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 2664 HEARING DATE: June 9, 2010
AUTHOR: Chesbro URGENCY: No
VERSION: April 14, 2010 CONSULTANT: Marie Liu
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Public lands: State Lands Commission: violations
BACKGROUND AND EXISTING LAW
The State Lands Commission (Commission) is responsible for the
management of all ungranted tidelands and submerged lands owned
by the State and the beds of navigable waterways. These lands
must be managed for the purposes of economic development,
protection, preservation, and restoration and in a manner that
is consistent with the public trust doctrine. The commission is
also responsible for the management of the state's School Lands.
Article 2 of Chapter 4 of Division 6 of the Public Resources
Code (commencing with 6301) authorizes the commission to allow
an individual to construct jetties, sea walls, breakwaters, and
other such structures on, across, or over state lands if the
structures are consistent with the public trust. The commission
may collect fees and rent for the use of lands by the
structures. Lease revenues are deposited into the General Fund
with the exception of revenues generated on the School Lands,
which are deposited into the Teachers' Retirement Fund.
Under 6224.1, any person found trespassing on commission lands
is liable to the state for any damages through a civil action.
Additionally, under 6302, the commission can eject trespassers
through appropriate action in the state's courts. The commission
may recover ejectment costs through legal action.
Section 6216.1 allows the commission to remove manmade
structures on its lands.
PROPOSED LAW
This bill would explicitly prohibit a person from constructing,
placing, maintaining, owning, using, or possessing a structure
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or facility on commission land without first obtaining all
necessary authorizations. Structures and facilities include
buildings, boat houses, docks, piers, pilings, jetties, sea
walls, and bulkheads. Violations will be subject to fines,
seizure, and other remedies. Specifically, this bill would:
Subject violators to either a penalty not more than $1,000 per
day or a use fee that is no more than 160% of the full fair
market rental for every day that a violation occurs. This
penalty or fee is in addition to any other penalty or sanction
provided by law.
The actual penalty or fee shall be based on factors including
the physical extent of the violation, the degree of
culpability of the violator, prior violations, the violator's
history of correcting violations, and the impact of the
violation on the environment or public trust.
Allow interest to accrue on penalties or fees not paid within
the prescribed time frame.
Authorize the commission to require the removal of the
violating structure or facility at the violator's cost.
Authorize the commission to take ownership of the structure or
facility on behalf of the state.
Authorize the commission to obtain these remedies through
administrative action. A person must be given 30-day notice
that the commission intends to impose any of the remedies. A
hearing for the violation may be scheduled at a noticed
commission meeting.
Authorize the Attorney General to alternatively obtain these
remedies through civil action.
Grant any person with existing violations six months to remedy
the violation before being subject to a penalty or fee.
ARGUMENTS IN SUPPORT
According to the author, "The State Lands Commission is
consistently in litigation over cases that involve a person
building a structure on state lands without proper authorization
or violating an application if they did request permission. The
Commission's current recourse in the above situation is
generally limited to court action in which the state seeks rent
for the use of state lands and/or an order for the structure to
be removed. In these cases, litigation can be time consuming and
expensive, especially when considering the value of the remedies
sought. Additionally, this recourse provides no deterrent
against future trespasses because the potential damages against
a trespasser are more or less equal to the cost of paying rent
under a valid lease."
ARGUMENTS IN OPPOSITION
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None received.
COMMENTS
Lowering the cost of enforcing trespassing laws : The commission,
as the sponsor of this bill, submitted to the committee ten
examples of past and pending cases illustrating structures
inappropriately placed or constructed on commission lands. These
examples range from a recreational pier built inconsistent with
its authorization, public access to a river being blocked,
unauthorized sand berm construction, and unauthorized use of a
pier. According to the commission, trespass violations generally
are a result of persons either (1) not obtaining proper
authorizations, (2) acting beyond commission-issued
authorizations, or (3) acting under expired authorizations.
Under current law, the commission's only recourse against these
violations is to bring legal action through the Attorney
General's office. Among the sample violations submitted to the
committee, many took multiple years to resolve and involved
hundreds of hours of the Attorney General office's time. Legal
costs of the five closed cases nearly totaled $400,000, not
including pre-litigation work by the Attorney General's office
or Commission staff time. These litigation costs are especially
expensive considering that the remedies are generally
approximately equal to the cost of paying rent under a valid
license.
The committee may wish to consider that by establishing an
administrative recourse option to enforce trespassing
violations, this bill can potentially lower the enforcement
costs to the commission and the state.
Creating a better trespassing deterrent? According to the
sponsor, current law provides little deterrent to would-be
trespassers because potential damages are usually limited to an
amount roughly equal to the cost of compliance (e.g. paying
rent). Thus, would-be trespassers therefore 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.
Arguably, this bill would eliminate this unintentional
trespassing incentive by establishing penalties or fees that can
be substantially higher (160% or $1,000 per day) than the cost
of complying with the law, especially if the trespasser has a
history of other violations. An additional deterrent is
established because enforcement action can be taken
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administratively instead of through the courts.
SUPPORT
State Lands Commission
OPPOSITION
None Received
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