BILL NUMBER: AB 1084 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 28, 2009
AMENDED IN ASSEMBLY APRIL 27, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Adams
FEBRUARY 27, 2009
An act to amend Sections Section 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 requires a local agency to hold a
public hearing, at which oral or written presentations can be made,
as part of a regularly scheduled meeting prior to adopting an
ordinance, resolution, or other legislative enactment adopting a
specified type of new fee or approving an increase in a specified
type of existing fee. The act also requires the local agency to
publish, in accordance with a specified provision of law, notice of
the time and place of the meeting, including a general explanation of
the matter to be considered. The act provides that any cost incurred
by a local agency in conducting the hearing may be recovered as part
of the fees which were the subject of the hearing.
This bill would additionally require a local agency that is a
city, county, or city and county to mail notice of the time and place
of the meeting, including a general explanation of the matter to be
considered and a statement that specified data is available, at least
14 days prior to the first meetings to any interested party who has
filed a written request with the city, county, or city and county for
mailed notice of meeting on new or increased fees to be enacted by
the city, county, or city and county. The bill would authorize the
legislative body of the city, county, or city and county to establish
a reasonable annual charge for sending notices based on the
estimated cost of providing the service.
The bill would also require a local agency that is a city, county,
or city and county to make available to the public data indicating
the amount of cost, or estimated cost, required to provide the public
facilities and the revenue sources anticipated to fund those public
facilities, including general fund revenues.
The bill would require any new or increased fee adopted by a local
agency that is a city, county, or city and county to be effective no
sooner than 60 days following the final action on the adoption or
increase of the fee, unless the city, county, or city and county
follows specified procedures.
The bill would authorize any person to request an audit in order
to determine whether any fee or charge levied by a local agency that
is a city, county, or city and county exceeds the amount reasonably
necessary to cover the cost of any product, public facility, or
service provided by the city, county, or city and county. The bill
would authorize the legislative body of the city, county, or city and
county to retain an independent auditor to conduct an audit to
determine whether the fee or charge is reasonable if an audit request
is made. The bill would require the city, county, or city and
county, to the extent that the audit determines that the amount of
any fee or charge exceeds the amount reasonably necessary to cover
the cost of the product, public facility, or service, to adjust that
fee or charge accordingly. The bill would authorize the city, county,
or city and county to recover any costs it incurs to have the
independent auditor conduct the audit. The bill would require the
audit to conform to generally accepted auditing standards.
The bill would state the finding and declaration of the
Legislature that oversight of local agency fees is a matter of
statewide interest and concern, and the intent of the Legislature
that Chapter 8 (commencing with Section 66016) of Division 1 of Title
7 of the Government Code supersede conflicting local laws and apply
in charter cities.
(2) 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 66018 of the Government Code is amended to
read:
66018. (a) As used in this section, the following terms have the
following meanings:
(1) "Fee" means a fee as defined in Section 66000, but does not
include rates or charges for water, sewer, or electrical service, or
a fee authorized pursuant to Section 66013 or Section 17620 of the
Education Code.
(2) "Party" means a person, entity, or organization representing a
group of people or entities.
(3) "Public facility" means a public facility as defined in
Section 66000.
(b) Prior to adopting an ordinance, resolution, or other
legislative enactment adopting a new fee or approving an increase in
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.
(c) (1) A local agency that is a city, county, or city and county
additionally shall mail 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 subdivision (d) is available, at
least 14 days prior to the first meeting to any interested party who
has filed a written request with the city, county, or city and county
for mailed notice of meetings on new or increased fees to be enacted
by the city, county, or city and county.
(2) Any written request for mailed notice shall be valid for one
year from the date on which it is filed unless a renewal request is
filed. Renewal requests for mailed notice shall be required to be
filed on or before April 1 of each year.
(3) 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.
(d) At least 10 days prior to the meeting, a local agency that is
a city, county, or city and county shall make available to the public
data indicating the amount of cost, or estimated cost, required to
provide the public facilities and the revenue sources anticipated to
fund those public facilities, including general fund revenues.
(e) Any new or increased fee adopted by a local agency that is a
city, county, or city and county shall be effective no sooner than 60
days following the final action on the adoption or increase of the
fee, unless the city, county, or city and county follows the
procedures set forth in subdivision (b) of Section 66017.
(f) (1) Any person may request an audit in order to determine
whether any fee or charge levied by a local agency that is a city,
county, or city and county exceeds the amount reasonably necessary to
cover the cost of any product, public facility, or service provided
by the city, county, or city and county. If an audit request is made,
the legislative body of the city, county, or city and county may
retain an independent auditor to conduct an audit to determine
whether the fee or charge is reasonable. To the extent that the audit
determines that the amount of any fee or charge exceeds the amount
reasonably necessary to cover the cost of the product, public
facility, or service, the city, county, or city and county shall
adjust that fee or charge accordingly.
(2) Any costs incurred by a city, county, or city and county by
having an independent auditor conduct an audit pursuant to paragraph
(1) of this subdivision may be recovered from the person who requests
the audit.
(3) Any audit conducted by an independent auditor pursuant to
paragraph (1) of this subdivision shall conform to generally accepted
auditing standards.
(g) The procedures specified in subdivisions (c) to (f),
inclusive, shall be alternative and in addition to those specified in
Section 54985.
(h) The Legislature finds and declares that oversight of local
agency fees is 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.
(i) Any costs incurred by a local agency in conducting the hearing
required pursuant to subdivision (b) may be recovered as part of the
fees which were the subject of the hearing.
(j) 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.
(k) This section shall not be construed as granting any additional
authority to any local agency to levy any fee or charge which is not
otherwise authorized by law, nor shall its provisions be construed
as granting authority to any local agency to levy a new fee or charge
when otherwise specifically prohibited by law.
SEC. 2. 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.
SECTION 1. Section 66001 of the Government Code
is amended to read:
66001. (a) 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 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, 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. 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. 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 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. 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. 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 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 city, county, or city and county for
mailed notice of the meeting on new 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 city, county, or city and county shall make
available to the public the nexus study, or similar written report,
and 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 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.