BILL NUMBER: AB 2048 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 23, 2010
PASSED THE ASSEMBLY AUGUST 24, 2010
AMENDED IN SENATE AUGUST 19, 2010
AMENDED IN SENATE JUNE 21, 2010
AMENDED IN ASSEMBLY MARCH 24, 2010
INTRODUCED BY Assembly Member Torlakson
FEBRUARY 17, 2010
An act to amend Sections 17620 and 17621 of the Education Code,
and to amend Section 65995 of the Government Code, relating to school
facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 2048, Torlakson. School facilities.
Existing law prohibits a city or county from issuing a building
permit for any construction absent certification from the appropriate
school district that any fee, charge, dedication, or other
requirement levied by the governing board of that school district has
been complied with, as specified.
This bill would additionally prohibit the Office of Statewide
Health Planning and Development from issuing a building permit for
any construction absent certification from the appropriate school
district that any fee, charge, dedication, or other requirement
levied by the governing board of that school district has been
complied with, as specified.
Existing law requires the building department of the city or
county issuing the building permit to make the determination of the
chargeable covered and enclosed space within the perimeter of a
commercial or industrial structure, in accordance with the building
standards of that city or county.
This bill would, for any commercial or industrial construction
under the jurisdiction of the Office of Statewide Health Planning and
Development, require the architect of record to determine the
chargeable covered and enclosed space within the perimeter of a
commercial or industrial structure.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17620 of the Education Code is amended to read:
17620. (a) (1) The governing board of any school district is
authorized to levy a fee, charge, dedication, or other requirement
against any construction within the boundaries of the district, for
the purpose of funding the construction or reconstruction of school
facilities, subject to any limitations set forth in Chapter 4.9
(commencing with Section 65995) of Division 1 of Title 7 of the
Government Code. This fee, charge, dedication, or other requirement
may be applied to construction only as follows:
(A) To new commercial and industrial construction. The chargeable
covered and enclosed space of commercial or industrial construction
shall not be deemed to include the square footage of any structure
existing on the site of that construction as of the date the first
building permit is issued for any portion of that construction.
(B) To new residential construction.
(C) (i) Except as otherwise provided in clause (ii), to other
residential construction, only if the resulting increase in
assessable space exceeds 500 square feet. The calculation of the
"resulting increase in assessable space" for this purpose shall
reflect any decrease in assessable space in the same residential
structure that also results from that construction. Where authorized
under this paragraph, the fee, charge, dedication, or other
requirement is applicable to the total resulting increase in
assessable space.
(ii) This subparagraph does not authorize the imposition of a
levy, charge, dedication, or other requirement against residential
construction, regardless of the resulting increase in assessable
space, if that construction qualifies for the exclusion set forth in
subdivision (a) of Section 74.3 of the Revenue and Taxation Code.
(D) To location, installation, or occupancy of manufactured homes
and mobilehomes, as defined in Section 17625.
(2) For purposes of this section, "construction" and "assessable
space" have the same meanings as defined in Section 65995 of the
Government Code.
(3) For purposes of this section and Section 65995 of the
Government Code, "construction or reconstruction of school facilities"
does not include any item of expenditure for any of the following:
(A) The regular maintenance or routine repair of school buildings
and facilities.
(B) The inspection, sampling, analysis, encapsulation, or removal
of asbestos-containing materials, except where incidental to school
facilities construction or reconstruction for which the expenditure
of fees or other consideration collected pursuant to this section is
not prohibited.
(C) The purposes of deferred maintenance described in Section
17582.
(4) The appropriate city or county may be authorized, pursuant to
contractual agreement with the governing board, to collect and
otherwise administer, on behalf of the school district, any fee,
charge, dedication, or other requirement levied under this
subdivision. In the event of any agreement authorizing a city or
county to collect that fee, charge, dedication, or other requirement
in any area within the school district, the certification requirement
set forth in subdivision (b) or (c), as appropriate, is deemed to be
complied with as to any residential construction within that area
upon receipt by that city or county of payment of the fee, charge,
dedication, or other requirement imposed on that residential
construction.
