BILL ANALYSIS �
AB 2082
Page 1
ASSEMBLY THIRD READING
AB 2082 (Atkins)
As Amended April 19, 2012
Majority vote
NATURAL RESOURCES 6-2 JUDICIARY 8-2
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|Ayes:|Chesbro, Brownley, |Ayes:|Feuer, Atkins, Dickinson, |
| |Dickinson, Huffman, | |Gorell, Huber, Monning, |
| |Monning, Skinner | |Wieckowski, Alejo |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Halderman |Nays:|Wagner, Jones |
| | | | |
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APPROPRIATIONS 12-5
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|Ayes:|Fuentes, Blumenfield, | | |
| |Bradford, Charles | | |
| |Calderon, Campos, Davis, | | |
| |Gatto, Hall, Hill, Lara, | | |
| |Mitchell, Solorio | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harkey, Donnelly, | | |
| |Nielsen, Norby, Wagner | | |
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SUMMARY : Authorizes the State Lands Commission (Commission) to
impose administrative penalties against a person who constructs,
places, maintains, owns, uses, or possesses a structure or
facility on land that is under the Commission's jurisdiction
without first obtaining the necessary easements, leases, or
permits from the Commission. Specifically, this bill :
1)Prohibits a person from constructing, placing, maintaining,
owning, using, or possessing a structure or facility on land
that is under the Commission's jurisdiction and that is owned
by the state without first obtaining the necessary
authorization from the Commission. A "structure or facility"
includes, but is not limited to buildings, boat houses, docks,
piers, revetments, fill, pilings, pipelines, groins, jetties,
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seawalls, breakwaters, and bulkheads.
2)Authorizes the Commission to impose 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 against a person who violates
1) above. The penalty shall be imposed from the first day of
an order to the day when the violation is cured.
3)Requires the Commission, in determining the appropriate
penalty for a violation of 1) above, to consider: a) the
physical extent of the violation on the land under the
Commission's jurisdiction; b) the degree of culpability of the
violator; c) the degree of cooperation of the violator and
whether the structure or facility is susceptible to removal or
the violation is susceptible to resolution; d) any prior
history of violations of statutes or leases pertaining to
lands under the Commission's jurisdiction, including the past
history of the violator in taking all feasible steps or
procedures necessary or appropriate to correct a violation; e)
the extent to which the violation causes environmental harm or
impairs public access to trust lands; and, f) any factor
determined by the Commission to be relevant to a fair and just
result, and in the best interest of the state.
4)Requires the Commission to first provide a written notice to
the person against whom it seeks to impose a penalty. The
Commission shall send the notice not less than 30 days before
the date set for conducting a hearing.
5)Authorizes a person to appeal a Commission order to the court
through a writ of mandate.
6)Provides an amnesty period from penalties if a person either
remedies a violation by July 1, 2013, or submits a notice to
the Commission that his/her structure or facility is
potentially in violation of 1) above and the person remedies
the violation within six months of the notice.
EXISTING LAW :
1)Establishes the Commission, which consists of the Lieutenant
Governor, State Controller, and Director of Finance, for the
purpose of managing the state's filled and unfilled tide and
submerged lands and navigable waterways (i.e., public trust
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lands) and school lands.
2)Provides that a person who trespasses on lands under the
Commission's jurisdiction without lawful authority is liable
to the state for damages assessed by a court in a civil
action.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Minor costs to the Commission to assess and levy penalties,
likely more than offset by a reduction in Commission staff
time spent preparing civil action requests to the Attorney
General (AG) and in staff time of the AG in carrying out such
requests. In recent years, the Commission has estimated these
cases to have required 3,500 hours of the AG's time at a cost
of $585,000.
2)Potential revenue of an unknown amount from increased lease
revenue on land under the Commission's jurisdiction resulting
from improved enforcement and deterrence brought about by this
bill (General Fund (GF)).
3)Potential savings of an unknown amount to the Commission and
AG resulting from reduced violations and ensuing enforcement
actions (GF).
COMMENTS : According to the author's office, "this bill is
intended to address the costly and time consuming legal process
currently required to address illegal structures or facilities
on lands under the Commission's jurisdiction and to deter
trespass." The bill does this by authorizing the Commission to
take administrative action against a trespasser. Such
administrative action may include fines and/or injunctions. Due
process protections, such as notice and public hearing, are
specifically provided in the bill.
Trespass cases before the Commission generally involve scenarios
in which a person constructs, places, maintain, owns, uses, or
possesses a structure on state lands without proper
authorization from the Commission. More specifically, these
cases fall under the following categories: a person did not
obtain a lease for a structure; the Commission issued a lease,
but a structure was built beyond what was authorized; or, the
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Commission issued a lease, but the lease has expired without
either being renewed or placed into holdover status.
Currently, the Commission's only recourse is to file a civil
action (with the assistance of the AG) in court seeking
compensation or rent for the use of state lands or an order for
a structure to be removed. Litigation is a timely and costly
endeavor and in many instances of trespass, not cost-effective
given the value of the remedy pursued. Moreover, according to
the Commission, the threat of litigation does not sufficiently
deter would-be trespassers since potential damages are roughly
equal to the cost of compliance (e.g., paying rent). Thus, it
pays to roll the dice and trespass.
This bill was inspired by laws adopted in Texas, Washington,
Oregon, and New York regarding trespass on state submerged
lands. The bill's specific penalty provisions, such as the
maximum $1,000 per day penalty, are mostly derived from Texas
law. Key distinctions, however, are that Texas has a minimum
per day penalty and the penalty accrues at the time of the
violation. In contrast, this bill does not include a minimum
penalty and penalties only begin to accrue after notice,
hearing, and an order. This bill is, therefore, less aggressive
on trespassers than Texas.
According to the author, this bill is consistent with the Bureau
of State Audits' August 2011 report and the Commission staff's
Audit Action Plan. The audit criticizes the Commission for not
consistently taking actions, such as evicting delinquent
lessees, to ensure that it is protecting the state's interest in
its properties. This bill would provide the Commission with a
significant tool to efficiently take action against delinquent
lessees.
In 2010, a similar bill, AB 2664 (Chesbro), was vetoed by the
Governor, who expressed concerns about the scope of the bill and
due process protections. The author of the bill has scaled back
several of the provisions in AB 2664. Most notably, the current
bill only assesses penalties once a notice of violation is
served and an order is issued. Under AB 2664, the penalties
began to accrue at the time of the violation, which would have
allowed the Commission to impose penalties well before a person
was served with a notice of violation. Additionally, unlike AB
2664, the current bill does not authorize the Commission to
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place liens on property or take ownership of structures or
facilities.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
FN: 0003596