STATE OF CALIFORNIATHE NATUAL RESOURCES AGENCY
EDMUND G. BROWN, JR., G O V E R N O R
CALIFORNIA COASTAL COMMISSION
45 FREMONT, SUITE 2000
SAN FRANCISCO, CA 94105- 2219
VOICE (415) 904- 5200
FAX ( 415) 904- 5400
TDD (415) 597-5885
BILL ANALYSIS
AB 1102 (Allen)
As Amended, January 17, 2014
SUMMARY
AB 1102 states that it is the preference of the Legislature to avoid the net loss of beach fire rings.
The bill would add PRC Section 30607.8 to the Coastal Act to clarify that a public agency
seeking to comply with an Open Burning rule or regulation issued by the South Coast Air
Quality Management District (SCAQMD) relating to beach fire rings must first obtain a coastal
development permit (CDP) from the Coastal Commission. The bill would require the CDP
application to include an analysis of alternatives to fire ring removal, and requires that any such
permit must be consistent with all requirements of the Coastal Act. The bill would prevent
applicants from utilizing Section 30005 to avoid permit review by claiming a nuisance
exemption.
The bill would also amend the Health and Safety Code to delay the implementation of any
SCAQMD rule or regulation to eliminate or restrict beach burning in existing fire rings until
such time as the local government with jurisdiction obtains a coastal development permit (CDP)
to do so.
PURPOSE OF THE BILL
The purpose of the bill is to ensure that no beach fire rings are removed from public beaches in
Orange and Los Angeles Counties without Coastal Act review as local governments attempt to
comply with new air quality requirements. Additionally, it is the authors intent to prevent the
SCAQMD from issuing fines to local governments for non-compliance until they have had an
opportunity to apply for a coastal development permit in accordance with existing law.
EXISTING LAW
Under existing law, the California Coastal Commission is charged with implementing the
California Coastal Act of 1976 (http://www.coastal.ca.gov/coastact.pdf). Chapter 3 of the
Coastal Act establishes strong resource protection and public access policies for Californias
coastal zone. The Acts core policies include protection of sensitive coastal resources, enhancing
and providing for maximum public access to and along the shoreline, and establishing priorities
for coastal-dependent development and visitor-serving land uses over other types of private
development.
Typically, until local governments in the coastal zone adopt a certified Local Coastal Program
(LCP), the Commission retains permitting authority for all new development above the mean
high tide line in the coastal zone of that jurisdiction. The Commission also retains limited
appellate authority in areas governed by a certified LCP, including over development approved
between the first public road and the sea. Removal, limitation, change in use or restriction of
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access to beach fire rings falls under the Coastal Act definition of development and hence the
Commissions permit and/or appellate jurisdiction.
The responsibility for establishing air quality control programs and emission standards rests with
the California Air Resources Board and local air pollution control districts. Under the Public
Health and Safety Code and the Clean Air Act, the State Air Resources Board and air pollution
control districts, including the SCAQMD, are the principal public agencies responsible for the
establishment of ambient air quality and emission standards and air pollution control programs
through, in part, the promulgation of rules and regulations, and the imposition of administrative
fines and penalties.
The SCAQMD adopted Rule 444 in 1976, relating to a variety of regulated and prohibited
activities that affect air quality. As originally adopted, Rule 444 did not apply to open burning
for the Preparation or warming of food for human consumption; or Generating warmth at a
social gathering. These exemptions for recreational burning were repeated in Rule 445, adopted
in 2008, which applied to wood burning devices in residences (fire places and wood stoves) but
specifically exempted open outdoor fires.
In 2013, the SCAQMD amended Rule 444 to prohibit burning of wood or wood products in
public sandy beach areas unless the beach burning occurs in devices that are:
(1) At least 700 feet from the nearest residence;
(2) At least 100 feet apart from one another; or
(3) At least 50 feet apart from one another, if there are no more than 15 devices per contiguous
beach area within the citys boundaries.
