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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