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(continued)
(e) A permit shall not be issued pursuant to section 13158(c) unless the applicant has satisfied all prior to issuance conditions. Prior to issuance conditions are those conditions that are identified in the permit as conditions that must be complied with prior to issuance of the permit. After approval of a permit, the executive director shall notify the permit applicant of those conditions that have been designated as prior to issuance conditions.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30600 and 30607, Public Resources Code.
s 13160. Issuance of Permits.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30333, Public Resources Code.
s 13161. Distribution of Permit Copies.
Copies of permits shall be sent to the permittee(s), to the local government with jurisdiction over the area in which the proposed development is to be located and to any person who requires or would be interested in such a copy in the opinion of the executive director. Copies of relevant project plans shall be transmitted to the local government where feasible.
s 13162. Notice of Permits.
Notice of the commission approval of a permit shall be filed with the Secretary of the Resources Agency for posting and inspection as provided in Public Resources Code Section 21080.5(d)(2)(E).
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 21080.5, Public Resources Code.
s 13163. Disputes over Contents of Permits.
(a) Any permittee who feels that the permit issued does not correctly embody the action of the commission shall immediately so inform the executive director. Any such questions that cannot be resolved by consultation between the permittee and the executive director shall promptly be referred by the executive director to the commission for decision.
Note: Authority and reference cited: Section 30333, Public Resources Code.
s 13164. Applications for Amendments.
Applications for amendments to permits shall be made in writing. Such applications are subject to the requirements for filing and processing permit applications set forth in Subchapter 1 of these regulations.
Note: Authority cited: Sections 30333, Public Resources Code. Reference: Sections 30600 and 30620, Public Resources Code.
s 13165. Amendments to Administrative Permits.
(a) Amendments to administrative permits may be approved by the executive director upon the same criteria and subject to the same reporting requirement and procedures, including public notice and appeals to the commission, as provided for the original issuance of such administrative permits in Sections 13145-13153.
(b) If any proposed amendment would, in the opinion of the executive director, increase the cost of the proposed development to an amount over the amounts specified by Public Resources Code, Section 30624 the application shall thereafter be treated in the manner prescribed by Section 13166.
s 13166. Amendments to Permits Other Than Administrative Permits.
(a) The executive director shall reject an application for an amendment to an approved permit if he or she determines that the proposed amendment would lessen or avoid the intended effect of an approved or conditionally approved permit unless the applicant presents newly discovered material information, which he could not, with reasonable diligence, have discovered and produced before the permit was granted.
(1) An applicant may appeal the executive director's determination to the commission. The appeal must be submitted in writing and must set forth the basis for appeal. The appeal must be submitted within 10 working days after the executive director's rejection of the amendment application. If timely submitted, the executive director shall schedule the appeal for the next commission hearing or as soon thereafter as practicable and shall provide notice of the hearing to all persons the executive director has reason to know may be interested in the application.
(2) If the commission overturns the executive director's determination, the application shall be accepted for processing in accordance with subsection (c) below.
(b) For those applications accepted, if the executive director determines that a proposed amendment has the potential for adverse impacts, either individually or cumulatively, on coastal resources or public access to and along the shoreline, the amendment shall be deemed a material amendment to the permit. Material amendments shall be processed in accordance with subsection (c) below. If the executive director determines that the proposed amendment is immaterial, notice of such determination including a summary of the procedures set forth in this section shall be posted at the project site and mailed to all persons the executive director has reason to know may be interested in the application.
(1) If no written objection to a notice of immaterial amendment is received at the commission office within ten (10) working days of mailing notice, the determination of immateriality shall be conclusive and the amendment shall be approved.
(2) If a written objection to notice of an immaterial amendment is received within ten (10) working days of mailing notice, and the executive director determines that the objection does not raise an issue of conformity with the Coastal Act or certified local coastal program if applicable, the immaterial amendment shall not be effective until the amendment and objection are reported to the commission at its next regularly scheduled meeting. The executive director shall include a copy of the letter(s) of objection to the commission with the report. If any three (3) commissioners object to the executive director's designation of immateriality, the amendment application shall be referred to the commission for action as set forth in subsection (c) below. Otherwise, the immaterial amendment shall become effective.