The Rule applies only to open beach burning in Orange and LA Counties, but its impact appears
to be focused primarily on the City of Newport Beach. The amendment to Rule 444 becomes
effective March 1, 2014. The amendment also refers to the authority of local governments to
restrict beach burning pursuant to their nuisance abatement authority.
Section 30414 of the Coastal Act acknowledges that the establishment and regulation of air
quality and emission standards and air pollution control programs rests with the State Air
Resources Board and the air pollution control districts and states:
(a) The State Air Resources Board and air pollution control districts established pursuant to
state law and consistent with requirements of federal law are the principal public agencies
responsible for the establishment of ambient air quality and emission standards and air
pollution control programs. The provisions of this division do not authorize the
commission or any local government to establish any ambient air quality standard or
emission standard, air pollution control program or facility, or to modify any ambient air
quality standard, emission standard, or air pollution control program or facility which has
been established by the state board or by an air pollution control district.
(b) Any provision of any certified local coastal program which establishes or modifies any
ambient air quality standard, any emission standard, any air pollution control program or
facility shall be inoperative.
BILL ANALYSIS AB 1102 (Allen)
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(c) The State Air Resources Board and any air pollution control district may recommend
ways in which actions of the commission or any local government can complement or
assist in the implementation of established air quality programs.
Section 30005(b) provides that the Coastal Act does not limit the power of any city or county to
declare, prohibit, and abate nuisances.
BACKGROUND
Corona del Mar State Beach is owned by the state Department of Parks and Recreation and
operated by the City of Newport Beach under a 30-year agreement that expires in August 2029.
In 2009, the city began discussing changes toits fire ring policy. The City's Parks, Beaches and
Recreation Commission (PB&R Commission) proposed amendments that would more closely
regulate the types of materials burned in the fire rings. Some Council members expressed a
desire to simply remove all of the fire rings, due to health concerns, trash, odors, public safety
and noise cited by beachfront residents. One council member expressed concern over the fact
that that the police have received calls as early as 4:00 a.m. on busy beach days "because people
are there two hours before the beach opens trying to reserve [fire rings]." The council directed
staff to bring back a report to the council that would outline the process for removing the rings.
The action caused considerable local controversy. Due to the public outcry over the issue the
council tabled the idea in favor of waiting for calmer waters.
Two years later, the issue was revisited. In March of 2012, the City Council unanimously voted
to remove all 60 fire rings from the Citys beaches including 27 ring at Corona del Mar State
Beach and 27 rings on either side of the Balboa Pier. The city based its action on testimony from
neighbors regarding the negative health impacts of wood smoke, including personal anecdotes
and general published studies. Because the city does not have a certified LCP, it applied to the
Commission for a Coastal Development Permit (CDP) to remove the fire rings.
On March 4, 2013, the Commission held a hearing on the citys permit application. The staff
report recommended denial, citing inconsistencies with Chapter 3 policies protecting public
access, low cost visitor-serving recreational opportunities, and coastal-dependent recreation, and
lack of specific scientific evidence demonstrating that air quality impacts from the fire rings
warranted their removal. In addition, the staff report noted the fact that the SCAQMD did not
regulate open beach burning.
During that hearing, the Commission was informed that the SCAQMD may soon be considering
the possibility of amending its regulations to include open beach fires. Accordingly, the
Commission continued the item so that its final action could be informed by any new
information that might be generated by any future SCAQMD action.
The SCAQMD did address the issue shortly thereafter. As originally proposed, the amendments
to Rule 444 would have banned all outdoor beach fires in Orange and LA Counties. There was
significant public opposition to this approach was extremely heated, and the proposal generated
national media coverage. Ultimately, the final rule adopted on July 12, 2013, was drafted in such
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a way that as a practical matter, it applies only to public beach fire rings in the city of Newport
Beach and to a lesser extent, Huntington Beach. The amended rule prohibits open wood fires on
sandy beaches within 700 feet of residences and 100 feet from other fire rings. There has been
continuing public controversy over the new rule, including a law suit seeking a temporary
injunction on the rule, which was denied, and an Assembly Resolution in support of retaining the
fire rings, which passed both houses of the Legislature with unanimous support.
