May 30, 2023 Enforcement Committee Meeting

1. Call to Order
2. Roll Call
3. Public Comment
   The Committee will hear public comments on matters that are not on the agenda. 
4. Approval of Draft Minutes from the April 13, 2023 , Enforcement Committee meeting (PDF)
5. Public Hearing and Vote on an Executive Director’s Recommended Enforcement Decision, including Proposed Civil Penalty Order Number CCD2023.003.00 (BCDC Enforcement Case ER2019.063.00).
   The Committee will hold a public hearing and will vote on whether to recommend to the full Commission the adoption of a proposed Order for Civil Penalties to resolve three violations, consisting of two violations of the terms and conditions of BCDC Permit No. 1973.014.04 as well as Section 66632(a) of the McAteer-Petris Act, and one violation of a condition of Permit No. M1985.030.01 by the permittee Seaplane Investments, Inc., operating at 240-242 Redwood Highway Frontage Road, Mill Valley, Marin County. If this recommendation is adopted, Respondent will be liable to pay a total of $21,170 in administrative civil penalties
   (Adrienne Klein) [415/352-3609; adrienne.klein@bcdc.ca.gov]Executive Director’s RED Exhibit A – Proposed Civil Penalty Order // Executive Director’s RED Exhibit B – Complaint for Administrative Civil Penalties // Executive Director’s RED Exhibit C – Statement of Defense // Public Comment // Late Submission 05/25/2023 (PDF) // Respondent’s Presentation (PDF) // Staff Presentation (PDF)
6. Public Hearing and Vote on an Executive Director’s Recommended Enforcement Decision, including Proposed Cease and Desist and Civil Penalty Order Number CCD2023.002.00 (BCDC Enforcement Case ER2019.063.00) POSTPONED
   The Committee will hold a public hearing to address the permit violations and unauthorized development in the Bay and shoreline band at 240-242 Redwood Highway Frontage Road, Mill Valley, Marin County, and vote whether to adopt a Recommended Enforcement Decision proposed by the Executive Director, which includes a proposed Cease and Desist and Civil Penalty Order to require remedial actions at the site and payment of $180,000 in administrative civil liability.
   (Adrienne Klein) [415/352-3609: adrienne.klein@bcdc.ca.gov]Executive Director’s RED Exhibit A – Proposed Cease and Desist Order with Exhibits // Executive Director’s RED Exhibit B – Violation Report and Complaint with exhibits// Executive Director’s RED Exhibits C to C9 – Statement of Defense with exhibits // Late Submission 12/01/2022 (PDF) // Public Comment // Late Submission 05/25/2023 (PDF)
7. Adjournment

Meeting Minutes (PDF)

Audio Recording

Audio Transcript

Transcript for items 5 and 7

Afternoon, and

Marie Gilmore, Chair: good afternoon. The time is by my watch, 104,

Marie Gilmore, Chair: and this is a meeting of the B Cdc. Enforcement committee is here by call to order. My name is Marie Gilmour, and I am chair of this committee. So, fellow committee members, please ensure that your video cameras are always on, and please mute yourselves when you are not speaking.

Marie Gilmore, Chair: and our first order of business is to call the role. Matthew, please call the role.

Matthew Trujillo, Enforcement Policy Manager: Hey? Good afternoon.

Rebecca Eisen, Commissioner: Let’s see Commissioner Eisen.

John Vasquez, Commissioner: Commissioner basket here.

Matthew Trujillo, Enforcement Policy Manager: Chair Gilmore.

Marie Gilmore, Chair: Here

Marie Gilmore, Chair: we have a quorum present and are duly constituted to conduct business. That brings us to item number 3 on our agenda, which is the public comment period.

Marie Gilmore, Chair: So, in accordance with our usual practice, and as indicated on the agenda, we will now have general public comment on items that are not on today’s agenda.

Marie Gilmore, Chair: and I don’t believe, Margie, we had any comments on items, not on the agenda.

Margie Malan, BCDC HOST: we did not receive any.

Marie Gilmore, Chair: Okay? So just in general for members of the public, if you would like to speak either during this general comment period, or during the public comment period for an item on the agenda.

Marie Gilmore, Chair: Please raise your hand in the zoom application by clicking on the participants. Icon at the bottom of your screen and look in the box where your name is listed under attendees. Find the small palm icon on the left. If you click that palm icon. It will raise your hand.

Marie Gilmore, Chair: or if you are joining this meeting by phone, you must style Star 9 to raise your hand. Then dial Star 6 on your keypad to unmute your phone when the host asks you to. In order to make a comment.

Marie Gilmore, Chair: The meeting host, Margie Mailin, will call on individuals who have raised their hands in the order that they were raised. After you are called on, you will be unmuted, so that you can share your comments. Please announce yourself by first and last name for the record before making your comment

Marie Gilmore, Chair: commenters are limited to 3 min to speak.

Marie Gilmore, Chair: Please keep your comments respectful and focus. We are here to listen to any individual who requests to speak, but each speaker has the responsibility to act in a civil and courteous manner, as determined by the chair.

Marie Gilmore, Chair: We will not tolerate hate, speech, direct threats in direct threats or abuse of language, and we will mute anyone who fails to follow those guidelines.

Marie Gilmore, Chair: So, Margie, do we have any hands raised by members of the public?

Margie Malan, BCDC HOST: there’s no hands raised chat deal more, but I want to.

Margie Malan, BCDC HOST:  Say, Hi to

Margie Malan, BCDC HOST: Commissioner Ranch has joined us.

Marie Gilmore, Chair: Welcome, Sanjay.

Sanjay Ranchod, Commissioner: thank you.

Marie Gilmore, Chair: Okay, so no public comment. So we’re moving on to approving the draft minutes from the last me.

Marie Gilmore, Chair: We’ve all been furnished with our dra draft minutes and committee members. I would prove, appreciate a motion and a second to approve those.

John Vasquez, Commissioner: This is

Marie Gilmore, Chair: okay. Moved by Vasquez, seconded by Eisen. all in favor. Say aye, or raise your hand

Marie Gilmore, Chair:  carries the motion carries unanimously with all 4 commissioners voting in favor. Thank you.

Marie Gilmore, Chair: Okay, so we are on to item 5, is a public hearing and a vote on a recommended enforcement decision to adopt

Marie Gilmore, Chair: a proposed civil penalty. Order, Ccd.

Marie Gilmore, Chair: 2,023.0 0 3, to impose a toll of $21,170 in administrative civil penalties on sleet Se. Plane investment, Llc. Operating out of Mill Valley and Rin County.

Marie Gilmore, Chair: following a hearing on the matters at issue, this committee will vote on whether to adopt the Executive Director’s recommended Enforcement decision.

Marie Gilmore, Chair: The record for this matter includes the violation report and complaint. The respondents statement of defense, the recommended Enforcement decision and proposed order and all other items identified by B. C DC. Regulation

Marie Gilmore, Chair: 1, 1, 3, 7, 0. So at this time will the representative or representatives for the respondent? please identify yourself

Marie Gilmore, Chair: and your association with the respondent for the record?

Jillian Blanchard: Yes. Hello, committee members and commissioners. This is Gillian Blanchard with rudder law group we represent se plane investments. Llc. The respondent for both agenda items 5 and 6. I also have here with me Mr. Lou Vasquez and Mallee Richlyn, who are both managers at seaplane investments and manage the site for any questions.

Marie Gilmore, Chair: Thank you very much.

Marie Gilmore, Chair: Okay. So before we get started, a couple of ground rules  one is.

Marie Gilmore, Chair: Well. let me let me back up

Marie Gilmore, Chair: for the sake of

Marie Gilmore, Chair: Hopefully ease.

Marie Gilmore, Chair: I’m going to call this item for shorthand, the paper violations

Marie Gilmore, Chair: and the item number 6, the physical violations. Okay?

Marie Gilmore, Chair: And let me ask respondents, how much time do you think you need to present your case on the paper violations?

Marie Gilmore, Chair: You’re muted

Jillian Blanchard: apologies. Thank you. the paper violations. We I can do it. I can squeeze it in, although I’d like to have 15 min but I can squeeze it in a shorter period, if necessary. But 15 min would be great.

Marie Gilmore, Chair: Okay, and, Mr. Player, how long do you think you need for your presentation on the paper violations?

Brent Plater: thank you. Chair Gilmore. Actually, Adriene is the lead on this case, so she’ll be bringing the presenting today in the cases.

Marie Gilmore, Chair: Okay, Adrian.

adrienne klein: we have a partially combined presentation, and I will

adrienne klein: endeavor to keep it to a total of 30 min.

Marie Gilmore, Chair:  I would prefer to take them one at a time. Is it possible for you to split your presentation. because what I’m I’m considering is giving

Marie Gilmore, Chair: presenters 15 min on this item, and then we can talk about the timeframe for the next item when we get to it.

adrienne klein: I have a combined timeline of events, and I was planning to present

adrienne klein: the 9 violations and then

adrienne klein: do 2 separate

adrienne klein: sections for the defenses and the recommendations. defenses, rebuttals and staff recommendations.

Marie Gilmore, Chair: Okay, let’s let’s okay. So how about

Marie Gilmore, Chair: I’m sorry?

adrienne klein: Well, I

adrienne klein: I don’t think I can reorganize

Marie Gilmore, Chair: You’re breaking up.

Marie Gilmore, Chair: You’re now frozen

Marie Gilmore, Chair: sherry.

Shari B. Posner, CA Dept. of Justice: I just wanted to note that and Hadrian

Shari B. Posner, CA Dept. of Justice: that for for sake of an administrative record.

Shari B. Posner, CA Dept. of Justice: if Adrian had to. If if the

Shari B. Posner, CA Dept. of Justice: B Cdc. Side had to present the timeline twice, I think that would be okay at the end of the day. These are separate matters, so they need separate records. So to the extent the the staff can make an adjustment. I think that is going to be what is needed for clarity. The record Chair.

Marie Gilmore, Chair: Yeah, I I have no problem with you presenting a combined timeline, and if you have to do it twice. That’s fine. But I would really prefer to keep the item separate in the to the paper. violations versus the physical violations, because the record is so voluminous I’m afraid we’re going to get lost.

Marie Gilmore, Chair: so how about if we for this

Marie Gilmore, Chair: first item and we’ll revisit it when we get to the second one, everybody gets 15 min. Okay.

Marie Gilmore, Chair:  So you’re going to get 15 min to make your presentations to the committee, and presentations must be limited to responding to the evidence. That’s already part of the enforcement record and the policy implications of such evidence.

Marie Gilmore, Chair: And

Marie Gilmore, Chair: so that that’s one thing. And then the second thing is, I’m sure everybody received

Marie Gilmore, Chair: in the middle of a holiday weekend a rather voluminous set of of new materials.

Marie Gilmore, Chair: So at this point in time, I want to ask Ms. Blanchard if there was

Marie Gilmore, Chair: anything in that set of materials that was recently discovered, or could not have recent reasonably been discovered and presented to the committee. ahead of May 20, fifth.

Jillian Blanchard: Thank you very much. chair, Gilmour, and since your apologies. I myself did not want to have to file a a letter on Saturday of a Memorial Day weekend. I did so because there were some claims raised for the very first time from the statements of fact

Jillian Blanchard: in the record, recommended enforcement decision related to the 6 Violations. It was also a public comment that was a showed to us for the very first time as part of the agenda package from Edgecom Law, which was a letter which is set of 2 different letters received by Staff in January and March of this year, but we never received a copy of it until receiving the agenda package.

Jillian Blanchard: both raising different claims. And so, in order to clarify the record, religious to the misstatements of fact in the recommended enforcement decision. And these new letters that we were just seeing. For the first time we felt it necessary to provide highly relevant evidence in the form of the permit application to middle package. It’s been some suggestion. I don’t want to get too much into the substance. Yeah, please, please don’t, because because here’s the thing.

Marie Gilmore, Chair: just about all of that

Marie Gilmore, Chair: could have been submitted ahead of time, and I am not inclined to have that particular set of materials.

Marie Gilmore, Chair: become part of the record. one, because it’s not timely and 2 because there is no way

Marie Gilmore, Chair: that it was reasonable to expect members of this committee to not only read those documents, but digest them.

Jillian Blanchard: And so I if I’m very sorry about that, and I, what I will do is I will highlight the most relevant pieces in my presentation what I I’m not letting. I’m not letting the information come in. If if it’s information

Marie Gilmore, Chair: that was in your

Marie Gilmore, Chair: state number of fence. Yes, then you you may speak to that, but nothing new. That was in the

Marie Gilmore, Chair: May 25 letter. You may highlight things that were in your statement of defense, and that’s fine. That’s perfectly acceptable.

Jillian Blanchard: If I could just add one piece, the They. One critical piece is the permit application supplement that was filed on April of 2,023, so it could not have been filed with the statement of defense because it was filed in April of 2,023 we copied Enforcement staff on it. We expected that they would include it in their recommended Enforcement decision as part of talking about levels of compliance on the part of seaplane investments.

Jillian Blanchard: but it was completely ignored. So it’s critical that this Commission understand what that permitting package includes. And that’s why we, in addition to you. You’re getting. You’re getting too far into argument. I just wanted to set some ground rules. Okay, And so let’s

Marie Gilmore, Chair: let’s get on our way and get into the nuts and bolts. Because, like I said, the record is very voluminous. And

Marie Gilmore, Chair: I I think you’re gonna have some questions from the committee.

Marie Gilmore, Chair: Alright! so I’m going to invite our principal enforcement analyst Adrian, client to give her presentation, summarizing the violation report complaint and recommended enforcement decision. you have 15 min, and Ms client, please limit your presentation to

Marie Gilmore, Chair: issues of controversy.

Marie Gilmore, Chair: All right. My screen should be visible.

adrienne klein: Great

adrienne klein: good afternoon, chair, Gilmore. Just one moment. Please

adrienne klein: make sure I can drive.

adrienne klein: Okay

adrienne klein: for apologies

adrienne klein: going forward. Not back.

adrienne klein: Hmm.

adrienne klein: not sure why I’m having that problem.

Okay, I’ve got it sorted. Thank you for your patience.

adrienne klein: Okay.

adrienne klein: good afternoon. Chair. Gilmore and committee members. Today’s public hearings will address 9 violations associated with B Cdc. Case enforcement number er

adrienne klein: 2. 19063. Staff issued a violation.

Marie Gilmore, Chair: Okay, Adrian, you’re frozen.

Marie Gilmore, Chair: You’re still

adrienne klein:  Margie, I am. If you want to promote me to a panelist. I joined on the phone.

adrienne klein: I see that.

