January 18, 2018 Enforcement Committee Meeting Summary

Four members of the Enforcement Committee attended the January 18, 2018, BCDC Enforcement Committee meeting, which was held at the Bay Area Metro Center located at 375 Beale Street, San Francisco.

Item 5 - Scott’s Jack London Seafood, Inc., located in Oakland, Alameda County. In response to Scott’s Jack London Seafood, Inc.’s (“Scott’s”) request at the Commission meeting of October 19, 2017, that the Commission review the Executive Director’s determination that Scott’s was not entitled to receive the 15% waiver of the total penalty amount under Cease and Desist and Civil Penalty Order No. CDO 2017.01 (“Order”) because Scott’s had not fully complied in a timely manner with all applicable requirements of the Order (as set forth in two letters, dated September 15, 2017, and October 18, 2017), Chair Wasserman directed that the matter be referred to the Enforcement Committee for its consideration and a recommendation to the full Commission. On January 18, 2018, after a public hearing, the Committee voted (three in favor and one abstention) to approve a motion for the Commission’s consideration to grant the waiver because, while Scott’s had not fully complied in the timely manner with the requirement of the Order to provide monthly statements of pavilion usage to BCDC, the violations were not material. The Enforcement Committee’s recommended enforcement decision will be considered by the Commission on February 15, 2018. For details contact Marc Zeppetello (415/352-3655 marc.zeppetello@bcdc.ca.gov).

Item 7 - Westpoint Harbor, located at the end of Seaport Boulevard in Redwood City, San Mateo County.
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 were unable to agree on appropriate modifications to the proposed order. However, the Executive Director nevertheless 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. On January 16, 2018, staff received a 26-page-long document from Baker Botts LLP, counsel for Respondents, entitled “Respondents’ Objections to Executive Director’s Modified Recommended Enforcement Decision and Attachments.” Among other objections, Respondents argued that, absent agreement by the parties, the Executive Director could not modify the proposed order previously adopted by the Committee. On January 18, 2018, the Enforcement Committee determined not to hold a public hearing on the matter and to forward to the Commission its recommended enforcement decision adopted on November 16, 2017. However, based on concern from the public who wished to provide testimony on the matter, the Committee opened a public hearing, heard the public’s testimony, and, after closing the public hearing, voted 4-0 to uphold its November 16, 2017 recommended enforcement decision including adoption of proposed Cease and Desist and Civil Penalty Order No. CDO 2017.04 that would be issued by the Commission for alleged violations of BCDC Permit No. 2002.002.07 and the McAteer-Petris Act.
The Enforcement Committee’s recommended enforcement decision will be considered by the Commission on February 15, 2018. For details contact Marc Zeppetello (415/352-3655 marc.zeppetello@bcdc.ca.gov).

On February 15 or 22, 2018, the Enforcement Committee may hold a public hearing and vote on a recommended enforcement decision including adoption of proposed Cease and Desist and Civil Penalty Order No. CDO 2018.01 for alleged violations of the McAteer-Petris Act by the North Coast Rail Authority (NCRA) in a tidal slough on the west shore of the Petaluma River adjacent to the Lombard Segment of the Northwestern Pacific Railroad, Marin County. For details contact Matthew Trujillo (415-352-3633 matthew.trujillo@bcdc.ca.gov).