BILL NUMBER: AB 439	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 24, 2009

INTRODUCED BY   Assembly Member Miller

                        FEBRUARY 24, 2009

   An act to amend Section 671.5 of the Streets and Highways Code,
relating to highways.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 439, as amended, Miller. Encroachment permits.
   Under existing law, the Department of Transportation may issue
permits authorizing encroachments, as defined, on highways. Existing
law requires the department to either approve or deny an application
for an encroachment permit within 60 days of receiving a completed
application. The department's failure to notify an applicant within
that 60-day period that the permit is denied is deemed to constitute
approval of the permit.  Existing law allows an applicant to
appeal the denial of an application in writing, and requires the
department to make a final written determination within 60 days after
receipt of an appeal. 
   This bill would  require the department to approve or deny
an encroachment permit within 45 days of receiving a completed
application   establish different procedures for
applications for encroachment permits for major highway projects that
cost $3,000,000 or more and for minor highway projects that cost
less than $3,000,000, and would instead require applications for
minor encroachment permits to be approved or denied within a 30-day
period. The bill would also require the department to determine
whether an application for an encroachment permit is complete, taking
into consideration certain factors, and would require the
department, within 30 days of receipt of an application for a major
encroachment permit, or within 15 days of receipt of an application
for a minor encroachment permit, to notify the applicant of that
determination. The bill would require the department, if an
application is determined to be incomplete, to indicate what
information or documents are necessary to complete the application,
and would specify the procedure for the resubmittal of an
application. The bill would also change to 30 days the time period
for   which the department is required to make a final
written determination of an appeal of a denied application. The bill
would also require the department to appoint an ombudsperson to
receive applications for encroachment permits in each state
transportation dis   trict, as specified. The bill would
make related findings and declarations  .
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) The California economy is in a recession and has been in a
recession for a time period in excess of one year.  
   (b) In order to assist the California economy to recover from the
recession, it is advisable to create multiple economic stimuli to
facilitate the recovery.  
   (c) California has previously authorized billions of dollars for
infrastructure projects that have yet to reach construction. It is
desirable, therefore, to accelerate project delivery in any and every
way possible in order to create construction phase jobs to assist in
fighting the recession.  
   (d) One method of accelerating project delivery is to streamline
the permitting process so that projects may be construction-ready at
an earlier date. This is particularly true with regard to
transportation projects.  
   (e) For any project on a state highway, the Department of
Transportation must issue permits authorizing encroachments. Such
permits are a necessary prerequisite to the construction of needed
improvements to the state highway system.  
   (f) Current law under Section 671.5 of the Streets and Highways
Code requires that such encroachment permits be issued within 60
calendar days, under specified terms and circumstances.  
   (g) However, in order to facilitate the issuance of encroachments
in an even faster manner than required under current law, certain
changes to the encroachment permit statutes are necessary.  

