BILL NUMBER: AB 1084 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Adams
FEBRUARY 27, 2009
An act to amend Sections 66000, 66001, 66002
66001 , 66006, 66016, and 66018 of the Government Code,
relating to local planning.
LEGISLATIVE COUNSEL'S DIGEST
AB 1084, as amended, Adams. Local planning: development projects:
fees.
(1) The Mitigation Fee Act authorizes a local agency to charge a
variety of fees, dedications, reservations, or other exactions in
connection with the approval of a development project, as defined. A
"fee" is defined to mean a monetary exaction other than a tax or
special assessment, as specified, that is charged by a local agency
to the applicant in connection with approval of a development project
for the purpose of defraying all or a portion of the cost of public
facilities related to the development project. "Public facilities" is
defined to include public improvements, public services, and
community amenities.
This bill would revise the definition of "fee" to mean a charge or
other exaction, including a dedication, reservation, set-aside, or
contribution of real or personal property or services, including a
monetary exaction other than a tax or special assessment, as
specified, that is charged by a local agency, including a local
agency that does not itself approve the development project, to the
applicant in connection with the development project or as a
condition of approval of a development project for the purpose of
defraying all or a portion of the cost of public facilities related
to the development project. "Public facilities" would be defined to
include public improvements, public services, community amenities,
and measures intended to mitigate or alleviate the effects of the
development project, whether or not owned or controlled by a public
agency.
(2)
(1) The Mitigation Fee Act provides that in any action
establishing, increasing, or imposing a fee as a condition of
approval of a development project by a local agency, the local agency
is required to determine how there is reasonable relationship
between the amount of the fee and the cost of public facility or
portion of the public facility attributable to the development
project on which the fee is imposed.
This bill would provide that in any action - whether ministerial,
discretionary, adjudicatory, or legislative - establishing,
extending, amending, increasing, or imposing a fee, as
a condition of approval of a development project by a local agency,
the local agency would be required to determine, prior to
imposing the fee, how there is a reasonable relationship between the
amount of the fee and the cost of the public facility or portion of
the public facility attributable to the development on which the fee
is imposed. Fees would be authorized to be simultaneously adopted,
imposed, or collected by a city, county, or city and county
to finance more than one of the categories of facilities or
improvements, as specified, provided that each category of facilities
or improvements separately complies with specified conditions, and
those fees would be prohibited to be from
being commingled. If a request is made to revise or update
fees, as specified, a local agency would be required to revise or
update the fees in writing and provide substantial evidence in the
record demonstrating that the new fees comply with specified
provisions. A local agency would not be required to update the fees
more frequently than every 12 months. Any costs incurred by
a local agency The city, county, or city and county
would not be required to revise or update the fees unless the person
or entity requesting the revision or update pays, prior to
commencement, the costs that will be incurred by the city, county, or
city and county to revise or update the fee would be
allowed to be recovered as part of the fees. By adding to
the duties of local officials, this bill would impose a
state-mandated local program.
(3) The Mitigation Fee Act provides that a local agency that
levies a fee subject to the act may adopt a capital improvement plan
that indicates the approximate location, size, time of availability,
and estimates of cost for all facilities or improvements to be
financed with the fees.
This bill would require a local agency that levies a fee subject
to the act to first adopt a capital improvement plan that would be
required to identify the purpose or function of any public facilities
for any fees that are to be imposed and that already is required to
indicate the approximate location, size, time of availability, and
estimates of cost for all facilities or improvements to be financed
with the fees. The fees charged pursuant to the act would be
authorized to include the costs reasonably necessary to prepare and
revise the capital improvement plan. By adding to the duties of local
officials, this bill would impose a state-mandated local program.
(4)
(2) The Mitigation Fee Act requires that, at the time
the local agency imposes a fee for public improvements on a specific
development project, the local agency is required to identify the
public improvement that the fee will be used to finance.
This bill instead would require that, at the time the local agency
imposes a fee for public improvements on or in connection with a
specific development project, the local agency identify the public
improvement that the fee will be used to finance. A party against
whom a fee is to be imposed by a city, county, or city and
county would be required to have the opportunity for a hearing
to appeal the fee, as specified. The party requesting the appeal
would be required to pay the cost to the city, county, or city and
county to conduct the appeal. By adding to the duties of local
officials, this bill would impose a state-mandated local program.
(5)
(3) The Mitigation Fee Act requires a local agency,
prior to levying a new fee or service charge, or prior to approving
an increase in an existing fee or service charge, to hold at least
one open and public meeting, as specified. At least 14 days prior to
the meeting, the local agency is required to mail notice of the time
and place of the meeting, as specified, to any interested party who
files a written request with the local agency for mailed notice. At
least 10 days prior to the meeting, the local agency is required to
make available public data indicating the amount of cost, or
estimated costs, required to provide the service for which the fee or
service charge is levied and the revenue sources anticipated to
provide the service.