Soon after the new rule was adopted, Newport Beach withdrew its CDP application, and
approved a plan to remove 33 of the 60 fire rings and begin a pilot project to replace the woodburning rings with gas-fired rings near the Balboa Pier. The Council has stated its intention to
apply to the Commission for a CDP, but it has not yet done so. Commission staff have been
working with the city staff to find an approach that complies with Rule 444 without reducing the
number or significantly diminishing the public experience of these important recreational
amenities and can thus be found consistent with the Coastal Act. However, the rule will take
effect before the City will be able to obtain a CDP from the Commission
The City of Huntington Beach has not taken any action to comply with Rule 444.
ANALYSIS
Southern California beach fire rings are a long-standing recreational tradition with immense
public support. Fire rings are one of the most popular beach activities enjoyed by the public at
the beaches affected by the new restrictions. They provide the opportunity for important
recreational activities like family reunions, birthdays, anniversaries, and baptisms. They are used
by those who celebrate Persian New Year in March by symbolically burning all of the
misfortunes of the previous year in small bonfires that they congregate around with family and
friends. The fire rings also contribute significantly to the local economies in surrounding areas.
Among the most important requirements of the Coastal Act is the mandate to protect, provide,
enhance, and maximize public recreational access opportunities to and along the coast consistent
with strong resource conservation principles and private property rights. The Coastal Act also
emphasizes the protection of existing lower cost recreational facilities. The California Coastal
Act requires the Commission to maximize opportunity for coastal access and contains the
following relevant policies:
Section 30001.5 of the California Coastal Act declares that the basic goals of the state for the
coastal zone include maximizing public access to and along the coast and maximizing public
recreational opportunities in the coastal zone consistent with sound resources conservation
principles and constitutionally protected rights of private property owners.
Section 30210 of the Coastal Act requires that maximum recreational opportunities shall be
provided for all the people consistent with public safety needs and the need to protect public
rights, rights of private property owners, and natural resource areas from overuse.
Section 30213 of the Coastal Act requires that: Lower cost visitor and recreational facilities
shall be protected, encouraged, and where feasible, provided. Developments providing public
recreational opportunities are preferred.
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Section 30221 requires that oceanfront land suitable for recreational use shall be protected for
recreational use and development.
In addition, Section 30003 of the Coastal Act states that all public agencies shall comply with the
provisions of the California Coastal Act.
The newly amended Rule 444 does not override the Coastal Act statutory requirement for a
permit to remove the fire rings. The Commission does not dispute that individuals can have
adverse health effects from wood smoke. Nor does it question the scientific research that has
concluded that particulate matter in wood smoke in high concentrations can be a public health
hazard. The Commission considers public health and safety matters when implementing the
public access policies of the Coastal Act, and would consider all substantial evidence related to
the issue when and if an application is submitted. The Commission is also precluded from
establishing or modifying ambient air quality or emission standards which have been established
by the state board or by an air pollution control district.
However, the removal, placement and/or use of beach fire rings is not the same as establishing or
modifying an air quality or emission standard. Removal of the fire rings would deny a diverse
visitor population access to those lower cost visitor and recreational facilities and therefore
raises questions of consistency with the Coastal Act. The current dilemma is that leaving existing
fire rings in place in locations like Newport Beach would put the affected cities in conflict with
Rule 444 and potentially subject them to daily fines from the SCAQMD. But removing them
without a permit would violate the Coastal Act.
