BILL ANALYSIS
AB 2664
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Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2664 (Chesbro) - As Amended: April 14, 2010
SUBJECT : STATE LANDS COMMISSION: ENCROACHMENT ON STATE LANDS
KEY ISSUE : IN ORDER TO BETTER DETER ENCROACHMENT ON STATE
LANDS, SHOULD THE STATE LANDS COMMISSION BE AUTHORIZED TO SEEK
INJUNCTIVE RELIEF AND ADMINISTRATIVE OR CIVIL PENALTIES AGAINST
A PERSON WHO CONSTRUCTS OR PLACES AN UNAUTHORIZED STRUCTURE ON
STATE LANDS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the State Lands Commission, the sponsor of this
bill, encroachment and trespass on state land is a problem that
is both hard to deter and costly to rectify when it does occur.
This bill expressly prohibits the construction or placement of
an unauthorized structure on state lands under jurisdiction of
the Commission without all necessary easements, leases, or
permits that would permit the structure. Under current law, the
Commission's only recourse in trespass cases is to employ the
assistance of the Attorney General in filing a civil action
against the trespasser seeking compensation for the use of state
lands, or an order for a structure to be removed, or both.
According to supporters, litigation is a timely and costly
endeavor, is often not cost-effective given the value of the
remedy pursued, and does not sufficiently deter would-be
trespassers because potential damages are limited to an amount
roughly equal to the cost of compliance (e.g., paying rent to
the state). Consequently, this bill allows the Commission to
take specified civil and administrative action to enjoin a
violation or require removal of the structure, including
authority to assess trespassers a penalty of no more than $1,000
per day, or, alternatively, a monthly use and occupancy fee, as
specified. By providing additional enforcement tools to the
Commission, the author contends this bill would deter new
trespassers, provide incentive to persons currently occupying
state land to obtain or comply with a lease, and conserve time
and resources otherwise spent by the Commission and Attorney
General on litigation. This bill was passed by the Assembly
Natural Resources Committee by a 9-0 vote and has no registered
AB 2664
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opposition.
SUMMARY : Prohibits the construction or placement of an
unauthorized structure on state lands under jurisdiction of the
State Lands Commission (Commission) without an applicable
easement, lease, or permit, and prescribes the means by which
the Commission may pursue legal remedies to enjoin a violation
or require removal of the structure. Specifically, this bill :
1)Prohibits a person from constructing, placing, maintaining,
owning, using, or possessing a structure or facility on land
under the Commission's jurisdiction unless that person has
obtained all applicable easements, leases, permits, or other
instruments required by law that authorize the structure or
facility.
2)Provides that a structure or facility includes, but is not
limited to, buildings, boat houses, docks, piers, revetment,
fill, pilings, pipelines, groins, jetties, sea walls,
breakwaters, and bulkheads.
3)Subjects a person who violates the above prohibition to a
penalty of not more than $1,000 a day, or requires that person
to be assessed a monthly use and occupancy fee not more than
60 percent higher than full fair market rental for each day
that a violation occurs. Requires the Commission, in
determining the amount of the penalty, to consider a number of
factors, including the physical extent of the violation, the
violator's degree of culpability and degree of cooperation,
the record of the violator in correcting the violation, and
other relevant factors, as specified.
4)Authorizes the Commission to enjoin a continuing violation and
to require a violator to remove the structure or facility at
the violator's expense. If the violator refuses to remove the
structure or facility, or if the violator cannot be located,
the Commission may remove the structure or facility or may
take ownership of it as a fixture. The Commission may pursue
legal remedies to recover the removal costs from the violator,
including placing a lien on the assets of the violator.
5)Requires the Commission to obtain the bill's legal remedies
through administrative action or the Attorney General (AG)
through civil action. If the AG prevails in a civil action,
the state must be awarded attorney's fees and costs.
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6)Establishes due process requirements should the Commission
pursue a legal remedy via administrative action including
30-day notice to an alleged violator.
7)Authorizes the Commission to issue a final order if an alleged
violator fails to appear at the noticed hearing, which may be
scheduled as a regular calendar item at a properly noticed
Commission meeting.
8)Provides a violator with an amnesty period of six months from
the bill's enactment to remedy the violation or to submit a
completed lease application with all fees and costs to the
Commission without being subject to a penalty or fee.