This bill instead would require that at least 45 days prior to the
first meeting, the local agency is required to mail notice of the
time and place of the meeting, as specified, to any interested party
who files a written request with the local agency for mailed notice.
The local agency would be required to make available, at least 45
days prior to the first meeting, public data indicating the amount of
cost, or estimated costs, required to provide the service for which
the fee or service charge is levied and the revenue sources
anticipated to provide the service.
(6)
(4) The Mitigation Fee Act requires a local agency,
prior to adopting an ordinance, resolution, or other legislative
enactment adopting a new fee or approving an increase in an existing
fee subject to the act, to hold a public hearing, as specified.
This bill would require notice of the time and place of the
meeting, as specified, and a statement that specified data is
available to be mailed at least 45 days prior to the first meeting to
any interested party who files a written request with the
local agency city, county, or city and county
for mailed notice of the meeting on new extended, amended,
or increased fees enacted by the city, county, or city
and county . Any written request for mailed notices would be
required to be valid for one year from the date on which it is filed
unless a renewal request is filed. Renewal requests for mailed
notices would be required to be filed on or before April 1 of each
year. The legislative body would be authorized to establish a
reasonable annual charge for sending notices based on the estimated
cost of providing the service. At least 45 days prior to the first
meeting, the local agency city, county, or
city and county would be required to make available to the
public the capital improvement plan and nexus
study, or similar written report, and all documentation
relating to the findings required by this act, as well as
data indicating the amount of cost, or estimated cost, required to
provide the public facilities, as defined, for which the fee is
proposed to be enacted , extended, amended, or
increased and the revenue sources anticipated to fund those public
facilities, including General Fund revenues. The new or increased fee
would be required to be effective no sooner than 60 days following
the final action on the adoption or increase of the fee. By adding to
the duties of local officials, this bill would impose a
state-mandated local program.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 66000 of the Government Code
is amended to read:
66000. As used in this chapter, the following terms have the
following meanings:
(a) "Development project" means any project undertaken for the
purpose of development. "Development project" includes a project
involving the issuance of a permit for construction or
reconstruction, but not a permit to operate.
(b) "Fee" means a charge or other exaction, including a
dedication, reservation, set-aside, or contribution of real or
personal property or services, including a monetary exaction other
than a tax or special assessment, whether established for a broad
class of projects by legislation of general applicability or imposed
on a specific project on an ad hoc basis or pursuant to a schedule or
formula of general application, that is charged by a local agency,
including a local agency that does not itself approve the development
project, to the applicant in connection with the development project
or as a condition of approval of a development project for the
purpose of defraying all or a portion of the cost of public
facilities or for any other purpose related to the development
project, but does not include fees specified in Section 66477, fees
for processing applications for governmental regulatory actions or
approvals, fees collected under development agreements adopted
pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4,
or fees collected pursuant to agreements with redevelopment agencies
that provide for the redevelopment of property in furtherance or for
the benefit of a redevelopment project for which a redevelopment
plan has been adopted pursuant to the Community Redevelopment Law
(Part 1 (commencing with Section 33000) of Division 24 of the Health
and Safety Code).
(c) "Local agency" means a county, city, whether general law or
chartered, city and county, school district, special district,
authority, agency, any other municipal public corporation or
district, or other political subdivision of the state.
(d) "Public facilities" includes public improvements, public
services, community amenities, and measures intended to mitigate or
alleviate the effects of the development project, whether or not
owned or controlled by a public agency.
SEC. 2. SECTION 1. Section 66001 of
the Government Code is amended to read:
66001. (a) In any action establishing, extending,
amending, increasing, or imposing a fee as a condition
of approval of a development project by a local agency , the
local agency shall do all of the following:
(1) Identify the purpose of the fee.
(2) Identify the use to which the fee is to be put. If the use is
financing public facilities, the facilities shall be identified. That
identification may, but need not, be made by reference to a capital
improvement plan as specified in Section 65403 or 66002, may be made
in applicable general or specific plan requirements, or may be made
in other public documents that identify the public facilities for
which the fee is charged.
(3) Determine how there is a reasonable relationship between the
fee's use and the type of development project on which the fee is
imposed.
(4) Determine how there is a reasonable relationship between the
need for the public facility and the type of development project on
which the fee is imposed.
