BILL ANALYSIS
AB 291
Page 1
Date of Hearing: April 13, 2009
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Nancy Skinner, Chair
AB 291 (Saldana) - As Amended: March 26, 2009
SUBJECT : Coastal development permits: penalties.
SUMMARY : Prohibits any person subject to an enforcement action
of the California Coastal Commission (Commission) from
submitting a coastal development permit (CDP) application until
the action has been resolved.
EXISTING LAW :
1)Pursuant to the California Coastal Act of 1976, requires any
person wishing to perform any development in the coastal zone
to first obtain a coastal development permit.
2)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 any activity that
requires a CDP or that may be inconsistent with a previously
issued permit.
3)Authorizes the Commission, a local government, or port, after
a public hearing, to issue a restoration order if it finds
that development has occurred without a CDP and the
development is causing continuing resource damage.
4)Authorizes a superior court to impose civil penalties on any
person in violation of the Coastal Act between $500 and
$30,000; additional penalties between $1,000 and $15,000 per
day for each day in which a violation persists may be imposed
when anyone knowingly and intentionally violates the Coastal
Act.
THIS BILL :
1)Prohibits any person who has been issued a notice of intent,
cease and desist order, restoration order, or notice of
violation from submitting a CDP application until the action
has been resolved.
2)Provides that the above prohibition does not apply if the
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executive director of the Commission determines that a CDP
application would fully resolve the violation.
3)Provides that an unresolved dispute between the executive
director and an applicant must be resolved by the Commission
at a noticed public hearing.
FISCAL EFFECT : Unknown
COMMENTS : According to the author's office, "The [Commission]
is currently understaffed and backlogged by 1,300 enforcement
cases. This bill seeks to relieve the Commission of an
overwhelming amount of work in the face of limited resources by
allowing the Commission to require applicants to fix outstanding
Coastal Act violations before their CDP is processed. In
addition to saving the Commission time and resources, the bill
also serves as an incentive for Coastal Act violations to be
cleaned up, subsequently helping preserve coastal resources."
1)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 Commission
staff, "This is more expensive for all parties, and can delay
resolution of even violations with serious and ongoing effects
on coastal resources for years, or indefinitely given the
shortage of Commission staff." In these instances, review of
CDP applications are often prioritized over violations since
existing law imposes deadlines for the review of the former.
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, according
to Commission staff, Humboldt, Mendocino, Marin, San Luis
Obispo, Monterey, Santa Barbara, Ventura Counties all have
similar authorities. State agencies such as the Departments of
Food and Agriculture, Health Services, Motor Vehicles,
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Corporations, Fish and Game, Forestry and Fire Protection,
Consumer Affairs, and Insurance similarly have authority to
require resolution of a violation prior to consideration of an
application for a permit, license or other approval.
2)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 1,300 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. Given drastic budget
cuts over the past few years, this bill would give the
Commission another tool to resolve violations in the most
efficient, cost-effective manner possible. According to
Commission staff, "Applicants are well aware of the Commission's
staffing limitations, and far too many conclude that it is more
cost-effective to ignore unresolved violations, on the
assumption that the Commission will be unable to summon the
resources to pursue enforcement on the vast majority of open
cases."
3)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
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property has been developed in violation of the Coastal 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 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 pursuant to its regulations, which require the
executive director to schedule the dispute at the next
Commission 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.
4)Proposed amendments
The following amendment addresses the concern that
Page 2, lines 3-8 should be amended to read:
30825. (a) The commission shall not file or act upon an
application for a coastal development permit from any A person
who has been issued a notice of intent, cease and desist order,
restoration order, or a notice of violation pursuant to Section
30809, 30810, 30811, or 30812, in addition to any other
penalties , shall be ineligible to submit an application for a
coastal development permit until the violation has been
resolved , as determined by the executive director and consistent
with this division .
Page 2, lines 12-16 should be amended to read:
(c) Any unresolved dispute between the executive director and an
applicant regarding the implementation of this section may shall
be resolved by the commission at a noticed hearing pursuant to
subdivision (d) of Section 13056 of Title 14 of the California
Code of Regulations.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Federation of State, County, and Municipal Employees,
AFL-CIO
Buena Vista Audubon Society
California Coast Keeper Alliance
California Coastal Protection Network
California Coastal Commission
Committee for Green Foothills
Clean Water Action
Endangered Habitats League
Heal the Bay
Madrone Audubon Society of Sonoma County
Natural Resources Defense Council
Planning and Conservation League
San Diego Coastkeeper
San Diego Audubon Society
Sea and Sage Audobon
Sierra Club California
Vote the Coast
Wild Heritage Planners
Opposition
American Council of Engineering Companies of California
California Association of REALTORS
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Council for Environmental and Economic Balance
California Manufacturers and Technology Association
City of Newport Beach
League of California Cities
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092