Margie Malan, BCDC HOST: okay, Adrian, you’re good to go

adrienne klein: to get my microphone work.

adrienne klein: I don’t think you can hear me on the computer

Margie Malan, BCDC HOST: we can hear you.

adrienne klein: Margie, can you mute me on the laptop? So I’m not.

adrienne klein: And surround sound?

Is this connection better.

Marie Gilmore, Chair: I think so. I’m cautiously optimistic.

Margie Malan, BCDC HOST: Yeah, your phone is still muted.

Margie Malan, BCDC HOST: I can’t control it on my end.

adrienne klein: I might have to, you know. I’ll log out and come back here because I

adrienne klein: won’t let me use my microphone

adrienne klein: so. And

adrienne klein: difficulties.

adrienne klein: Say.

adrienne klein: you, can you hear me

here?

Marie Gilmore, Chair: Yes.

adrienne klein: Can you see me.

Marie Gilmore, Chair: Yes.

okay, let’s try that again. My apologies.

adrienne klein: I can hear myself twice.

adrienne klein: Margie, can you?

Margie Malan, BCDC HOST: We can’t hear you.

Margie Malan, BCDC HOST: Agent

Margie Malan, BCDC HOST: Asian, we can see and hear you.

adrienne klein: Okay?

adrienne klein: So, continuing on.

adrienne klein: we issued the second violation report and complaint in July 2,022, to resolve 6 unresolved violations. I’m sorry first, to resolve 6 on violations.

adrienne klein: and the second as a complaint for administrative penalties to resolve the penalty portion of 3 violations.

adrienne klein: So we’ve got an outline that will consolidate the timeline of events, and I’ll separate the rest as best as possible.

adrienne klein: So this is a vicinity map to Orient you to the site. The address is 2 4, 0 2, 4, 2 redwood highway frontage road in an unincorporated area of Marin County.

adrienne klein: This image shows the site looking to the northeast. The site contains a number of businesses and operations that will be described during the presentation. While some of these ground level uses and the Associated still appear to have been ongoing in 1,965

adrienne klein: versus seed plane flights which are not part of these hearings. Any changes to the ongoing use as an associated fill within B Cdc’s jurisdiction, including maintenance

adrienne klein: that occurred after an accident of enactment of the Macro chair. Petrus act here and after referred to as the Mpa.

adrienne klein: Requires A, B Cdc. Permit or permit amendment.

adrienne klein: B Cdc. Permits run with the land, and new owners are responsible for resolving inherited violations in addition to violations, they undertake themselves. New owners should, but in this case did not contact the Cdc. As part of a due diligence review to ascertain site status in relation to the law and existing B Cdc. Permits.

adrienne klein: This aerial image has an overlay of the approximate locations of the 2 privately owned parcels number 164 to the right and 167 to the left, with street rights of way surrounding them. The docking facility is located on Marin County property.

adrienne klein: I’ve got 4 slides to review the timeline of events. Starting in August 73, the 1,973 permit was issued to Commodore Marina, and not from it’s been amended. A total of 4 times

adrienne klein: in 74 permit recorded the restriction to dedicate the public access required by the permit and Marine County

adrienne klein: in 88 a permit was issued to Walter Landord for the helicopter operations, whereas the 73 permit pertains primarily to the activities on parcel 167,

adrienne klein: and in the wire.

adrienne klein: sometime before December Cove 3, an unauthorized fuel tank was installed in the yellow street right of way. plus parking and seaplane storage and repairs and areas reserved for public access

adrienne klein: some time before 2,008, and the unauthorized helicopter landing pad and fill for walkways was placed on parcel 164.

adrienne klein: During 3 separate occasions between. In the 2 thousands unauthorized expansions and repairs were made to the seaplane, doking facility.

adrienne klein: In 2,019 B. Cdc. Received the first of 2 reports of unauthorized activities at the site and conducted a site visit the following month just prior to the pandemic.

adrienne klein: We also issued a notice of violation to Commodore Marina and C. Plane adventures, notifying them of the report we’ve received, and outlining our understanding of the allegations at that time.

adrienne klein: After having conducted extensive file review between February and September, we issued second letter outlining the permits requirements. Our understanding of the onsite violations

adrienne klein: and providing recommendations, and how to resolve them.

adrienne klein: In 2,020 and 2,021 we received 3 letters from respondents form of Council, which provided some useful information, but none of which resolved any of the violations.

adrienne klein: We held. A meeting initiated by us virtual due to the pandemic in July 2,021,

adrienne klein: and selected the date of August thirtieth to receive

adrienne klein: an amendment application which is still a way to resolve the majority of the violations

adrienne klein: that same month ownership transferred of both privately owned parcels from Commodore to seaplane

adrienne klein: and no application was received by August the thirtieth, or even before October 2,021, on which date we issued a letter commencing a standardized fine clock, having not felt that by that time sufficient progress on voluntary resolution had been made

adrienne klein: our understanding of the violations in that at that time we we cited 5 violations in that letter.

adrienne klein: at the end of 2,021,

adrienne klein: we receive evidence that the houseboat remodeling project

adrienne klein: had been completed

adrienne klein: in January 2,022, we received 2 permit assignment violations. Also. That month we issued the Fourth Amendment to the 73 Permit.

adrienne klein: which fully resolved the unauthorized work

adrienne klein: occurring at the Marina between permanent expiration and issuance of a retroactive extension of time to complete the house but remodeling project.

adrienne klein: we received a permit applications, an abbreviated region-wide permit application, not a permit amendment application in February 2,028,

adrienne klein: and responded to that application at the end of March, in the middle of March, 2 weeks after receiving the permit. Application.

adrienne klein: Response! We received a report of unauthorized activities occurring at the site I the construction of a new water access ramp.

adrienne klein: This violation is considered very egregious, and the day after Vcd. Issued its first executive Director of Order to halt that work

adrienne klein: and require its removal and site restoration. That

adrienne klein: Ed order last for 90 days.

adrienne klein: and was there for re-issued twice.

adrienne klein: We, as I think I mentioned, responded to the application. In February, in March.

adrienne klein: in August of 2,022 3 paper violations had been resolved subject to, and we’re subject to standardized fines. We issued a letter

adrienne klein: asking for payment of the standardized fines.

adrienne klein: In July we issued a violation report and complaint for the 6 unresolved violations.

adrienne klein: We received a timely statement of defense and waiver of the requirement to have the hearing within 60 days.

adrienne klein: In September we re-issued the Ud. Order for a second time.

adrienne klein: and also a final notice requesting payment of the standardized fines to avoid commencement of a second formal enforcement proceeding.

adrienne klein: we held a failed Settlement Conference on October seventh.

adrienne klein: and issued a second complaint to resolve the 3 resolve violations in October.

adrienne klein: We also received a timely filed statement of defense for that complaint we had scheduled to hold these public hearings in December of 2,022,

adrienne klein: but postponed those hearings until today to request so to undertake some of the negotiations

adrienne klein: which took place during this winter, and unfortunately failed. That completes the timeline.

adrienne klein: and now summarize the 2 permits

adrienne klein: in the bay. The 1,973 permit authorizes fill placement for a bulkhead.

adrienne klein: This and that fill is shown in the smaller of the 2 hatched areas near the house.

adrienne klein: Fill placement on block 167

adrienne klein: yellow and Prepa streets for landscape, public access and landscaping to improve shoreline appearance. Construction of a berm around the Heliport landing pad on Block 164, and reconstruction of an existing 11 houseboat Marina

adrienne klein: in the shoreline band. The 73 permit authorizes placement of fill in the larger of the 2 hatched areas to raise the grade for project landscaping landscape, public access and auto circulation.

adrienne klein: And note that that filled area goes all the way back to the line of Bolina Street

adrienne klein: here.

adrienne klein: So these areas are to be used for public access.

adrienne klein: not private uses.

adrienne klein: The permit. Alpha also authorized office building, renovation for continued office use, construction of 17 parking places on parentheses. and much for all of the fill authorized to elevate the low-lying site has been washed away over time by frequent title inundation

adrienne klein: within the stippled area on this image

adrienne klein: the which is the dedicated public access area. The hermit requires an eighth foot wide, all weather pathway suitable for pedestrian and bicycle use leading from the Marin County Bike path

adrienne klein: along the site to the northeast edge of the property. The permit requires landscaping, parking for the general public.

adrienne klein: and, as mentioned, it should be used only for public access purposes and on the heliport pad for slight control purposes only.

adrienne klein: The 2 photos on the left show extensive erosion of and title inundation on the required public access pathway on perpetrators, and a failure to maintain the site to prevent or address these erosive conditions. The photo on the right shows the path near Yellow Street, and decent condition, but without any public sure signs.

adrienne klein: This first photo on the left

adrienne klein: is is looking from the bay back for the office building, and you can see the path is eroded to the point of being gone, and the tidal marsh vegetation is growing in as a result of the erosion of shoreline protection. Here that has not been maintained. The middle photo shows flooding

adrienne klein: and tidal mud brought in along the pathway surface.

adrienne klein: The 1,985 permit authorizes repair of a title, Flap gate.

adrienne klein: and in the shoreline band placement of aggregate to protect the heliport landing pad from flooding installation of a fuel. Storage, tank and fuel containment, area paving and fill placement.

adrienne klein: Both permits include commencement and completion. Dates, and though permits run with the land. They also require preparation of a permit assignment form to transfer the rights and obligations of each permit from the seller to the purchaser.

adrienne klein: I will now describe the 3 resolved violations relevant because they were subject to standardized fines that responded failed to pay. By October the 20 sixth, 2,022 for fitting its opportunity to resolve the penalties by paying 12,300 in standardized fines, and resulting in issuance of a complaint for penalties

adrienne klein: of a larger amount.

adrienne klein: Violations one and it one and 2, occurred between August 22,021, which is 30 days following the July 20, first 2,021 property purchase date.

adrienne klein: and January the sixth, 2,022. The date staff approved. The 2 permit assignment forms

adrienne klein: the fully executed permit. Assignment. Forms resulted in resolution of the violations on January the sixth, 2,022, but a crude standardized fines were not paid between August second

adrienne klein: and October 20 sixth

adrienne klein: violation, 3 occurred between August 30, first, 2,021, the date of expiration of the 1,973 permit. and January the 25, 2,022, the date of issuance of the Fourth Amendment to that permit

adrienne klein: that issue, and that amendment resulted in resolution of the violation, but a crude standardized fines were not paid also. Between August second and October the 20 sixth.

adrienne klein: I had plan to describe the unresolved violations, but I could now proceed to the defenses for these 3 resolve violations. That’s what you like me to do, Chair Gilmore.

Marie Gilmore, Chair: Yes, please.

adrienne klein: So the item 5 defenses for the 3 resolve violations. Our defense, one.

adrienne klein: The requirement to complete a permit assignment form at the time of property transfer is enforceable, and needs to happen as soon as possible after transfer. Respondent argues that because the permit condition does not include a due date, they never need to comply with it.

adrienne klein: They’re incorrect, and the complaint gives a 30 day grace period

adrienne klein: for penalty, assessment from the date of transfer to submittal and approval of the assignment form

adrienne klein: defense to, responded to, not provide to completed assignment forms, nor halt house, foot, remodeling work, nor submit a filed request to extend the permit. Completion. Date within 35 days of receiving the October 2,021 letter that initiated standardized fines

adrienne klein: by the time respondent had filed the compliant documents in January, the twentieth 2. They had a crude standardized fines. partial resolution of a violation within the 35 day. Grace period means that standardized fines will accrue and be owed

adrienne klein: defense 3 for 147 days, between August 30, first 21, the expiration date of the 1,973 permit

adrienne klein: in January 20 fifth, 2,022, the date of issuance of the Fourth Amendment that retroactively extended the completion date of that 73 permit

adrienne klein: responded conducted unauthorized hospital remodeling work. Responding clients at B. Cdc. Claims that the project was completed too late, i. E. After permit expiration, and too early before extending the completion date.

adrienne klein: Both conditions are true and respondent conducted unauthorized work

adrienne klein: defense for

adrienne klein: the penalty portion in a formal enforcement proceeding is from the date. The violation began to the date of resolution.

adrienne klein: whereas the penalty period in the standardized fine process commences upon issuance of the letter that starts a standardized fine clock to the date of resolution of the violation or violations.

adrienne klein: The standardized find time period is less than the total duration of each violation. and also includes a 35 day, great time, grace, time, period. Pardon me.

adrienne klein: therefore, the number of days responded, is subject to daily penalties, has changed from 87 to 136 days for the assignment violations, and from 109 to 147 days for the housebo. Remodeling and relocation project

adrienne klein: respondent falsely argues that the find should be dismissed, because staff lengthen the duration of each violation

adrienne klein: as noted, the actual duration of each, but of the 2 by of each of the 3 violations has not changed. but the day subject to administrative penalties, now covers the entire period of each violation

adrienne klein: defense. 5 responded incorrectly, argues that the issuance of the complaint 8 months after, Staff notified, responded that the violations had been resolved, increased the penalty.

adrienne klein: In fact, the timing favored respondent, giving them more time to resolve the penalty portion of the violations with standardized fines than if the complaint had been issued sooner.

adrienne klein: Defense. 6

adrienne klein: B. Cdc. Staff issued 3 letters pertaining to the standardized funds.

adrienne klein: first, in October the 21 that commences the standardized fine clock, second, in August, the 22 informing responded to pay the accrued $12,300 in standardized fines within 30 days.

adrienne klein: and third, in September.

adrienne klein: 2,022, a final warning letter to pay the standardized fines within 35 days of that September letter to avoid the commencement of a formal enforcement proceeding

adrienne klein: on October first, 2,022, the Cdc’s enforcement regulations were Updated

adrienne klein: citing these newly adopted regulations that were in applicable to the communications issued and procedures applied prior to their adoption, respondent falsely claims that it was improperly notice of its option to appeal standardized fines, and or never afforded a proper opportunity to appeal. The fines, and therefore that the complaint and associated find should be dismissed.

adrienne klein: responded, is incorrect, it was properly noticed, and penalties are appropriate.

adrienne klein: Defense. 7. The complaint meets the legal standards of the law and regulations. It cites the actions that constitute the Macintosh Petris, and permit violations, responded incorrectly, argues that the complaint fails to do so, and should therefore be dismissed.

adrienne klein: Defense 8. There is one owner of the property, and that single owner is responsible for resolving the unresolved violations and paying administrative penalties for them.

adrienne klein: Defense 9

adrienne klein: B Cdc. Permits run the land and respondent is responsible for the site conditions as they existed at time of transfer. Whether or not respond was aware of the inherited violations in Leslie Salt versus B. Cdc. The California Court of Appeals found that the Macintosh Petros Act holds landowners strictly liable for unauthorized fill, placed by third persons on their property.

adrienne klein: The court determined that strict liability and this is a quote is an appropriate and traditional consequence of the possession and controlled land, and more than justified because of important public policy objectives. The Mpa. Is designed to achieve end quote.

adrienne klein: therefore, respondents defense. That it’s not responsible for inherited violations is not substantiated and responded, has a legal obligation to resolve each of them.

adrienne klein: Further. Aaron, singer, owner, and operator of Se. Plane adventures, has been a constant figure at this site, formally as a tenant of Commodore Marina, and now as an owning partner of Se. Plane investment, Llc. As of July the 20 first, as shown in this slide, which lists his name in first position as a 21% interest owner.

adrienne klein: and also

adrienne klein: in this slide

adrienne klein: where he has signed for their building, and Lou Vasquez have at least one B. C. To see, permit and have knowledge of the B Cdc. Regulatory requirements.

adrienne klein: So the staff recommendation for these 3 resolved violations

adrienne klein: is to pay a $21,170 administrative civil penalty within 30 days of order issuance.

adrienne klein: That would be 2 5,440 penalties for 2 failures to provide a permit assignment form required by standard condition for C of the 73 permit, and for E of the 85 permit, between August 2,021 and January 3, 2,022, and a 10,290 penalty for failure to complete a House, but remodeling and relocation project

adrienne klein: prior to permit expiration and continuing work with an expired permit between August 21 and January the 22.

adrienne klein: And that concludes the item. 5. Presentation.

