BILL ANALYSIS
AB 1084
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1084 (Adams)
As Amended September 1, 2009
Majority vote
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|ASSEMBLY: |77-0 |(May 21, 2009) |SENATE: |36-0 |(September 3, |
| | | | | |2009) |
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Original Committee Reference: L. GOV.
SUMMARY : Provides a time frame for notice relating to an
increase or change in fees levied under the Mitigation Fee Act
and establishes procedures for requesting an audit of those
fees.
The Senate amendments :
1)Specify that a local agency is not required to conduct a
requested audit on a fee if an audit has been performed for
the same fee within the previous 12 months.
2)State that to the extent the audit determines that the amount
of any fee or charge does not meet the requirements, the local
agency shall adjust the fee accordingly.
3)Specify that the local agency shall retain an independent
auditor to conduct an audit only if the person who request the
audit deposits with the local agency the amount of the local
agency's reasonable estimated costs of the independent audit.
4)Require, at the conclusion of the audit, the local agency to
reimburse unused sums, if any, or the requesting person pay
the local agency the excess of the actual cost of the audit
over the deposited amount.
5)Authorize a local agency to use electronic mail as a medium
for providing notice of a fee change.
6)Reduce the time limits that a city, county, or city and county
cannot add additional requirements on a building permit after
a final map is recorded, from five years to three years after
the recordation, if the map is extended under using the new
subdivision map extension created in Government Code Section
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66452.22. (This is declaratory of existing law.)
7)Specify that maps extended under the new extension are not
prohibited from having a city, county, or city and county
impose a condition that requires the payment of a fee upon the
issuance of a building permit or after the issuance, including
fees related to the Mitigation Fee Act. (This is declaratory
of existing law.)
8)Make other technical changes.
EXISTING LAW :
1)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.
2)Provides, under the Mitigation Fee Act, 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.
3)States that prior to adopting an ordinance, resolution, or
other legislative enactment adopting a new fee or approving an
increase in an existing fee under the mitigation fee act, a
local agency shall hold a public hearing, at which oral or
written presentations can be made, as part of a regularly
scheduled meeting.
4)Requires notice of the time and place of the meeting,
including a general explanation of the matter to be
considered, and shall be published in accordance with
established procedures.
5)Authorizes any party to file a protest to attack, review, set
aside, void, or annul the imposition of any fees, dedications,
reservations, or other exactions on a development project by a
local agency pursuant to specified procedures within 180 days
after the delivery of a written notice by the local agency.
6)Reduces the time limits that a city, county, or city and
county cannot add additional requirements on a building permit
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after a final map is recorded, from five years to three years
after the recordation, if the map is extended under using the
new subdivision map extension created in Government Code
Section 66452.22.
7)Specifies that maps extended under the new extension are not
prohibited from having a city, county, or city and county
impose a condition that requires the payment of a fee upon the
issuance of a building permit or after the issuance, including
fees related to the Mitigation Fee Act.
AS PASSED BY THE ASSEMBLY , this bill:
1)Required a local agency that is a city, county, or city and
county to mail notice of the time and place of the meeting
that will be held regarding adoption of a new fee or
increasing an existing fee under the mitigation fee act.
2)Required that the mailing, which must be sent 14 days prior to
the hearing, include a general explanation of the matter to be
considered and a statement of the proposed costs.
3)Provided that any written request for mailed notice is valid
for one year and the legislative body of the city, county, or
city and county may establish a reasonable annual charge for
sending these notices.
4)Stated that 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 the 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.
5)Prohibited any new or increased fee adopted by a local agency
that is a city, county, or city and county from going in to
effect until 60 days after the final adoption, unless
otherwise provided in law.
6)Stated that any person can 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.
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7)Specified that any costs incurred by a city, county, or city
and county by having an independent audit conducted may be
recovered from the person who requests the audit.
8)Specified that the oversight of local agency fees is of
statewide concern, and therefore, this measure shall apply to
charter cities.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : Fees and dedications are one-time exactions collected
from a developer as a condition of an approval being granted by
a local government. Impact fees are used to finance the
construction or incremental cost of improvements to those public
facilities and services that the new development requires or
burdens. Local agencies exact fees and dedications pursuant to
their police power to protect the health, safety, and welfare of
the public. The police power allows cities and counties to act
in the interest of their unique community. Under the police
power, local agencies may enforce all local police, sanitary,
and other ordinances and regulations not in conflict with
general laws of the state. A land use regulation lies within
the police power if the purpose of the act reasonably relates to
the public welfare.
Since the passage of Proposition 13 and other measures limiting
local agencies' general revenue sources, local agencies have
increasingly required development projects to bear their own
costs within the community, on the principle that development
should pay its full share of the additional burden it places on
public services and facilities. The major issue involving
exactions is the reasonableness of the exaction in kind and
amount.
In 1987, the California Legislature enacted the Mitigation Fee
Act. The legislation was enacted in response to developer
concerns that local public agencies were requiring developers to
pay for infrastructure improvement costs that developers
contended should have been borne by the public as a whole. The
Mitigation Fee Act closely regulates the adoption, levy,
collection of, and challenge to development fees imposed by
local public agencies. It applies to both fees imposed on a
broad class of projects by legislation of general applicability
and fees imposed on a project-specific basis. The Mitigation
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Fee Act applies to development impact fees imposed by local
agencies to finance all or part of the cost of public facilities
(e.g., streets, traffic signals, bridges and major
thoroughfares, drainage and flood control facilities, water and
sewer, and government buildings).
Whenever establishing, imposing, or increasing a fee as a
condition of development, the local public agency must identify
the purpose of the fee and the use to which the fee will be put.
The public agency must also explain why there is a reasonable
relationship, or nexus, between the fee and the development on
which it is imposed. Moreover, fees must not exceed the
estimated reasonable cost of providing the service for which the
fee was collected.
According to the sponsor, the California Building Industry
Association, "many cities and counties have set their fees based
upon costs that existed at the height of the market for both
land and construction. Over the last several years, land and
construction costs have declined substantially. Since that
time, many local governments have not revisited those fee
calculations, possibly due to the costs associated with a
revision to their fee structure.
This bill provides a time frame for notice relating to an
increase or change in fee levied under the Mitigation Fee Act
and establishes procedures for requesting an audit of those
fees. According to the author the intent of this measure is to
ensure that development impact fees reflect the current cost to
cities and counties to construct those public facilities.
This bill also makes technical changes to the provisions of law
added by AB 333 (Fuentes) [Chapter 18, Statutes of 2009]
regarding subdivision map act extensions.
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958
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