January 18, 2018 Enforcement Committee Meeting

Time and Location

9:30 a.m. to 12:30 p.m.

Bay Area Metro Center
375 Beale Street
Board Room, First Floor
San Francisco, CA 94105
(415) 778-6700

Tentative Agenda

  1. Call to Order
  2. Roll Call
  3. Public Comment
  4. Approval of Draft Minutes for November 16, 2017
  5. Public Hearing and Possible Vote on a Recommendation to the Commission Regarding Scott’s Jack London Seafood, Inc.’s Appeal of the Executive Director’s Determination that Scott’s Is Not Entitled to a Waiver of 15% of the Total Penalty Amount under Cease and Desist and Civil Penalty Order No. CDO 2017.01.
    By letters dated September 15, 2017 and October 18, 2017, the Executive Director determined that Scott’s Jack London Seafood, Inc. (“Scott’s”): (1) has not fully complied in a timely manner with all applicable requirements of the Cease and Desist and Civil Penalty Order No. CDO 2017.01 (“Order”) and had not maintained full compliance with the Order and the Permit through September 1, 2017, and, therefore, (2) is not entitled to receive the 15% waiver of the total penalty amount under the Order. During the public comment period at the Commission meeting of October 19, 2017, Scott’s requested that the Commission review the Executive Director’s determination, and Chair Wasserman asked that the matter be scheduled for discussion at a later date.  Chair Wasserman subsequently directed that the matter be referred to the Enforcement Committee for its consideration and a recommendation to the full Commission. (Marc Zeppetello) [415/352-3655; marc.zeppetello@bcdc.ca.gov]
    Comment Letter, Bowles & Verna LLP Objections and Staff Response
  6. Closed Session on Pending Litigation: (1) Mark Sanders and Westpoint Harbor, LLC v. San Francisco Bay Conservation and Development Commission, San Francisco Superior Court Case No. CPF-17-515880; and (2) Recommended Enforcement Decision Involving Proposed Cease and Desist and Civil Penalty Order No. CDO 2018.01, Mark Sanders and Westpoint Harbor, LLC.
    Pursuant to Government Code Section 11126(e), the Enforcement Committee may hold a closed session to consider this matter. (Marc Zeppetello) [415/352-3655; marc.zeppetello@bcdc.ca.gov]
  7. Public Hearing and Possible Vote on a Recommended Enforcement Decision Involving Proposed Cease and Desist and Civil Penalty Order No. CDO 2018.01; Mark Sanders and Westpoint Harbor, LLC.
    BCDC’s Enforcement Committee will hold its second public hearing and possibly vote on a recommended enforcement decision, including adoption of proposed Cease and Desist and Civil Penalty Order No. CDO 2018.01.  On November 16, 2017, the Enforcement Committee adopted the Executive Director’s recommended enforcement decision, including a proposed cease and desist and civil penalty order (as amended at the hearing following staff’s withdrawal of the proposed penalty for one violation), subject to potential modification of the proposed order by mutual agreement of the parties.  The parties have not been able to agree on appropriate modifications to the proposed order.  However, the Executive Director has modified his recommended decision by preparing a revised proposed cease and desist and civil penalty order that incorporates certain modifications to the proposed order adopted by the Committee based on the discussions between BCDC staff and Respondents’ counsel.
    The revised proposed order would require Mr. Sanders and Westpoint Harbor LLC by specified dates to: (1) cease and desist from violating BCDC Permit No. 2002.002.07; (2) make public access available; (3) submit a signage plan for review and approval, and install the approved signs; (4) submit plans for public access improvements for review and approval, and complete installation of approved improvements; (5) maintain public access areas and related improvements; (6) remove unauthorized improvements; (7) submit a complete application to amend the BCDC permit to request after-the-fact authorization for certain improvements or modifications; (8) submit applications to install buoys and signs in Westpoint Slough; (9) submit a plan to provide visual barriers to adjacent salt pond for BCDC review and approval, and complete installation of visual barriers; (10) provide shorebird roost habitat mitigation; (11) provide non-tidal wetland mitigation; (12) provide annual reports on live-aboard boats; (13) provide certification of contractor approval; and (14) submit monthly status reports.  The revised proposed order also would require payment of an administrative civil penalty and would provide that Mr. Sanders and Westpoint Harbor, LLC would be entitled to a waiver of a portion of the penalty if they comply with the requirements of the order within the agreed-upon time frames.
    (Marc Zeppetello) [415/352-3655; marc.zeppetello@bcdc.ca.gov]
    (Adrienne Klein) [415/352-3609; adrienne.klein@bcdc.ca.gov]
    Public Comment Letters:
    Baker and Botts LLP Letter and Objections - posted on January 17, 2018
    Additional Comment Letters since November 16, 2017- posted on January 17, 2018
    Comment Letters Submitted to Enforcement Committee and the Commission since November 16, 2017 - posted on January 12, 2018
    Additional Comment Letters and Responses since November 16, 2017 - posted on January 12, 2018
    Windwardho.com website
    Email from the BCDC Executive Director to the staff of Senator Jerry Hill and Assemblymember Kevin Mullin

    This matter was first heard before the Enforcement Committee on November 16, 2017.  For the materials for the November 16, 2017 Enforcement Committee meeting and for public comment letters received prior to November 16, 2017, please click here

  8. Report of the Chief of Enforcement
  9. Adjournment

Questions and Staff Reports. If you have any questions concerning an item on the agenda or would like to receive a staff report related to the item, please contact the staff member whose name and direct phone number are indicated in parentheses at the end of the agenda item.

Access to Meetings. Meeting facilities are accessible to persons with disabilities. If you require special assistance, please contact any staff member prior to the meeting. An interpreter for the deaf will also be made available upon request to the staff at least five days prior to the meeting.

Bagley-Keene Open Meeting Act. As a state agency, the Commission is governed by the Bagley-Keene Open Meeting Act which requires the Commission to (1) publish an agenda at least ten days in advance of any meeting; (2) describe specifically in that agenda the items to be transacted or discussed; and (3) refuse to add an item subsequent to the published agenda. In addition to these general requirements the Bagley-Keene Act includes other specific provisions about how meetings are to be announced and conducted.