Marie Gilmore, Chair: Thank you, Adrian.

Marie Gilmore, Chair: Next, I’m going to invite the respondents, attorney, Miss Blanchard, to present your your side and I’m going to remind you of the time limit.

Marie Gilmore, Chair: and please stick to the relevant violations or the proposed order and pay particular attention to where their items and controversy.

Jillian Blanchard: Absolutely. Thank you very much. Commissioner Gilmour. committee members. I’ve been trying to share my screen

Jillian Blanchard: here.

Well.

Jillian Blanchard: and

Jillian Blanchard: there we go, and everyone see that.

Marie Gilmore, Chair: Yes.

Jillian Blanchard: okay, great.

Jillian Blanchard: I will get started. Okay? So as mentioned, I’m Jillian Blanchard with Rudder Law group, and I’ll be talking to you in this agenda. Item about the 3

Jillian Blanchard: resolved paper violations.

Jillian Blanchard: main points to keep in mind. I am going to try and focus on the areas of controversy. But there are a number of facts that we need clarified for the record that we believe the Commission would take into great consideration as would a reviewing court, so we’ll make them as clear as we can as fast as we can. Here.

Jillian Blanchard: Seaplane investments is a wholly separate entity from seaplane adventures. First and foremost, and they have been diligently trying to comply with what we view to be a moving ball of compliance since purchasing the property in July of 2,021. I note that a good deal of the timeline that was referenced before took place in advance of July of 2,021. I’ll cover that in the 6 violations, as you call them, professional Commissioner Gilmour, the physical violations that’s how I refer to them as well.

Jillian Blanchard: So the 3 allegations here have had 0 impact on the bay. They’ve been fully resolved for over a year and a half, and, as you all know, Commissioners Bcdc. Is not authorized to le levy either standardized fines or civil penalties for violations that did not take place. So it’s imperative at this, the very first opportunity to have seaplane investments rights adjudicated, that you commissioners look to determine whether any violations took place in the first instance.

Jillian Blanchard: I do not want to go into too much detail. Adrian provided a a lot of chronology. I’d like to highlight a few important dates that were missed in the timeline provided by B Cdc. Staff, first and foremost, on April sixteenth Vc. 2,021, before Se. Plane

Jillian Blanchard: investments took ownership B. Cdc. Issued its extension for the relocation of Houseboat Number 11 to Mr. Harold Huddleman, who owns the houseboat that was expired on August thirty-first.

Jillian Blanchard: and then in July, as as you’ve heard, seaplane investments took ownership. On August ninth.

Jillian Blanchard: Harold Hedleman, the same party who received the previous extension, requested another extension 3 weeks in advance of that deadline of August 30, first. Unfortunately, B. Cdc. Staff did not respond to that request.

Jillian Blanchard: The only response they did provide was on October eighth, 2,021, which this is a very important fact that can on the record. This is the first point of contact from BC. DC. 2 Se. Plane investments was on October the eighth, 2,021, and in that letter they suggested that the Household extension request was not valid, even though it had been submitted by the previous party who received the previous extension

Jillian Blanchard: from B Cdc.

Jillian Blanchard: On October. Here’s the most important date that staff may fail to mention in their presentation. On October 20, eighth, less than a month after receiving the very first notice from BC. DC.

Jillian Blanchard: So in 20 days seaplane investments ran around, got the permit assignment form from Mr. Price the previous owner, which was no mean feat.

Jillian Blanchard: and filed 2 permit assignment forms with BC. DC. One for the 1,985, permit one for the 1,973 permit. Within 20 days. They also filed pictures showing the household relocation as complete, and asked what additional retroactive authorization they might need, because they had already filed an extension request. On August ninth

Jillian Blanchard: there was a request for additional information from Bcdc. Staff. Additional paperwork in the form of an operating agreement. And notably, it’s it’s interesting just mentioning something that Staff just brought up. This idea that Mr. Singer has such a big role to play in se plane investments. In fact, BC. DC. Did not accept Aaron Singer’s signature on the Permit assignment form and asked one of the things that went back and forth between October and December of 2,022,

Jillian Blanchard: was the request to have Mr. Vasquez Lou Vasquez signed the permit assignment form because Mr. Singer owns 4 of the Se. Plane investments. Llc. What you were looking at was an Llc. Operating agreement related to a management company that is partial owner. You don’t want to get into the weeds there, but the point being that Lou Vasquez is the managing member.

Jillian Blanchard: and then it was all resolved on January sixth, according to BC. DC. And then also importantly, on January 20, fifth B. C. DC. This is really critical. They issued the after the fact authorization for the household relocation, and made it retroactive to the very valid August ninth. Heddleman request.

Jillian Blanchard: The rest of these chronology is in the statement of defense.

Jillian Blanchard: I just want to highlight here the august second letter Nowhere in that letter is the word appeal used, which is a requirement for adequate notice. It is not.

Jillian Blanchard: They were not notified that they had the opportunity to appeal these underlying violations, nor that an appeal period would be closed if they did not respond, making an appeal request.

Jillian Blanchard: The remaining quota chronology is here as well, but I want to just highlight a couple of things that become relevant, not just for these 3 violations, but for the 6 violations that we’ll be talking about in a minute, which is the very, very confusing communication between BC. DC. And C plain investments. During this time

Jillian Blanchard: they received this July violation report at the end of July

Jillian Blanchard: that did not include any of these 3 paper violations. 4 days later they got the august second letter, saying, now that standardized fines were due for 3 different violations, they were under the same enforcement number, without any reference to the July violation report.

Jillian Blanchard: and then, while they’re busy filing their statement of defense, their previous practitioner, Mr. John Sharp, filed the statement of defense, but he was confused as to whether or not it was covering everything or not, and he specifically reserved the right in that statement of defense to file additional evidence because he was getting conflicting messages from Staff.

Jillian Blanchard: Indeed, on September sixth B. Cdc’s Enforcement manager, Mr. Trashilo contacted Mr. Sharp, and asked them to delay the hearing to reach a resolution for all 9 violations. So here se plane investments feels like they’re getting. They’re moving forward with some form of settlement, recognizing that they maybe need to file additional evidence if things aren’t resolved. And in the midst of that they receive a final warning letter related to the 3 violations.

Jillian Blanchard: So it was highly confusing, and I have to admit myself, even working with B. C. DC. And over 20 years productively with your staff. I was highly confused by these communication between

Jillian Blanchard: Se. Plane and B Cdc. As to whether they were working with them on permitting whether they were issuing violations, whether they were related to 6 violations or 3 violations, whether they were delaying a hearing, whether an appeal period was closing, it was really really complicated, and yet we tried it earnest to work with staff on a settlement, because this

Jillian Blanchard: property owner is the first property owner that Pcdc. Has probably seen in decades that really wants compliance on this site. That is a primary objective for seaplane investments. As Miss Klein mentioned, Lou Vasquez is a managing member, and he is very familiar with what needs to be done. He’s helped to build a seventeen-eighter park on the waterfront in South San Francisco, and he only wants to improve the public access here as well.

Jillian Blanchard: But we’re repeatedly being diverted to defend seaplane investments rights by these violations. So let’s look at the violations because, rather than being able to reach a settlement that might have involved some fines here

Jillian Blanchard: we now are being forced to adjudicate the rights to say, did a violation occur? And when you review, as you know, commissioners, whether a permit condition was violated, actual permit. Language is key.

Jillian Blanchard: Here is the 1,985 actual permit language related to the assignment of permits. The very first sentence is what you need to read. The rights derived from this amended permit are assignable.

Jillian Blanchard: This is a permissive allowance only. It is not an affirmative duty on either Mr. Price, the permitee or

Jillian Blanchard: se plain investments, the permit, the transferring.

Jillian Blanchard: however, we recognize the value in need for permits to run with the land, which is another one of the requirements, and we also recognize as someone who works with you a lot that of course, you’ve revised this language in the permits that you issue today. You’ve made it really clear that assignment is required with it a certain period of time, and it’s because these conditions were permissive only, and they were unclear.

Jillian Blanchard: So we are not, as staff suggest, saying that assignment is not necessary. We are only saying that the language in this permit does not justify an actual violation having occurred.

Jillian Blanchard: and the most important piece to understand is that

Jillian Blanchard: even if this had been required, seaplane investments filed a permit assignment form within 20 days of receiving its very first notice from Bcdc.

Jillian Blanchard: They’re not saying it wasn’t required. They’re not even trying not to comply. They did their due diligence to try and comply. Within 20 days. Bcd. She asked for additional information they filed that if additional information and things were resolved on January the third, but that cannot be levied as an actual violation based on this permit condition language, but seaplane investments is being charged over for an act for no actual violation.

Jillian Blanchard: Very similarly, when you look at the permit from 1,973. Again.

Jillian Blanchard: the Commission, as you know, and a reviewing court, will look directly at this permit. Condition. Language to see. Was there an actual violation. That’s what it is, matters here in adjudicating these rights.

Jillian Blanchard: And here we will acknowledge this is a much more affirmative

Jillian Blanchard: condition, in that it at least says that assignment is absolutely required. And again, for the record, I want to be clear. Se plane investments has never claimed that they are not going to accept, permit assignment. In fact, they worked quickly to make it happen.

Jillian Blanchard: All we are saying is that the language here does not justify an assessment of fines or penalties.

Jillian Blanchard: because what happened for the 73 permit.

Jillian Blanchard: While this is an affirmative requirement, there is absolutely nowhere written that there is a 30 day deadline within which the permit assignment must be completed.

Jillian Blanchard: It just doesn’t exist. And, as you know, Commissioner Staff does not authorize to add in language into the perfect conditions themselves.

Jillian Blanchard: So

Jillian Blanchard: also, importantly, a permit assignment form was filed within 20 days of receiving the first notice. So permanent assignment is complete. There’s no violation there as soon as permit assignment was done. Actually.

Jillian Blanchard: seaplane investments as we’ll talk about in the next hearing immediately filed a permit application to address what they saw and understood to be any potential feature on the property that required after the fact authorization. So they are in no way suggesting that they don’t need to comply. In fact, all they want to do is compliance. They’re just constantly being battered by unlawful violations.

Jillian Blanchard: Here they were being charged 5,000.

Jillian Blanchard: I want to talk really quickly about the household violation, although I mentioned it a bit. The chronology, because we believe that the August ninth Household extension request that Bcd. She never responded to is a critical piece of missing information in their timeline.

Jillian Blanchard: It was a valid request, said, 3 weeks before the expiration date. They were in the middle of completing the House Bill construction, and, as you know, it can cause additional impacts to the bay to stop a construction project like that that is pretty small. That can be done quickly, that

Jillian Blanchard: waiting for Bcdc. Staff to respond. We understand that staff is extraordinarily busy, which is why we give one another grace when I work with permitting Staff a lot on these things, which is why we’re so surprised that there is such an aggressive stance being taken on this House boat violation, and the the report says that there’s been a failure to request an extension that is patently false, and it’s proven by Bcdc’s own correspondence, in which they issued a household extension

Jillian Blanchard: retroactive back to this very valid August ninth request. and for this they’re being charged over $10,000.

Jillian Blanchard: We also want to note the previous honor Mr. Price received. 3 different houseboat authorizations could not complete the project. In over 5 years.

Jillian Blanchard: Seaplane investments took charge of the property and completed the project within months, and then asked, had filed the valid extension request and work things out with Bcdc. Within months, and then filed a very valid permit application for what it believed to be unauthorized features which we’ll talk about

Jillian Blanchard: in the next hearing. So 2 min remaining. Thank you. I will tell you that unlawful issuance of fines cannot be supported by the Commission or by a reviewing court, and courts would look very harshly on the fact that there are unclean hands in this case and that B. C. DC. Delayed

Jillian Blanchard: the response to the houseboat extension request.

Jillian Blanchard: Due process concerns are key here. Nowhere in any of the correspondence is the word appeal used, or being told that a window would be closing. Instead, they were told that you can have your rights adjudicated in enforcement hearing, and they asked. They were asked to delay that hearing, and this is the first time they’re having the right to adjudicate the underlying violations.

Jillian Blanchard: These are some of the claims that are made in the recommended Enforcement decision that we want to have clarified for the record respondent was not slow to complete paperwork that’s false and provable in the record. On October eighth, from the first notice they received from Bcdc. They responded in 20 days, and then they repeatedly responded to an additional information request reaching resolution on January third. The nature and extent of the harm caused is minor.

Jillian Blanchard: I want to just say quickly, we see a very clear solution here

Jillian Blanchard: fairly adjudicate seaplanes rights.

Jillian Blanchard: These permit conditions weren’t violated. So you must dismiss these. But work with us on compliance and improvements in the 6 Violations, because that is all se plane investments is looking for here fair adjudication, fairness, and due process and a public policy of promoting compliance and protecting bay resources. Because you have a willing property owner who, for the first time in decades can bring this site into compliance.

