BILL ANALYSIS Ó
AB 2171
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Date of Hearing: April 4, 2016
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 2171
(Jones) - As Amended March 29, 2016
SUBJECT: Coastal resources: development review: appeals
SUMMARY: Authorizes any aggrieved person to file an appeal of
any appealable action on a Coastal Development Permit (CDP) or
claim for exemption to a superior court instead of the
California Coastal Commission (Commission). Limits who may file
an appeal to individuals living within 1000 feet of an impacted
county.
EXISTING LAW, pursuant to the Coastal Act:
1)Requires a person planning to perform or undertake any
development in the coastal zone to obtain a coastal
development permit from the Commission or local government
enforcing a Local Coastal Program (LCP).
2)Defines "development" to mean, among other things, the
placement or erection of any solid material or structure on
land or in water. "Structure" includes, but is not limited
to, any building, road, pipe, flume, conduit, siphon,
aqueduct, telephone line, and electrical power transmission
and distribution line.
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3)Defines the "coastal zone" as the land and water area of the
State of California from the Oregon border to the border of
the Republic of Mexico, extending seaward to the state's outer
limit of jurisdiction, including all offshore islands, and
extending inland generally 1,000 yards from the mean high tide
line of the sea. In significant coastal estuarine, habitat,
and recreational areas the coastal zone extends inland to the
first major ridgeline paralleling the sea or five miles from
the mean high tide line of the sea, whichever is less. In
developed urban areas the zone generally extends inland less
than 1,000 yards. The coastal zone does not include the area
of jurisdiction of the San Francisco Bay Conservation and
Development Commission, nor any area contiguous thereto,
including any river, stream, tributary, creek, or flood
control or drainage channel flowing into such area.
4)Provides the right of judicial review to any aggrieved person
for any decision or action of the Commission.
5)Provides the right of judicial review to any person, including
an applicant for a CDP or the Commission, aggrieved by the
decision or action of a local government that is implementing
a LCP if the decision or action is not appealable to the
Commission.
6)Authorizes the Commission to intervene in any such proceeding
upon showing the matter involves a question of the conformity
of a proposed development with a LCP or the validity of a
local government action taken to implement a LCP. Allows any
local government to request that the Commission intervene.
7)Specifies that any appealable action on a CDP or claim of
exemption for any development by a local government is
appealable to the Commission by an applicant, any aggrieved
person, or any two members of the Commission. Allows the
Commission to approve, modify, or deny such proposed
development, and if no action is taken within the specified
time limit, the decision of the local government is final,
unless the time limit is waived by the applicant.
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THIS BILL:
1)Authorizes any aggrieved person to file an appeal of any
appealable action on a CDP or claim for exemption to a
superior court instead of the Commission.
2)Limits who may appeal an action on a CDP or claim for
exemption to a person who lives in or owns property in a
coastal county impacted by the decision or a person living
within 1,000 feet of an impacted coastal county.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement. According to the author's office:
Currently, appealable actions on a coastal development
permit or claim for exemption for any development
proposed to be located in an area subject to a
certified local coastal program need to be filed to
the California Coastal Commission. The California
Coastal Commission, set to enforce the 1976 Coastal
Act, consists of 12 part time commissioners who,
although not required to be attorneys, are tasked to
solve the complex legal questions relating to the
Coastal Act.
This bill would allow the appeals to be filed directly
to the local superior court under whose jurisdiction
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the project falls. The appeal will be handled by a
judge who can interpret and enforce the Coastal Act
just as well as the Coastal Commission, and the
increased involvement from the superior courts can
ensure a faster, more streamlined process where
appeals can be scrutinized and decided at a greater
pace.
2)Coastal Commission. The Commission was established by
voter initiative in 1972 (Proposition 20) and later made
permanent by the Legislature through adoption of the
California Coastal Act of 1976. In partnership with
coastal cities and counties, the Commission plans and
regulates the use of land and water in the coastal zone.
Development activities, which are broadly defined by the
Coastal Act to include construction of buildings,
divisions of land, and activities that change the
intensity of use of land or public access to coastal
waters, generally require a CDP from either the
Commission or the local government with a certified LCP.
The Commission is an independent, quasi-judicial state
agency. The Commission is composed of 12 voting members,
appointed equally (4 each) by the Governor, the Senate
Rules Committee, and the Speaker of the Assembly. Six of
the voting commissioners are locally elected officials
and six are appointed from the public at large. Three ex
officio (non-voting) members represent the Resources
Agency, the California State Transportation Agency, and
the State Lands Commission.
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According to the Commission's mission statement:
The Commission is committed to protecting and
enhancing California's coast and ocean for present and
future generations. It does so through careful
planning and regulation of environmentally-sustainable
development, rigorous use of science, strong public
participation, education, and effective
intergovernmental coordination."
3)Appeals. Local government CDP decisions, for the most
part, are appealable to the Commission. All of the
Commission's decisions are subject to judicial review.
Actions not appealable to the Commission also are subject
to judicial review. Therefore, all aggrieved persons can
have their day in court. The Commission has a staff of
almost 150 which analyze projects before the Commission
for constancy with the Coastal Act. Local governments
report many hundreds of locally-approved CDPs to the
Commission every year. Between slightly more than half
to two-thirds local CDPs are appealable to the
Commission. If the Commission finds that an appeal does
raise a substantial issue, it takes jurisdiction over the
matter and conducts an independent de novo review of the
CDP application. Most of the time this de novo review
requires that the applicant or local government provide
additional information and analysis to address the appeal
issues. The Commission heard 41 appeals in 2013 and has
received an average of 70 appeals a year. This reflects
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an average appeal rate of 7.2%, ranging from a high of
9.7% in 2010 to a low of 4.9% in 2004. Last year only
four lawsuits challenged the actions of the Commission.
This bill would allow any aggrieved person to bypass the
Commission and go directly to judicial review. The
Commission's CDP appeal process is an important oversight
mechanism for the protection of public access and coastal
resources. Currently, the judicial review option is
infrequently used. It is unclear what the benefit is of
bypassing the Commission, especially in light of the case
backlog in California's court system. This bill would
also limit who can appeal a decision to people who live
near or in a county impacted by the decision. This
provision would prohibit Californians who care about the
coast, but do not live near a specific project, from
appealing a decision. This is contrary to the Coastal
Act's mission of protecting the coast for all
Californians.
4)Related bills
AB 2648 (Jones, 2016) allows a County to petition to a
superior court to delegate the County exclusive
jurisdiction over coastal permitting thereby removing the
Commission oversight of the Counties LCP. Allows any
aggrieved to appeal to superior court. The bill is
awaiting hearing in the Assembly Natural Resources
Committee.
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5)Double Referrals. This bill has been double referred to
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
Amigoes de los Rios
Azul
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Blue Frontier Campaign
California Coastkeeper Alliance
California Coastal Protection Network
California League of Conservation Voters
Coastal Environmental Rights Foundation
Courage Campaign
Committee for Green Foothills
Endangered Habitats League
Environmental California
Environmental Defense Center
Friends of Harbors, Beaches & Parks
Humboldt County Surfrider
Law Offices of Mark Massara
Natural Resources Defense Council
NorthCoast Environmental Center
Orange County Coastkeeper
Save Our Shores
Sierra Club California
Sugar Law Center for Social Justice
Turtle Island Restoration Network
2 Individuals
Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092
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