BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 147
                                                                  Page  1

          Date of Hearing:  April 13, 2011

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                                Cameron Smyth, Chair
                   AB 147 (Dickinson) - As Amended:  April 4, 2011
           
          SUBJECT  :  Subdivisions.

           SUMMARY  :  Authorizes a local ordinance to require the payment of 
          a fee subject to the Mitigation Fee Act, as a condition of 
          approval of a final map or as a condition of issuing a building 
          permit for purposes of defraying the actual or estimated cost of 
          constructing other transportation facilities.   Specifically, 
           this bill  :

          1)Provides that a local ordinance may require the payment of a 
            fee subject to the Mitigation Fee Act, as a condition of 
            approval of a final map or as a condition of issuing a 
            building permit for purposes of defraying the actual or 
            estimated cost of constructing other transportation 
            facilities, including, but not limited to, pedestrian, 
            bicycle, transit, and traffic-calming facilities.

          2)Specifies that the ordinance may require payment of fees for 
            other transportation facilities if the ordinance refers to the 
            circulation element of the general plan which identifies those 
            transportation facilities that are required to minimize the 
            use of automobiles and minimize the traffic impacts of new 
            development on existing roads.

          3)States that the ordinance may require payment of the fees if 
            all of the following requirements are satisfied:

             a)   The ordinance provides that there will be a public 
               hearing held by the governing body for each area benefited;

             b)   The ordinance provides that at the public hearing, the 
               boundaries of the area of benefit, the costs, whether 
               actual or estimated, and a fair method of allocation of 
               costs to the area of benefit and fee apportionment are 
               established; and,

             c)   The ordinance provides that if, within the time when 
               protests may be filed under the provisions of the 
               ordinance, there is a written protest, filed with the clerk 








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               of the legislative body, by the owners of more than 
               one-half of the area of the property to be benefited by the 
               improvement, and sufficient protests are not withdrawn so 
               as to reduce the area represented to less than one-half of 
               that to be benefited, then the proposed proceedings shall 
               be abandoned, and the legislative body shall not, for one 
               year from the filing of that written protest, commence or 
               carry on any proceedings for the same improvement or 
               acquisition.

          4)States that fees paid pursuant to an ordinance adopted shall 
            be deposited in a planned transportation facility fund.

          5)Requires a fund to be established for each planned bridge 
            facility project or each planned major thoroughfare project.

          6)States that a local agency imposing the fees may advance money 
            from its general fund or road fund to pay the cost of 
            constructing the improvements and may reimburse the general 
            fund or road fund for any advances from planned transportation 
            facility fund established to finance the construction of those 
            improvements.

          7)States that a local agency imposing the fee may incur an 
            interest-bearing indebtedness for the construction of other 
            transportation facilities and the sole security for repayment 
            shall come from moneys in planned transportation facility 
            fund.

           EXISTING LAW  :

          1)Provides that a local ordinance may require the payment of a 
            fee as a condition of approval of a final map or as a 
            condition of issuing a building permit for purposes of 
            defraying the actual or estimated cost of constructing bridges 
            over waterways, railways, freeways, and canyons, or 
            constructing major thoroughfares.

          2)States that the ordinance may require payment of the fees if 
            all of the following requirements are satisfied:

             a)   The ordinance refers to the circulation element of the 
               general plan and, in the case of bridges, to the 
               transportation or flood control provisions thereof which 
               identify railways, freeways, streams, or canyons for which 








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               bridge crossings are required on the general plan or local 
               roads and in the case of major thoroughfares, to the 
               provisions of the circulation element which identify those 
               major thoroughfares whose primary purpose is to carry 
               through traffic and provide a network connecting to the 
               state highway system.

             b)   The ordinance provides that there will be a public 
               hearing held by the governing body for each area benefited.

             c)   The ordinance provides that at the public hearing, the 
               boundaries of the area of benefit, the costs, whether 
               actual or estimated, and a fair method of allocation of 
               costs to the area of benefit and fee apportionment are 
               established.

             d)   The ordinance provides that payment of fees shall not be 
               required unless the major thoroughfares are in addition to, 
               or a reconstruction of, any existing major thoroughfares 
               serving the area at the time of the adoption of the 
               boundaries of the area of benefit.