AB 1102 seeks to resolve this conflict by delaying the implementation of the rule until a public
agency seeking to comply with Rule 444 gets a coastal development permit from the Coastal
Commission to do so. It also clarifies that Section 30005 cannot be invoked to avoid Coastal
Commission review by declaring a nuisance. In applying for a permit, the bill would require
the public agency to conduct an analysis of ways to meet the rule without reducing the number of
fire rings. The bill does not prohibit the Commission from issuing a permit to remove fire rings,
but the Commission could exercise its discretion under the Coastal Act to condition any such
permit to achieve full compliance with the Act.
Although AB 1102 is partially declaratory of existing law with respect to the existing
requirement to obtain a CDP for the restricted use or removal of fire rings, the bill is warranted
because it seeks to harmonize the overlapping jurisdictions of two state agencies. By clarifying
that any local response to Rule 444 must also be consistent with Coastal Act policies, it is
directly supportive of Section 30003 of the Coastal Act, which states that all public agencies
shall comply with the provisions of the California Coastal Act. Most importantly, it precludes the
application of Section 30005 to avoid Coastal Act review by declaring beach bonfires a
nuisance, and gives local governments additional time to apply for permits without risk of
fines.
It is important to note that compliance with Rule 444 and the Coastal Act are not mutually
exclusive. The affected cities can comply with both the Coastal Act and Rule 444 by simply
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distributing their fire rings over a larger geographic area. Spacing the rings so that they are
located at least 700 feet from homes or 100 feet from each other would allow the continued
burning of fire wood consistent with Rule 444 while also meeting the public access requirements
of the Coastal Act. There is an exception which allows wood burning fire rings to be less than
700 feet from residences Newport and 50 feet apart if there are no more than 15 fire rings on a
non-contiguous stretch of beach. Both and Huntington Beach are of adequate size to
accommodate such spacing.
Absent this bill it appears that on March 1, 2014, the date Rule 444's beach burning rule becomes
effective, the City will either be in violation of Rule 444 if it hasnt relocated, removed, or closed
access to the fire rings, or be in violation of the Coastal Act if it has. Because it is retroactive to
March 1, 2014, AB 1102 will resolve this regulatory conflict.
This type of solution is preferred by the Legislature, and also consistent with Coastal Act
policies. Section 30212.5 emphasizes the importance of distributing public facilities, like fire
rings, throughout an area so as to mitigate against the impacts, social and otherwise, of
overcrowding or overuse by the public of any single area
AB 1102 will increase the likelihood that future beach burning will occur in a manner that is less
problematic for beachfront residents, without disadvantaging the beach-going public.
RECOMMENDED POSITION
Staff recommends the Commission Support AB 1102.
AB 1102 Assembly Bill AMENDED
AMENDED IN ASSEMBLY JANUARY 17, 2014
AMENDED IN ASSEMBLY JANUARY 6, 2014
AMENDED IN ASSEMBLY AUGUST 14, 2013
AMENDED IN ASSEMBLY MARCH 21, 2013
CaliFOrnia Legislature201314 Regular SessiOn
ASSEMBLY BILL
No. 1102
Introduced by Assembly Members Allen and Quirk-Silva
(Principal coauthors: Assembly Members Donnelly and Mansoor)
(Coauthors: Assembly Members BethGaines and Hagman)
(Coauthors: Senators Correa, Nielsen, Walters, and Wyland)
February 22, 2013
An act to add Section 40440.15 40440.9 to the Health and Safety Code, and to add
Section 30607.8 to the Public Resources Code, relating to nonvehicular air pollution
coastal resources.
LEGISLATIVE COUNSELS DIGEST
AB 1102, as amended, Allen. South Coast Air Quality Management District: beach
burning: coastal development permit.Beach burning: coastal development permit:
South Coast Air Quality Management District.
(1) Existing law establishes the South Coast Air Quality Management District, vested
with the authority to regulate air emissions from statutory sources located in the South
Coast Air Basin, and establishes a district board to govern the district.
