November 6, 2014

Landowners to Coastal Commission: no more punitive permit fees!

By Damien M. Schiff Senior Attorney

Today, Pacific Legal Foundation submitted a petition to the California Coastal Commission requesting the rescission of that agency’s after-the-fact permit fee regulation.  The petition, filed on behalf of the Beach and Bluff Conservancy (a coastal landowners organization), argues that the Commission’s regulation illegally imposes a punitive fee on after-the-fact permit applicants and, for that reason, exceeds the authority that the Coastal Act grants the Commission.

Since 2008, the Commission has required that all applicants for after-the-fact permits (those permits that seek the Commission’s approval of development that has already occurred) pay presumptively five times, and in no case less than twice, the fee for a comparable before-the-fact permit.

Although the Commission staff have stated that processing after-the-fact permits takes more time than before-the-fact permits, the agency has absolutely no hard evidence that we’re aware of to back up that claim.  Moreover, the Commission’s regulation belies it.  The regulation allows the Commission’s executive director to reduce the amount of the fee if the permit applicant was not the one responsible for the unpermitted development.  But what does the permit applicant’s responsibility have to do with the cost of processing the permit?

To be sure, the Coastal Act does contain an authorization for assessing permit fees, but such fees must be reasonable in amount, a requirement that the Commission’s regulation does not meet.  Moreover, the Coastal Act provides only two very narrow avenues for the Commission to assess penalties against landowners, and neither provision applies to the permit fee process.

The California Administrative Procedure Act authorizes interested persons to petition state agencies for the rescission of existing regulations.  Our petition argues that, because the Coastal Act does not authorize the Commission’s regulation, the Commission must grant our petition and rescind the regulation.  The Commission has thirty days to respond.

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