(b) In any action, whether ministerial, discretionary,
adjudicatory, or legislative, imposing a fee as a condition of
approval of a development project by a local agency, prior to
imposing the fee, the local agency shall determine how there is a
reasonable relationship between the amount of the fee and the cost of
the public facility or portion of the public facility attributable
to the development on which the fee is imposed.
(c) Upon receipt of a fee subject to this section, the local
agency shall deposit, invest, account for, and expend the fees
pursuant to Section 66006. Fees may be simultaneously adopted,
imposed, or collected by a city, county, or city and county
to finance more than one of the categories of facilities or
improvements identified in subdivision (c) of Section 66002, provided
that each category of facilities or improvements separately complies
with this section and those fees shall not be commingled.
(d) (1) For the fifth fiscal year following the first deposit into
the account or fund, and every five years thereafter, the local
agency shall make all of the following findings with respect to that
portion of the account or fund remaining unexpended, whether
committed or uncommitted:
(A) Identify the purpose to which the fee is to be put.
(B) Demonstrate a reasonable relationship between the fee and the
purpose for which it is charged.
(C) Identify all sources and amounts of funding anticipated to
complete financing in incomplete improvements identified in paragraph
(2) of subdivision (a).
(D) Designate the approximate dates on which the funding referred
to in subparagraph (C) is expected to be deposited into the
appropriate account or fund.
(2) When findings are required by this subdivision, they shall be
made in connection with the public information required by
subdivision (b) of Section 66006. The findings required by this
subdivision need only be made for moneys in possession of the local
agency, and need not be made with respect to letters of credit,
bonds, or other instruments taken to secure payment of the fee at a
future date. If the findings are not made as required by this
subdivision, the local agency shall refund the moneys in the account
or fund as provided in subdivision (e).
(e) Except as provided in subdivision (f), when sufficient funds
have been collected, as determined pursuant to subparagraph (F) of
paragraph (1) of subdivision (b) of Section 66006, to complete
financing on incomplete public improvements identified in paragraph
(2) of subdivision (a), and the public improvements remain
incomplete, the local agency shall identify, within 180 days of the
determination that sufficient funds have been collected, an
approximate date by which the construction of the public improvement
will be commenced, or shall refund to the then current record owner
or owners of the lots or units, as identified on the last equalized
assessment roll, of the development project or projects on a prorated
basis, the unexpended portion of the fee, and any interest accrued
thereon. By means consistent with the intent of this section, a local
agency may refund the unexpended revenues by direct payment, by
providing a temporary suspension of fees, or by any other reasonable
means. The determination by the governing body of the local agency of
the means by which those revenues are to be refunded is a
legislative act.
(f) If the administrative costs of refunding unexpended revenues
pursuant to subdivision (e) exceed the amount to be refunded, the
local agency, after a public hearing, notice of which has been
published pursuant to Section 6061 and posted in three prominent
places within the area of the development project, may determine that
the revenues shall be allocated for some other purpose for which
fees are collected subject to this chapter and which serves the
project on which the fee was originally imposed.
(g) A fee shall not include the costs attributable to existing
deficiencies in public facilities, but may include the costs
attributable to the increased demand for public facilities reasonably
related to the development project in order to (1) refurbish
existing facilities to maintain the existing level of service or (2)
achieve an adopted level of service that is consistent with the
general plan.
(h) Any person or entity that is or may be subject to payment of a
fee established, increased, or imposed by a city, county, or
city and county in the future, including an organization
representing those people or entities, may request revisions or
updates to those fees adopted pursuant to this section. If
a request is made, a local agency the city,
county, or city and county shall revise or update the fees in
writing and provide substantial evidence in the record demonstrating
that the new fees comply with subdivisions (a) and (b). The fees
shall not be required to be updated more frequently than every 12
months. Any costs incurred by a local agency to revise or
update the fee may be recovered as part of the fees.
The city, county, or city and county is not required to
revise or update the fees unless the person or entity requesting the
revision or update pays, prior to commencement of the costs that will
be incurred by the city, county, or city and county, to revise or
update the fees.
SEC. 3. Section 66002 of the Government Code is
amended to read:
66002. (a) Any local agency that levies a fee subject to Section
66001 first shall adopt a capital improvement plan, which shall
identify the purpose or function of any public facilities for any
fees that are to be imposed. The capital improvement plan also shall
indicate the approximate location, size, time of availability, and
estimates of cost for all facilities or improvements to be financed
with the fees.
(b) The capital improvement plan shall be adopted by, and shall be
annually updated by, a resolution of the governing body of the local
agency adopted at a noticed public hearing. Notice of the hearing
shall be given pursuant to Section 65090. In addition, mailed notice
shall be given to any city or county that may be significantly
affected by the capital improvement plan. This notice shall be given
no later than the date the local agency notices the public hearing
pursuant to Section 65090. The information in the notice shall be not
less than the information contained in the notice of public hearing
and shall be given by first-class mail or personal delivery.
