BILL ANALYSIS 1
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Darrell Steinberg, Chair |
| 2007-2008 Regular Session |
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BILL NO: SB 1295 HEARING DATE: April 8, 2008
AUTHOR: Ducheny URGENCY: No
VERSION: April 2, 2008 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: California Coastal Act of 1976: coastal development
permit: appeal.
BACKGROUND AND EXISTING LAW
Section 30625 of the Public Resources Code governs appeals to
the California Coastal Commission (CCC) of local government or
port development decisions from local jurisdictions that have a
certified local coastal program. The section provides that such
an appeal may be initiated by an applicant for a permit, any
aggrieved person, or any two members of the commission. For an
aggrieved individual to appeal, he or she must have "standing,"
which is to say he or she must have participated at the local
level as the project was considered. Under the terms of the
Coastal Act, individuals who learn of a project after it has
been approved may not appeal to the CCC.
This bill focuses on the provision that pertains to appeals
brought by two members of the commission.
Appeals by two commissioners were included in the Coastal Act
that was adopted by the Legislature in 1976. The provision was a
compromise to the initial proposal that such appeals could be
initiated only by the executive director of the CCC. The
compromise recognized that the CCC would be the only agency to
receive final notice of local permit decisions once projects
were approved. This notice is required by the Act. The CCC
regulations require that local governments notify the commission
of appealable projects within 7 days before the local hearing.
The compromise maintained the CCC role of monitoring whether
local permits were consistent with certified local coastal plans
and with the public access and recreation policies of the
Coastal Act.
Further, such appeals are authorized only within a narrowly
defined "appeal zone." This is defined as project developments
that meet one of the following criteria: (1) the project is
between the sea and the first public road paralleling the sea;
(2) the project is within 300 feet of the inland extent of any
beach or the mean high tide line where there is no beach
(whichever is the greater distance; (3) projects that are not
covered by the first two criteria but that are located on
tidelands, submerged lands, public trust lands, within 100 feet
of a wetland, estuary, stream, or within 300 feet of the top of
the seaward face of any coastal bluff; (4) the project is
approved by a coastal county that is not designated as the
principal permitted use; or (5) the project is a major public
works project or a major energy facility.
In other words, the appeal role of the CCC is limited to
instances in which the project is in the "appeal zone" and in
cases in which local development decisions may not have been
consistent with a certified local coastal program.
Existing law requires all such appeals to filed within 10 days.
After an appeal has been filed, the Commission as a whole must
determine, in a vote at a public meeting, whether a "substantial
issue" exists that justifies the continued prosecution of the
appeal. Commissioners who filed the appeal are not required to
support the continuation of the appeal.
To some, the practice of the CCC to undertake appeals based on
pre-signed appeal forms is objectionable and may have
contributed to the introduction of this legislation, although
that is not entirely clear in the author's background materials.
However, according to data obtained from the CCC, that practice
is long-standing. No evidence has been provided that this
process has ever been abused by CCC staff or the executive
director. The use of such forms is strictly controlled with
multiple safeguards built in to ensure that commissioners are
completely aware that they are initiating an appeal. Prior to
using such forms, the commissioners specifically authorize their
use, and the practice is intended to minimize staff travel time
to physically obtain the signatures of individual commissioners.
The recent use of these forms is distributed among present and
former commissioners. According to data obtained from the CCC,
in the past two and one-half years, Commissioner Wan signed 33
forms, Commission Chair Kruer signed 20, Commissioner Caldwell
signed 19, Commissioner Shallenberger signed 19, Commissioner
Reilly signed 15, Commissioner Burke signed 2, Commissioner
Blank signed 2, and Alternate Commissioner Orr signed 1.
An analysis of signing combinations indicates that there were 14
different combinations of signings.
The next issue is to consider the volume of local permits issued
and the resulting appeals outcomes. According to data obtained
from the CCC, in the last 25 years, there have been 35,833 local
permits issued. Of this number, 22,597 (67%) fell within the
appeal zone. Of all local permit decisions in the appeal zone,
only 5% (1,136) were appealed. Of this number of appeals, only
1.4% (293) of the appeals were appealed by the Commission. The
remainder were appealed by aggrieved parties with standing at
the local level. Of the 1.4% of the appeals that were appealed
by the CCC, 89 were either withdrawn or found to raise no
substantial issue. In the remaining 204 instances, the appealed
project was either approved as submitted or approved with
conditions. Only 13 projects, or 0.0575% of all appealable
projects have been appealed by the commissioners and
subsequently denied by the CCC over the agency's 35-year
history.
PROPOSED LAW
As amended, this bill would prohibit appeals by two
commissioners unless the commission or its staff had provided
written comments on a proposed project to the local (or port)
governing body when that project was being considered by that
body.
