The Four main aspects of AB 1129
We need to focus on these with Legislators to win !
This analysis of potential adverse Affects was prepared by volunteer Coastal Rights Coalition members & LEGAL COUNSEL. We are certain you can predict additional Effects we may not have considered - if possible, please share them via email.
There are four main aspects of AB 1129:
1. 240 Emergency Permits: These emergency permits are cited as the reason for this bill, but nobody seems to know any of the basics, such as who, what, where and when
2. The New Definition of “existing”: It does not mean “If you are looking at and touching your house, it exists – especially if it was built after 1977”
3. Fines without Due Process: Whether the Coastal Commission should be allowed to unilaterally levy arbitrary and capricious fines (without the benefit of due process through the courts) against parties that are allegedly not in compliance with the Coastal Act
4. New Public Expenses and Lost Revenue: AB 1129 will result in millions of dollars of additional costs and lost revenue to the state
· This bill would inhibit landowners’ ability to protect their coastal property from inclement weather emergencies and erosion that can threaten their safety and protection.
· Homeowners are not asking for a free pass from mitigating the effects of seawalls. If a seawall causes harm to other property owners or the public, existing law allows the Commission to mitigate that harm through the permitting process. But AB 1129 goes overboard by eliminating the right to protect one’s property altogether, even if adequate mitigation is available.
· The major loss of sand for beaches has come from public and private development within the upland watershed, including transportation corridors, jetties, harbors, dams and flood protection projects built by the State and other public agencies. Yet the homeowner is now threatened with loss of their home because the government cut off the supply of natural sand to the beaches.
· In Southern California, public and allowed private development within the upland watershed has permanently cut off 96% of historical sediment flow to our beaches. This artificially induced sediment starved condition causes substantial ongoing beach erosion, threatening public infrastructure and private structures along the California coastline. Coastal armoring is not the problem – the lack of sand from the upland watershed is starving our beaches of sand.
· With or without seawalls, California’s beaches will continue to narrow without beach replenishment projects like the Army Corps projects slated for San Clemente, Encinitas, and Solana Beach.
· There are no “variety of alternatives to coastal armoring” that can protect many properties in danger from erosion.
· The Coastal Commission has represented that ninety percent (90%) of the shoreline is free from “armoring” and only a very tiny part of the shoreline has potential need for armoring to protect homes on private property. We have asked for the data to support this 10% “armoring” number but we have yet to receive a response. What percent of the 10% are from public agencies or is the 10% just private property? How much of the 10% can be attributed to federally protected railroad lines? If it is only private property, how much of the public property has armoring? How will this be treated in the future? Will there be two different standards for armoring (i.e., a different standard for public than private)?
· AB 1129 is directed at the individual homeowner whose property may become threatened by destruction from the ocean. Destruction of homes will occur because destruction of homes is what is intended to be allowed by AB 1129. The financial impact will be in the billions of dollars.
· On beaches backed by unstable bluffs, seawalls significantly enhance public safety on the beach below by eliminating the large bluff collapse danger zone (which typically extends 30 feet from the toe of the bluff). In North San Diego County alone, 5 beachgoers have been killed from bluff collapses since 1995.
· Article 1, Section 1 of the California Constitution provides that protecting property and obtaining safety are inalienable rights of all individuals. AB 1129 tramples those rights.
“240 Emergency Permits:”
· Assembly member Mark Stone has represented that there are 240 emergency permits that have been issued where the applicant has agreed to obtain a full coastal development permit but the applicant has failed to do so.
· We have asked Mr. Stone’s office for the detail of those 240 permits, however, his staff has confirmed that they do not have the actual data to support their assertion.
· The Coastal Commission has not provided any detail of these 240 permits. We are awaiting a response from the Commission for a complete list of these permits.
· How many of these permits are for public agencies? Are they up and down the coast or concentrated in certain areas? If the legislature is going to pass legislation based upon these 240 emergency permits, shouldn’t we, including the legislators, know something about these permits?
· The major construction of seawalls, revetments and other armoring structures have been by government agencies (e.g., California Dept. of Transportation, Ports of Los Angeles and Long Beach, many locally owned and developed small craft harbors), public utilities, (e.g., SDG&E, PG&E, SCEdison), railroads (e.g., Southern Pacific), and many cities and counties. Are these agencies part of the 240 emergency permits?
· The amendments to Public Resources Code 30624(b) and (c) do not identify what “that” permit means and requiring “any permit issued by a local official” to go to the next meeting of the governing body makes a mockery of the authority to issue an emergency permit. By the time of the meeting, the emergency may have resulted in tragic loss to private property owners. The timing does not work!
· Subsection 30624(e)(1) is unnecessary as the Coastal Commission already limits the emergency permits which are issued.
“Existing” Development: The Coastal Commission wants to redefine the definition of “existing” to structures in existence as of January 1, 1977 (over 40 years ago!):
As proposed in AB 1129: Section 30235 of the Public Resources Code is amended to read:
(a) Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect an existing structure or public beach in danger from erosion and when that construction is (1) designed to eliminate or mitigate adverse impacts on local shoreline sand supply, and (2) consistent with the policies of this division, including policies pertaining to protection of public access, shoreline ecology, natural landforms, and other impacts on coastal resources. Existing marine structures causing water stagnation contributing to pollution problems and fishkills should be phased out or upgraded where feasible.
