BILL ANALYSIS
AB 439
Page 1
Date of Hearing: April 27, 2009
ASSEMBLY COMMITTEE ON TRANSPORTATION
Mike Eng, Chair
AB 439 (Miller) - As Amended: March 24, 2009
SUBJECT : Department of Transportation: encroachment permits
SUMMARY : Modifies the process for reviewing applications to the
California Department of Transportation (Caltrans) for
encroachment permits. Specifically, this bill :
1)Makes legislative findings and declarations regarding the
desirability of accelerating project delivery for
transportation projects to generate jobs.
2)Bifurcates the existing encroachment permit process to
prescribe a permit application process for major projects
separate from one for minor projects.
3)Provides that major encroachment permits are those for which
all project improvements to the state highway are projected to
cost up to $3 million; minor encroachment permits include all
improvement projects where the cost of improvements to the
state highway system are less than $3 million.
4)For major encroachments, provides that Caltrans has 60 days,
after receiving a completed application, to approve or deny an
encroachment permit application.
5)Provides that, no later than the first 30 days after receiving
an application for a major encroachment, Caltrans has to
determine in writing if the application is complete, as
defined, and immediately notify the applicant of that
determination. If Caltrans fails to make a written
determination within 30 days, the application is deemed to be
complete.
6)If Caltrans determines that a major encroachment permit
application is not complete, the department must specify what
in the application is incomplete and what is needed to make it
complete. The department then has 30 days to make a
subsequent determination. Again, failure to make this
determination in a timely manner renders the application
complete for purposes of this process.
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7)Prescribes an identical process for minor encroachments except
that the department would have 15-day intervals to determine
the completeness of an application.
8)Reduces from 60 to 30 the number of calendar days that the
Caltrans Director has to issue a written determination in
response to an appeal for a permit denial.
9)Repeals language that authorizes the department and the
applicant to extend any of these time limits upon mutual
agreement.
10)Requires Caltrans to appoint or designate an ombudsperson to
receive encroachment permit applications in each of the
department's twelve district offices and prescribes relevant
roles and responsibilities.
EXISTING LAW :
1)Allows Caltrans to issue written permits authorizing
encroachments within state highway rights of way.
2)Requires Caltrans to either approve or deny an encroachment
permit application within 60 days of receiving a completed
application.
3)Provides for the automatic approval of an application if,
within 60 days, Caltrans fails to notify an applicant that his
or her application is denied.
4)Requires Caltrans, when it denies an application, to notify
the applicant of the denial, including a detailed explanation
of the reason for the denial.
5)Allows an applicant and Caltrans to mutually agree to extend
any time limits.
FISCAL EFFECT : Unknown
COMMENTS : An encroachment permit is required any time someone
wants to use state highways for other than normal transportation
purposes. Caltrans reviews encroachment requests from utility
companies, developers, volunteers, nonprofit organizations,
etc., desiring to conduct various activities within the right of
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way. Such activities include, for example: highway improvement
construction, driveway installation and maintenance, highway
landscaping and graffiti removal, commercial filming, and
special events such as parades commemorating an event, e.g.
Independence Day.
The American Counsel of Engineering Companies, California
(ACEC-CA) is sponsoring this bill to speed the processing of the
existing encroachment permit procedure. ACEC-CA argues that the
process for obtaining encroachment permits is too long and can
result in significant project delays.
Under existing law, Caltrans has 60 days within which to approve
or deny a permit. The 60-day clock starts upon receipt of a
completed application. ACEC-CA argues that its members are
often not notified that their encroachment application is
incomplete until near the end of the 60-day period, thus
delaying resolution of the application. This bill would speed
that initial determination.
According to Caltrans, it implemented a statewide electronic
database just over a year ago to track the status and history of
encroachment permit applications. The purpose of the database
was to provide the tools necessary to evaluate the effectiveness
of Caltrans' permit process. Caltrans reports that, in 2008, it
processed just over 11,000 permits (of all sizes). By far, the
majority of the permits would be considered "minor" permits
under this bill. Of all the permits issued, Caltrans reports
that 90% were processed within 60 days.
Caltrans also indicates that it is working on developing an
electronic permitting system that will streamline the
application process. The concept has been development but
funding has been elusive.
The California State Automobile Clubs (AAA) support this bill
because they believe it will speed project delivery.
Professional Engineers in California Government oppose this bill
because it believes that it is inappropriate to impose an
arbitrary timeline on Caltrans, particularly when it is already
dealing with the impacts of furloughs and the federal economic
stimulus program.
Previous legislation : AB 2074 (Nava) of 2007 was similar to
this bill. It died on the Senate inactive list.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Counsel of Engineering Companies, California (ACEC-CA)
AAA Northern California
Automobile Club of Southern California
Opposition
Professional Engineers in State Government (PECG)
Analysis Prepared by : Janet Dawson / TRANS. / (916) 319-2093