BILL NUMBER: AB 2082 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2012
AMENDED IN ASSEMBLY APRIL 19, 2012
AMENDED IN ASSEMBLY APRIL 10, 2012
INTRODUCED BY Assembly Member Atkins
(Coauthor: Assembly Member Chesbro)
FEBRUARY 23, 2012
An act to add Sections 6224.3, 6224.4, and 6224.5 to the Public
Resources Code, relating to public lands.
LEGISLATIVE COUNSEL'S DIGEST
AB 2082, as amended, Atkins. Public lands: State Lands
Commission: violations.
Existing law establishes the State Lands Commission in the Natural
Resources Agency. Under existing law, the commission classifies
state land for its different possible uses and has jurisdiction over
various state lands.
This bill would prohibit a person from constructing, placing,
maintaining, owning, using, or possessing a structure or facility on
land that is under the commission's jurisdiction and owned by the
state, without first obtaining all necessary easements, leases, or
permits from the commission that authorize the construction, design,
placement, maintenance, ownership, use, or possession of the
structure or facility , except for specified facilities owned by
an electrical corporation, as defined, or a gas corporation, as
defined .
This bill would establish a civil penalty for a violation of that
provision. A person who violates that provision would either be
liable for a penalty of not more than $1,000 a day or an amount that
is not more than 60% higher than the full fair market rental for each
month that a violation occurs, as specified. The bill would state
criteria for determining the appropriate penalty. The bill would
exempt a telegraph or telephone corporation undertaking specified
action and a franchised cable television corporation, limited to
their usage of poles, conduits, cables, wires, and associated
appurtenances under either their ownership or the ownership of an
electrical corporation, from that penalty.
The bill, among other things, also would establish procedures to
enjoin such activity, remove a violating structure or facility, serve
notice of any violation, and conduct an administrative hearing on
the violation , as prescribed .
The bill would exempt certain persons from the bill's prohibitions
and would authorize the commission to adopt regulations to carry out
the bill its provisions .
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. Section 6224.3 is added to the Public Resources Code,
to read:
6224.3. (a) A person shall not construct, place, maintain, own,
use, or possess a structure or facility on land that is under the
commission's jurisdiction and that is owned by the state without
first obtaining all necessary easements, leases, or permits from the
commission that authorize the construction, placement, maintenance,
ownership, use, or possession of the structure or facility.
(b) Except as provided in subdivisions (a) and
, (b) , and (c) of Section 6224.5,
and except for facilities owned by an electrical corporation, as
defined in Section 218 of the Public Utilities Code or a gas
corporation as defined in Section 222 of the Public Utilities Code,
that were installed on lands pursuant to a property interest or a
claim of right before the lands became state lands, a person,
other than a telegraph or telephone corporation acting pursuant to
Section 7901 of the Public Utilities Code or a franchised cable
television corporation, as defined in Section 216.4 of the Public
Utilities Code, and limited to their usage of poles, conduits,
cables, wires, and associated appurtenances under either their
ownership or the ownership of an electrical corporation, as
defined in Section 218 of the Public Utilities Code, who
violates subdivision (a) shall be liable for a penalty of not more
than one thousand dollars ($1,000) a day or an amount that is not
more than 60 percent higher than the full fair market rental for each
month that a violation occurs. If the violation occurs during only
part of a calendar month, the commission may prorate the penalty.
(c) In determining the appropriate penalty described in
subdivision (b), the commission shall consider all of the following
factors:
(1) The physical extent of the violation on the land under the
commission's jurisdiction , and that is owned by the state
.
(2) The degree of culpability of the violator.
(3) The degree of cooperation of the violator and whether the
structure or facility is susceptible to removal or the violation is
susceptible to resolution.
(4) Any prior history of violations of statutes or leases
pertaining to lands under the commission's jurisdiction , and
that are owned by the state , including the past history of the
violator in taking all feasible steps or procedures necessary or
appropriate to correct a violation.
(5) The extent to which the violation causes environmental harm
or impairs lawful public access to trust
lands under the commission's jurisdiction, and that
are owned by the state .
(6) Any factor determined by the commission to be relevant to a
fair and just result, and in the best interest of the state.
(d) The penalty described in this section shall be imposed from
the first day the commission issues an order to the day when the
violation is cured.
(e) The commission may enjoin a person who violates subdivision
(a) from continuing that violation.