Jillian Blanchard: 20 s.

Jillian Blanchard: Thank you. The only thing I want to note in the timing is that Miss Klein was not cut off at a certain time she went farther than 15 min. However, I am done. I’ll take any of your questions, and I very much appreciate your time.

Marie Gilmore, Chair: Thank you.

Marie Gilmore, Chair: All right committee members. I’m sure there are questions. Who wants to go first?

Marie Gilmore, Chair: Anybody.

Marie Gilmore, Chair: Commissioner Eisen.

Rebecca Eisen, Commissioner: So

Rebecca Eisen, Commissioner: I just want to understand,

Rebecca Eisen, Commissioner: what Miss Blanchard just said about

Rebecca Eisen, Commissioner:  that one and 2

Rebecca Eisen, Commissioner: fines, or.

Rebecca Eisen, Commissioner: if I understand it, our position is that

Rebecca Eisen, Commissioner: the owner should have 5. The new owner should have filed a permit assignment

Rebecca Eisen, Commissioner: and that because

Rebecca Eisen, Commissioner: the language of the permits did not specifically say that that must be done within 30 days, it was permissible for the permit assignment to be filed after 30 days. Is that

Rebecca Eisen, Commissioner: is that a fair summary of what your defense is.

Jillian Blanchard: if I May Commissioner is in. Thank you for your question. it’s essentially a fair assessment. What it is. What we’re saying is that permit assignment is important and necessary, and in the case of the 73 assignment it was required. But nowhere in either of the 2 permits does it say that it must be completed within 30 days, and since purpose permit, assignment was completed within months of transfer of ownership. There is no underlying violation here.

Rebecca Eisen, Commissioner: Okay, good. I think I did understand that. And so then my next question Adrian, the what I think I just heard is that we did not respond at all to this.

Rebecca Eisen, Commissioner: trying to keep on my day straight this August ninth  It’s a request for an extension that that was ignored, but later acknowledged in the January 20 fifth

Rebecca Eisen, Commissioner: 2,022 documents

Rebecca Eisen, Commissioner: where we retroactively allowed for the extension back to August ninth, 2,021. Can you just clarify whether or not. We did respond to that. August ninth, 2,021.

Rebecca Eisen, Commissioner: Request for an extension.

adrienne klein:  I don’t recall that was not work that I did.

adrienne klein: I I don’t agree with. Miss Blanchard, B. Cdc. Included

adrienne klein: a copy of the Regulations

adrienne klein: outlining the appeal process, and it’s October eighth letter. So Miss Blanchard stated that she was not notified of the appeal procedures under the regulations that’s not accurate. She herself stated that the paperwork submitted within 35 days was incomplete, and did not comply with the assignment requirements, and was later submitted.

adrienne klein: we take a different position. That the assignment there was more than 30 day granted. There was time prior to issuance of that October eighth, 2,021 letter, and we didn’t receive a voluntarily submitted assignment form. We only started to receive that paperwork after we commence standardized fines.

adrienne klein: I believe, although I’m not a hundred percent sure that Miss Blanchard may be conflating the third amendment with the Fourth Amendment for the extension of time to complete the House Code project. It was very protracted.

adrienne klein: but I believe that the fourth request was extended, and staff

adrienne klein: appears to have made a mistake and issued the Third Amendment to the House vote owner, not the operator. But that was corrected with the fourth amendment.

Rebecca Eisen, Commissioner: Okay?

Rebecca Eisen, Commissioner: I’m not sure. I’m not sure I understand yet.

Rebecca Eisen, Commissioner: The

Rebecca Eisen, Commissioner: the position I think Miss Blanchard took was that there was a specific request for an extension on August ninth, 2,021 that we did not respond to until

Rebecca Eisen, Commissioner: much, much later.

Rebecca Eisen, Commissioner: That’s what I’m trying to learn. Did is that an accurate statement.

Rebecca Eisen, Commissioner: I’m sorry I don’t know the answer. At this moment I would have to pull up the violation report and look at the record. Okay.

Marie Gilmore, Chair: anybody else have other questions.

John Vasquez, Commissioner: This is a John.

John Vasquez, Commissioner: This is a lot of stuff to go through.

Marie Gilmore, Chair: Yeah.

John Vasquez, Commissioner: You know, it’s almost like. who do we believe in fairness to to both sides. I would certainly like a little more opportunity to think about all this, and at least

John Vasquez, Commissioner: you know, cause the questions are now coming up, and I’m not even sure how to ask the question.

Yeah.

Marie Gilmore, Chair: fair enough.

Marie Gilmore, Chair: I I have a question for staff. somebody. I forget whether it was this Blanchard

Marie Gilmore, Chair: said something about this goes back to the assignment. I think, Adrian, you said that there was an incomplete assignment. and then it didn’t get resolved until January.

Marie Gilmore, Chair: Okay, so can you walk me through the steps of the incomplete assignment? What was wrong with it? Because my recollection is that?

Marie Gilmore, Chair: They attempted to file the paperwork

Marie Gilmore, Chair: for the assignment within the same month that they got the letter.

Marie Gilmore, Chair: So what can you found on the circumstances around the incomplete assignment.

adrienne klein: Sure.

adrienne klein: there is a form

adrienne klein: that ideally seller and purchase are both complete.

adrienne klein: and in addition to that, that form was submitted within the 35 days of October eighth. But what we didn’t receive until sometime later was the operating agreement, the ownership interest

adrienne klein: that was necessary as part of the documentation to affirm

adrienne klein: who was the new owner.

adrienne klein: So that documentation is almost more important than the form itself.

Marie Gilmore, Chair: Got it? Okay? So so you were missing. So they actually signed the assignment form, and then later realized that they needed to submit or staff told them that they needed to submit an operating agreement, and that was not submitted.

Marie Gilmore, Chair: until, let’s say January or late December.

adrienne klein: Correct. But we did inform respondent that both

adrienne klein: piece, both in in both pieces of information were necessary to fully comply with the permit requirement that was outlined in the October eighth letter.

Marie Gilmore, Chair: Okay? All right.

Marie Gilmore, Chair: And then the houseboat.

Marie Gilmore, Chair: So we’ve got, I guess the owner of the house boat

Marie Gilmore, Chair: asking for a permit extension before the permit expired.

Marie Gilmore, Chair: Right?

Marie Gilmore, Chair: There’s nothing in the record as to what happened to that request. the permit expires at the end of August. and

Marie Gilmore, Chair: what the expectation was that the owners should have stopped work on the house boat.

Marie Gilmore, Chair: but they didn’t.

Marie Gilmore, Chair: They went on and completed the project, and then, some time later.

Marie Gilmore, Chair: asked for a permit extension.

It

Marie Gilmore, Chair: is that correct?

Marie Gilmore, Chair: Okay. So so the question that I have is. if the permit was going to expire at the end of August

Marie Gilmore, Chair: and the new permit retroactively approve the work.

Marie Gilmore, Chair: Why didn’t the new permit

Marie Gilmore, Chair: go back to the date when the old permit would have expired, but instead, it goes back to the date

Marie Gilmore, Chair: when there was a request for a permit extension.

adrienne klein: I did not make that decision.

adrienne klein:  I think the relevant point here not to get lost in the weeds is that

adrienne klein: the permit? He failed to apply in advance a permit expiration for an extension of completion. Time continued work with an expired permit.

adrienne klein: and completed the project with an expired permit. B. Cdc. Did respond in a favor by issuing a retroactive approval to grant an extension of completion time.

adrienne klein: and the only reason that finds a crude is because that all took place more slowly than the 35 days after October eighth, 2,021.

Marie Gilmore, Chair: Am I the only one here who has a problem with the fact that

Marie Gilmore, Chair: the person doing the construction

Marie Gilmore, Chair: attempted to apply for a permit before the permit expired. I mean I I I clearly they were in the wrong. For once the permit expired. Continuing the work, I get that.

Marie Gilmore, Chair: But if they asked 3 weeks before the permit expired, and there was.

Marie Gilmore, Chair: for whatever reason, no response from BC. DC.

Marie Gilmore, Chair: Am I the only one who has a problem? With that

Rebecca Eisen, Commissioner: you are not

Marie Gilmore, Chair:  Commissioner is in

Rebecca Eisen, Commissioner: I I have a question and I know we can’t get into details about it. But I gather there were settlement discussions.

Rebecca Eisen, Commissioner: and were there separate discussions on the 3 resolved issues and a different settlement discussion on the 6 unresolved? Or was there one whole

Rebecca Eisen, Commissioner: discussion about all 9 of them which didn’t resolve all the issues. And therefore.

Rebecca Eisen, Commissioner:  we’re. We’re here at this hearing rather than back in settlement to discussions.

Rebecca Eisen, Commissioner: because it seems to me that the issue of the 3 resolved violations should be easily settled. You know reasonable minds can come together on that. If

Rebecca Eisen, Commissioner: if, in fact, they were

Rebecca Eisen, Commissioner: maybe not on the 6 unresolved. We haven’t heard anything about that yet, but at least as to those 3, you would think that some resolution could be reached. I just don’t know if an effort was made

Rebecca Eisen, Commissioner: to separate them in that way.

Jillian Blanchard: Commissioner. Gilmore may respond to that.

Jillian Blanchard: please. Okay, absolutely, Commissioner Eisen. They were treated as one whole to try and resolve. The entire thing that is all se plane investments has been wanting to do is to reach a a settlement that won’t cause bankruptcy, but will allow compliance on the site. So if, without divulging a privilege settlement confront conversations, of course I can tell you that we were. even though we believe these fines to be on unauthorized, we were willing to agree to a certain amount of fines

Jillian Blanchard: in the whole, to be able to resolve all of the violations and to move forward on on the focus of compliance.

Jillian Blanchard: Unfortunately, staff it, we don’t need to get into the details, but we were unable to reach a number that that was sufficient for staff.

Marie Gilmore, Chair: Thank you.

Matthew Trujillo, Enforcement Policy Manager: and I can. I can speak to again. I don’t.

Matthew Trujillo, Enforcement Policy Manager: I need to be very careful about getting into the details. But to I guess the second part of question is question.  well, yes, we. We did attempt to tackle the entire issue and resolve the entire case just being one case with 2 different components.

Matthew Trujillo, Enforcement Policy Manager:  Even within those discussions there was a discussion about how to address the standardized find issue.

Matthew Trujillo, Enforcement Policy Manager: discretely.

Marie Gilmore, Chair: Okay, thank you. any other Commissioner comments.

Sanjay Ranchod, Commissioner: It’s on a different aspect of the you know the issues here, but in the and

Sanjay Ranchod, Commissioner: Commissioner chair. Gomer, you said earlier we weren’t going to consider

Sanjay Ranchod, Commissioner: material that was submitted late. that there’s some numbers that they only received this morning. Actually.

Sanjay Ranchod, Commissioner: but there was a reference in there to the financial standing of

Sanjay Ranchod, Commissioner: yeah, let’s let’s not get into that

Sanjay Ranchod, Commissioner: information in the record

Sanjay Ranchod, Commissioner: prior to any new new submittal by

Sanjay Ranchod, Commissioner: by responding and there to counsel here about the financial standing of see planned investment policy.

Marie Gilmore, Chair: My recollection and somebody can correct me. Was that There was

Marie Gilmore, Chair: not financial information other than the stated that they would not have an ability to pay the fines.

Marie Gilmore, Chair: It was a statement

adrienne klein: that is correct.

Jillian Blanchard: May I address that point just to clarify, see an effect?

Marie Gilmore, Chair: yes, be very careful about your

Jillian Blanchard: May 25 to middle, because that’s not coming in. I. 100 acknowledged that We did submit the profit and law statement. 2 staff.

Jillian Blanchard: That was that again attached to the May 20, fifth, that we’re not talking about. But that profit and law statement should be in the record.

Sanjay Ranchod, Commissioner: When do you believe that was something?

Jillian Blanchard: It was between December and March in discussions with Staff?

Marie Gilmore, Chair: Oh, wait a minute. So that was part of the settlement negotiations.

Jillian Blanchard: but it was not confidential. It was made public.

Marie Gilmore, Chair: Okay, thank you for that.

adrienne klein: But that would be late submitted evidence.

Marie Gilmore, Chair: This is true. All right

Marie Gilmore, Chair: Commissioner. Discussions.

Marie Gilmore, Chair: I oh, sherry, please.

Shari B. Posner, CA Dept. of Justice: I’m not sure. I just want to remind you that about the public part of the hearing, and I don’t know if you want to do deliberations or

Marie Gilmore, Chair: thank you for that very timely reminder. Okay, before we get to deliberations. Are there any public comments

Marie Gilmore, Chair: here, Gilmore. No public comments.

Marie Gilmore, Chair: Okay, actually sorry about that. There’s one

Margie Malan, BCDC HOST: Nick. It would.

nikki wood: Hi, My name is Nicky Wood, and I’ve been 3 min. Okay. I’ve been a resident Marin for 20 years, and I own a business here.

nikki wood: If you enforce this order you’ll be in some sort of seed plane operations to rip out an essential safety feature and essentially close down.

nikki wood: I mean, see planes. It’s one of the only sea plane operations of its kind on the West coast, and it’s been around since 1947.

nikki wood: It promotes recreation over the bay and brings tourism down to the county.

nikki wood: The property owners are going to comply so why would you charge them excess of fines that will prevent them from complying? That that’s like the opposite of your mission.

nikki wood: It will hurt their resources and the public trust and recreation on the day

nikki wood: the the the owner didn’t cause any violation, so why are they being treated like they did?

nikki wood: I support the dismissal of all violations, and urge the Commission to work on permitting, on a permitting approach, the property owner, who by all accounts, wants to work with the B. C. DC. To comply.

nikki wood: That’s it. Thank you.

Margie Malan, BCDC HOST: Thank you very much.

Marie Gilmore, Chair: Okay, And Margie, just for the record, can you? I just want to state that we have received numerous written public comments. on this item as well as the next item, and they have been posted to the BC, DC website. So I’m just trying to make

Marie Gilmore, Chair: our court reporter’s job a little easier. John.

Margie Malan, BCDC HOST: we have one more public comment.

Marie Gilmore, Chair: Oh, okay, hang on, John.