(3) If a written objection to notice of an immaterial amendment is received within ten (10) working days of mailing notice, and the executive director determines that the objection does raise an issue of conformity with the Coastal Act or a certified local coastal program if applicable, the immaterial amendment application shall be referred to the commission for action as set forth in subsection (c) below.
(c) If the executive director determines that the proposed amendment is material, the application shall be referred to the commission in accordance with the procedures of Subchapter 1. The commission shall approve the amendment if it finds, by a majority vote of the membership present, that the development as amended conforms with the policies of Chapter 3 of the Coastal Act or with a certified local coastal program if applicable. The commission may approve the amendment subject to reasonable conditions. The decision shall be accompanied by findings in accordance with Section 13096.
(d) The procedures specified in this section shall apply to amendments of permits which were previously approved on the consent calendar unless the commission adopts expedited procedures for amendments to such permits.
(e) The procedures specified in this section shall apply to applications for amendments of permits issued under the California Coastal Zone Conservation Act of 1972, except as specified in Public Resources Code Section 30609.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30600, 30604, 30609 and 30620, Public Resources Code.
s 13168. Application Fee.
All applications for amendments to permits shall be accompanied by the fee specified in section 13055 of these regulations.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30620, Public Resources Code.
s 13169. Extension of Permits.
(a) Prior to the time that commencement of development under a permit granted by either the regional commission or the commission must occur under the terms of the permit or Section 13156, the applicant may apply to the executive director of the commission for an extension of time not to exceed an additional one year period. The executive director shall not accept the application unless it is accompanied by all of the following:
(1) evidence of an approved, unexpired permit,
(2) evidence of the applicant's legal interest in the property involved in the permit,
(3) the fee specified in section 13055 of these regulations, and
(4) stamped envelopes addressed to each person specified in section 13054 of these regulations and each person who testified, orally or in writing at prior permit hearing(s).
(b) For those applications accepted, the executive director shall determine whether there are changed circumstances that may affect the consistency of the development with the policies of Chapter 3 of the Coastal Act or with a certified local coastal program, if applicable. If the executive director determines that there are no changed circumstances that may affect consistency of the development, he or she shall mail notice of such determination including a summary of the procedures set forth in this section to all parties the executive director has reason to know may be interested in the application including all persons identified in section 13054 of these regulations and all persons who participated in previous permit hearings. The applicant shall post such notice at the project site within three (3) days of the executive director's mailing of the notice to interested parties. The executive director shall also report the determination to the commission to provide the commission with an opportunity to object to the executive director's determination. The time for commencement of development shall be extended for one year from the expiration date of the permit if both of the following occur:
(1) no written objection to the executive director's determination is received within 10 working days after mailing notice, and
(2) three commissioners do not object to the executive director's determination.
(c) If the executive director received a written objection to his or her determination but concludes that the objection does not identify changed circumstances that may affect the consistency of the development with the Coastal Act or a certified local coastal program, if applicable, the executive director shall report this conclusion to the commission at the same time that the executive director reports the determination to the commission in accordance with subsection (b) above. The executive director shall provide a copy of the letter(s) of objection to the commission with the report. If three commissioners object to the extension on grounds that there may be changed circumstances that affect consistency, the executive director shall schedule the extension for hearing(s) in accordance with subsection (d) below. If three commissioners do not object to the extension, the time for commencement of development shall be extended for one year from the expiration date of the permit.
(d) If the executive director receives an objection to his or her determination and concludes that the objection identifies changed circumstances that may affect the consistency of the development or if the executive director determines that due to changed circumstances the proposed development may not be consistent, the application shall be scheduled for a hearing on whether there are changed circumstances that affect consistency. The executive director shall provide notice of such hearing to any person(s) the executive director has reason to know would be interested in the matter. The executive director shall prepare a report for the hearing that describes any pertinent changes in conditions or circumstances relating to each requested permit extension.