(5) Fees or other consideration collected pursuant to this section
may be expended by a school district for the costs of performing any
study or otherwise making the findings and determinations required
under subdivisions (a), (b), and (d) of Section 66001 of the
Government Code, or in preparing the school facilities needs analysis
described in Section 65995.6 of the Government Code. In addition, an
amount not to exceed, in any fiscal year, 3 percent of the fees
collected in that fiscal year pursuant to this section may be
retained by the school district, city, or county, as appropriate, for
reimbursement of the administrative costs incurred by that entity in
collecting the fees. When any city or county is entitled, under an
agreement as described in paragraph (4), to compensation in excess of
that amount, the payment of that excess compensation shall be made
from other revenue sources available to the school district. For
purposes of this paragraph, "fees collected in that fiscal year
pursuant to this section" does not include any amount in addition to
the amounts specified in paragraphs (1) and (2) of subdivision (b) of
Section 65995 of the Government Code.
(b) A city or county, whether general law or chartered, or the
Office of Statewide Health Planning and Development shall not issue a
building permit for any construction absent certification by the
appropriate school district that any fee, charge, dedication, or
other requirement levied by the governing board of that school
district has been complied with, or of the district's determination
that the fee, charge, dedication, or other requirement does not apply
to the construction. The school district shall issue the
certification immediately upon compliance with the fee, charge,
dedication, or other requirement.
(c) If, pursuant to subdivision (c) of Section 17621, the
governing board specifies that the fee, charge, dedication, or other
requirement levied under subdivision (a) is subject to the
restriction set forth in subdivision (a) of Section 66007 of the
Government Code, the restriction set forth in subdivision (b) of this
section does not apply. In that event, however, a city or county,
whether general law or chartered, shall not conduct a final
inspection or issue a certificate of occupancy, whichever is later,
for any residential construction absent certification by the
appropriate school district of compliance by that residential
construction with any fee, charge, dedication, or other requirement
levied by the governing board of that school district pursuant to
subdivision (a).
(d) Neither subdivision (b) nor (c) shall apply to a city, county,
or the Office of Statewide Health Planning and Development as to any
fee, charge, dedication, or other requirement as described in
subdivision (a), or as to any increase in that fee, charge,
dedication, or other requirement, except upon the receipt by that
city, county, or the Office of Statewide Health Planning and
Development of notification of the adoption of, or increase in, the
fee or other requirement in accordance with subdivision (c) of
Section 17621.
SEC. 2. Section 17621 of the Education Code is amended to read:
17621. (a) Any resolution adopting or increasing a fee, charge,
dedication, or other requirement pursuant to Section 17620, for
application to residential, commercial, or industrial development,
shall be enacted in accordance with Chapter 5 (commencing with
Section 66000) of Division 1 of Title 7 of the Government Code. The
adoption, increase, or imposition of any fee, charge, dedication, or
other requirement pursuant to Section 17620 shall not be subject to
the California Environmental Quality Act, Division 13 (commencing
with Section 21000) of the Public Resources Code. The adoption of, or
increase in, the fee, charge, dedication, or other requirement shall
be effective no sooner than 60 days following the final action on
that adoption or increase, except as specified in subdivision (b).
(b) Without following the procedure otherwise required for
adopting or increasing a fee, charge, dedication, or other
requirement, the governing board of a school district may adopt an
urgency measure as an interim authorization for a fee, charge,
dedication, or other requirement, or increase in a fee, charge,
dedication, or other requirement, where necessary to respond to a
current and immediate threat to the public health, welfare, or
safety. The interim authorization shall require a four-fifths vote of
the governing board for adoption, and shall contain findings
describing the current and immediate threat to the public health,
welfare, or safety. The interim authorization shall have no force or
effect on and after a date 30 days after its adoption. After notice
and hearing in accordance with subdivision (a), the governing board,
upon a four-fifths vote of the board, may extend the interim
authority for an additional 30 days. Not more than two extensions may
be granted.