Marie Gilmore, Chair: go ahead

Margie Malan, BCDC HOST: and your public wait.

andrew wait: Yup! Hi! My name is Andrew. Wait I’ve been a marine resident for about 30 years in a barrier for 40 years, and

andrew wait: you know I do appreciate the Commission’s mission. I’m a happy, grateful user of the bay, and I’ve seen over the last 40 years huge improvements in the environmental state of the bay.

andrew wait:  I’m trying to resolve 2 things in my mind. Number one is.

andrew wait: the the bay isn’t being damaged by any of this huge amount of time, energy, and money is being spent

andrew wait: on something. That sort of isn’t direct alignment with the mission of this of of of your organization.

andrew wait: But what I also see and I’ve seen it for 30 years now is a pattern of harassment for this particular business.

andrew wait: Usually there’s a kind of a dark organization in the background that I understand like Edge. Come law like I don’t know what who they are or what their goal is other than to get these guys shut down. So I appreciate what you’re trying to do. But listening to this process, it feels to me like there’s everyone will be served by negotiating a good faith.

andrew wait: by getting off of this weirdness of semantics, replacing or repairing that that ramp, and to some degree some recognition that all small businesses that we rely on for the quality of our community are fragile financially, and throwing huge 6 figure fines at them

andrew wait: is damaging to everything. For example, they contribute about 170,000 to local and and and state budgets, and a productive employer or 15 people

andrew wait: and our net plus for our community. So I think anything you guys can do to realign with your mission and with the support of an organization that’s been around in good faith, providing a great service 45 years is is what everybody wants out of this. Thank you.

Margie Malan, BCDC HOST: Thank you very much, Tia Gomer, that’s all we have.

Marie Gilmore, Chair: Okay, thank you, Margie John. I think I saw you with your hand up.

John Vasquez, Commissioner: Yes.

John Vasquez, Commissioner: just a a question. There. I’m sorry to sherry

John Vasquez, Commissioner: if we were to postpone the action and set another hearing date and ask everybody to go back and maybe put their thinking caps on.

John Vasquez, Commissioner: Could that information that was being requested to be part of the record? Could it come back to us at that time?

Shari B. Posner, CA Dept. of Justice: so I think there’s no way to. Actually, if you’re asking me, could you quote, continue the hearing and leave it open? I don’t think you can.

Shari B. Posner, CA Dept. of Justice: You could send it back to the staff to try and work things out.

Shari B. Posner, CA Dept. of Justice: and if they can’t work things out, come back in terms of

Shari B. Posner, CA Dept. of Justice: in terms of evidence. I do think it would still be considered late

Shari B. Posner, CA Dept. of Justice: evidence. Obviously, it’s certainly that stuff that could be considered if there were settlement discussions which is a sort of different animal than the Enforcement hearing procedures. Did that make sense? Yes, it does. Thank you.

Marie Gilmore, Chair:  committee members. I I I have to tell you I am feeling

Marie Gilmore, Chair: uncomfortable about some of this particularly the House vote issue.

Marie Gilmore, Chair:  yeah.

Marie Gilmore, Chair: Oh.

Marie Gilmore, Chair: Ms, Klein.

adrienne klein: thank you. Chair Gilmore. I was

adrienne klein: taking a moment to look at the record relating to that issue. So I have the

adrienne klein: let me lower my hand. Here. I have the extensions of time fold up, so

adrienne klein: I I don’t understand the the the concern that’s being raised by Miss Blanchard. we issued 2.

adrienne klein: Is there an allegation that there’s a gap in time? So each time extension states it. It’s issued on a certain date, and it states the new completion date of the permit.

adrienne klein: And

adrienne klein: yeah, I’m just unclear on what the issue is, we extended the completion day,

adrienne klein: from August 30, first, 2021

adrienne klein:  to October 30, first, 2021.

Marie Gilmore, Chair: Okay, well, so I I will talk about where my issue is. My issue with that is.

Marie Gilmore, Chair: if indeed, the owner of the house boat had a plot, had applied for a permit extension before the permit actually expired.

Marie Gilmore, Chair: and had B. C. DC.

Marie Gilmore, Chair: Either work well, had worked on it and and extended the permit that the amount of timing for the fines would not have been as long, or there may not have been any fines if the permit had been extended before the original permit expired that that that’s my problem.

adrienne klein: Well, my recollection is that that initial?

adrienne klein: So we didn’t include that record as part of this complaint. We included the extensions of time. Looking forward.

Marie Gilmore, Chair: it would have been an incomplete complaint, and we would have responded with the additional information that was required, and we wouldn’t have received it, and work would have continued past the expiration date with an unfiled application. Wait, wait, wait back up your you! You just confuse me.

Marie Gilmore, Chair: Say that again and say it slowly

adrienne klein: again. I’m going from memory. I’m not looking at the record, but normally

adrienne klein: applicants don’t submit a filed application on the first go round. They make the request, and usually something is missing, and we will let them know what that is. And once we get

adrienne klein: the remainder of the information. We’re able to file and act on the request. So

adrienne klein: perhaps we didn’t get a fee associated with that request for an extension of time.

adrienne klein: I I again. I don’t have that information in front of me.

Marie Gilmore, Chair: so I think the conjecture here is

Marie Gilmore, Chair: the request for the extension of time on August eighth or ninth or whatever it was, was incomplete.

Marie Gilmore, Chair: and then, at some point in time in the future it became complete, and Staff acted on it, and then retroactively

Marie Gilmore, Chair: extended the permit.

Marie Gilmore, Chair: But I think everybody agrees here that work should have stopped once the permit expired, and it didn’t.

Marie Gilmore, Chair: Okay

Marie Gilmore, Chair: this, Blanchard.

Jillian Blanchard: Thank you. Chair Gilmour. I just want to correct for the record, because I have the exhibits to the violation report handy in front of me. There was no request after the August ninth

Jillian Blanchard: extension request. There was no subsequent notification from Bcdc. To the either Mr. Hettleman or Se. Plane investments, or Mr. Price the permit at the time to say that that was inaccurate.

Jillian Blanchard: it is not a B Cdc. Commission, of course, you know, is not authorized to levy a violation for a conjecture as to whether or not we could have resolved that violation. We were not given the opportunity to resolve any concerns about that houseboat extension request, and there was no additional information filed in October or November to further support that August ninth request that all that was filed were pictures to show that the construction had been completed. That’s all on the record

Jillian Blanchard: for folks to see, and it was on only until January 20 fifth that staff then retroactively approved that authorization back to August ninth. But no additional corrections were made to that extension request.

Marie Gilmore, Chair: Miss Klein.

adrienne klein: Thank you.

adrienne klein: You will recall that we did not receive the operating agreement until December or January, and that operating agreement was a document that was necessary not only for the permit assignment, but also to file this

adrienne klein: fourth request for an extension of completion time

adrienne klein: as complete. So until we receive that the application was incomplete, and we did notify, respondent that this documentation was necessary and missing to file the application is complete.

Marie Gilmore, Chair: Thank you. I don’t want to go back and forth, but I’d love to clarify that. Wait! Hold on sherry, Posner, please.

Shari B. Posner, CA Dept. of Justice: Thank you. Chair Gilmour. I just wanted to ask that whoever speaking particularly either the Staff, Pcdc. Staff, or the respondent to pre say the full date of whatever they’re talking about, I mean month and year at least, because this does cover arcs over numerous years, and

Shari B. Posner, CA Dept. of Justice: for sake of the record it’s confusing if someone says December and January, and you don’t know what what years are straddling.

Marie Gilmore, Chair: Thank you, Commissioner Eisen. I thought I saw you with your hand up.

Rebecca Eisen, Commissioner: Yeah, I was gonna say, I feel,

Rebecca Eisen, Commissioner: similarly, about this issue to Commissioner Vasquez. I I feel like I could ask more coherent and competent questions if I had.

Rebecca Eisen, Commissioner: I I think timelines are extraordinarily helpful, and I appreciate the 2 timelines that we’ve seen.

Rebecca Eisen, Commissioner: but having an integrated timeline that the parties can indicate what they agree on and what they don’t agree on for us to study between now and maybe a continued hearing date.

Rebecca Eisen, Commissioner: so that we can really hone in on the

Rebecca Eisen, Commissioner: as you put it. Originally the disputed issues as opposed to the undisputed issues. So, for example, I know that the ownership changed, or I think I heard that the ownership changed on July 21,

Rebecca Eisen, Commissioner: 21, I think.

Rebecca Eisen, Commissioner: July 21, 2,021 but that something else occurred on in July 2,021, I think Adrienne mentioned that that the Bcd. She asked for a meeting to discuss the Permit amendment, so I’m not sure where those 2 dates fit visa v. Each other. So having some kind of a integrated timeline

Rebecca Eisen, Commissioner: that both sides could work on together and indicate their areas of dispute also might facilitate

Rebecca Eisen, Commissioner: conversation that could lead to a resolution a resolution or a more

Rebecca Eisen, Commissioner: coherent hearing either of which would be better than where we sit today. I think.

Marie Gilmore, Chair: Yeah,

Marie Gilmore, Chair: sherry.

Shari B. Posner, CA Dept. of Justice: I just want to remind the committee and the chair that I don’t think there’s a way to leave the hearing open.

Shari B. Posner, CA Dept. of Justice: so the options are are the, you know, to

Shari B. Posner, CA Dept. of Justice: either. Send it back and see if there can come back if there’s no ability to resolve it. but I I’m not sure otherwise it comes back for a new hearing, I guess, is what I’m saying. I I I think that the the the options are basically what are listed at the end of the recommended enforcement decision

Shari B. Posner, CA Dept. of Justice: to accept or the recommended decision to decline the recommended decision or to accept it with some conditions. if they

Shari B. Posner, CA Dept. of Justice: Enforcement Committee decides that they feel like this is something that parties could try to work on to resolve. I know in the past that’s happened in other proceedings, and that seems like that’s another. That’s another option. I just wanted to clarify that.

Marie Gilmore, Chair: No, I I appreciate that actually. And

Marie Gilmore, Chair: okay, this is gonna sound.

Marie Gilmore, Chair: So on this item.

Marie Gilmore, Chair: and also on the next item which we haven’t even begun to discuss.

Marie Gilmore, Chair:  I I think my preference would be one

Marie Gilmore, Chair:  to send the parties back

Marie Gilmore, Chair: to see if they could work out some sort of a settlement on that.

Marie Gilmore, Chair: If the settlement negotiations fail. If I heard Sherry correctly, then it comes back as a new hearing.  but

Marie Gilmore, Chair: a. And if it does come back I think Rebecca’s suggestion of the timeline

Marie Gilmore, Chair: that

Marie Gilmore, Chair: the parties could work on with areas of agreement or actually just disagreement, would be very helpful to this committee. The other question that I have for sherry is that if this, if we send it back to staff

Marie Gilmore, Chair: and settlement, negotiations fail, and it comes back as a new hearing.

Shari B. Posner, CA Dept. of Justice: The record is still the record that we have here today. Is that correct? That’s correct.

Marie Gilmore, Chair: Okay. alright, thank you. So that’s sort of what I’m thinking about. What? What do you committee members think

Rebecca Eisen, Commissioner: I like it.

John Vasquez, Commissioner: John. I see your hand up. I’m sorry.

John Vasquez, Commissioner: and we know if we’re not really clear.

John Vasquez, Commissioner: our recommendations will have concerns, and we push it forward to the entire commission. The generally they’re going to be so confused. And we’ve seen a couple of them. They’ve come back 3 times.

John Vasquez, Commissioner: actually voted as a Commissioner not to send it back to us, because I thought we done the work.

John Vasquez, Commissioner: I I would like to be very confident and clear about any decision I would. I want to move forward. So I I I think I agree with you in that if if we sent it back

John Vasquez, Commissioner: and bring it back as a new a new hearing, that would be the best.

Marie Gilmore, Chair: Okay, thank you. Sanjay.

Sanjay Ranchod, Commissioner:  yeah, I was gonna say that

Sanjay Ranchod, Commissioner: the record for this is pretty voluminous.

Sanjay Ranchod, Commissioner:  even for Somebody who’s an attorney. this is difficult to comprehend and piece together, especially when there appear to still be disputed

Sanjay Ranchod, Commissioner: aspects of the facts.

Sanjay Ranchod, Commissioner: So I I think to the extent that

Sanjay Ranchod, Commissioner:  We asked the parties to resume discussions, to try to resolve these.

Sanjay Ranchod, Commissioner: these issues. It would be helpful if there can be agreement on a statement of facts and a comprehensive timeline, so that everybody’s

Sanjay Ranchod, Commissioner: clear about what occurred when

Sanjay Ranchod, Commissioner: and try to narrow the issues in dispute and focus on

Sanjay Ranchod, Commissioner: those allegations where they’re really has been demonstrable.

Sanjay Ranchod, Commissioner: impact.

Sanjay Ranchod, Commissioner: I I do want to say I I can tell that Staff has done a tremendous amount of work on these matters, and it is confusing, and the timeline dates back beyond when current folks were involved in many instances. So that makes it difficult.

Sanjay Ranchod, Commissioner: And I appreciate all the time that’s gone into this and working this up for the committee’s consideration today. So I I

Sanjay Ranchod, Commissioner: I know people have been working hard on this and

Sanjay Ranchod, Commissioner: I appreciate the intent of both sides to try to reach an agreement here. So that’s not always the case.

Sanjay Ranchod, Commissioner: When we have enforcement matters. sometimes it’s it’s not clear that

Sanjay Ranchod, Commissioner:  that the respondent is interested in

Sanjay Ranchod, Commissioner: and ultimately remeding this situation in and doing right by

Sanjay Ranchod, Commissioner: what we need for the bay, so I I think I would support your direction. Share. Go more to

Sanjay Ranchod, Commissioner: as the parties to continue to work on this, and see if they can narrow the issues at least narrow the issues, even if they’re not able to fully resolve them. So that

Sanjay Ranchod, Commissioner: when it comes back to this committee. We can

Sanjay Ranchod, Commissioner:  be more clear about

Sanjay Ranchod, Commissioner: what? What? We feel comfortable and confident in recommending to the full commission.

Marie Gilmore, Chair: Thank you, Sanjay. I appreciate that. And and I don’t want Staff to think that

Marie Gilmore, Chair: are sending it back means that you did not prepare an adequate record. because I think you guys did an incredible amount of work on it. And it shows.

Marie Gilmore, Chair: I think, the problem that we’re having here is that staff works with this day in and day out, and it’s like a second language to you.

Marie Gilmore, Chair: It’s not to us. and that makes it very, very difficult. And I think

Marie Gilmore, Chair: John was right when he made the comment about

Marie Gilmore, Chair:  If if

Marie Gilmore, Chair: if we’re having this much trouble trying to piece together what’s going on. it’s gonna be twice as bad before the entire Commission.

