BILL ANALYSIS Ó
SB 110
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Date of Hearing: June 28, 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 existing law, is required to annually report
certain identifying information about itself, including
longitude and latitude map data, 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 further the policy objective of this bill to maximize
accurate disclosure of the proximity of mining operations for
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the benefit of both prospective property buyers and mine owners.
As proposed to be amended, the bill is supported by the
California Construction and Industrial Materials Association
(CalCIMA), several mining companies, and two major disclosure
companies whose job it is to prepare and distribute natural
hazard and other disclosure reports to purchasers of real
property. This bill did not receive any "no" votes in the
Senate and 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, utilizing map coordinate data made
available by the Office of Mine Reclamation, whether the
property is presently located within one mile of a mine
operation for which map coordinate data has been reported to
the Department of Conservation pursuant to Section 2207 of the
Public Resources Code.
2)Requires the report, if the residential property is within one
mile of the mine operation, to contain the following notice:
"NOTICE OF MINING OPERATIONS
This property is located within one mile of a mine operation
for which the mine owner or operator has reported mine
location data to the Department of Conservation pursuant to
Section 2207 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 the owner or the operator of any 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
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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.)
2)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
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.)
3)Requires the above disclosures to be made upon a copy of the
Natural Hazard Disclosure Statement, as specified. (Civil
Code Section 1103.2.)
4)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.)
5)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
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(1991) 232 Cal.App.3d 767; Reed v. King (1983) 145 Cal.App.3d
261.)
6)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.)
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 for sale is located within one mile of a mine
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 existing law, is required to annually report certain
identifying information about itself, including longitude and
latitude map data, 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 further
the policy objective of this bill to maximize accurate
disclosure of the proximity of mining operations for the benefit
of both prospective property buyers and mine owners.
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
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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
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
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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
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.
Background on mine information reported by the mine owner to the
state and county : Under Section 2207 of the Public Resources
Code, 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. The statute also requires most of
the same information to be submitted to the county where the
mine is located, in its function as the lead agency that
oversees mine operations in its local jurisdiction. In both
cases, the information is self-reported by the mine owner or
operator and not independently verified by either the Department
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or the lead agency, so any inaccuracy in the data (including the
map coordinate data) is attributable to the owner's report, not
the entity compiling the database.
As proposed to be amended, this bill adopts a different source
of information from which mining operations shall be identified
for purposes of the disclosure requirement. Currently, 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. However,
according to a number of disclosure companies whose job it is to
research and prepare disclosure reports for purchasers of real
property, the Notice of Reclamation Plan Approval document is
often not easily accessible from many county recorder offices,
is often not formatted or stored in a standardized manner, and
does not typically contain latitude or longitude coordinates
(sometimes referred to as "GIS map data") that are needed to
accurately determine the proximity of the property to a mine
operation.
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 GIS map coordinate data
for the mine operation has been reported to the Department of
Conservation, pursuant to Section 2207 of the Public Resources
Code. This information is compiled into a single database
maintained by the Office of Mine Reclamation (OMR), within the
Department of Conservation, and currently can be requested from
OMR through a form on their website.
After consultation with stakeholders and the Department, the
author has determined that the OMR database of all mines within
the state appears to provide a better, more comprehensive source
of mine location data that is also more accessible than that
typically available from county recorders' offices. Therefore,
to further the bill's objective to maximize accurate disclosure
of nearby mining operations for the benefit of both prospective
property buyers and mine owners, the author now proposes the
following amendments:
On page 4, strike lines 29 to 39, and strike page 5 in its
entirety, and replace with:
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(4) In responding to the request, the expert shall
determine, utilizing map coordinate data made available by
the Office of Mine Reclamation, whether the property is
presently located within one mile of a mine operation for
which map coordinate data has been reported to the director
pursuant to Section 2207 of the Public Resources Code. If
the expert determines, from the available map coordinate
data, that the residential property is located within one
mile of such a mine operation, the report shall contain the
following notice:
NOTICE OF MINING OPERATIONS:
This property is located within one mile of a mine
operation for which the mine owner or operator has reported
mine location data to the Department of Conservation
pursuant to Section 2207 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Construction and Industrial Materials Association
(CalCIMA) (sponsor)
California Cement Manufacturers Environmental Coalition (CCMEC)
Fidelity National Financial/Disclosure Source
First American Natural Hazard Disclosure Company
Sespe Consulting, Inc.
Specialty Minerals, Inc.
Vulcan Materials Company, Western Division
Werner Corporation
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
SB 110
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