(c) Upon adopting or increasing a fee, charge, dedication, or
other requirement pursuant to subdivision (a) or (b), the school
district shall transmit a copy of the resolution to each city and
each county in which the district is situated, accompanied by all
relevant supporting documentation and a map clearly indicating the
boundaries of the area subject to the fee, charge, dedication, or
other requirement. The school district governing board shall specify,
pursuant to that notification, whether or not the collection of the
fee or other charge is subject to the restriction set forth in
subdivision (a) of Section 66007 of the Government Code.
(d) Any party on whom a fee, charge, dedication, or other
requirement has been directly imposed pursuant to Section 17620 may
protest the establishment or imposition of that fee, charge,
dedication, or other requirement in accordance with Section 66020 of
the Government Code, except that the procedures set forth in Section
66021 of the Government Code are deemed to apply, for this purpose,
to commercial and industrial development, as well as to residential
development.
(e) In the case of any commercial or industrial development, the
following procedures shall also apply:
(1) The school district governing board shall, in the course of
making the findings required under subdivisions (a) and (b) of
Section 66001 of the Government Code, do all of the following:
(A) Make the findings on either an individual project basis or on
the basis of categories of commercial or industrial development.
Those categories may include, but are not limited to, the following
uses: office, retail, transportation, communications and utilities,
light industrial, heavy industrial, research and development, and
warehouse.
(B) Conduct a study to determine the impact of the increased
number of employees anticipated to result from the commercial or
industrial development upon the cost of providing school facilities
within the district. For the purpose of making that determination,
the study shall utilize employee generation estimates that are
calculated on either an individual project or categorical basis, in
accordance with subparagraph (A). Those employee generation estimates
shall be based upon commercial and industrial factors within the
district or upon, in whole or in part, the applicable employee
generation estimates set forth in the January 1990 edition of "San
Diego Traffic Generators," a report of the San Diego Association of
Governments.
(C) The governing board shall take into account the results of
that study in making the findings described in this subdivision.
(2) In addition to any other requirement imposed by law, in the
case of any development project against which a fee, charge,
dedication, or other requirement is to be imposed pursuant to Section
53080 on the basis of a category of commercial or industrial
development, as described in paragraph (1), the governing board shall
provide a process that permits the party against whom the fee,
charge, dedication, or other requirement is to be imposed the
opportunity for a hearing to appeal that imposition. The grounds for
that appeal include, but are not limited to, the inaccuracy of
including the project within the category pursuant to which the fee,
charge, dedication, or other requirement is to be imposed, or that
the employee generation or pupil generation factors utilized under
the applicable category are inaccurate as applied to the project. The
party appealing the imposition of the fee, charge, dedication, or
other requirement shall bear the burden of establishing that the fee,
charge, dedication, or other requirement is improper.
SEC. 3. Section 65995 of the Government Code is amended to read:
65995. (a) Except for a fee, charge, dedication, or other
requirement authorized under Section 17620 of the Education Code, or
pursuant to Chapter 4.7 (commencing with Section 65970), a fee,
charge, dedication, or other requirement for the construction or
reconstruction of school facilities may not be levied or imposed in
connection with, or made a condition of, any legislative or
adjudicative act, or both, by any state or local agency involving,
but not limited to, the planning, use, or development of real
property, or any change in governmental organization or
reorganization, as defined in Section 56021 or 56073.
(b) Except as provided in Sections 65995.5 and 65995.7, the amount
of any fees, charges, dedications, or other requirements authorized
under Section 17620 of the Education Code, or pursuant to Chapter 4.7
(commencing with Section 65970), or both, may not exceed the
following:
(1) In the case of residential construction, including the
location, installation, or occupancy of manufactured homes and
mobilehomes, one dollar and ninety-three cents ($1.93) per square
foot of assessable space. "Assessable space," for this purpose, means
all of the square footage within the perimeter of a residential
structure, not including any carport, walkway, garage, overhang,
patio, enclosed patio, detached accessory structure, or similar area.