Marie Gilmore, Chair: and I would really want to be in the position that whatever this committee recommends to the full Commission we can stand behind it and explain why we did what we did. Because people are going to want to know.

Marie Gilmore, Chair: Brent.

Brent Plater: thank you for that. It’s very helpful advice on how we can present this and make it more clear for you, and I’ll also for the Commission one possible additional way we can do that is perhaps narrow the areas for these 3 violations that we need to discuss with the respondent. I. What I am hearing so far is that the the committee members have concerns about violation 3

Brent Plater: which deals with the House vote remodeling, and the possibility that there was some potentially some delay in B Cdc. Responding to a application for a extension of time for their permit.

Brent Plater: but I have not heard the same concerns for the violation. One in violation. 2. That’s for the 2 violations where the permit assignment form for the 2 different permits that apply in this case.

Brent Plater: did not, were not submitted to us in a timely fashion. I thought that Adrian had addressed the concerns initially raised by explaining how we need both a signature and also some evidence to document that the person signing the form is, in fact, authorized to make that representation on behalf of the the new owners.

Brent Plater: so if that if that’s the case, then perhaps those 2 violations can be resolved today, and the third one can can return for additional consideration. if that’s not the case, if there’s some additional clarity that you need us to provide on those 2 violations, that would be a welcome welcome instruction.

Marie Gilmore, Chair: Okay, Rebecca.

Rebecca Eisen, Commissioner: yeah, I I do have questions about one and 2. That’s why I asked the I asked the whether the argument

Rebecca Eisen, Commissioner: was that the permit language itself is not clear as to what exactly is needed when there is a transfer of ownership

Rebecca Eisen, Commissioner: and that it

Rebecca Eisen, Commissioner: it is certainly is not clear about how much time needs to elapse between when the ownership transfers and that new permit amendment is is filed. So I

Rebecca Eisen, Commissioner: I do have questions about that. Whether that can be

Rebecca Eisen, Commissioner: clarified. It doesn’t. It’s not so much a timeline question, or as a interpretation of the Permit language. I think that what was pointed out to us is that the language in terms of the transfer is different in the 2 permits that are before us.

Rebecca Eisen, Commissioner: and that the second one is clearer than the first, but

Rebecca Eisen, Commissioner: or maybe it was the first one that was clear in the second. But but it neither of them say you have x number of days?

Rebecca Eisen, Commissioner: and if the staff said to the owner, now that now that there’s a change in ownership, you have X days to do this, and they didn’t do it within that timeframe. That’s another. that’s another

Rebecca Eisen, Commissioner: matter. But if they were supposed to know from reading the permit that they had 30 days, that the permit doesn’t, in fact. have that language in it. So I do have some questions about those things that maybe could get

Rebecca Eisen, Commissioner: clarified or resolved or narrowed down. in a conversation between the parties.

Brent Plater: That’s very helpful, Commissioner is in, and if I may just to let you know how we have been thinking about it, so that we can further narrow down the next steps. to make sure that we, you understand how we were thinking about it, and you can give us some additional direction as needed. as we read these assignment requirements in these permits.

Brent Plater: they do not have a date that says you must do it within X number of days after the transfer occurs, and so that could be read in one of 2 ways, it could be read to. Well, it can. You can do it when you get around to it as the new owner, which is more or less what we hear from the respondent at the moment. we did in a couple of months. That should be good enough.

Brent Plater: or the other way you can read about it is that it applies immediately that as soon as the transfer occurs without the the assignment form being submitted, it’s a violation immediately. Right? Those are the those are the boundaries of how you could think about it.

Brent Plater: And so what we did in this case, and trying to calculate those violations was split. That difference where we said, All right, if you count the permit assignment form as being that permit assignment term is being violated immediately upon transfer, without submission of the form. but then give them 30 days for free. This is why, in the calculation we subtracted 30 days from the totality

Brent Plater: to give them a reasonable amount of time to come into compliance with that requirement, then we calculate the penalty that way, sort of to build in some some accommodation, for the

Brent Plater: you know. Most the most likely scenario is that people won’t do that immediately upon transfer it. Something that’s going to come out through subsequent disclosures or something like that.

Brent Plater: So that’s how we’ve been thinking about. It is to, you know, essentially

Brent Plater: approach the penalty. Calculation on a daily basis in that way. because the alternative, which is, you know, is too amorphous that we’ll always have this debate where you know any subsequent

Brent Plater: return of an assignment form will be arguably consistent with a provision that just has no date, and therefore it can be whatever the respondent thinks is the appropriate time.

Marie Gilmore, Chair: Okay, Adrian.

adrienne klein: thank you. Joe Gilmore.

adrienne klein:  just wanted to remind you that

adrienne klein: permits. Never submit an appeal of the standardized finds for these 3 resolved violations, or responded, never submitted an appeal. All of these arguments could have been made and considered by the Executive Director and the Commission chair. It’s part of an appeal of the standardized find. That process was completely unavailed of

adrienne klein: property transfer took place on July 20, first, in the year of 2,021. As everyone is aware, Staff did not issue our letter starting standardized fines

adrienne klein: July, August, September, October, until almost 3 months later October early October of the year 2,021.

adrienne klein: The burden, I would say so. The no due diligence call was made to be Cdc. A time of transfer, or prior to transfer to

adrienne klein: ask for a a, a compliance status on the permits, although we were actively engaged in enforcing the violations.

adrienne klein: so

adrienne klein: when we issued the October letter starting the clock respondent. And and I’ve looked at that October letter today, and we clearly outlined the documentation. And that’s in your record complaint exhibit, I believe, to D, or E or F.

adrienne klein: We. We specifically outline the documentation required to complete the assignment process in very clear details, Commissioner, is in that. Not all of the details are included in our permit conditions. But we. That’s why we’re here. This. That’s what we do. As the staff. We answer all those questions.

adrienne klein: Miss Blanchard mentioned that, you know Staff is here to serve the permitees and the public, and that is what we do we? We don’t want to bring items before you. We do everything we can to prevent coming to this stage.

adrienne klein: So I think those are the points I wanted to make.

Marie Gilmore, Chair: Okay, Miss Blanchard.

Jillian Blanchard: thank you very much, Commissioner Chair. I just wanted to clarify a couple of quick points. if it’s helpful. The the notion of splitting the difference with respect to the 30 day requirement. It is requirement under the law that the language be in the permit condition staff is not authorized to write that in.

Jillian Blanchard: But, more importantly, it is very much the case that all of your permits coming out of your staff permitting analyst staff today does include a very clear 30 day requirement. In fact, I’ll be coming before you next month with a permit. that will be reviewed that has a very clear permit assignment clause that has a 30 day requirement and is very clear about what needs to be filed and the

Jillian Blanchard: permit assignment form that was filed with staff. On October 20 eighth, was signed by a member of the Llc. Who is authorized to sign on behalf of the Llc. Bcd. He asked for an operating agreement which we timely provided to establish that. But the permit assignment form

Jillian Blanchard: was filed within 20 days, and the operating agreement was filed within a couple of weeks after that, when we learned that they wanted additional information. And the only other point I want to make in consideration of this is that C. Plane is trying to comply. They might need, as Miss Client said, they need guidance from staff to figure out, okay, what exact documents are we looking for? Because it’s not in the condition.

Jillian Blanchard: But the other piece to keep in mind is that there are 2 parties they needed to get the signed form from Mr. Price.

Jillian Blanchard: and Mr. Price is not mentioned anywhere in any of these violations.

Jillian Blanchard: and he, ostensibly, according to Staff, had the same affirmative duty to complete a permit assignment form.

Jillian Blanchard: that’s all. I wanted to add. Thank you.

Marie Gilmore, Chair: Okay. Anybody else have anything that they want to say. Oh, Sanjay.

Sanjay Ranchod, Commissioner: Just following up on this point about the assignment forms, so

Sanjay Ranchod, Commissioner: Can somebody clarify for me? What was the incomplete aspect of the assignment forms

Sanjay Ranchod, Commissioner: at the point that they were actually submitted for the first time.

Marie Gilmore, Chair: Adrian.

adrienne klein: the documentation showing

Sanjay Ranchod, Commissioner: it it is that in so the operating agreement was not submitted with the

Sanjay Ranchod, Commissioner: with the forms, and then that was subsequently provided a couple of weeks later, as

Sanjay Ranchod, Commissioner: council is

Sanjay Ranchod, Commissioner: just stated

adrienne klein: weeks or more. I have to look at my timeline, but it was provided subsequently, and after standardized fines after the 35 day Grace period had run run.

Matthew Trujillo, Enforcement Policy Manager: they, they resolved their violation on January third, 2,022 2 executed permanent assignment forms and the executed operating agreement.

Matthew Trujillo, Enforcement Policy Manager: and by then they had a crude

Matthew Trujillo, Enforcement Policy Manager: to standardize fines of

Matthew Trujillo, Enforcement Policy Manager: Well, 3,000 each for violations, one and 2, according to the the

Matthew Trujillo, Enforcement Policy Manager: the letter that we had sent asking for standardized fine, stated October second, 2,022. I mean, sorry. August second, 2,022.

Marie Gilmore, Chair: Okay, I have a question about permit amendments. So let’s say, somebody had a permit in 1,975 to build a dock.

Marie Gilmore, Chair: and they come to us again, and they want to amend the permit because they need to do repairs and enlarge the dock.

Marie Gilmore, Chair: Okay.

Marie Gilmore, Chair: the attorney. We want to know what what does that look like? Do you attach the original permit? And then the amendment is

Marie Gilmore, Chair: specifically to

Marie Gilmore, Chair: what it is they want to do, I mean, or does the amendment give you an opportunity to go back and clean up language

adrienne klein: both.

Marie Gilmore, Chair: So we just issue to permit.

Marie Gilmore, Chair: And what was it?

Marie Gilmore, Chair: January? Well, actually late 2,022, and I think in early 2,023,

Marie Gilmore, Chair: and we left in the same language

Marie Gilmore, Chair: about timing and and of assignments and things.

adrienne klein: okay, I I’ve got it, Commissioner Gilmore.

adrienne klein: We haven’t issued an amendment in 2,023, just to be clear. So the fourth amendment, extending the completion. Time for the houseboat project was early.

adrienne klein: was in the month of January, in the year of 2,022. No amendments has been issue since then, when we issue mostly, as you all know, when we issue amendments, we update the Inline Body text of the amendment. However, when we issue extensions of commencement and completion time, we issue a separate document. So it is

adrienne klein: a permit amendment, but it’s not in one, and therefore no changes to the existing permit language take place. We only change the start or completion date whatever has been requested, and we make clear what that changes, and then, the next time we do a substantial update to the permit

adrienne klein: we incorporate that I

Matthew Trujillo, Enforcement Policy Manager: that extension of completion time in this case to be specific.

this applies only to

Matthew Trujillo, Enforcement Policy Manager: this timeline, and that’s it. There is no to answer your question, no copy attached to the full permit. It is a simple statement.

Marie Gilmore, Chair: Thank you. That was that was very helpful.

Marie Gilmore, Chair: And see once again. This is you guys deal with this every day, and you would never think to ask yourself that question. But

Marie Gilmore, Chair: we don’t. And so I wanted to know what it looks like.

Marie Gilmore, Chair: okay, so let’s move on. Anybody have anything else to

Marie Gilmore, Chair: say.

adrienne klein: May I just point you to exhibit

adrienne klein: 2 B, C, d, and E of the complaint, and on my screen, those are on pages

adrienne klein: 40 through 44 about.

Marie Gilmore, Chair: Okay. Why don’t you keep talking while we try to put them up? If that would be helpful? That would be very helpful.

adrienne klein: Okay.

adrienne klein: so I could go up and show you the back end of the 1,973 permit. So I’m just showing you the back of it. Now you can see all this underlying text

Marie Gilmore, Chair:  struck through an underlying, we’re in the standard condition section this would have been removed.

adrienne klein: text newly added text the standing text would not have been outlined.

Marie Gilmore, Chair: Got it? And then

adrienne klein: here is the second extension of completion time.

adrienne klein: So it’s a stand alone. Communication, and the same is true for

adrienne klein: the corrected Second Amendment. the Third Amendment and the First Amendment.

Marie Gilmore, Chair: Great. Thank you. That was very helpful.

Marie Gilmore, Chair: And I thought I saw before you start sharing your screen that John had his hand up.

John Vasquez, Commissioner: Thank you. I’m still a little confused about not having a timeline.

John Vasquez, Commissioner: I mean. you said that we assume there’s the 30 day grace period. How does the applicant know that?

Brent Plater: Oh, so I I should. Maybe I misspoke on the assumption, you know. So the

Brent Plater: the the terms and conditions in the permit. for a variety of reasons often aren’t up to date the most standard version that we have in the in our permitting department.

Brent Plater: but the the 30 days grace period, essentially, that we applied in this case for calculating penalties was to make it consonant with this process we have for this updated process we have for getting these assignment forms in. So we were making it consistent with Bcd’s existing practice. by eliminating those extra 30 days of penalties when we made this penalty calculation. So there’s a column in the violation report and complaint that

Brent Plater: establishes that there are 136 days of violations, which with and it spells out how it subtracts the 30 days following acquisition of the property to help explicate that for for you And the record that we’ve had in the communications with the respondents is also we’ve been. We’ve been reflecting that throughout the entire

Brent Plater: process that this has been an ongoing concern, including the the portion, the time period, that we were trying to resolve it uniformly through the standardized fine process.

Marie Gilmore, Chair: Can I just jump in here for a second? I’m not sure I heard the answer to John’s question. I think he’s talking about in the original instance.

Marie Gilmore, Chair: right before the assignment is filed. Staff has this expectation that you’re going to complete the assignment within 30 days.

Brent Plater: But how would the applicant know that, or or the new, the new purchaser of the property? How? How would they know that? Where would they find out that information? So I as I, as I read our permits, and you know I I would appreciate your direction on this, but as I read these terms.

Brent Plater: I read them as saying, it’s required immediately. as you as you are selling the property to another person, you need to be processing these

Brent Plater: these forms along with the sale and submitting them to be Cdc, right? We don’t read them as saying you have the permit gives you an extra 30 days to do this or anything like that. It’s it, it it’s all it’s required immediately. Right now, what we do provide when they come in to, so to request the the forms, or to find out how they actually do. This

Brent Plater: is on those forms. We have a form that says, you know, submit the signature, the documentation 30 days to do it on that form. And so, when we were

Brent Plater: none of that happened in this case, like we are doing everything after the fact, and so to ensure. We weren’t providing additional penalties beyond what would have been imposed had they actually complied with the existing procedures that have these built in timeframes in them. We just subtracted 30 days from the total number of violations, so we wouldn’t have to argue about whether that was unduly pet unduly penalizing the respondents in this case to give them a a similar kind of

process.