(c) "Facility" or "improvement," as used in this section, means
any of the following:
(1) Public buildings, including schools and related facilities;
provided that school facilities shall not be included if Senate Bill
97 of the 1987-88 Regular Session is enacted and becomes effective on
or before January 1, 1988.
(2) Facilities for the storage, treatment, and distribution of
nonagricultural water.
(3) Facilities for the collection, treatment, reclamation, and
disposal of sewage.
(4) Facilities for the collection and disposal of storm waters and
for flood control purposes.
(5) Facilities for the generation of electricity and the
distribution of gas and electricity.
(6) Transportation and transit facilities, including but not
limited to streets and supporting improvements, roads, overpasses,
bridges, harbors, ports, airports, and related facilities.
(7) Parks and recreation facilities.
(8) Any other capital project identified in the capital facilities
plan adopted pursuant to Section 66002.
(d) The fees charged pursuant to Section 66001 may include the
costs reasonably necessary to prepare and revise the capital
improvement plan.
SEC. 4. SEC. 2. Section 66006 of the
Government Code is amended to read:
66006. (a) If a local agency requires the payment of a fee
specified in subdivision (c) in connection with the approval of a
development project, the local agency receiving the fee shall deposit
it with the other fees for the improvement in a separate capital
facilities account or fund in a manner to avoid any commingling of
the fees with other revenues and funds of the local agency, except
for temporary investments, and expend those fees solely for the
purpose for which the fee was collected. Any interest income earned
by moneys in the capital facilities account or fund shall also be
deposited in that account or fund and shall be expended only for the
purpose for which the fee was originally collected.
(b) (1) For each separate account or fund established pursuant to
subdivision (a), the local agency shall, within 180 days after the
last day of each fiscal year, make available to the public the
following information for the fiscal year:
(A) A brief description of the type of fee in the account or fund.
(B) The amount of the fee.
(C) The beginning and ending balance of the account or fund.
(D) The amount of the fees collected and the interest earned.
(E) An identification of each public improvement on which fees
were expended and the amount of the expenditures on each improvement,
including the total percentage of the cost of the public improvement
that was funded with fees.
(F) An identification of an approximate date by which the
construction of the public improvement will commence if the local
agency determines that sufficient funds have been collected to
complete financing on an incomplete public improvement, as identified
in paragraph (2) of subdivision (a) of Section 66001, and the public
improvement remains incomplete.
(G) A description of each interfund transfer or loan made from the
account or fund, including the public improvement on which the
transferred or loaned fees will be expended, and, in the case of an
interfund loan, the date on which the loan will be repaid, and the
rate of interest that the account or fund will receive on the loan.
(H) The amount of refunds made pursuant to subdivision (e) of
Section 66001 and any allocations pursuant to subdivision (f) of
Section 66001.
(2) The local agency shall review the information made available
to the public pursuant to paragraph (1) at the next regularly
scheduled public meeting not less than 15 days after this information
is made available to the public, as required by this subdivision.
Notice of the time and place of the meeting, including the address
where this information may be reviewed, shall be mailed, at least 15
days prior to the meeting, to any interested party who files a
written request with the local agency for mailed notice of the
meeting. Any written request for mailed notices shall be valid for
one year from the date on which it is filed unless a renewal request
is filed. Renewal requests for mailed notices shall be filed on or
before April 1 of each year. The legislative body may establish a
reasonable annual charge for sending notices based on the estimated
cost of providing the service.
(c) For purposes of this section, "fee" means any fee imposed to
provide for an improvement to be constructed to serve a development
project, or which is a fee for public improvements within the meaning
of subdivision (b) of Section 66000, and that is imposed by the
local agency as a condition of approving the development project.
(d) Any person may request an audit of any local agency fee or
charge that is subject to Section 66023, including fees or charges of
school districts, in accordance with that section.
(e) The Legislature finds and declares that untimely or improper
allocation of development fees hinders economic growth and is,
therefore, a matter of statewide interest and concern. It is,
therefore, the intent of the Legislature that this chapter shall
supersede all conflicting local laws and shall apply in charter
cities.
(f) At the time the local agency imposes a fee for public
improvements on or in connection with a specific development project,
it shall identify the public improvement that the fee will be used
to finance. A party against whom a fee is to be imposed by a
city, county, or city and county shall have the opportunity for
a hearing to appeal the fee. The request shall state the grounds for
the appeal. The appeal shall be heard by the legislative body no
sooner than 30 five working days
following the request. The party requesting the appeal shall pay
the cost to the city, county, or city and county to
conduct the appeal.
