BILL ANALYSIS
AB 291
Page 1
ASSEMBLY THIRD READING
AB 291 (Saldana)
As Amended May 11, 2009
Majority vote
NATURAL RESOURCES 6-3 APPROPRIATIONS 9-6
-----------------------------------------------------------------
|Ayes:|Skinner, Brownley, |Ayes:|De Leon, Ammiano, Davis, |
| |Chesbro, | |Krekorian, Hall, John |
| |De Leon, Hill, Huffman | |Perez, Price, Skinner, |
| | | |Torlakson |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Gilmore, Knight, Logue |Nays:|Nielsen, Charles |
| | | |Calderon, Duval, Harkey, |
| | | |Miller, Audra Strickland |
-----------------------------------------------------------------
SUMMARY : Prohibits the California Coastal Commission
(Commission) from acting on a coastal development permit (CDP)
application for development on any property subject to a
violation of the Coastal Act. Specifically, this bill :
1)Prohibits the Commission from filing as complete or acting
upon a CDP application for development on any property that is
subject to, or is in common and contiguous ownership with any
property that is subject to, an open, existing violation case
for which a violation notification letter has been sent, or a
cease and desist order, restoration order, or notice of
violation that has been issued or recorded, until the
violation has been resolved.
2)Provides that the above prohibition does not apply if the
executive director of the Commission determines that a CDP
application would fully resolve the violation.
3)Authorizes the Commission to resolve a dispute between the
executive director and an applicant at a noticed public
hearing.
4)Provides that a CDP application may be filed as complete for
property subject to a de minimis violation, as defined;
however, the Commission may not act on the application until
AB 291
Page 2
the violation has been fully 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, minor General Fund costs, likely in the tens of
thousands of dollars annually, associated with resolution of
unresolved disputes between the executive director and property
owners; potential savings, possibly in the hundreds of thousands
of dollars annually, resulting from avoided enforcement
proceedings.
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."
AB 291
Page 3
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 an applicant to
resolve an outstanding violation concurrently with a development
application, which saves resources and leads to quicker
resolution of outstanding violations. In fact, according to
Commission staff, the Counties of Humboldt, Mendocino, Marin,
San Luis Obispo, Monterey, Santa Barbara, Ventura all have this
authority. State agencies such as the Departments of Food and
Agriculture, Health Services, Motor Vehicles, 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.
This bill would give 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.
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
AB 291
Page 4
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."
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. However, 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. After the
executive director determines, based on substantial evidence,
that 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 authorizes the Commission to resolve disputes
between the executive director and applicant at a noticed public
hearing pursuant to existing regulations, which require the
executive director to schedule the dispute at the next
Commission hearing. Thus, it appears that existing law provides
sufficient due process protections to guard against arbitrary or
capricious decisions.
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092
FN: 0000742