BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 291|
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THIRD READING
Bill No: AB 291
Author: Saldana (D), et al
Amended: 5/17/09 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE : 6-4, 6/23/09
AYES: Pavley, Kehoe, Leno, Simitian, Wiggins, Wolk
NOES: Cogdill, Benoit, Hollingsworth, Huff
NO VOTE RECORDED: Padilla
SENATE APPROPRIATIONS COMMITTEE : 7-4, 8/17/09
AYES: Kehoe, Corbett, Hancock, Leno, Price, Wolk, Yee
NOES: Cox, Denham, Runner, Walters
NO VOTE RECORDED: Oropeza, Wyland
ASSEMBLY FLOOR : 44-29, 5/28/09 - See last page for vote
SUBJECT : Coastal resources: coastal development
permits: penalties
SOURCE : Author
DIGEST : This bill prohibits with a specified exception,
the California Coastal Commission from acting on a coastal
development permit application for development on any
property subject to a violation of the Coastal Act.
ANALYSIS :
CONTINUED
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Existing law:
1. Pursuant to the California Coastal Act (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 California Coastal Commission (CCC),
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
coastal development permit (CDP) or that may be
inconsistent with a previously issued permit.
3. Authorizes the CCC, 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 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 Act.
This bill:
1. Prohibits the CCC from filing as complete or acting upon
a CDP application for a project on 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 by the executive director,
as specified.
The above provision does not apply to an action by a
local agency that is associated with processing,
submitting, certifying, or implementing an amendment to,
or original submission of, a local coastal program,
public works plan, or component of a local coastal
program or public works plan.
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2. Provides that the above prohibition does not apply if
the executive director of the CCC determines that a CDP
application will fully resolve the violation.
3. Authorizes the CCC 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 the violation has been fully resolved.
Background
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 CCC may
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. 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 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 Act.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/23/09) (Per Sen. Natural Resources
& Wildlife Cmte.)
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
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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 : (Verified 6/23/09) (Per Sen. Natural
Resources & Wildlife Cmte.)
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
ARGUMENTS IN SUPPORT : 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
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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, gives the CCC
another tool to resolve violations in the most efficient,
cost-effective manner possible. According to CCC staff,
applicants are aware of the CCC 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
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,
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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.
ASSEMBLY FLOOR :
AYES: Ammiano, Beall, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer,
Fong, Furutani, Galgiani, Hayashi, Hernandez, Hill,
Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma,
Mendoza, Monning, Nava, John A. Perez, Portantino, Price,
Ruskin, Salas, Saldana, Skinner, Swanson, Torlakson,
Torres, Torrico, Yamada
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Arambula, Fuentes, Hall, Huber, V.
Manuel Perez, Solorio, Bass
CTW:RJG:do 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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