Brent Plater: so yeah, that’s that’s how we read it. We we read this term, I think, and I think that’s similar with how we re read most permit terms. If there is no date specified, it’s due immediately, not whenever they want to get to it.

Brent Plater: Those are really the the 2 options. And if it’s the and I think that’s consistent with how we’ve read Bcd’s permits from from all kinds of terms and conditions that are that specify

Brent Plater: requirements without deadlines attached to them.

Matthew Trujillo, Enforcement Policy Manager: And I I would I would like to add something to that explanation, if I may.

Matthew Trujillo, Enforcement Policy Manager: it is a hundred percent correct, but kind of moving on from that. When it comes to this idea around this specific

Matthew Trujillo, Enforcement Policy Manager: instance of violation. when it was determined that

Matthew Trujillo, Enforcement Policy Manager: this was a violation, they didn’t comply with the the at least the spirit of the of the permit. We sent out the 35 day letter and the 35 day letter is just that it gives a respondents. Notice that within 35 days they need to take corrective action, to correct a violation of a permit. The law, what have you?

Matthew Trujillo, Enforcement Policy Manager: And if you can do that within 35 days. then you will not be charged a fine.

Matthew Trujillo, Enforcement Policy Manager: So that letter was set. stating that very say thing. On October 8, 2021 It went into great detail as to what they needed to do to resolve this violation, to correct this problem, those identified. And they had 35 days as they. You know, it’s built into the regulations. It’s a grace period, I call it

Matthew Trujillo, Enforcement Policy Manager: to provide us that before finds even kicked in

Matthew Trujillo, Enforcement Policy Manager: when they fail to do that within the 35 days They racked up a fine.

Matthew Trujillo, Enforcement Policy Manager: a standard, fine as outlined in in in the letter, but also outlined in the regulations, and when they were failed, or when they refused to pay that standardized fine.

Matthew Trujillo, Enforcement Policy Manager: Then we had to issue the violation report and complaint which essentially takes the the matter out of the 35 Day letter kind of territory takes it out of the standardized by and territories, and now becomes part of

Matthew Trujillo, Enforcement Policy Manager: a violation that we, like any other violation that that is part of the in order where we apply the standard of you know, laid out in the back to your Petris act  but in terms of notice they had

Matthew Trujillo, Enforcement Policy Manager: plenty of notice to get this done. They had a period of not just 30, but 35 days. To resolve this. They didn’t do it in the 35 days when they finally did do it. It wasn’t the fines hadn’t maxed out. They had not provided.

Matthew Trujillo, Enforcement Policy Manager: and then they refused to pay the fine. Sorry they had racked up a fine of, as I mentioned before, $3,000 per violation, which is standard because of the date that the the the Re. The violation, was ultimately resolved, and they refused to pay that.

Matthew Trujillo, Enforcement Policy Manager: And that’s why we’re here. Because when somebody refuses to pay a standardized fine. We have to collect through an order.

Matthew Trujillo, Enforcement Policy Manager: That’s what this is.

Marie Gilmore, Chair: Okay. Thank you.

Marie Gilmore, Chair: Rebecca.

Rebecca Eisen, Commissioner: Okay, I just want to be

Rebecca Eisen, Commissioner: clear and understanding what Brent and Matthew just said. So. The ownership on this property changed on July 2120, 21.

Rebecca Eisen, Commissioner: So I think what you’re saying, Brand, is that what we would expect is that this assignment be filed?

Rebecca Eisen, Commissioner: Essentially, then? July 2120, 21

Rebecca Eisen, Commissioner:  and it wasn’t. And we ultimately sent a letter on October 8, 2021, saying, you have 35 days to get this

Rebecca Eisen, Commissioner:  permit assignment

Rebecca Eisen, Commissioner: completed, and this is what you need to put in it to make sure it’s completed. And then, in that 35 days following October eighth, 2,021, those documents were not filed

Rebecca Eisen, Commissioner: correct, since they were not filed within the 35 days we go back to where we could have filed that we could have started running the penalties, and that made the start date on the penalties

Rebecca Eisen, Commissioner: 30 days after July 2120, 21, when the ownership changed. So on August 31 the penalties began to accrue because they were didn’t take advantage of the 35,

Rebecca Eisen, Commissioner: you know. get out of jail free card that we gave them. Is that

Matthew Trujillo, Enforcement Policy Manager: up up to the point where? I believe, said we go back to. So how the standardized fine work is? It’s it’s broken out into kind of spans of days. So at day 36, because 35 days of the grace period at day 36 finds kick in between day 36, and say, day, I think 60.

Matthew Trujillo, Enforcement Policy Manager: There’s a set of fine, and then between 60 and 90 or 95, there’s another set, 5, and then, after a hundred 25 days.

Matthew Trujillo, Enforcement Policy Manager:  then we are able to abandon the standardized fine process and take them forward. We did not do that. We gave them.

Matthew Trujillo, Enforcement Policy Manager: In fact, we didn’t have to, because they were able to settle it all by January third, which put them, I believe, in the 60 day range, and that’s how we assess the fine of $3,000, because that’s what the regulation set. So we sent them a letter. Go ahead.

adrienne klein: Just just tell me what the start date is they find that we’re assessing, what is the yeah. 30 days after July 20, first year, 2,021. So we one question or or adjustment I would make to how you phrase that last piece that you said Commissioner Eisen, was that

adrienne klein: it’s not that they accrued. It’s that we were following the provisions of the law that outlines that there should be penalties for each day. A violation occurs for persists, and we knocked off 30 days.

adrienne klein: and started and and calculated the duration of that violation at which we assessed, I believe, a daily penalty of $40, which, ironically, is possibly less than at the

adrienne klein: the per day. Penalty

adrienne klein: for the standardized clients period. But the duration is longer, so the total comes out higher.

Rebecca Eisen, Commissioner: So 831, 21 is the start date that we are calculating the penalties from.

Brent Plater: I believe it’s ever take a day.

Brent Plater: August 2020, 21, which is 30 days after, by 2120, 21,

Rebecca Eisen, Commissioner: the date they acquired the property. Okay, okay.

Marie Gilmore, Chair: Miss Blanchard.

Jillian Blanchard: Yes, I I appreciate the conversation and the attempts to to clarify the facts. I’d like to just make a couple things clear that I’ve just looked up in the record. And, by the way, I I commiserate with you, Commissioners, on how confusing the timeline is, because it was very confusing to see plain investments in trying to comply.

Jillian Blanchard: one. There was issue with Mr. Player, saying that these are implied requirements, as I’m sure you know, Commissioners, it’s unlawful to Levy finds on implied requirements. But more importantly, this suggestion that Se. Plane was not trying to comply in earnest or did not comply. An artist

Jillian Blanchard: is not correct. The October 20 Eighth Submittal included, assigned permit assignment form to which I have in my records, and can share this with you, Miss Klein responded, saying you needed to provide the operating agreement as well which Mr. Sharp, their previous council provided on November first, within the 35 day period. So if that was the big concern it was complied with.

Jillian Blanchard: So then? They asked. They reviewed the operating agreement, took them some time to do that, and then they asked to have someone else sign the permit assignment form, which is B. Cdc’s prerogative. But it’s not something that should be levied against se plane investments who is trying to diligently comply.

Jillian Blanchard: In January we received emails to say everything was absolutely resolved, and it was not until August, after the concern about the Se. Plane ramp that we received a letter saying the standardized finds would now apply

Jillian Blanchard: when we thought they were completely resolved. The other piece I want to add in here is this question about whether or not the appeal period closed. even if they had been given adequate notice, which they had not. The word appeal was never included in the notifications

Jillian Blanchard: they, Mr. Truhilo, had called Mr. Sharp, and asked him the beginning of September during this appeal period. to wave the hearing requirement, to work out resolutions. So if you’re a rational practitioner trying to defend your respondent. You might think, okay, great. We’ll work out settlement. There’s no reason to file some sort of reservation for an appeal here.

Jillian Blanchard: It’s very understandable that nothing additional what was filed because there was request to wave the enforcement hearing where such rights would be adjudicated. These are just important facts that I want to make sure are in your consideration as we work through these things. But we’re very happy to work out a statement of facts with B Cdc staff that you can review if that would be helpful.

Marie Gilmore, Chair: that would be very helpful.

Marie Gilmore, Chair: okay, so I I get the sense we’re going to have to make a motion on this one is to

Marie Gilmore, Chair:  send the matter

Marie Gilmore, Chair: to staff for settlement talks in. If that is not successful, then it comes back to us with exactly the record that we have today.

Marie Gilmore, Chair: and we have requested a a mutual timeline

Marie Gilmore, Chair: and we want

Marie Gilmore, Chair: the issued issues.

Marie Gilmore, Chair: of disagreement narrowed down and and and specific. So we could. We could hone in on those specific issues. But I leave anything out.

Marie Gilmore, Chair: John.

John Vasquez, Commissioner: It is this one just for for 5.

John Vasquez, Commissioner: Yeah, I’m I’m gonna make. I’m gonna make the same motion for 6. But I think I have to open the public hearing for that one. So

Rebecca Eisen, Commissioner: Rebecca. And I think it’s also important for us to have some discussion on 6, because if we have the same motion for 6. I think it will be helpful to staff and respond, and to know what our issues are on 6

Marie Gilmore, Chair: as well. Exactly, exactly.

Marie Gilmore, Chair: All right. So I guess I’ll make that motion to somebody. Wanna second it.

Marie Gilmore, Chair: Okay, Rebecca, second in that and we are going to have to take a a roll call vote so, Margie.

John Cota: can someone recite the motion? We’re getting on.

John Cota: madam Chair. Could you try to be as concise as you can as to what

John Cota: your motion actually is. I know it’s difficult, but it it would help me out tremendously. Thank you.

Marie Gilmore, Chair: Okay. Sending the matter back to staff and respondents to conduct

Marie Gilmore, Chair: to see if they can resolve the issues.

Marie Gilmore, Chair: If that fails. it comes back to us

Marie Gilmore, Chair: with exactly

Marie Gilmore, Chair: the evidence before us today. No new evidence.  the parties are going to. I guess the word is negotiate or stipulate a timeline

Marie Gilmore, Chair: and they are going to narrow down issues of disagreement.

John Cota: and that motion was seconded by Commissioner Eisen.

Marie Gilmore, Chair: Yes, yes, thank you so much.

Marie Gilmore, Chair: Okay, Margie.

Margie Malan, BCDC HOST: Information, or is it?

Rebecca Eisen, Commissioner: Yes.

John Vasquez, Commissioner: Commissioner, best guess

Margie Malan, BCDC HOST: Commissioner Rancho.

Sanjay Ranchod, Commissioner: Yes.

Margie Malan, BCDC HOST: Tia Gilmore.

Marie Gilmore, Chair: Yes.

Marie Gilmore, Chair: okay, thank you very much. That was, item 5.

Marie Gilmore, Chair: All right.

Marie Gilmore, Chair: now, we’re on to item number 6,

Marie Gilmore, Chair: which is a public hearing and a vote on a recommended enforcement decision to adopt a proposed cease and assist civil penalty. Order, Ccd. 23.0 0 2.0 0 to address the permit violations and unauthorized development in the bay and 100 foot shoreline ban jurisdictions

Marie Gilmore, Chair: at 24 sorry 242 redwood highway frontage road mill valley in Marin County, and vote whether to adopt a recommended Enforcement decision proposed by the Executive Director.

Marie Gilmore, Chair: which includes a proposed season to this civil penalty. Order to require remedial actions at the site and payment of a hundred $80,000 in administrative liability.

Marie Gilmore, Chair: The record for this matter includes the violation report and complaint responded statement of defense, the recommended Enforcement decision and proposed order and all other items identified by BC. DC. Regulation

Marie Gilmore, Chair: 1, 1, 3, 7, 0

Marie Gilmore, Chair: and just for the record.

Marie Gilmore, Chair: will the representative for the respondent. Please identify yourself and your relationship to the respondent. Thank you.

Jillian Blanchard: Certainly. good afternoon, Commissioner. Chair and committee members. This is Gillian Blanchard, with rudder log group representing se plane investments, Llc. For item Number 6. I also have with me Lou Vasquez and Valley Richland to managing members of the seaplane investment site.

Marie Gilmore, Chair: Okay? do we think that we can do the presentations in 15 min, Miss Blanchard.

Marie Gilmore, Chair: for this one

Jillian Blanchard: I would love to tell you. Yes, but there is a lot here, as you might imagine. I can do my level best. But there is a lot of contested issues to cover.

Marie Gilmore, Chair: Okay, let’s let’s start with 20. Miss Klein, you get 20 also.

Marie Gilmore, Chair:  and I’m going to ask you once again, both sides to limit the presentations to the evidence that’s already made part of the Enforcement record and the policy implications of that evidence, and I’m going to now invite principal enforcement analysts Adrian Klein to give her presentation, which is going to summarize the violation Report. The complaint and recommended Enforcement decision.

Marie Gilmore, Chair:  yes, pardon me, but Sherry has her hand up.

Marie Gilmore, Chair: Oh, I’m sorry I can’t see it. sherry.

Shari B. Posner, CA Dept. of Justice: Hi, chair, Gomer, I just wanted to make sure we’re now.

Shari B. Posner, CA Dept. of Justice: The meeting was scheduled for one to 3 or 3 15, and I’m just concerned about whether or not you’ll be able to have complete what you’re trying to complete

Shari B. Posner, CA Dept. of Justice: and not end up with a half of a hearing. I realized there could be a result that was similar to the in the first hearing, but nonetheless I I don’t know what. If you know how long your corn will last.

Shari B. Posner, CA Dept. of Justice: I guess, is what I’m asking.

Marie Gilmore, Chair: That is a very good question. Does anybody have Commission members committee members? I’m sorry. Does anybody have time limits?

John Vasquez, Commissioner: This is John. I do. I have to leave it for.

Marie Gilmore, Chair: Okay, anybody else.

Sanjay Ranchod, Commissioner: I have a hard stop at 3, 45. I’m sorry.

Marie Gilmore, Chair: That’s okay. So we will be losing forum.

Marie Gilmore, Chair: sherry. What do you suggest? We do?