(1) If three (3) commissioners determine that there are changed circumstances that affect consistency of the development with Chapter 3 policies of the Coastal Act or with a certified local coastal program if applicable, the extension shall be denied and the development shall be set for a full hearing of the commission pursuant to Subchapter 1 of these regulations. However, the applicant shall not be required to file a new permit application but instead, shall submit any information that the executive director determines is necessary to evaluate the effect of the changed circumstances.
(2) If no such determination is made by three commissioners, the time for commencement of development shall be extended for one year from the expiration date of the permit.
(e) Any extensions applied for prior to the expiration of the permit shall automatically extend the time for commencement of development until such time as the commission has acted upon the extension request; provided, however, that the applicant shall not undertake development during the period of automatic extension provided in this section.
(f) The procedures specified in this section shall apply to extensions of all permits approved by the commission, including those approved on appeal, on the consent calendar and as administrative permits.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30600, 30604 and 30620.6, Public Resources Code.
s 13170. Transfer of Permits.
(a) Any person may request that the commission records be revised to reflect that he or she has assumed the rights and obligations of a coastal development permit by acquiring property on which development has been approved, initiated, or completed pursuant to a permit by submission of the following:
(1) an affidavit executed by the landowner attesting to the landowner's acknowledgment of the terms and conditions of the permit;
(2) evidence of the landowner's legal interest in the real property involved and legal capacity to undertake the development as approved and to satisfy the conditions required in the permit; and
(3) a copy of the original permit showing that it has not expired.
(b) Upon the executive director's written approval of the documentation submitted, the documentation shall become part of the project file maintained by the commission.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30600, Public Resources Code.
s 13171. Staff Inspection.
Note: Authority cited: Sections 30331 and 30333, Public Resources Code.
s 13172. Violation of Permits.
Violation of a permit or any term, condition, or provision of a permit is grounds for enforcement under this Section and under Chapter 9 of the California Coastal Act of 1976. Whenever the executive director of the commission determines that a violation of a permit or term, condition, or provision of a permit has occurred or is threatened, the executive director shall refer the matter to the Attorney General for appropriate action. Where such a violation has occurred or is threatened, the Attorney General may file an action in the name of the commission for equitable relief to enjoin such violation of, or for, civil penalties, or both, or may take other appropriate action pursuant to Chapter 9 of the California Coastal Act of 1976.
s 13173. Enforcement of the Coastal Act.
Whenever the executive director of the commission determines that any violation of the provisions of the California Coastal Act of 1976 has occurred or is threatened, the Attorney General may file an action in the name of the commission for equitable relief to enjoin such violation, or for civil penalties, or both, or may take other appropriate action pursuant to Chapter 9 of the California Coastal Act of 1976.
Note: Authority cited: Sections 30331 and 30333, Public Resources Code. Reference: Chapters 1, 2, 4 and 7 of Division 20, Public Resources Code.
s 13174. Lawsuits by Regional Commissions.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30334 and 30620, Public Resources Code.
s 13180. Definition.
(a) The term "satisfactory manner" when used to characterize a response to a notice provided in accordance with the requirements of section 30809(b) of the Public Resources Code shall mean a response which is made in the manner and within the timeframe specified in the notice and either:
(1) provides information sufficient to demonstrate to the satisfaction of the executive director that either (A) the activity specified in the notice does not meet the criteria of section 30809(a) of the Public Resources Code or (B) the person(s) to whom the notice was directed is/are not responsible for the activity, or
(2)(A) provides all information concerning the activity requested by the notice, (B) results in an immediate and complete cessation of all work on the project, or portion thereof, specified in the notice, and (C) includes an agreement by the recipient(s) of the notice, followed by actions which fully carry out such agreement, to comply in the manner and within the timeframe specified in the notice with any request to undertake measures for the purpose of preventing irreparable injury to the area in which the activity is located.
(b) The executive director retains discretion over the decision of whether or not to issue a cease and desist order pursuant to section 30809 notwithstanding the submittal of a response to a section 30809(b) notice which may not be fully satisfactory within the meaning of this section.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30809(b), Public Resources Code.
s 13181. Commencement of Cease and Desist Order Proceeding Before the Commission.