This bill, retroactive to March 1, 2014, would make inoperative an open burning rule
that restricts the use or location of a beach fire ring adopted by the south coast district
until a public agency with jurisdiction over the area obtains and implements an
approved coastal development permit, as specified. The bill would require the public
agency to take all necessary steps to ensure that a coastal development permit is
obtained and require the coastal development permit be obtained and implemented no
more than 2 years after the enactment of the open burning rule.
(2) Existing law, the California Coastal Act of 1976, provides for the planning and
regulation of a development and requires any person undertaking development in the
coastal zone to obtain a coastal development permit issued by the California Coastal
Commission in accordance with prescribed procedures.
This bill, retroactive to March 1, 2014, would subject the removing or restricting the
use of a beach fire ring, as defined, to the requirements of the California Coastal Act
and would require the application for a coastal development permit to remove or
restrict the use of a beach fire ring to include specified information. By increasing the
duties of local officials with respect to the California Coastal Act, the bill would impose a
state-mandated local program.
(3) This bill would find and declare that these provisions relate to an issue of
statewide concern and not a municipal affair, as specified.
(4) This bill would make legislative findings and declarations as to the necessity of a
special statute for the South Coast Air Quality Management District.
(5) The California Constitution requires the state to reimburse local agencies and
school districts for certain costs mandated by the state. Statutory provisions establish
procedures for making that reimbursement.
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AB 1102 Assembly Bill AMENDED
This bill would provide that, if the Commission on State Mandates determines that the
bill contains costs mandated by the state, reimbursement for those costs shall be made
pursuant to these statutory provisions.
(1) Existing law establishes the South Coast Air Quality Management District vested
with the authority to regulate air emissions from stationary sources located in the
South Coast Air Basin and establishes a district board to govern the district. Existing
regulations of the district prohibit a person from engaging in a recreational, ceremonial,
or open burning conducted in a public coastal area marked by an accumulation of sand,
as specified.
This bill would prohibit the district from enacting a rule that regulates, prohibits, or
restricts a person from engaging in a beach burning for a recreational, ceremonial, or
open burning conducted in a public coastal area marked by an accumulation of sand.
(2) Existing law requires any person undertaking development in the coastal zone to
obtain a coastal development permit issued by the California Coastal Commission in
accordance with prescribed procedures.
This bill would require a local or regional authority located in the district to obtain a
coastal development permit in order to regulate, prohibit, or restrict the use of fire
rings, as defined. By imposing new duties on local governments, this bill would impose
a state-mandated local program.
This bill would find and declare that these provisions are an issue of statewide
concern and not a municipal affair, as specified.
(3) This bill would make legislative findings and declarations as to the necessity of a
special statute for the south coast district.
(4) The California Constitution requires the state to reimburse local agencies and
school districts for certain costs mandated by the state. Statutory provisions establish
procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the
bill contains costs mandated by the state, reimbursement for those costs shall be made
pursuant to these statutory provisions.
Vote:majority. Appropriation:no. Fiscal committee:yes. State-mandated local
program:yes.
The people of the State of California do enact as follows:
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SECTION 1.
Section 40440.9 is added to the Health and Safety
Code, to read:
40440.9.(a) If the south coast district adopts an open burning
rule that restricts the use or location of a beach fire ring, as defined
by Section 30607.8 of the Public Resources Code, the rule shall
not be operative in a particular area until the public agency with
jurisdiction over that area obtains and implements an approved
coastal development permit consistent with the California Coastal
Act (Division 20 (commencing with Section 30000) of the Public
Resources Code), including Section 30607.8 of the Public
Resources Code.
(b) The public agency with jurisdiction over the area shall take
all necessary steps to ensure that an approved coastal development
permit is obtained and implemented in accordance with the
California Coastal Act, including Section 30607.8 of the Public
Resources Code. The coastal development permit shall be obtained
and implemented no more than two years after the enactment of
the open burning rule adopted by the south coast district.
(c) The provisions of this section shall be applied retroactively
to March 1, 2014.
SEC. 2.
