BILL ANALYSIS �
AB 203
Page 1
ASSEMBLY THIRD READING
AB 203 (Stone)
As Amended May 9, 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.
This bill does not require or preclude resolution of any new
violation that is identified during the permit application
process.
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
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which a violation notification letter, a 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
development is causing continuing resource damage.
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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, the California
Coastal Commission has a backlog of more than 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 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
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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
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
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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: 0000469