(a) If the executive director believes that the results of an enforcement investigation so warrant, he or she shall commence a cease and desist order proceeding before the commission by providing any person whom he or she believes to be engaging in development activity as described in section 30810(a) of the Public Resources Code with notice of his or her intent to do so. Such notice of intent shall be given either as a provision of a cease and desist order issued pursuant to section 30809 of the Public Resources Code or by separate written communication delivered either (1) by certified mail, (2) by regular mail, receipt of which is confirmed by subsequent oral communication either in person or by telephone, or (3) by hand, and shall include, at minimum, the information specified in sections 13187(a)(4), (5), and (6) together with an explanation of the basis of the executive director's belief that the specified activity meets the criteria of section 30810(a). The notice of intent shall be accompanied by a "statement of defense form" that conforms to the format attached to these regulations as Appendix A. The person(s) to whom such notice is given shall complete and return the statement of defense form to the Commission by the date specified therein, which date shall be no earlier than 20 days from transmittal of the notice of intent.
(b) The executive director may at his or her discretion extend the time limit for submittal of the statement of defense form imposed by any notice of intent issued pursuant to subsection (a) of this section upon receipt within the time limit of a written request for such extension and a written demonstration of good cause. The extension shall be valid only to those specific items or matters that the executive director identifies to the requesting party as being exempt from the submittal deadline and shall be valid only for such additional time as the executive director allows.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13182. Distribution of Notice of Hearings on Proposed Cease and Desist Order.
At least ten (10) days prior to a hearing on a proposed commission cease and desist order, the executive director shall mail by regular mail a written notice of the date, time, and place of the initial hearing to all alleged violators at their last known address and to all members of the public who have requested in writing that they receive such notice, provided that no notice need be mailed to the alleged violator if the alleged violator has already received notice of the hearing in a cease and desist order issued by the executive director.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13183. Contents of an Executive Director's Recommendation on Proposed Cease and Desist Order.
(a) The executive director shall prepare a recommendation on a proposed commission cease and desist order.
(b) The executive director's recommendation shall be in writing and shall include, at minimum:
(1) a copy of any statement of defense form completed and returned to the Commission by the alleged violator(s) pursuant to section 13181;
(2) a brief summary of (A) any background to the alleged violation, (B) the allegations made by staff in its violation investigation, (C) a list of all allegations either admitted or not contested by the alleged violator(s), (D) all defenses and mitigating factors raised by the alleged violator(s), and (E) any rebuttal evidence raised by the staff to matters raised in the alleged violator's assertion of any defense or mitigating factor with references to supporting documents;
(3) a summary and analysis of all unresolved issues;
(4) a statement of (A) whether the executive director has issued a cease and desist order relating to the same activity, and if so (B) its expiration date; and (C) the extent of the alleged violator(s)' compliance therewith;
(5) the proposed text of any cease and desist order that the executive director recommends that the commission issue.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13184. Distribution of Executive Director's Recommendation.
The executive director's recommendation on a proposed cease and desist order shall be distributed to the alleged violator(s) and otherwise to the persons and in the manner provided in section 13059 of these regulations for application summaries.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13185. Procedure for Hearing on Proposed Cease and Desist Order.
A hearing on a proposed cease and desist order shall proceed in the following manner:
(a) the Chair shall announce the matter, ask all alleged violators or their representatives present to identify themselves for the record, indicate what matters are already part of the record, and announce the rules of the proceeding including (1) any imposition pursuant to subsection (b) of time limits for presentations to be made by the staff, the alleged violator(s), and the public at the hearing and (2) the right of any speaker to propose to the Commission before the close of the hearing any question(s) for any Commissioner, in his or her discretion, to ask of any other speaker;
(b) the Chair may impose time limits based on the circumstances of the alleged violation(s), the number of other items contained on the meeting agenda, the number of persons who intend to speak, and such other factors as the Chair believes relevant;
(c) the staff shall summarize its violation investigation and proposed findings with particular attention to issues which remain in controversy;
(d) each alleged violator or its representative may present its position(s) on the matter(s) relevant to the alleged violation or proposed order with particular attention to those issue(s) where an actual controversy exists between the staff and the party(ies). Presentation of evidence which could have been but was not set forth in a statement of defense form pursuant to section 13181 shall be grounds for a determination by the commission, in its discretion, (1) to trail the matter to later in same day or to a later day of the meeting or (2) to continue the matter to a subsequent meeting to give the staff an opportunity to review and respond to the new evidence;
(e) other speakers may speak concerning the matter;
(f) the chair shall close the public hearing after the staff, all alleged violators, and the public have completed their presentations;
(g) commissioners may ask questions, including any question(s) proposed by any speaker under authority granted pursuant to subsection (a), of any speaker at any time during the hearing or deliberations;
(h) the commission shall deliberate and determine, by majority vote of those present and voting, whether to issue a cease and desist order either in the form recommended by the executive director or as amended by the commission.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13186. Evidence Rules.