The amount of the square footage within the perimeter of a
residential structure shall be calculated by the building department
of the city or county issuing the building permit, in accordance with
the standard practice of that city or county in calculating
structural perimeters. "Manufactured home" and "mobilehome" have the
meanings set forth in subdivision (f) of Section 17625 of the
Education Code. The application of any fee, charge, dedication, or
other form of requirement to the location, installation, or occupancy
of manufactured homes and mobilehomes is subject to Section 17625 of
the Education Code.
(2) In the case of any commercial or industrial construction,
thirty-one cents ($0.31) per square foot of chargeable covered and
enclosed space. "Chargeable covered and enclosed space," for this
purpose, means the covered and enclosed space determined to be within
the perimeter of a commercial or industrial structure, not including
any storage areas incidental to the principal use of the
construction, garage, parking structure, unenclosed walkway, or
utility or disposal area. The determination of the chargeable covered
and enclosed space within the perimeter of a commercial or
industrial structure shall be made by the building department of the
city or county issuing the building permit, in accordance with the
building standards of that city or county. For the determination of
chargeable fees to be paid to the appropriate school district in
connection with any commercial or industrial construction under the
jurisdiction of the Office of Statewide Health Planning and
Development, the architect of record shall determine the chargeable
covered and enclosed space within the perimeter of a commercial or
industrial structure.
(3) The amount of the limits set forth in paragraphs (1) and (2)
shall be increased in 2000, and every two years thereafter, according
to the adjustment for inflation set forth in the statewide cost
index for class B construction, as determined by the State Allocation
Board at its January meeting, which increase shall be effective as
of the date of that meeting.
(c) (1) Notwithstanding any other provision of law, during the
term of a contract entered into between a subdivider or builder and a
school district, city, county, or city and county, whether general
law or chartered, on or before January 1, 1987, that requires the
payment of a fee, charge, or dedication for the construction of
school facilities as a condition to the approval of residential
construction, neither Section 17620 of the Education Code nor this
chapter applies to that residential construction.
(2) Notwithstanding any other provision of state or local law,
construction that is subject to a contract entered into between a
person and a school district, city, county, or city and county,
whether general law or chartered, after January 1, 1987, and before
the operative date of the act that adds paragraph (3) that requires
the payment of a fee, charge, or dedication for the construction of
school facilities as a condition to the approval of construction, may
not be affected by the act that adds paragraph (3).
(3) Notwithstanding any other provision of state or local law,
until January 1, 2000, any construction not subject to a contract as
described in paragraph (2) that is carried out on real property for
which residential development was made subject to a condition
relating to school facilities imposed by a state or local agency in
connection with a legislative act approving or authorizing the
residential development of that property after January 1, 1987, and
before the operative date of the act adding this paragraph, shall be
required to comply with that condition.
Notwithstanding any other provision of state or local law, on and
after January 1, 2000, any construction not subject to a contract as
described in paragraph (2) that is carried out on real property for
which residential development was made subject to a condition
relating to school facilities imposed by a state or local agency in
connection with a legislative act approving or authorizing the
residential development of that property after January 1, 1987, and
before the operative date of the act adding this paragraph, may not
be subject to a fee, charge, dedication, or other requirement
exceeding the amount specified in paragraphs (1) and (2) of
subdivision (b), or, if a district has increased the limit specified
in paragraph (1) of subdivision (b) pursuant to either Section
65995.5 or 65995.7, that increased amount.
(4) Any construction that is not subject to a contract as
described in paragraph (2), or to paragraph (3), and that satisfies
both of the requirements of this paragraph, may not be subject to any
increased fee, charge, dedication, or other requirement authorized
by the act that adds this paragraph beyond the amount specified in
paragraphs (1) and (2) of subdivision (b).
(A) A tentative map, development permit, or conditional use permit
was approved before the operative date of the act that amends this
subdivision.
(B) A building permit is issued before January 1, 2000.