   (h) The following changes contained in this act will further
accelerate project delivery through accelerating and streamlining the
encroachment permit process for transportation projects on state
highways. 
   SEC. 2.    Section 671.5 of the   Streets
and Highways Code   is amended to read: 
   671.5.  (a) The department shall either approve or deny an
application from an applicant for  an   a major
 encroachment permit within 60 days of receiving a completed
application  and for a minor encroachment permit within 30 days
of receiving a completed application  , as determined by the
department. An application for an encroachment permit is complete
when all other statutory requirements, including the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code), have been complied with. 
The department shall determine whether an application is complete by
following the procedure in subdivision (b).  The department's
failure to notify the applicant within that 60-day  or 30-day
 period that the permit is denied shall be deemed to constitute
approval of the permit. Thereafter, upon notifying the department,
the applicant may act in accordance with its permit application, as
if the permit had been approved. 
   (b) If the department denies an application for an encroachment
permit, it shall, at the time of notifying the applicant of the
denial, furnish to the applicant a detailed explanation of the reason
for the denial.  
   (b) (1) A major encroachment permit includes all improvement
projects where the projected cost of the improvements to the state
highway equal or exceed three million dollars ($3,000,000). A minor
encroachment permit includes all improvement projects where the
projected cost of the improvements to the state highway is less than
three million dollars ($3,000,000).  
   (2) (A) When an application is for a major encroachment permit,
not later than 30 calendar days after the department has received an
application for an encroachment permit, the department shall
determine in writing whether the application is complete and shall
immediately transmit the determination to the applicant for the
encroachment permit. If the written determination is not made within
30 days after receipt of the application, the application shall be
deemed complete for purposes of this chapter. If the application is
determined not to be complete, the department's determination shall
specify those parts of the application that are incomplete and shall
indicate the manner in which they can be made complete, including a
list and thorough description of the specific information needed to
complete the application. The applicant may submit materials to the
department in response to the list and description.  
   (B) Not later than 30 calendar days after receipt of the submitted
materials, the department shall determine in writing whether they
are complete and shall immediately transmit that determination to the
applicant. If the written determination is not made within that
30-day period, the application together with the submitted materials
shall be deemed complete for purposes of this chapter.  
   (3) (A) When an application is for a minor encroachment permit,
not later than 15 calendar days after the department has received an
application for an encroachment permit, the department shall
determine in writing whether the application is complete and shall
immediately transmit the determination to the applicant for the
encroachment permit. If the written determination is not made within
15 days after receipt of the application, the application shall be
deemed complete for purposes of this chapter. If the application is
determined not to be complete, the department's determination shall
specify those parts of the application that are incomplete and shall
indicate the manner in which they can be made complete, including a
list and thorough description of the specific information needed to
complete the application. The applicant may submit materials to the
department in response to the list and description.  
   (B) Not later than 15 calendar days after receipt of the submitted
materials, the department shall determine in writing whether they
are complete and shall immediately transmit that determination to the
applicant. If the written determination is not made within that
15-day period, the application together with the submitted materials
shall be deemed complete for purposes of this chapter. 
   (c) The department shall adopt regulations prescribing procedures
for an applicant to appeal to the director for a final determination
of the department's denial of an application. The appeal shall be
made in writing to the director. There shall be a final written
determination by the director within  60   30
 calendar days after receipt of the applicant's written appeal.
The adopted regulations shall require the appellant to pay to the
department a fee of not more than 50 percent of the estimated
administrative cost to the department of conducting the appeal.

   (d) Nothing in this section precludes an applicant and the
department from mutually agreeing to an extension of any time limit
provided by this section.  
   (d) The department shall appoint or designate an ombudsperson to
receive applications for encroachment permits in each state
transportation district in which applications for encroachment
permits are received. The department may appoint or designate one
person to be the ombudsperson for multiple districts and may appoint
or designate the ombudsperson to be located in the headquarters
office. The department may designate the district director to act as
the district ombudsperson. The district ombudsperson shall coordinate
all applications for major and minor encroachment permits and ensure
compliance with this section. The ombudsperson for each district
shall offer every applicant for a major or minor encroachment permit
the opportunity for a preapplication meeting with the district
ombudsperson. The purpose of the meeting shall be to facilitate
timely application review and approval in accordance with the time
limits prescribed by this section. The ombudsperson shall have the
full authority to review, coordinate, and grant or deny applications
for all encroachment permits and shall have full authority to ensure
compliance with the time limits prescribed by this section. 

  SECTION 1.    Section 671.5 of the Streets and
Highways Code is amended to read:
   671.5.  (a) The department shall either approve or deny an
application from an applicant for an encroachment permit within 45
days of receiving a completed application, as determined by the
department. An application for an encroachment permit is complete
when all other statutory requirements, including the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code), have been complied with. The
department's failure to notify the applicant within that 45-day
period that the permit is denied shall be deemed to constitute
approval of the permit. Thereafter, upon notifying the department,
the applicant may act in accordance with its permit application, as
if the permit had been approved.
   (b) If the department denies an application for an encroachment
permit, it shall, at the time of notifying the applicant of the
denial, furnish to the applicant a detailed explanation of the reason
for the denial.
   (c) The department shall adopt regulations prescribing procedures
for an applicant to appeal to the director for a final determination
of the department's denial of an application. The appeal shall be
made in writing to the director. There shall be a final written
determination by the director within 60 calendar days after receipt
of the applicant's written appeal. The adopted regulations shall
require the appellant to pay to the department a fee of not more than
50 percent of the estimated administrative cost to the department of
conducting the appeal.
   (d) Nothing in this section precludes an applicant and the
department from mutually agreeing to an extension of any time limit
provided by this section.