Presentation and consideration of evidence at a hearing on a proposed cease and desist order shall be governed by the standards set forth in section 13065 of these regulations.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30810, Public Resources Code.
s 13187. Contents and Reporting of Cease and Desist Orders.
(a) Cease and desist orders shall be signed by the executive director and shall contain at a minimum the following:
(1) a statement of whether the executive director is issuing the order pursuant to section 30809 of the Public Resources Code or the commission is issuing the order pursuant to section 30810 of the Public Resources Code;
(2) if applicable, a statement that the cease and desist order is being issued pursuant to subsection (a)(1), (2), or (3) of section 30809 or 30810 of the Public Resources Code;
(3) in the case of any order issued by the executive director:
(A) a copy of the written notice or confirmation of notice, as the case may be, previously provided pursuant to section 30809(b) of the Public Resources Code to the person(s) to whom the order is directed;
(B) if applicable, notice of the executive director's intent to commence a proceeding for the issuance of a cease and desist order by the commission relating to the same activity, including notice of the date and place of the public hearing to be held as part of such a proceeding if the executive director has scheduled one;
(4) the names of the person or persons who have undertaken or who are threatening to undertake the activity that is the subject of the order;
(5) identification of the property where the activity has been undertaken or may be undertaken;
(6) a description of the activity;
(7) the effective date of the order;
(8) the expiration date, if any, of the order;
(9) any terms, conditions, or other provisions authorized by sections 30809(c) or 30810(b) of the Public Resources Code. Any term or condition that the commission may impose pursuant to section 30810(b) of the Public Resources Code which requires removal of any development or material shall be for the purpose of restoring the property affected by the violation to the condition it was in before the violation occurred;
(10) in the case of any order issued by the commission, written findings that (A) explain the decision to issue the order and (B) provide the factual and legal basis for the issuance of the order;
(11) notice that any person to whom the order is directed may seek from the superior court a stay of the order pursuant to section 30803(b) of the Public Resources Code.
(12) a statement of the obligation of the person(s) subject to the order to conform strictly to its terms and the consequences specified in section 30821.6 of the Public Resources Code of the failure to do so.
(b) The executive director shall report to the commission any cease and desist order he or she (1) issues and serves as provided in section 30809(d) of the Public Resources Code, or (2) modifies or rescinds as provided in section 13188(a), at the commission's next regularly scheduled meeting after any such action.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30803(b), 30809, 30810 and 30821.6, Public Resources Code.
s 13188. Rescission or Modification of Cease and Desist Orders.
(a) The executive director may rescind or modify a cease and desist order that he or she has issued, but he or she shall not do so in a manner that extends the 90-day expiration period provided for in section 30809(e) of the Public Resources Code unless the person(s) subject to the order stipulate(s) in writing to the extension. The executive director may, however, issue consecutive cease and desist orders for a persisting violation or a persisting threatened violation. In connection with the issuance of any such consecutive cease and desist order the executive director shall issue a statement explaining the circumstances which in his or her opinion justify issuance of such an order.