Shari B. Posner, CA Dept. of Justice:  I I again. I don’t believe there’s any really provision in the regulations for having half a hearing are continuing at open hearing. So

Shari B. Posner, CA Dept. of Justice: I guess

Shari B. Posner, CA Dept. of Justice: he did probably best to continue the hearing, but I don’t see why you couldn’t do that with direction to

Shari B. Posner, CA Dept. of Justice:  whatever direction the

Shari B. Posner, CA Dept. of Justice: the body would like to give to the parties on when this matter comes back.

Shari B. Posner, CA Dept. of Justice: I it just seems to me that there’s be very unlikely. It sounds like there could be close to an hour of presentation. So and that does me include questions, public comment, deliberations. So sorry about that.

Marie Gilmore, Chair: Oh, good point! so we could continue this and have it come back

Marie Gilmore, Chair: to do what we just did with with item 5. Because I I think it’s going to be helpful for Staff and see this. This is difficult, though, because if we continue this

Marie Gilmore, Chair: staff.

Marie Gilmore, Chair: I I think it’ll be difficult for both sides to enter into robust discussions because they will not have had our input on this.

Marie Gilmore, Chair: But maybe I’m wrong. does the staff or the respondents. Attorney want to weigh in on that?

adrienne klein: Oh, apologies! More than 10 ish minutes. I just have to summarize the 6 violations, the defenses, and the rebuttals.

Marie Gilmore, Chair: Miss Blanchard.

Marie Gilmore, Chair: Oh, she already said, she’s okay. Never mind. Brent.

Brent Plater: I just do want to note that we have tried to resolve this once before, so we have some sense of where the difficulties will lie in trying a second time.

Brent Plater: so you know, I wouldn’t say that I’m particularly hopeful that the outcome would be any different. But perhaps there’ll be a way in between that we can at least put together some something that helps helps the committee members understand more precisely which issues are, in fact, contested and relevant to the arguments we’re presenting to you.

Marie Gilmore, Chair: So I take that to mean that you are in favor of continuing this item to another date.

Brent Plater: Is that what I’m hearing?

Brent Plater: you know we could schedule the A follow up?

Brent Plater: you know, with some time built into try and build some some clarity between the

Brent Plater: the the staff and the respondent on the specific facts that we agree upon and how to isolate the issues more concretely for you.

Marie Gilmore, Chair: Well, I I would suggest that you

Marie Gilmore, Chair: that you follow the blueprint that we laid out in the last item. You know the Consolidated lot timeline and the greed state and agreed upon statement of facts.

Marie Gilmore, Chair:  Miss Blanchard.

Jillian Blanchard: Yeah, I just want to flag for the record. I want to make sure that se plane investments rights are fairly adjudicated. I definitely hear the time constraints and respect that significantly, and I appreciate you taking the time already.

Jillian Blanchard: I don’t feel as pessimistic as Mr. Plater about the opportunity to discuss with particularly Mr. Sharp, some for settlement. so I think if the Commissioners were able to give us some direction on certain things that might be helpful, one in particular that we’d like some direction on because our complaint, as you’ll you’d hear, is really, with respect to

Jillian Blanchard: unauthorized fines. We have absolutely no problem with permit compliance, timelines for compliance, and everything that is required to bring that site into compliance. I just want that to be very, very clear. So if the direction from the Commission could be 2 staff, that that is the focus, instead of potentially bankrupting a small company with unauthorized finds when they didn’t commit any of these violations

Jillian Blanchard: that would absolutely move the needle. And let us work towards a very clear opportunity for compliance that would protect Bay resources.

Marie Gilmore, Chair: That is a very lawyer like statement.

Marie Gilmore, Chair: I commend you.

Marie Gilmore, Chair: Matthew.

Matthew Trujillo, Enforcement Policy Manager: yeah, I just wanted to lend my support to. I guess Brett’s position, and I think that the continuance is

Matthew Trujillo, Enforcement Policy Manager: Best? And and given the circumstances

Marie Gilmore, Chair: okay share.

Shari B. Posner, CA Dept. of Justice: I was. Gonna say, I think tier Gil more. It’d be helpful that if because we’ve sort of introduced the item. So I think if you want to make a motion similar to the motion, I mean, I realize there may be more discussion when the time comes, and saying, Let’s there should be a motion.

Marie Gilmore, Chair: Yeah, yeah, yeah. I I figured I’m just trying to

Marie Gilmore, Chair: kind of get a sense of of what staff want some next steps before I make a motion.

Marie Gilmore, Chair: John.

John Vasquez, Commissioner: So this question is, sh! So we’ve started to discuss. Item 6. But we haven’t opened the public hearing yet.

John Vasquez, Commissioner: I don’t think so.

Marie Gilmore, Chair: not yet.

John Vasquez, Commissioner: So can we continue this to

John Vasquez, Commissioner: another date, and maybe one before the whole group meets again over all this. Say, maybe next week, if we, if we can find a time very quickly to hear it.

John Vasquez, Commissioner: so that we have an opportunity.

John Vasquez, Commissioner: You know they have a cup. Well, the last one lasts a couple of hours to speak on this one. It’s just a single item itself.

Shari B. Posner, CA Dept. of Justice: So I’m going to try and unpack that Commissioner basket. I think that we did introduce the item.

Shari B. Posner, CA Dept. of Justice: but I don’t think that actual presentations have been made, there has been some little back and forth that one would sit, could say was argumentative by both sides, but I don’t think that the presentations have been made. So I do think that if someone wanted to entertain a motion

Shari B. Posner, CA Dept. of Justice: of some kind that would be a continuance, I think that we’re not in the middle of the hearing proper.

Shari B. Posner, CA Dept. of Justice: and that really the public wouldn’t have much to comment on, substantively speaking, because there haven’t been presentations made

Shari B. Posner, CA Dept. of Justice: in terms of timing. I, personally can’t obviously comment on. Speak to that, but it sounds to me what you’re saying is, you would like to have

Shari B. Posner, CA Dept. of Justice: the parties present before.

Shari B. Posner, CA Dept. of Justice: and then provide some guidance and then have them. I’m trying to understand the process that you’re envisioning as opposed to

Shari B. Posner, CA Dept. of Justice:  giving them more time than a week. There, I and I guess that’s again up to the committee that I to me. I think that it’s up. However, you guys fashion it.

Shari B. Posner, CA Dept. of Justice: and whatever works for people schedules and make sense to get the productive kind of result you would like.

John Vasquez, Commissioner: I I’m saying that we bring this one back, for you know, scheduled meeting just the item itself.

John Vasquez, Commissioner: We can then give our input. They have plenty of time, then, to do the presentation, we have plenty of time for discussion, and then, if it, if

John Vasquez, Commissioner: if the kind of things we’re looking for similar to item 5,

John Vasquez, Commissioner: we find that in item 6, and then staff and and the applicant have, or the have, an opportunity to kind of work all that together rather than I, I’d rather push it off a little farther, but I want to have this hearing

John Vasquez, Commissioner: as soon as possible, so that

John Vasquez, Commissioner: there is some guidance to item 6 itself like we do with 105. I I hope that makes sense.

Shari B. Posner, CA Dept. of Justice: You’re asking me from a procedural standpoint. Would that be an option that would be an option. I think you. you just need to decide which option you’re going to go down as as a committee.

John Vasquez, Commissioner: Okay?

Marie Gilmore, Chair: Okay.

Sanjay Ranchod, Commissioner:  I believe we have the next Enforcement Committee hearing scheduled for June eighth. I don’t know if we can continue this to

Sanjay Ranchod, Commissioner: that agenda, or if there’s a procedural

Sanjay Ranchod, Commissioner: pick up with that, but that could be one option. It’s not too far out.

Sanjay Ranchod, Commissioner: and I think it also would give the party some time

Sanjay Ranchod, Commissioner: to reconsider their positions

Sanjay Ranchod, Commissioner: on the open issues.

Sanjay Ranchod, Commissioner: And if, as it has been conferred. one of the big

Sanjay Ranchod, Commissioner: it issues here to we to making further progress on resolving the items in this matter

Sanjay Ranchod, Commissioner: is, in fact, the penalty amount in the context of confidential settlement discussions.

Sanjay Ranchod, Commissioner: The parties can are the the responding can provide more information about their financial status. and I think Staff can take into account the sense of the committee here, and the discussions we’ve had over the last 2 h.

Sanjay Ranchod, Commissioner: but it can somebody clarify whether that’s an option procedurally to continue this.

Matthew Trujillo, Enforcement Policy Manager:  But.

Matthew Trujillo, Enforcement Policy Manager: Mr. Eisen, if you would prefer to speak before I.

Rebecca Eisen, Commissioner: The only thing I have to say is that I’ve already let Margie know that June eighth is probably not going to work for me because of some surgery. so, and as long as we have a quorum, I guess you you could proceed without my input, although I would. you know, like it, especially since I’ve heard everything so far to be able to participate, if possible. So

Matthew Trujillo, Enforcement Policy Manager: that so that’s what I was going to say. June eighth. we’ve learned as of today, we don’t have a quorum There is also the consideration of proper notice. Now, the regulations do say that

Matthew Trujillo, Enforcement Policy Manager:  Notice of a further hearing can be given at this hearing.

Matthew Trujillo, Enforcement Policy Manager: but in order to do that we would need very specific date and time, otherwise we would be, we would have to send the the notice in writing 10 days prior to any hearing.

Marie Gilmore, Chair: Okay,

Marie Gilmore, Chair: Since June eighth, we do not have a quorum. What about June 20? First, it’s our next regularly, or the meeting after June eighth.

Matthew Trujillo, Enforcement Policy Manager: We do have a quorum for that date, and we have 2 items on the agenda both briefings.

Matthew Trujillo, Enforcement Policy Manager: at least with tentatively. We we we have to coordinate because

Matthew Trujillo, Enforcement Policy Manager: sorry those items were originally meant to go on the eighth. Now we’re looking at putting them on the twenty-first. But we could probably push those off as maybe.

Marie Gilmore, Chair: Okay.

Marie Gilmore, Chair: So let’s do this. Let us continue this item. This is item number 6 to June 20, our June 20, first meeting.

Marie Gilmore, Chair: Add on your that. A motion yeah, that’ll that’ll be a motion.

Marie Gilmore, Chair: Okay. Motion by Gilmore. seconded by Vasquez. We will need a roll call. Vote for this.

John Cota: madam. Chair. I have dates here. I heard the June 20, fourth, and then you just mentioned the June 20 first. I’m a little, not clear on that.

Marie Gilmore, Chair: It’s June twenty-first. If I said the twenty-fourth, I misspoke. That’s a Saturday, and none of us are going to be here on set. And does that a 9, 30, or 10’clock meeting

John Vasquez, Commissioner: that is a 9 30, regularly scheduled meeting.

Marie Gilmore, Chair: Thank you for that. So so the motion is to continue this item to June 20, first at our regularly scheduled time of 9 30.

Marie Gilmore, Chair: And that was my motion. And that was my second yeah, and Commissioner to ask a second.

Marie Gilmore, Chair: So, Margie, can you call the role, please.

Margie Malan, BCDC HOST: Commissioner Eisen.

Rebecca Eisen, Commissioner: Yes.

John Vasquez, Commissioner: Commissioner, best guess

Margie Malan, BCDC HOST: Commissioner.

Marie Gilmore, Chair: Yes.

Marie Gilmore, Chair: Okay. So we have officially. continue this item.

Marie Gilmore, Chair: just making see if I have any other. All right.

Marie Gilmore, Chair: so that is it for us today I want to. Just thank

Marie Gilmore, Chair: staff and Respondents Council.

Marie Gilmore, Chair: the record on this is voluminous. I think everybody did their best to make it as coherent as possible. I just want to thank all of you for your efforts and We will see you on the 20 first.

Marie Gilmore, Chair: let’s see, I need a motion in a second to adjourn the meeting

Sanjay Ranchod, Commissioner: so moved

Marie Gilmore, Chair: that I guess

Marie Gilmore, Chair: that’s guest moves eisen seconds, all in favor.

Rebecca Eisen, Commissioner: Hey?

Marie Gilmore, Chair: Motion carries unanimously. Thank you, everyone. We are now adjourned.

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How to Provide Comments and Comment Time Limits

Pursuant to state law, the Commission is currently conducting its public meetings in a “hybrid” fashion. Each meeting notice will specify (1) where the meeting is being primarily held physically, (2) all teleconference locations, which will be publicly-accessible, and (3) the ZOOM virtual meeting link. If you would like to comment at the beginning of the meeting or on an item scheduled for public discussion, you may do so in one of three ways: (1) being present at the primary physical or a teleconference meeting location; (2) emailing comments in advance to public comment until 10 a.m. on the day of the meeting; and (3) participating via ZOOM during the meeting.

If you plan to participate through ZOOM, please use your ZOOM-enabled device and click on the “raise your hand” button, and then wait to speak until called upon. If you are using a telephone to call into the meeting, select *6 to unmute your phone and you will then be able to speak. We ask that everyone use the mute button when not speaking. It is also important that you not put your phone on hold. Each speaker may be limited to a maximum of three minutes or less at the discretion of the Chair during the public comment period depending on the volume of persons intending to provide public comment. Any speakers who exceed the time limits or interfere with the meeting may be muted by the Chair. It is strongly recommended that public comments be submitted in writing so they can be distributed to all Commission members in advance of the meeting for review. You are encouraged to submit written comments of any length and detailed information to the staff prior to the meeting at the email address above, which will be distributed to the Commission members.

Questions and Staff Reports

If you have any questions concerning an item on the agenda, would like to receive notice of future hearings, or access staff reports related to the item, please contact the staff member whose name, email address and direct phone number are indicated in parenthesis at the end of the agenda item.

Campaign Contributions

State law requires Commissioners to disqualify themselves from voting on any matter if they have received a campaign contribution from an interested party within the past 12 months. If you intend to speak on any hearing item, please indicate in your testimony if you have made campaign contributions in excess of $250 to any Commissioner within the last year, and if so, to which Commissioner(s) you have contributed. Other legal requirements govern contributions by applicants and other interested parties and establish criteria for Commissioner conflicts of interest. Please consult with the staff counsel if you have any questions about the rules that pertain to campaign contributions or conflicts of interest.

Access to Meetings

Meetings are physically held in venues that are accessible to persons with disabilities. If you require special assistance or have technical questions, please contact staff at least three days prior to the meeting via email. We will attempt to make the virtual meeting accessible via ZOOM accessibility capabilities, as well.