(d) For purposes of this chapter, "construction" means new
construction and reconstruction of existing building for residential,
commercial, or industrial. "Residential, commercial, or industrial
construction" does not include any facility used exclusively for
religious purposes that is thereby exempt from property taxation
under the laws of this state, any facility used exclusively as a
private full-time day school as described in Section 48222 of the
Education Code, or any facility that is owned and occupied by one or
more agencies of federal, state, or local government. In addition,
"commercial or industrial construction" includes, but is not limited
to, any hotel, inn, motel, tourist home, or other lodging for which
the maximum term of occupancy for guests does not exceed 30 days, but
does not include any residential hotel, as defined in paragraph (1)
of subdivision (b) of Section 50519 of the Health and Safety Code.
(e) The Legislature finds and declares that the financing of
school facilities and the mitigation of the impacts of land use
approvals, whether legislative or adjudicative, or both, on the need
for school facilities are matters of statewide concern. For this
reason, the Legislature hereby occupies the subject matter of
requirements related to school facilities levied or imposed in
connection with, or made a condition of, any land use approval,
whether legislative or adjudicative act, or both, and the mitigation
of the impacts of land use approvals, whether legislative or
adjudicative, or both, on the need for school facilities, to the
exclusion of all other measures, financial or nonfinancial, on the
subjects. For purposes of this subdivision, "school facilities" means
any school-related consideration relating to a school district's
ability to accommodate enrollment.
(f) Nothing in this section shall be interpreted to limit or
prohibit the use of Chapter 2.5 (commencing with Section 53311) of
Division 2 of Title 5 to finance the construction or reconstruction
of school facilities. However, the use of Chapter 2.5 (commencing
with Section 53311) of Division 2 of Title 5 may not be required as a
condition of approval of any legislative or adjudicative act, or
both, if the purpose of the community facilities district is to
finance school facilities.
(g) (1) The refusal of a person to agree to undertake or cause to
be undertaken an act relating to Chapter 2.5 (commencing with Section
53311) of Division 2 of Title 5, including formation of, or
annexation to, a community facilities district, voting to levy a
special tax, or authorizing another to vote to levy a special tax,
may not be a factor when considering the approval of a legislative or
adjudicative act, or both, involving, but not limited to, the
planning, use, or development of real property, or any change in
governmental organization or reorganization, as defined in Section
56021 or 56073, if the purpose of the community facilities district
is to finance school facilities.
(2) If a person voluntarily elects to establish, or annex into, a
community facilities district and levy a special tax approved by
landowner vote to finance school facilities, the present value of the
special tax specified in the resolution of formation shall be
calculated as an amount per square foot of assessable space and that
amount shall be a credit against any applicable fee, charge,
dedication, or other requirement for the construction or
reconstruction of school facilities. For purposes of this paragraph,
the calculation of present value shall use the interest rate paid on
the United States Treasury's 30-year bond on the date of the
formation of, or annexation to, the community facilities district, as
the capitalization rate.
(3) For purposes of subdivisions (f), (h), and (i), and this
subdivision, "school facilities" means any school-related
consideration relating to a school district's ability to accommodate
enrollment.
(h) The payment or satisfaction of a fee, charge, or other
requirement levied or imposed pursuant to Section 17620 of the
Education Code in the amount specified in Section 65995 and, if
applicable, any amounts specified in Section 65995.5 or 65995.7 are
hereby deemed to be full and complete mitigation of the impacts of
any legislative or adjudicative act, or both, involving, but not
limited to, the planning, use, or development of real property, or
any change in governmental organization or reorganization as defined
in Section 56021 or 56073, on the provision of adequate school
facilities.
(i) A state or local agency may not deny or refuse to approve a
legislative or adjudicative act, or both, involving, but not limited
to, the planning, use, or development of real property, or any change
in governmental organization or reorganization as defined in Section
56021 or 56073 on the basis of a person's refusal to provide school
facilities mitigation that exceeds the amounts authorized pursuant to
this section or pursuant to Section 65995.5 or 65995.7, as
applicable.