(b) The commission, after public hearing, may rescind or modify a cease and desist order that it has issued. A proceeding for such a purpose may be commenced by (1) any person to whom the cease and desist order is directed, (2) the executive director or (3) any two members of the commission. A person to whom a cease and desist order is directed may commence a proceeding for the purpose of rescinding or modifying that cease and desist order only where the person demonstrates to the satisfaction of the executive director that there has been a material change in the facts upon which the order was issued. Upon receipt of a request pursuant to this subsection (b) for rescission or modification of a cease and desist order issued by the Commission, a hearing on the request shall be held at the next regularly scheduled meeting or as soon thereafter as is practicable after notice to all persons subject to the order or whom the executive director otherwise has reason to know would be interested in the matter.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30809 and 30810, Public Resources Code.
Appendix A
Statement of Defense Form
DEPENDING ON THE OUTCOME OF FURTHER DISCUSSIONS THAT OCCUR WITH THE COMMISSION ENFORCEMENT STAFF AFTER YOU HAVE COMPLETED AND RETURNED THIS FORM, (FURTHER) ADMINISTRATIVE OR LEGAL ENFORCEMENT PROCEEDINGS MAY NEVERTHELESS BE INITIALED AGAINST YOU. IF THAT OCCURS, ANY STATEMENTS THAT YOU MAKE ON THIS FORM WILL BECOME PART OF THE ENFORCEMENT RECORD AND MAY BE USED AGAINST YOU.
YOU MAY WISH TO CONSULT WITH OR RETAIN AN ATTORNEY BEFORE YOU COMPLETE THIS FORM OR OTHERWISE CONTACT THE COMMISSION ENFORCEMENT STAFF.
This form is accompanied by either a cease and desist order issued by the executive director or a notice of intent to initiate cease and desist order proceedings before the commission. This document indicates that you are or may be responsible for or in some way involved in either a violation of the commission's laws or a commission permit. The document summarizes what the (possible) violation involves, who is or may be responsible for it, where and when it (may have) occurred, and other pertinent information concerning the (possible) violation.
This form requires you to respond to the (alleged) facts contained in the document, to raise any affirmative defenses that you believe apply, and to inform the staff of all facts that you believe may exonerate you of any legal responsibility for the (possible) violation or may mitigate your responsibility. This form also requires you to enclose with the completed statement of defense form copies of all written documents, such as letters, photographs, maps, drawings, etc. and written declarations under penalty of perjury that you want the commission to consider as part of this enforcement hearing.
You should complete the form as fully and accurately as you can and as quickly as you can and return it no later than _______________ to the commission's enforcement staff at the following address:
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, California 94105
If you have any questions, please contact as soon as possible ____________________ of the commission enforcement staff at telephone number 415-904-5200.
1. Facts or allegations contained in the cease and desist order or the notice of intent that you admit (with specific reference to the paragraph number in such document):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
2. Facts or allegations contained in the cease and desist order or notice of intent that you deny (with specific reference to the paragraph number in such document):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
3. Facts or allegations contained in the cease and desist order or notice of intent of which you have no personal knowledge (with specific reference to the paragraph number in such document):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
4. Other facts which may exonerate or mitigate your possible responsibility or otherwise explain your relationship to the possible violation (be as specific as you can; if you have or know of any document(s), photograph(s), map(s), letter(s), or other evidence that you believe is/are relevant, please identify it/them by name, date, type, and any other identifying information and provide the original(s) or (a) cop(y/ies) if you can):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
5. Any other information, statement, etc. that you want to offer or make:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
6. Documents, exhibits, declarations under penalty of perjury or other materials that you have attached to this form to support your answers or that you want to be made part of the administrative record for this enforcement proceeding (Please list in chronological order by date, author, and title and enclose a copy with this completed form):
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
s 13190. Definition.
The elements of the term "continuing resource damage," as such term is used in section 30811 of the Public Resources Code, shall have the following meanings:
(a) "Resource" means any resource which is afforded protection under the policies of Chapter 3 of the Coastal Act, including but not limited to public access, marine and other aquatic resources, environmentally sensitive wildlife habitat, and the visual quality of coastal areas.
(b) "Damage" means any degradation or other reduction in quality, abundance, or other quantitative or qualitative characteristic of the resource as compared to the condition the resource was in before it was disturbed by unpermitted development.
(c) "Continuing," when used to describe "resource damage," means such damage which continues to occur as of the date of issuance of the restoration order.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13191. Commencement of Restoration Order Proceeding Before the Commission.
