BILL ANALYSIS Ó
AB 147
Page 1
ASSEMBLY THIRD READING
AB 147 (Dickinson)
As Amended May 2, 2011
Majority vote
LOCAL GOVERNMENT 6-2
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|Ayes:|Alejo, Bradford, Campos, | | |
| |Davis, Gordon, Hueso | | |
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|Nays:|Smyth, Norby | | |
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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
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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
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improvement, and sufficient protests are not withdrawn so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.
8)Defines the term "construction" to include design, acquisition
of rights-of-way, administration of construction contracts,
and actual construction.
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
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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
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; and,
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
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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.
3)States that fees paid pursuant to an ordinance adopted shall
be deposited in a planned bridge facility or major
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 : Fees and dedications are one-time exactions collected
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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
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
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estimated reasonable cost of providing the service for which the
fee was collected.
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
revenues only for construction or to reimburse construction
costs.
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.
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.
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."
This measure is substantially similar to AB 2971 (DeSaulnier) of
2008 that was heard by the Assembly Local Government Committee
and passed out on a 5-1 vote. AB 2971 (DeSaulnier) was later
gutted and amended into a transportation funding bill.
Support arguments: Supporters 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
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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 development
process.
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958
FN: 0000367