(b) For purposes of this section, and consistent with existing practice, “existing structure” means a structure that is legally authorized and in existence as of January 1, 1977.
· AB 1129 imposes a capricious and nonsensical standard because it arbitrarily removes the right to protect homes built after January 1, 1977. So, everything built after 1977 does not have the right to protection? Does that seem fair? This is a public taking of private property.
· But for the existence of Public Resources Code 30235 requiring that protection be allowed to existing structures when endangered by erosion, the Coastal Commission would cause private homes to be destroyed by the forces of the ocean, rather than allow protection. AB 1129 will now authorize the Coastal Commission to deny protection to homeowners and require that the homeowners stand by while their homes are destroyed. This policy of abandonment and destruction that is euphemistically called “managed retreat”.
· The Coastal Commission policy of “managed retreat” requires that oceanfront homes be allowed to be destroyed by the ocean without the homeowner being able to construct long used methods that would protect the home.
· The homeowners’ only protection against loss of their home has been the Coastal Act’s promise that if threatened, the homeowner shall be allowed to protect their home. AB 1129 removes this promise.
· The proposed new requirement that in order to be classified as a protected structure, the structure must have been in existence on January 1, 1977 allows thousands of homes built since 1977 to now be unprotected. Most these homes were approved by the Coastal Commission or by a local government under a certified Local Coastal Program. This is a loss of billions of dollars of homeowner value and infrastructure.
· The new language that any protection available to pre-1977 homes be “consistent with the policies of this division, including policies pertaining to protection of public access, shoreline ecology, natural landforms, and other impacts on coastal resources” is vague and untethered to any specific standard. This vagueness is intended to allow the Coastal Commission to deny protection to pre-1977 homes because such protection will have “other impacts on coastal resources”.
· Section 30235 should not be amended and that entire section should be removed from AB 1129.
Fines Without Due Process:
· Subsection 30624(e)(2) deprives each citizen of the right for a hearing on whether or not an alleged violation is knowing and intentional. The importance to the individual is incredible. Without proving that a violation is knowing and intentional, the present maximum fine is $30,000. If no proof is now required because “any violation . . . shall constitute a knowing and intentional violation”, the maximum fine is up to $15,000 for each day that the violation persists. As this legislation is directed at the individual homeowner, the fines can bankrupt an individual who did no more than try to protect their home.
· Legislature only very recently granted the Commission any authority to issue penalty orders, and obviously was concerned about how that power would be used, given the requirement that the Commission must report back by 2019. It is thus premature to expand the power now before the Legislature has had an adequate opportunity to review how the existing power has been exercised.
· The Coastal hearing to impose a fine resembles no due process that any reasonable person would expect. There is no sworn testimony. There is no impartial adjudicator. The Coastal Staff prepares a one-sided report and recommends a fine. The property owner gets a few minutes in front of the Coastal Commission to object. Misstatement of facts are commonplace amongst commissioners and once the Commission starts their deliberations, the property owner is not allowed to object. Property owners do not have a chance in this structure.
· Since all new shoreline protection violations are by definition, “Knowing and intentional”, the Coastal Commission ability to impose a fine of 75% of the authorized fine in a court of law, a shoreline protection allowed by an emergency permit but is not removed when the Coastal Commission says so can threaten a single homeowner with a Coastal Commission imposed fine of $4,106,250 for just one year. No proof is required that any impact on public resources has occurred.
· The Coastal Commission was given the limited authority to impose fines in 2015. A report is due in 2019. New fine authority should not be extended until that report is filed.
· The Coastal Commission complaint that going to court to impose a fine is “too hard” should be rejected. The courts are the citizens’ protection from an overzealous government. The Commission should not be granted unilateral fining authority.
New Public Expenses and Lost Revenue:
· When an individual constructs a seawall with private dollars to protect a home, the seawall typically also protects the public infrastructure landward of the home, including the public street and the utilities running under or along that street.
· If AB 1129 passes and the State is now responsible for protecting all public infrastructure, rather than relying on private seawalls or rip rap, the state will be exposed to hundreds of millions of dollars of unfunded expenses. In many cases, just one mile of protection for a road (e.g. Pacific Coast Highway) or the railroad will cost more than $5 - $10M. The Coastal Commission has stated that over 80 miles are currently being protected by some sort of protection.
· The elimination of seawalls will not magically improve or restore beaches. Without artificial sand replenishment projects, California’s beaches will continue to erode.
· AB 1129 will subject the State and local governments to liabilities when damage to individual homes occurs because the Coastal Commission refuses to allow the homeowner to protect their own property. Public agencies are required to pay homeowners for their loss due to a public taking.
· Coastal properties represent a significant amount of property tax revenue for the state. If these homes are wiped out or devalued do to the inability to protect their property, the state will lose millions of dollars of property taxes.
· State and local jurisdictions will be required to amend local coastal plans, general plans, zoning ordinances, monitor the loss of housing - in particular low and moderate income housing - amend housing plans, and expend significant amounts of taxpayer dollars to do accomplish these tasks. This bill has significant financial impacts on state and local jurisdictions.
· The local and California economies will be severely, negatively impacted by the reduction in housing for all income levels, loss of customers for local businesses, loss of jobs, and loss of tax revenue with an increase in cost for the local jurisdictions and California.
· No oceanfront homeowner is going to walk away from their home without a fight. If AB 1129 passes, the state will be embroiled in years of litigation and may be exposed to a regulatory taking resulting in billions of dollars of damages.