(a) If the executive director believes that the results of an enforcement investigation so warrant, he or she shall commence a restoration order proceeding before the commission by providing any person whom he or she believes to have engaged in development activity as described in section 30811 of the Public Resources Code with notice of his or her intent to do so. Such notice of intent shall be given either as a provision of a staff report prepared pursuant to sections 13057 and/or 13075 of these regulations or by separate written communication delivered either (1) by certified mail, (2) by regular mail receipt of which is confirmed by subsequent oral communication either in person or by telephone, or (3) by hand, and shall include, at minimum, the information specified in sections 13196(a), (b), and (c) together with an explanation of the basis of the executive director's belief that the specified activity meets the criteria of section 30811. The notice of intent shall be accompanied by a "statement of defense form" that conforms to the format attached as Appendix A to Subchapter 8 of these regulations. The person(s) to whom such notice is given shall complete and return the statement of defense form to the Commission by the date specified therein, which date shall be no earlier than 20 days from transmittal of the notice of intent.
(b) The executive director may at his or her discretion extend the time limit for submittal of the statement of defense form imposed by any notice of intent issued pursuant to subsection (a) of this section upon receipt within the time limit of a written request for such extension and a written demonstration of good cause. The extension shall be valid only to those specific items or matters that the executive director identifies to the requesting party as being exempt from the submittal deadline and shall be valid only for such additional time as the executive director allows.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13192. Distribution of Notice of Hearings on Proposed Restoration Order.
At least ten (10) days prior to a hearing on a proposed restoration order, the executive director shall mail by regular mail a written notice of the date, time, and place of the initial hearing to all alleged violators at their last known address and to all members of the public who have requested in writing that they receive such notice, provided that no notice need be mailed to the alleged violator if the alleged violator has already received notice of the hearing in a staff report prepared by the executive director.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13193. Contents of an Executive Director's Recommendation on Proposed Restoration Order.
(a) The executive director shall prepare a recommendation on a proposed restoration order.
(b) The executive director's recommendation shall be in writing and shall include, at minimum:
(1) a copy of any statement of defense form completed and returned to the Commission by the alleged violator(s) pursuant to section 13191;
(2) a brief summary of (A) any background to the alleged violation, (B) the allegations made by staff in its violation investigation, (C) a list of all allegations either admitted or not contested by the alleged violator(s), (D) all defenses and mitigating factors raised by the alleged violator(s), and (E) any rebuttal evidence raised by the staff to matters raised in the alleged violator's assertion of any defense or mitigating factor with references to supporting documents;
(3) a summary and analysis of all unresolved issues;
(4) the proposed text of any restoration order that the executive director recommends that the commission issue.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13194. Distribution of Executive Director's Recommendation.
The executive director's recommendation on a proposed restoration order shall be distributed to the alleged violator(s) and otherwise to the persons and in the manner provided in section 13059 of these regulations for application summaries.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13195. Procedure for Hearing on Proposed Restoration Order.
A hearing on a proposed restoration order shall proceed in the manner and in accordance with the rules of evidence specified in sections 13185 and 13186 of these regulations.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13196. Contents of Restoration Orders.
Restoration orders shall be signed by the executive director and shall contain at a minimum the following:
(a) the names of the person or persons who have undertaken the activity that is the subject of the order;
(b) identification of the property where the activity has been undertaken;
(c) a description of the activity;
(d) the effective date of the order;
(e) any terms, conditions, or other provisions authorized by section 30811 of the Public Resources Code. Any term or condition that the commission may impose which requires removal of any development or material shall be for the purpose of restoring the property affected by the violation to the condition it was in before the violation occurred;
(f) written findings that (A) explain the decision to issue the order and (B) provide the factual and legal basis for the issuance of the order;
(g) a statement of the obligation of the person(s) subject to the order to conform strictly to its terms and the consequences specified in section 30821.6 of the Public Resources Code of the failure to do so.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13197. Rescission or Modification of Restoration Orders.