(f) The commission may require a person who violates subdivision
(a) to remove the structure or facility from lands
that are owned by the state at the person's own expense. If the
violator refuses to remove the structure or facility, or if the
violator cannot be located, the commission may, at its own expense,
remove the structure or facility from the land under the commission's
jurisdiction , and that is owned by the state . The
commission may pursue whatever legal remedies are available to
recover the removal costs from the violator.
(g) For the purposes of this section, a structure or facility
shall include, but is not limited to, buildings, boat houses, docks,
piers, revetments, fill, pilings, pipelines, groins, jetties,
seawalls, breakwaters, and bulkheads.
(h) If the Attorney General prevails in a civil action necessary
to enforce an order of the commission issued pursuant to this
section, the Attorney General shall be awarded attorney's fees and
costs.
(i) The remedies provided by this section are in addition to and
not in lieu of any other penalty or sanction provided by law.
SEC. 2. Section 6224.4 is added to the Public Resources Code, to
read:
6224.4. (a) Before the commission considers whether to pursue a
remedy provided under Section 6224.3, the commission shall first
provide a written notice to the person against whom the commission
seeks to impose the penalty. The notice shall include an
opportunity for a hearing before the commission at a properly noticed
public meeting. The commission shall send the notice not less
than 30 days before the date set for conducting a hearing pursuant to
this section. A notice shall include all of the following:
(1) The date, time, and location of the commission hearing where
the person may appear and be heard.
(2) A statement of the authority and jurisdiction under which the
hearing is to be held.
(3) A reference to the particular sections of the statutes and
rules involved.
(4) A short and plain statement of the matters asserted or
charged, including a description of the violation complained of with
reasonable certainty as to its character and location.
(5) A statement indicating whether and under what circumstances an
order by default may be entered.
(b) In lieu of personal service, service of notice may be made by
registered mail and by posting a copy of the notice on the structure
or facility that is in violation of subdivision (a) of Section
6224.3.
(c) If the person fails to appear at the noticed hearing, the
commission may issue an order.
(d) A hearing shall be scheduled as a regular calendar item at a
properly noticed commission meeting. A commission member shall serve
as a presiding officer at a hearing held pursuant to this section and
conduct the hearing in accordance with Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2 of the Government
Code, including Article 10 (commencing with Section 11445.10) of that
chapter.
(e) A person against whom the commission has issued an order
imposing a remedy provided in Section 6224.3 may seek review of the
order pursuant to Section 1094.5 of the Code of Civil Procedure
by filing a petition for writ of mandate within 60 days after the
commission's action has become final .
SEC. 3. Section 6224.5 is added to the Public Resources Code, to
read:
6224.5. (a) If, as of January 1, 2013, a person is in violation
of subdivision (a) of Section 6224.3, that person shall not be
subject to a penalty pursuant to that section, if the person, on or
before July 1, 2013, remedies the violation or submits to the
commission a completed lease application, including the payment of
all fees and costs. The remedy may include, but is not limited to,
entering into an appropriate lease with the commission or adequately
removing the structure or facility.
(b) A person shall not be subject to a penalty or order pursuant
to Section 6224.3, if the person submits a notice to the commission
that a structure or facility owned by that person is potentially in
violation of subdivision (a) of Section 6224.3 and the person, within
six months from the date the notice is received by the commission,
remedies the violation or submits to the commission a completed lease
application, including the payment of all fees and costs. This
subdivision shall apply only if the potential violator submits a
notice to the commission before the commission otherwise receives
notice or information regarding the potential violation, or takes
action against the violator.
(c) If any pole, conduit, cable, wire, pipeline, or associated
appurtenance that is owned by an electrical corporation, as defined
in Section 218 of the Public Utilities Code or a gas corporation, as
defined in Section 222 of the Public Utilities Code, violates
subdivision (a) of Section 6224.3, and the electrical or gas
corporation can demonstrate that it has not received actual notice
that it does not have adequate existing land rights for its structure
or facility located on land under the commission's jurisdiction, the
electrical or gas corporation shall not be subject to a penalty or
order pursuant to Section 6224.3 if the electrical or gas corporation
remedies the violation or submits to the commission a completed
lease application, including the payment of all fees and costs, or
files with a court of competent jurisdiction a motion to perfect a
prescriptive easement within six months from the date the violation
is reported or the mistake is discovered.
(c)
(d) The commission may adopt regulations necessary or
useful to carry out this section and Sections 6224.3 and 6224.4.