             e)   The ordinance provides that payment of fees shall not be 
               required unless the planned bridge facility is an original 
               bridge serving the area or an addition to any existing 
               bridge facility serving the area at the time of the 
               adoption of the boundaries of the area of benefit.  The 
               fees shall not be expended to reimburse the cost of 
               existing bridge facility construction.

             f)   The ordinance provides that if, within the time when 
               protests may be filed under the provisions of the 
               ordinance, there is a written protest, filed with the clerk 
               of the legislative body, by the owners of more than 
               one-half of the area of the property to be benefited by the 
               improvement, and sufficient protests are not withdrawn so 
               as to reduce the area represented to less than one-half of 
               that to be benefited, then the proposed proceedings shall 
               be abandoned, and the legislative body shall not, for one 
               year from the filing of that written protest, commence or 
               carry on any proceedings for the same improvement or 
               acquisition.

          3)States that fees paid pursuant to an ordinance adopted shall 
            be deposited in a planned bridge facility or major 








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            thoroughfare fund.

          4)Requires a fund to be established for each planned bridge 
            facility project or each planned major thoroughfare project.

          5)States that a local agency imposing the fees may advance money 
            from its general fund or road fund to pay the cost of 
            constructing the improvements and may reimburse the general 
            fund or road fund for any advances from planned bridge 
            facility or major thoroughfares funds established to finance 
            the construction of those improvements.

          6)States that a local agency imposing the fee may incur an 
            interest-bearing indebtedness for the construction of bridge 
            facilities or major thoroughfares and the sole security for 
            repayment shall come from moneys in planned bridge facility or 
            major thoroughfares funds.

          7)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.

          8)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.

           FISCAL EFFECT  :  None

           COMMENTS  :

          1)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 








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            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.

          2)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.

          3)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 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).

          4)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.

          5)As a condition of approving subdivisions under the Subdivision 
            Map Act, cities and counties can impose fees to pay for the 
            costs of public works projects that are related to those 
            subdivisions.  Local officials can also impose subdivision 
            fees to pay for new bridges and major thoroughfares, but they 
            must put the revenues into a fund for each bridge or major 
            thoroughfare project.  Local officials can spend the fee 








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            revenues only for construction or to reimburse construction 
            costs.

          6)Statewide efforts, such as SB 375 (Steinberg), Chapter 728, 
            Statutes of 2008, and the development of regional sustainable 
            communities strategies, encourage more compact growth and 
            infill development in cities, existing urban cores, and urban 
            unincorporated areas. 

          7)According to the sponsor, the California State Association of 
            Counties (CSAC), there are many impediments to infill 
            development; a primary issue is the cost of the necessary 
            infrastructure improvements.  Infill development projects can 
            also require different types of transportation mitigation 
            projects than the typical roadway or bridge improvement. 

          8)CSAC states that "often times a city or county cannot add new 
            or widen existing roads and/or bridges to support new 
            development projects in built-out or nearly built-out urban 
            areas.  However, a city or county could mitigate the 
            transportation impacts with other modal improvements such as 
            adding or improving transit facilities such as bus turnouts 
            and stops, bicycle lanes, and/or safe pedestrian paths.  This 
            is also consistent with statewide complete streets goals." 

          9)This measure is substantially similar to the AB 2971 
            (DeSaulnier, 2008) that was heard by this Committee and passed 
            out on 5-1 vote.  AB 2971 was later gutted and amended into a 
            transportation funding bill. 

          10)Support Arguments:  Supports argue that some local 
            governments have updated the circulation element in their 
            general plans to provide for a balanced transportation system 
            that helps to reduce cumulative traffic impacts, harmful air 
            emissions and single-occupant commuting, and encourages use of 
            transit.  Local governments now want to update their 
            transportation fees for new development to fund off-site 
            pedestrian, bicycle, transit and traffic calming facilities.

            Opposition Arguments:  Opposition may argue that fees are 
            already collected for a myriad 
            of things related to development, including transportation and 
            transit facilities under the Mitigation Fee Act and that 
            adding another layer of fees to cover non-vehicle circulation 
            costs could add on more costs to an already expensive 








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            development process.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          CA State Association of Counties ›SPONSOR] 
          Environmental Defense Fund
          Metropolitan Transportation Commission 
          Sacramento Air Quality Management District 

           Opposition 
           
          None on file (as of 4/7/11) 
           
          Analysis Prepared by  :    Katie Kolitsos / L. GOV. / (916) 
          319-3958