BILL NUMBER: AB 439AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 24, 2009 INTRODUCED BY Assembly Member Miller FEBRUARY 24, 2009 An act to amend Section 671.5 of the Streets and Highways Code, relating to highways. LEGISLATIVE COUNSEL'S DIGEST AB 439, as amended, Miller. Encroachment permits. Under existing law, the Department of Transportation may issue permits authorizing encroachments, as defined, on highways. Existing law requires the department to either approve or deny an application for an encroachment permit within 60 days of receiving a completed application. The department's failure to notify an applicant within that 60-day period that the permit is denied is deemed to constitute approval of the permit. Existing law allows an applicant to appeal the denial of an application in writing, and requires the department to make a final written determination within 60 days after receipt of an appeal. This bill wouldrequire the department to approve or deny an encroachment permit within 45 days of receiving a completed applicationestablish different procedures for applications for encroachment permits for major highway projects that cost $3,000,000 or more and for minor highway projects that cost less than $3,000,000, and would instead require applications for minor encroachment permits to be approved or denied within a 30-day period. The bill would also require the department to determine whether an application for an encroachment permit is complete, taking into consideration certain factors, and would require the department, within 30 days of receipt of an application for a major encroachment permit, or within 15 days of receipt of an application for a minor encroachment permit, to notify the applicant of that determination. The bill would require the department, if an application is determined to be incomplete, to indicate what information or documents are necessary to complete the application, and would specify the procedure for the resubmittal of an application. The bill would also change to 30 days the time period for which the department is required to make a final written determination of an appeal of a denied application. The bill would also require the department to appoint an ombudsperson to receive applications for encroachment permits in each state transportation dis trict, as specified. The bill would make related findings and declarations . Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) The California economy is in a recession and has been in a recession for a time period in excess of one year. (b) In order to assist the California economy to recover from the recession, it is advisable to create multiple economic stimuli to facilitate the recovery. (c) California has previously authorized billions of dollars for infrastructure projects that have yet to reach construction. It is desirable, therefore, to accelerate project delivery in any and every way possible in order to create construction phase jobs to assist in fighting the recession. (d) One method of accelerating project delivery is to streamline the permitting process so that projects may be construction-ready at an earlier date. This is particularly true with regard to transportation projects. (e) For any project on a state highway, the Department of Transportation must issue permits authorizing encroachments. Such permits are a necessary prerequisite to the construction of needed improvements to the state highway system. (f) Current law under Section 671.5 of the Streets and Highways Code requires that such encroachment permits be issued within 60 calendar days, under specified terms and circumstances. (g) However, in order to facilitate the issuance of encroachments in an even faster manner than required under current law, certain changes to the encroachment permit statutes are necessary. (h) The following changes contained in this act will further accelerate project delivery through accelerating and streamlining the encroachment permit process for transportation projects on state highways. SEC. 2. Section 671.5 of the Streets and Highways Code is amended to read: 671.5. (a) The department shall either approve or deny an application from an applicant forana major encroachment permit within 60 days of receiving a completed application and for a minor encroachment permit within 30 days of receiving a completed application , as determined by the department. An application for an encroachment permit is complete when all other statutory requirements, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), have been complied with. The department shall determine whether an application is complete by following the procedure in subdivision (b). The department's failure to notify the applicant within that 60-day or 30-day period that the permit is denied shall be deemed to constitute approval of the permit. Thereafter, upon notifying the department, the applicant may act in accordance with its permit application, as if the permit had been approved.(b) If the department denies an application for an encroachment permit, it shall, at the time of notifying the applicant of the denial, furnish to the applicant a detailed explanation of the reason for the denial.(b) (1) A major encroachment permit includes all improvement projects where the projected cost of the improvements to the state highway equal or exceed three million dollars ($3,000,000). A minor encroachment permit includes all improvement projects where the projected cost of the improvements to the state highway is less than three million dollars ($3,000,000). (2) (A) When an application is for a major encroachment permit, not later than 30 calendar days after the department has received an application for an encroachment permit, the department shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the encroachment permit. If the written determination is not made within 30 days after receipt of the application, the application shall be deemed complete for purposes of this chapter. If the application is determined not to be complete, the department's determination shall specify those parts of the application that are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application. The applicant may submit materials to the department in response to the list and description. (B) Not later than 30 calendar days after receipt of the submitted materials, the department shall determine in writing whether they are complete and shall immediately transmit that determination to the applicant. If the written determination is not made within that 30-day period, the application together with the submitted materials shall be deemed complete for purposes of this chapter. (3) (A) When an application is for a minor encroachment permit, not later than 15 calendar days after the department has received an application for an encroachment permit, the department shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the encroachment permit. If the written determination is not made within 15 days after receipt of the application, the application shall be deemed complete for purposes of this chapter. If the application is determined not to be complete, the department's determination shall specify those parts of the application that are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application. The applicant may submit materials to the department in response to the list and description. (B) Not later than 15 calendar days after receipt of the submitted materials, the department shall determine in writing whether they are complete and shall immediately transmit that determination to the applicant. If the written determination is not made within that 15-day period, the application together with the submitted materials shall be deemed complete for purposes of this chapter. (c) The department shall adopt regulations prescribing procedures for an applicant to appeal to the director for a final determination of the department's denial of an application. The appeal shall be made in writing to the director. There shall be a final written determination by the director within6030 calendar days after receipt of the applicant's written appeal. The adopted regulations shall require the appellant to pay to the department a fee of not more than 50 percent of the estimated administrative cost to the department of conducting the appeal.(d) Nothing in this section precludes an applicant and the department from mutually agreeing to an extension of any time limit provided by this section.(d) The department shall appoint or designate an ombudsperson to receive applications for encroachment permits in each state transportation district in which applications for encroachment permits are received. The department may appoint or designate one person to be the ombudsperson for multiple districts and may appoint or designate the ombudsperson to be located in the headquarters office. The department may designate the district director to act as the district ombudsperson. The district ombudsperson shall coordinate all applications for major and minor encroachment permits and ensure compliance with this section. The ombudsperson for each district shall offer every applicant for a major or minor encroachment permit the opportunity for a preapplication meeting with the district ombudsperson. The purpose of the meeting shall be to facilitate timely application review and approval in accordance with the time limits prescribed by this section. The ombudsperson shall have the full authority to review, coordinate, and grant or deny applications for all encroachment permits and shall have full authority to ensure compliance with the time limits prescribed by this section.SECTION 1.Section 671.5 of the Streets and Highways Code is amended to read: 671.5. (a) The department shall either approve or deny an application from an applicant for an encroachment permit within 45 days of receiving a completed application, as determined by the department. An application for an encroachment permit is complete when all other statutory requirements, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), have been complied with. The department's failure to notify the applicant within that 45-day period that the permit is denied shall be deemed to constitute approval of the permit. Thereafter, upon notifying the department, the applicant may act in accordance with its permit application, as if the permit had been approved. (b) If the department denies an application for an encroachment permit, it shall, at the time of notifying the applicant of the denial, furnish to the applicant a detailed explanation of the reason for the denial. (c) The department shall adopt regulations prescribing procedures for an applicant to appeal to the director for a final determination of the department's denial of an application. The appeal shall be made in writing to the director. There shall be a final written determination by the director within 60 calendar days after receipt of the applicant's written appeal. The adopted regulations shall require the appellant to pay to the department a fee of not more than 50 percent of the estimated administrative cost to the department of conducting the appeal. (d) Nothing in this section precludes an applicant and the department from mutually agreeing to an extension of any time limit provided by this section.