EXISTING LAW :
1)Establishes the State Lands Commission in the Natural
Resources Agency for the purposes of managing state lands,
waterways, and resources through economic development,
protection, preservation, and restoration. (Public Resources
Code Sections 6101 to 6103.)
2)Authorizes the Commission to remove or cause to be removed any
manmade structures or obstructions from ungranted lands under
its jurisdiction if the Commission determines that such
removal is appropriate and the Attorney General advises that
there is no legal recourse to compel other responsible parties
to effect such removal. (Public Resources Code Sections
6216.1.)
3)Provides that a person who trespasses on lands under the
jurisdiction of the Commission, including tidelands, submerged
lands, beds of navigable waters, and school lands, without
lawful authority is liable to the state for damages assessed
by a court in a civil action. (Public Resources Code Section
6224.1.)
4)Authorizes the Commission to eject from any tide and submerged
lands, beds of navigable channels, streams, rivers, creeks,
lakes, bays, and inlets under its jurisdiction, any person,
firm, or corporation, trespassing upon any such lands, through
appropriate action in the courts of this state. Further
authorizes the Commission to recover the costs of ejection
through legal action. (Public Resources Code Section 6302.)
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COMMENTS : This bill, sponsored by the State Lands Commission,
prohibits the construction or placement of an unauthorized
structure on state lands under jurisdiction of the Commission
without all necessary easements, leases, or permits that would
permit the structure. In addition, this bill allows the
Commission to take specified civil and administrative action to
enjoin a violation or require removal of the structure.
Need for the bill. According to the author, encroachment and
trespass on state land is a problem that is both hard to deter
and costly to rectify when it does occur. The Commission has
provided the Committee with ten examples of past or pending
trespass cases since 2001, including construction of an illegal
recreational pier, illegal discharge of sewage into the
Sacramento River, and unauthorized use of a pier for commercial
purposes. It is estimated that these cases have required nearly
3,500 hours of the Attorney General's time at a cost of
$585,000.
According to the Commission, these types of trespass cases
commonly arise when a person constructs or places a structure on
state lands without proper authorization from the Commission
because (1) the person did not obtain a lease for a structure;
(2) the Commission issued a lease, but the structure was built
beyond what was authorized; and (3) the Commission issued a
lease that has expired but has yet to be renewed. The
Commission explains that "not only is this unfair to lessees who
have leases with the Commission, but it deprives the state of
revenue it would have received if the trespassers obtained
leases and paid rent."
Under current law, the Commission's only recourse in such cases
is to employ the assistance of the Attorney General in filing a
civil action against the trespasser seeking compensation for the
use of state lands, or an order for a structure to be removed,
or both. According to the author, litigation is a timely and
costly endeavor, and in many instances of trespass, not
cost-effective given the value of the remedy pursued. The
author and sponsor also contend that the threat of litigation
does not sufficiently deter would-be trespassers because
potential damages are limited to an amount roughly equal to the
cost of compliance (e.g., paying rent). Therefore, would-be
trespassers have some incentive to take their chances and commit
a violation in a reasoned calculation that the state will not
enforce the law against them.
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This bill enables additional remedies to deter encroachment on
state lands. By providing additional enforcement tools to the
Commission, the author contends this bill would not only provide
incentive to obtain or comply with a lease (and possibly
generate additional lease revenue to the state), it would
conserve time and resources otherwise spent by the Commission
and AG on litigation.
The bill would authorize the Commission to assess trespassers a
penalty of no more than $1,000/day, or, alternatively, a monthly
use and occupancy fee no more than 60 percent greater than the
fair market rent for each day that a trespass occurs. Although
existing law allows the Commission to file a civil action
against a trespasser to enjoin encroachment, the ability to
assess administrative and civil penalties is a more
cost-effective use of limited resources as compared to the costs
of civil litigation, and serves as an additional deterrent.
Due process considerations and amnesty period. In the interest
of fairness to persons who may be trespassing on state land,
this bill contains various due process protections for persons
against whom the Commission seeks to impose administrative
action, including a hearing and a 30-day notice period. In
addition, this bill requires the Commission, in assessing any
penalty, to consider factors such as the extent of the
violation, the violator's degree of culpability and cooperation,
any past history of violations, and the impact of the violation
on the environment or public interest. Finally, the bill
provides a 6-month amnesty period during which a person can
submit a lease application to remedy a violation without fine or
penalty.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Lands Commission (sponsor)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334