Section 30607.8 is added to the Public Resources Code,
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to read:
30607.8.(a) Notwithstanding any other regulation or law,
including Sections 30005 and 30414, removing or restricting the
use of a beach fire ring shall be subject to the requirements of this
division.
(b) An application for a coastal development permit to remove
or restrict the use of a beach fire ring shall include an analysis of
alternatives and mitigation measures that would avoid or minimize
the need to remove or restrict the use of a beach fire ring. The
Legislature hereby declares that it is the states preference to avoid
the net loss of beach fire rings within a citys jurisdiction.
(c) Beach fire ring means a device in which recreational or
ceremonial burning occurs that is located on a beach in the coastal
zone.
(d) The provisions of this section shall be applied retroactively
to March 1, 2014.
SEC. 3.
The Legislature finds and declares that the use of fire
rings at public coastal areas is a matter of statewide concern and
not a municipal affair, as that term is used in Section 5 of Article
XI of the California Constitution. Therefore, Sections 2 and 3 of
this act apply to a charter city or county.
SEC. 4.
The Legislature finds and declares that a special law
is necessary and that a general law cannot be made applicable
within the meaning of Section 16 of Article IV of the California
Constitution because of the need to ensure that public agencies
within the jurisdiction of the South Coast Air Quality Management
District are in compliance with applicable laws and regulations
and to maximize and protect public access and public recreational
opportunities available in areas within the jurisdiction of the South
Coast Air Quality Management District.
SEC. 5.
If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.
SECTION 1.The Legislature finds and declares all of the
following:
(a) As the Legislature confirmed with Assembly Concurrent
Resolution 52 (Chapter 52 of the Statutes of 2013), beach bonfires
contained in fire rings should be allowed on all beaches in
California.
(b) Beach bonfires are an inexpensive recreational activity and
are enjoyed by all the members of our community regardless of
socioeconomic class.
(c) Fire rings are usually large cement rings in the sand used to
build your very own bonfire on the beach.
(d) The California Coastal Commission staff report of October
22, 2012, stated, Beach fire rings are a unique recreational facility
for which there is no substitution.
(e) Amendments to Rule 444 by the South Coast Air Quality
Management District were voted on at a hearing on July 12, 2013,
and any actions by that vote on regulatory language and any
subsequent action resulting from it need to be nullified.
SEC. 2.Section 40440.15 is added to the Health and Safety
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Code, to read:
40440.15.(a) The south coast district shall not regulate,
prohibit, or restrict a person from engaging in a beach burning for
a recreational, ceremonial, or open burning conducted in a public
coastal area marked by an accumulation of sand.
(b) (1) For purposes of this subdivision, the following terms
have the following meanings:
(A) Development includes fire rings.
(B) Fire ring means a structure used for a recreational,
ceremonial, or open burning conducted in a public coastal area.
(2) Notwithstanding subdivision (b) of Section 30005 of the
Public Resources Code, a local or regional authority located in the
south coast district shall obtain a coastal development permit, as
specified in Article 1 (commencing with Section 30600) of Chapter
7 of Division 20 of the Public Resources Code, in order to regulate,
prohibit, or restrict the use of fire rings located in the south coast
district as of January 1, 2015.
(3) A permit issued pursuant to paragraph (2) shall be appealable
to the California Coastal Commission.
SEC. 3.The Legislature finds and declares that the use of fire
rings at public coastal areas is a matter of statewide concern and
not a municipal affair, as that term is used in Section 5 of Article
XI of the California Constitution. Therefore, subdivision (b) of
Section 2 of this act applies to a charter city or county.
SEC. 4.The Legislature finds and declares that a special law
is necessary and that a general law cannot be made applicable
within the meaning of Section 16 of Article IV of the California
Constitution because of the need to protect visitor-generated
revenues that are used to fund essential programs, such as those
for the protection of public safety and parks, within the jurisdiction
of the South Coast Air Quality Management District.
SEC. 5.If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.
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