SEC. 5. SEC. 3. Section 66016 of the
Government Code is amended to read:
66016. (a) Prior to levying a new fee or service charge, or prior
to approving an increase in an existing fee or service charge, a
local agency shall hold at least one open and public meeting, at
which oral or written presentations can be made, as part of a
regularly scheduled meeting. Notice of the time and place of the
meeting, including a general explanation of the matter to be
considered, and a statement that the data required by this section is
available, shall be mailed at least 45 days prior to the first
meeting to any interested party who files a written request with the
local agency for mailed notice of the meeting on new or increased
fees or service charges. Any written request for mailed notices shall
be valid for one year from the date on which it is filed unless a
renewal request is filed. Renewal requests for mailed notices shall
be filed on or before April 1 of each year. The legislative body may
establish a reasonable annual charge for sending notices based on the
estimated cost of providing the service. At least 45 days prior to
the first meeting, the local agency shall make available to the
public data indicating the amount of cost, or estimated cost,
required to provide the service for which the fee or service charge
is levied and the revenue sources anticipated to provide the service,
including General Fund revenues. Unless there has been voter
approval, as prescribed by Section 66013 or 66014, no local agency
shall levy a new fee or service charge or increase an existing fee or
service charge to an amount that exceeds the estimated amount
required to provide the service for which the fee or service charge
is levied. If, however, the fees or service charges create revenues
in excess of actual cost, those revenues shall be used to reduce the
fee or service charge creating the excess.
(b) Any action by a local agency to levy a new fee or service
charge or to approve an increase in an existing fee or service charge
shall be taken only by ordinance or resolution. The legislative body
of a local agency shall not delegate the authority to adopt a new
fee or service charge, or to increase a fee or service charge.
(c) Any costs incurred by a local agency in conducting the meeting
or meetings required pursuant to subdivision (a) may be recovered
from fees charged for the services which were the subject of the
meeting.
(d) This section shall apply only to fees and charges as described
in Sections 51287, 56383, 65104, 65456, 65584.1, 65863.7, 65909.5,
66013, 66014, and 66451.2 of this code, Sections 17951, 19132.3, and
19852 of the Health and Safety Code, Section 41901 of the Public
Resources Code, and Section 21671.5 of the Public Utilities Code.
(e) Any judicial action or proceeding to attack, review, set
aside, void, or annul the ordinance, resolution, or motion levying a
fee or service charge subject to this section shall be brought
pursuant to Section 66022.
SEC. 6. SEC. 4. Section 66018 of the
Government Code is amended to read:
66018. (a) Prior to adopting an ordinance, resolution, or other
legislative enactment adopting a new fee or extending,
amending, or increasing an existing fee to which this
section applies, a local agency shall hold a public hearing, at which
oral or written presentations can be made, as part of a regularly
scheduled meeting. Notice of the time and place of the meeting,
including a general explanation of the matter to be considered, shall
be published in accordance with Section 6062a. Notice of the time
and place of the meeting, including a general explanation of the
matter to be considered, and a statement that the data required by
this section is available shall be mailed at least 45 days prior to
the first meeting to any interested party who files a written request
with the local agency city, county, or city
and county for mailed notice of the meeting on new ,
extended, amended, or increased fees or increased fees
enacted by the city, county, or city and county . Any written
request for mailed notices shall be valid for one year from the date
on which it is filed unless a renewal request is filed. Renewal
requests for mailed notices shall be filed on or before April 1 of
each year. The legislative body of the city, county, or city and
county may establish a reasonable annual charge for sending
notices based on the estimated cost of providing the service. At
least 45 days prior to the first meeting, the local agency
city, county, or city and county shall make
available to the public the capital improvement plan and
nexus study, or similar written report, and all
documentation relating to the findings required pursuant to Section
66001, as well as data indicating the amount of cost, or
estimated cost, required to provide the public facilities, as defined
in Section 66000, for which the fee is proposed to be enacted
, extended, amended, or increased and the revenue
sources anticipated to fund those public facilities, including
general fund revenues. The new or increased fee shall be effective no
sooner than 60 days following the final action on the adoption or
increase of the fee.
(b) Any costs incurred by a local agency in conducting the hearing
required pursuant to subdivision (a) may be recovered as part of the
fees that were the subject of the hearing.
(c) This section applies only to the adopting or increasing of
fees to which a specific statutory notice requirement, other than
Section 54954.2, does not apply.
(d) As used in this section, "fees" do not include rates or
charges for water, sewer, or electrical service.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.