BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: AB 291 HEARING DATE: June 23, 2009
AUTHOR: Saldana URGENCY: No
VERSION: May 11, 2009 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Coastal resources: coastal development permits:
penalties.
BACKGROUND AND EXISTING LAW
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. The California Coastal Commission
(CCC) may issue a cease and desist order if it determines that
someone is undertaking or threatening to undertake any activity
that requires a coastal development permit (CDP) or that may be
inconsistent with a previously issued permit. The CCC may also
issue a restoration order if it finds that development has
occurred without a CDP and the development is causing continuing
resource damage.
A superior court may 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.
PROPOSED LAW
This bill would prohibit any person subject to a pending
enforcement action of the California Coastal Commission
(Commission) from submitting a (CDP) application until the
action has been resolved. This prohibition would not apply if
the executive director of the CCC determines that a permit
application would fully resolve the violation. It would also not
apply to de minimus violations, defined as those that may be
easily resolved through voluntary actions by the property owner.
ARGUMENTS IN SUPPORT
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According to the author's office, "The [Commission] is currently
understaffed and backlogged by 1,300 enforcement cases. Given
budget cuts, this backlog will not be resolved for 100 years.
This bill seeks to relieve the CCC of an overwhelming amount of
work in the face of limited resources by allowing the CCC to
require applicants to fix outstanding Coastal Act violations
before their CDP is processed. In addition to saving the CCC
time and resources, the bill also serves as an incentive for
Coastal Act violations to be cleaned up, subsequently helping
preserve coastal resources."
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. Despite the
inefficiency, the CCC must consider the application without
regard to this violation even if it is directly relevant to the
proposed development. Moreover, many new permit applications
must be reviewed within statutory deadlines, even those that
would affect properties facing current enforcement actions.
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. Humboldt, Mendocino,
Marin, San Luis Obispo, Monterey, Santa Barbara, Ventura
Counties all have similar authorities, according to CCC staff.
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, according to the supporters, would give the CCC
another tool to resolve violations in the most efficient,
cost-effective manner possible. According to CCC staff,
applicants are aware of the Commission's staffing limitations,
and many conclude that it is more cost-effective to ignore
unresolved violations, on the assumption that the CCC will be
unable to summon the resources to pursue enforcement on the vast
majority of open cases.
ARGUMENTS IN OPPOSITION
A coalition of opponents argues that the bill imposes a "guilty
until proven innocent" approach to certain coastal development
permit applications. In the Assembly, the bill was limited to
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situations in which a notice of a violation was issued or
recorded, or until the violation has been resolved. It is not
clear if these amendments have eliminated or reduced the
concerns of the opposition.
This concern may also reflect a misunderstanding about how the
CCC procedures designate pending violations.
Cease and desist orders issued by the executive director may
occur only after a person has failed to respond to an oral and
written notice and are valid for only 90 days. If a violation
remains unresolved after this period, staff usually schedules
the order for CCC consideration at a duly noticed public
hearing. The other enforcement option, restoration orders, may
only be issued 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, does 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 CCC finds, based on substantial
evidence, that a violation has occurred, is the notice recorded.
Finally, the bill provides that any unresolved dispute between
the executive director and applicant regarding the bill's
implementation must be resolved by the CCC at a noticed public
hearing pursuant to its regulations, which require the executive
director to schedule the dispute at the next CCC hearing.
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SUPPORT
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
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