BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 147 HEARING: 6/8/11
AUTHOR: Dickinson FISCAL: No
VERSION: 5/31/11 TAX LEVY: No
CONSULTANT: Detwiler
SUBDIVISION FEES
Allows counties and cities to charge transportation
facilities fees when approving subdivisions and building
permits.
Background and Existing Law
Because land development in California is a privilege and
not a property right, counties and cities can use their
general police powers to impose conditions when approving
development projects. The Mitigation Fee Act sets out four
criteria that local officials must meet when charging
developer impact fees:
Identify the fee's purpose.
Identify the fee's use.
Determine a reasonable relationship between the use
of the fee and the type of development project.
Determine a reasonable relationship between the
need for public facilities and the type of development
project.
The Subdivision Map Act controls how counties and cities
review and approve property owners' requests to convert
larger parcels into smaller lots. Local officials commonly
attach scores of conditions when they approve tentative
subdivision maps. Mainstream legal thinking holds that
counties and cities have three sources of authority to
impose conditions on proposed subdivisions:
Conditions to make the subdivision consistent with
the local general plan.
Conditions to mitigate a subdivision's
environmental impacts.
Conditions that the Map Act specifically
authorizes.
One example of a condition that the Map Act specifically
AB 147 -- 5/31/11 -- Page 2
authorizes are parkland dedications or in lieu fees (Quimby
Act). The Map Act also contains a separate article that
sets out the procedures for charging fees to pay for
drainage facilities, bridges, and major thoroughfares. To
charge fees for constructing bridges and thoroughfares, a
county board of supervisors or city council must adopt an
ordinance that refers to the circulation element of its
general plan (which identifies the proposed bridges and
thoroughfares), identifies the projects' costs, identifies
the boundaries of the "area of benefit" where the fees will
apply, and proposes a fair method to allocate the costs and
fees. The county or city must hold a noticed public
hearing and measure any protests. If the owners of more
than half of the area of benefit protest, the county or
city must stop the proceedings. If there is a
majority-protest, the county or city must wait a year
before trying again. However, with the 4/5-vote of the
county supervisors or city council, the county or city can
try to levy these fees in a smaller area of benefit if they
find that landowners who own more than half of the area are
in favor. If the proceedings succeed, the county or city
must record a certified copy of a resolution that describes
the area of benefit, the projects' costs, and the formula
for apportioning the fees. The county or city can charge
these fees as a condition of approving a final subdivision
map or issuing a building permit. The fee revenues must go
into a separate special fund for each proposed bridge or
thoroughfare. The county or city can spend the fee
revenues only for constructing those projects. A county or
city can borrow against those revenues, pledging the fees
as security.
Contra Costa County is among a small number of counties
that say they can't charge subdivision fees unless the Map
Act specifically authorizes them. The County wants the
Legislature to specifically authorize counties and cities
to impose transportation facilities fees, using procedures
similar to the existing law for bridge and thoroughfare
fees.
Proposed Law
Assembly Bill 147 authorizes counties and cities to require
fees to pay for constructing transportation facilities as a
condition of approving final subdivision maps and building
AB 147 -- 5/31/11 -- Page 3
permits. AB 147 defines transportation facilities as
pedestrian, bicycle, transit, and transportation-calming
facilities. The bill requires counties and cities to
impose these transportation facilities fees subject to the
Mitigation Fee Act.
The bill also sets out procedures for charging fees to pay
for transportation facilities. A county board of
supervisors or city council must adopt an ordinance that
refers to the circulation element of its general plan
(which identifies the proposed transportation facilities),
identifies the projects' costs, identifies the boundaries
of the "area of benefit" where the fees will apply, and
proposes a fair method of allocating the costs. The county
or city must hold a noticed public hearing and measure any
protests. If the owners of more than half of an area of
benefit protest, the county or city must stop the
proceedings. If there was a majority-protest, the county
or city must wait a year before trying again. However,
with the 4/5-vote of the county supervisors or city
council, the county or city can try to levy these fees in a
smaller area of benefit if they find that landowners who
own more than half of the area are in favor. If the
proceedings succeed, the county or city must record a
certified copy of a resolution that describes the area of
benefit, the projects' costs, and the formula for
apportioning the fees. The fee revenues must go into a
separate special fund for each proposed transportation
facility and the county or city can spend the fee revenues
only for constructing those projects. A county or city can
pledge these fees as security and borrow against them.
AB 147 declares that the authority in the Map Act's article
on fees is in addition to other legal authority.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Most -- but not all -- counties
believe that the Subdivision Map Act allows local officials
to charge subdivision fees, provided that they meet the
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nexus tests spelled out in the Mitigation Fee Act. In
contrast, Contra Costa County wants the Legislature to
create specific statutory authority for counties and cities
to charge fees to pay for constructing transportation
facilities. By making these fees explicit in the
Subdivision Map Act and by linking the fees to the nexus
requirements in the Mitigation Fee Act, AB 147 satisfies
Contra Costa County's need for statutory specificity
without confusing the law for other counties and cities.
2. Fuzzy logic . Proposition 13 (1978), Proposition 218
(1996), and Proposition 26 (2010) put constitutional limits
on how local officials can impose general taxes, special
taxes, special assessments, property-related fees, and
fees. Legislators and judges continue to wrestle with
these constitutional terms and how to apply them to
specific charges by counties, cities, and special
districts. Shortly after Proposition 13, a 1979 Attorney
General's opinion concluded that bridge and thoroughfare
fees were not special taxes that require 2/3-voter
approval, "since they are special assessments." The Map
Act's procedures for public notice and protests are similar
to other state laws on special assessments, as they existed
in the late 1970s. After Proposition 218 passed,
legislators revised the statutory procedures for imposing
special assessments to require detailed engineers' reports,
assessments based on the properties' direct benefits,
direct mailed notices, formal public hearings to measure
protests, and weighted ballot voting by property owners.
If the AG was right and the Map Act's bridge and
thoroughfare charges aren't impact fees but really are
special assessments, then the current law may not comply
with Proposition 218. If that's true, then the nearly
identical procedures in AB 147 may not meet constitutional
standards. The distinctions between taxes, assessments,
and fees may need further explanation by the courts.
3. Avoiding the negative implication . One rule of legal
interpretation is that if a law mentions some things, by
implication the statute excludes other things (expressio
unius est exclusio alterius). By adding another specific
authorization to the Map Act's article on fees, some
observers might argue that the Legislature accepts the
interpretation that the only subdivision fees that counties
and cities may charge are those which the statute
explicitly mentions. AB 147 avoids that negative
AB 147 -- 5/31/11 -- Page 5
implication by including language which makes it clear that
the authority in the Map Act's article on fees is in
addition to other legal authority. That declaration
preserves the mainstream legal thinking about Map Act fees.
Assembly Actions
Assembly Local Government Committee: 6-2
Assembly Floor: 49-23
Support and Opposition (6/2/11)
Support : California State Association of Counties;
American Lung Association; California Transit Association;
Capitol Corridor Joint Powers Authority; County of Contra
Costa; Environmental Defense Fund; Housing California;
Metropolitan Transportation Commission; Natural Resources
Defense Fund; Regional Council of Rural Counties;
Sacramento Metropolitan Air Quality Management District;
TransForm.
Opposition : Unknown.