ARGUMENTS IN SUPPORT
According to the author, the essence of this bill is to require
an additional consideration before "the commission may appeal
projects to itself." The author believes that some have
questioned the ability of the CCC to appeal projects to itself,
"especially when the projects conform to the local coastal
program and have received varying levels of support throughout
the communities in which they are sited."
Councilmember Jerome Kern from the City of Oceanside supports
the bill based on his view that the use of blank appeals forms
are mis-used by staff to generate appeals to the CCC. In this
view, he is joined by Thomas Roman, the chair of the Half Moon
Bay Planning Commission, in his individual capacity, although
the two differ with regard to the use of these forms. Mr. Roman
believes that appeals are generated by CCC staff, not members of
the Commission, and that commissioners sign the appeals after
they are written by the CCC staff (apparently he does not
believe they are pre-signed.)
ARGUMENTS IN OPPOSITION
The opposition to this measure, generated in part by email and
fax alerts from coastal advocacy organizations, is, by volume,
the largest in memory.
The major points of the opposition are:
1. If the Coastal Act is to function as intended, the CCC
must retain the ability to appeal local development
decisions that it believes are justifiable within its
existing 10-day appeal window. The opposition believes
strongly that that ability must be maintained, even when
the appeal is ultimately dropped or otherwise resolved.
2. The CCC ability to appeal local permit decisions is
necessary to protect the public's interest in preventing
developments along the coast that may violate the Coastal
Act.
3. Critics of the process fail to understand the public
responsibilities that the CCC is charged with protecting.
4. Critics of the process fail to understand the safeguards
that built into the CCC process of handling commissioners'
appeals, including the role that the unsigned forms have in
that process.
5. While there is sometimes understandable tension between
local governments and the CCC, the oversight functions of
the CCC have been carefully constructed in legislation,
approved by the voters, and are judiciously employed.
6. A diminution of the ability of the CCC to appeal the
projects specified in the Coastal Act would eliminate the
ability to protect resources in the most sensitive coastal
areas.
7. An inability of the CCC to file appeals would place an
impossible burden on grassroots organizations and private
citizens to monitor hundreds of local governmental actions.
COMMENTS
All of the public comments received on the bill addressed the
introduced version of the bill. However, it is reasonable to
suggest that those comments would apply to the amended version
of the bill since the proposed requirement to provide written
comments in advance of an appeal would be considered by the
bill's opponents as substantially (rather than entirely, as
first proposed) eliminating the ability of two commissioners to
appeal local decisions as currently provided in the Coastal Act.
On the other hand, the author has indicated that she believes
the amendment "softens" the bill.
Additionally, it occurs to staff that the amended version of the
bill creates some additional concerns:
1. If the CCC must comment on projects, when would local
governments notify the CCC? When the application is first
filed? When the environmental documents are circulated?
When a vote is scheduled before a planning commission or
some other legislative body? The Commission is not always
told about projects even after a local government approves
those projects. Is it reasonable to expect local
governments to inform the CCC about all of the twists and
turns of every project that is within the existing
statutory framework for appeals?
2. Is it reasonable to put an additional workload and
fiscal burden on local governments to send all the
documents for every project (and amendments) to the CCC?
3. Is it reasonable to ask the CCC staff (which has been
substantially reduced in the last several years as part of
the overall state budget condition) to pay attention to all
such projects ( 1500-1700 per year) and not just those
that, upon notification by local governments, may be
problematic?
4. Is it reasonable to require the Commission to inject
itself into every local decision, when the purpose of the
Coastal Act is for local governments to assume permitting
authority after certifying an LCP?
The Committee may wish to consider whether the pursuit of these
complex questions is unnecessary, given the extraordinarily
small number of commissioner-appealed projects that are
ultimately denied, and the administrative safeguards that are
embedded in the current commissioner-authorized appeals process.
SUPPORT
City of Oceanside
2 Individuals
OPPOSITION
Amigos de Bolsa Chica
Audubon California
Bolsa Chica Land Trust
California Coastal Protection Network
California Coastkeeper Alliance
California League of Conservation Voters
California Native Plants Society
City of Huntington Beach
Coastwalk
Committee for Green Foothills
Defenders of Wildlife
Environmental Commons
Heal the Bay
Marin Conservation League
Natural Resources Defense Council
Planning and Conservation League
San Elijo Lagoon Conservancy
Save the Waves Coalition
Sierra Club California
South Laguna Civic Association
Supervisor Pam Slater-Price
Surfrider Foundation
The Humane Society of the United States
Trust for Public Land
Village Laguna
Wild Heritage Planners
2764 Individuals