BILL ANALYSIS �
AB 203
Page 1
ASSEMBLY THIRD READING
AB 203 (Stone)
As Amended March 11, 2013
Majority vote
NATURAL RESOURCES 6-2 APPROPRIATIONS 11-5
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|Ayes:|Chesbro, Garcia, |Ayes:|Gatto, Bocanegra, |
| |Muratsuchi, Skinner, | |Bradford, |
| |Stone, Williams | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Holden, |
| | | |Pan, Quirk, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Grove, Bigelow |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Linder, Wagner |
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SUMMARY : Prohibits the Coastal Commission (Commission) from
acting on a coastal development permit (CDP) application that
involves property subject to an unresolved violation of the
California Coastal Act of 1976 (Coastal Act) until the violation
is resolved. Specifically, this bill:
1)Prohibits the Commission from filing as complete or acting
upon a CDP application that involves property subject to an
open, existing violation case for which a violation
notification letter, a cease and desist order, restoration
order, or notice of violation has been issued until the
violation is resolved.
2)Provides that the above prohibition does not apply if the
executive director determines that the application includes a
provision that would fully resolve the violation. The
prohibition also 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.
3)Authorizes the Commission to file as complete a CDP
application involving property with an open, existing
violation case for which a violation notification letter, a
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cease and desist order, restoration order, or notice of
violation has been issued if the violation is a de minimis
violation (i.e., a violation that is so minor in nature that
it may be easily resolved through voluntary actions on the
part of the property owner). If the Commission accepts such
an application for a CDP, the Commission may not take action
on the application until the violation has been fully
resolved.
4)Allows an unresolved dispute between the executive director
and an applicant regarding the implementation of the above
provision to be resolved by the Commission at a noticed
hearing.
5)Prohibits the above provisions from applying to a new
application for a development in a harbor, port, or marina for
a project that is individually owned or leased by a separate
party that is unaffiliated with an open, existing violation
case.
EXISTING LAW : Pursuant to the Coastal Act:
1)Requires any person wishing to perform any development in the
coastal zone to first obtain a CDP.
2)Authorizes the Commission's executive director to issue an ex
parte cease and desist order if he or she determines that
someone is undertaking or threatening to undertake an activity
that requires a CDP or that may be inconsistent with a
previously issued permit. Before issuing the ex parte cease
and desist order, the director is required to give oral and
written notice. The order is valid for 90 days from the date
of issuance.
3)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 an activity that
requires a CDP or that may be inconsistent with a previously
issued permit.
4)Authorizes the Commission to issue a restoration order if it
finds that development has occurred without a CDP and the
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development is causing continuing resource damage.
5)Requires the Commission's executive director to record a
notice of violation with a county recorder if: 1) he or she
has determined that real property has been developed in
violation of the Coastal Act; 2) a notice of intention to
record a notice of violation was mailed; and 3) the owner of
the property failed to object to the notice or the owner of
the property objected and the Commission found, after a
hearing, that a violation has occurred.
6)Authorizes a superior court to impose civil penalties between
$500 and $30,000 on any person in violation of the Coastal
Act. If a person intentionally and knowingly violates the
Coastal Act, additional civil penalties between $1,000 and
$15,000 may be imposed for each day in which the violation
persists.
FISCAL EFFECT : According to the Assembly Appropriations
Committee: 1) potential annual special fund savings in the
range of $50,000 to $100,000 from avoided enforcement
proceedings; and 2) minor General Fund costs, likely in the tens
of thousands of dollars annually, associated with resolution of
unresolved disputes between the Commission's executive director
and property owners.
COMMENTS : According to the author's office, "[t]he California
Coastal Commission has a backlog of more [1,800] open,
unresolved enforcement cases. The Commission estimates that,
based on the current rate of resolution, these would take 100
years to resolve."
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 a Commission
staff report, "[t]his approach is costly for all parties, and
can delay the resolution of serious and ongoing violations for
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years with harmful effects on coastal resources."
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, Fresno,
San Diego, Santa Cruz, and the counties of Los Angeles, Marin,
Mono, Monterey, Orange, Placer, San Diego, and San Luis Obispo
all have similar authorities. State agencies such as the
Departments of Food and Agriculture, Public Health, Motor
Vehicles, Conservation, Fish and Wildlife, Consumer Affairs,
Alcohol and Drug Programs, and Social Services similarly have
authority to require resolution of a violation prior to
consideration of an application for a permit, license, or other
approval.
The 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 1,800 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.
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
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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
property has been developed in violation of the Coastal Act
(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 or her 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. Thus, it is clear that existing law does not
permit staff to behave arbitrarily or capriciously, even when
alleging that a violation has occurred.
Previous legislation . A similar bill, AB 291 (Salda�a, 2009)
was passed by the Assembly Natural Resources Committee and the
Assembly Floor; however, the bill was substantially amended in
the Senate.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092 FN:
0000351