The commission, after public hearing, may rescind or modify a restoration order that it has issued. A proceeding for such a purpose may be commenced by (a) any person to whom the restoration order is directed, (b) the executive director or (c) any two members of the commission. A person described in subsection (a) may commence a proceeding for the purpose of rescinding or modifying a restoration order only where the person demonstrates to the satisfaction of the executive director that there has been a material change in the facts upon which the order was issued. Upon receipt of a request pursuant to this section for rescission or modification of a restoration order, a hearing on the request shall be held at the next regularly scheduled meeting or as soon thereafter as is practicable after notice to all persons subject to the order or whom the executive director otherwise has reason to know would be interested in the matter.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30811, Public Resources Code.
s 13200. Scope.
Any person claiming a vested right in a development and who wishes to be exempt from the permit requirements of the Act pursuant to Public Resources Code Section 30608 must substantiate the claim in a proceeding before the Commission under this subchapter. In such a proceeding the claimant shall assume the burden of proof.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30608, Public Resources Code.
s 13201. Obligation to File.
Any person who claims that a development is exempt from the permit requirements of Public Resources Code, Section 30600 or 30601 by reason of a vested right under Public Resources Code, Section 30608 must file a claim of vested rights with the commission and obtain approval under this subchapter.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30608, Public Resources Code.
s 13202. Claim Forms.
Claim of vested rights forms shall be published by the commission. The executive director of the commission shall revise the form as necessary to assist claimants in providing the information necessary to substantiate a claim, provided, however, that any significant change in the type of information requested must be approved by the commission. A claim of vested rights shall be filed only after the claimant has provided the commission with all the information called for by the form, as well as any other information which the executive director of the commission deems necessary to review the claim. In no event shall a claim of vested rights be deemed filed until after the passage of five (5) working days from the date it is received by the commission.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Sections 30305 and 30620, Public Resources Code.
s 13203. Initial Determination.
As soon as practicable after the filing of a claim, and in no event later than 30 days from the filing date, the executive director of the commission shall make an initial determination whether the claim of vested rights appears to be substantiated; notice of the initial determination shall be transmitted to the claimant and to any person(s) requesting notice or known by the executive director to be interested. Based on that initial determination, the executive director shall make a written recommendation to the commission for consideration at the hearing on the claim of vested rights application at the next succeeding regularly scheduled meeting. At such hearing, the executive director shall introduce into evidence all evidence submitted by the applicant and all evidence submitted either supporting or in opposition to the application up to the deadline for submission of evidence established by the commission.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30608, Public Resources Code.
s 13204. Notice.
Notice of the recommendation and the date of the public hearing on the claim shall be made in the manner prescribed by Section 13059 .
s 13205. Acknowledgment Hearing Procedure.
(a) Commission action on a claim of vested rights shall be supported by written findings of fact. If the commission finds that a claim of vested rights is substantiated, it shall acknowledge the claim. If it finds that a claim is not substantiated, it shall deny the claim. However, if the circumstances suggest that a claimant may be able to provide additional information to substantiate the claim or that other evidence is pertinent to the claim, the matter may be continued for the purpose of submitting further evidence and for action at the next succeeding meeting following the receipt and review of the information.
(b) Claims which the executive director recommends be acknowledged may be placed on a consent calendar and processed in the manner provided by Sections 13101 and 13103.
(c) All other claims shall be processed in the manner provided by Sections 13080-13096.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30608, Public Resources Code.
s 13206. Appeal to the Commission.
Note: Authority cited: Section 30333, Public Resources Code.
s 13207. Effect of Vested Right.
A final determination of the commission recognizing a claim of vested rights shall constitute acknowledgment that the development does not require a coastal development permit under Public Resources Code, Section 30600 or 30601 provided that no substantial change may be made in the development except in accordance with the permit requirements of the California Coastal Act of 1976. If the approvals upon which the acknowledgment is based lapse either by their own terms or pursuant to any provision of law, the acknowledgment made under this subchapter shall no longer be in effect and the development shall become subject to the permit requirements of the California Coastal Act of 1976.
Note: Authority cited: Section 30333, Public Resources Code. Reference: Section 30608, Public Resources Code.
s 13208. Notification to Local Government. (continued)