impacted by proximity to mining operations, this bill
would additionally require the expert to determine, and disclose
in his or her report, whether the property is within one mile of
any mining operation identified and regulated by the Department
of Conservation, as specified. Like an airport or agricultural
farming operation, these mining operations may impact the use
and enjoyment of nearby property, and thus prospective owners
should be aware of the potential effects (e.g. noise, dust,
traffic or transport concerns) that mining operations may
produce.
Disclosure requirement triggered when sale property is within
one mile of mining operation. As recently amended, this bill
now requires expert disclosure within the Natural Hazard
Disclosure Statement when it is determined that the property for
sale is within a one mile radius of an identified mining
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operation, rather than the previous radius of 1,000 feet.
According to the author, increasing this distance to one mile is
intended to mirror the one mile radius from designated farmland
properties that triggers disclosure under the same section of
existing law.
The author contends that the impact of living near a large-scale
agricultural operation is similar in many ways to the impact of
living near a mining operation. For example, agricultural and
mining operations may both produce excess noise, dust, and light
pollution, and both may increase traffic associated with large
transport vehicles trucking materials in and out of the farm or
mining property along roads close to residential dwellings.
Agricultural and mining operations also may start very early in
the morning or around the clock, and vary in intensity according
to seasonal weather. For these reasons, the bill reasonably
adopts a one-mile radius for disclosure of mining operations
that is consistent with parameters of the agricultural model.
As proposed to be amended, this bill adopts a different standard
database from which mining operations shall be identified for
purposes of the disclosure requirement. As currently in print,
the bill requires expert determination and possible disclosure
of whether a property for sale is located within one mile of
property subject to mine operations identified in a Notice of
Reclamation Plan Approval recorded with the county recorder.
According to Fidelity National Financial (FNF), a provider of
title insurance who initially expressed concern about this
aspect of the bill, the Notice of Reclamation Plan Approval
document is often not easily accessible from the county
recorder's office, is not formatted or stored in a standardized
manner, and does not typically contain latitude or longitude
coordinates that are crucial for determining the proximity of
the property to natural hazards. Furthermore, researchers who
currently prepare Natural Hazard Disclosure Statements must
sometimes rely on information from one or more county recorders'
offices.
As proposed to be amended, this bill would no longer condition
mining disclosure requirements upon the Notice of Reclamation
Plan Approval recorded with the county recorder. Instead, the
author proposes to amend the bill so that the disclosure
requirement is conditioned on whether the mining operation has
been identified as one regulated by the Department of
Conservation pursuant to the Surface and Mining Reclamation Act
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(commencing with Public Resources Code Section 2710). Under
Section 2207 of that Act, owners and operators of mining
operations within the state must annually provide to the
Department specified identifying information, including but not
limited to the name, address, and telephone number of the
person, company, or other owner of the mining operation, and the
latitude, longitude, and approximate boundaries of the mining
operation marked on a specified United States Geological Survey
map. This information is compiled into a single database
maintained by the Office of Mine Reclamation (OMR) in the
Department of Conservation.
After some investigation prompted by dialogue with stakeholders,
the OMR database that compiles information on all approved
surface mines within the state appears to offer a more
comprehensive source of reliable information on mining
operations than individual county recorder offices. Therefore,
to facilitate better compliance with the mining disclosure
requirement and eliminate any need to collect information from
multiple county recorders, the author now proposes the following
amendments to be taken in this Committee:
On page 4, strike lines 31-33 inclusive and insert "of a
mine operation regulated by the Department of Conservation
pursuant to Section 2717(b) of the Public Resources Code."
On page 4, lines 34-36, strike "real property subject to
mine operations identified in a Notice of Reclamation Plan
Approval" and insert "such a mine operation regulated by the
Department of Conservation"
On page 5, line 2, strike "that has been identified in a
Notice of Reclamation Plan"
On page 5, line 3, strike "Approval recorded with the county
recorder" and insert "regulated by the Department of
Conservation"
On page 5, line 4, strike "2772.7" and insert "2717(b)"
REGISTERED SUPPORT / OPPOSITION :
Support
California Construction and Industrial Materials Association
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(CalCIMA) (sponsor)
California Cement Manufacturers Environmental Coalition (CCMEC)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334