BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 1090 HEARING: 4/18/12
AUTHOR: Governance & Finance CommitteeFISCAL: Yes
VERSION: 4/11/12 TAX LEVY: No
CONSULTANT: Weinberger
LOCAL GOVERNMENT OMNIBUS ACT OF 2012
Proposes nine changes to state laws affecting local
agencies' powers and duties.
Background
Each year, local officials discover problems with the state
statutes that affect counties, cities, special districts,
and redevelopment agencies, as well as the laws on land use
planning and development. These minor problems do not
warrant separate (and expensive) bills. According to the
Legislative Analyst, in 2001-02 the cost of producing a
bill was $17,890.
Legislators respond by combining several of these minor
topics into an annual "omnibus bill." In 2011, for
example, the local government omnibus bill was
SB 194 (Senate Governance & Finance Committee) which
contained 22 noncontroversial statutory changes, avoiding
about $350,000 in legislative costs. Although this
practice may violate a strict interpretation of the
single-subject and germaneness rules as presented in
Californians for an Open Primary v. McPherson (2006), it is
an expeditious and relatively inexpensive way to respond to
multiple requests.
Proposed Law
Senate Bill 1090, the "Local Government Omnibus Act of
2012," proposes the following changes to the state laws
affecting local agencies' powers and duties:
Archaic voter approval requirements for special taxes .
Proposition 13 (1978), Proposition 62 (1986), and
Proposition 218 all require voter approval for new and
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increased local taxes. Proposition 218 specifically
requires special taxes to be approved by a 2/3 vote
(California Constitution, Article XIIIC, §2(d)). Some
older statutes which were enacted before the constitutional
voter-approval requirements took effect appear to allow
local governments to impose special taxes with only
majority voter approval. The Committee's staff wants the
Legislature to update these archaic statutes by
cross-referencing the statutory requirements for voter
approval of special taxes. SB 1090 deletes archaic
majority voter approval language and inserts
cross-references to voter approval requirements for special
taxes into a statute authorizing cities to impose charges
for sidewalk installation (Government Code §40471, as
enacted by SB 1036, Whetmore, 1971).
Property and Business Improvement Districts . The Property
and Business Improvement District Law of 1994 allows
property owners to petition a city (or county) to set up an
improvement district (PBID) and levy assessments on
property owners, business owners, or both, to pay for
promotional activities as well as for physical improvements
(AB 3754, Caldera, 1994). Practitioners who work with
PBIDs have identified errors and ambiguities in the 1994
Act. They want the Legislature to amend four code sections
to make the following corrections and clarifications:
Management district plans . State law requires each PBID's
management district plan to include specified information
(Streets & Highways Code §36622, as amended by AB 1208,
Silva, 2007). Among other things, every management plan
must contain:
The improvements and activities proposed for each
year of operation of the district.
The total annual amount proposed to be expended for
improvements, maintenance and operations, and debt
service in each year of operation of the district.
SB 1090 permits a management plan to contain only a
description of the proposed improvements and activities for
a PBID's first year of operation if the plan states that
the improvements and activities proposed for each year of
operation are the same. Similarly, SB 1090 permits a
management plan to contain only the amount proposed to be
expended for improvements, maintenance and operations, and
debt service in the PBID's first year of operation if the
plan states that the amount proposed to be expended in each
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year of operation is not significantly different.
District name correction . SB 1090 corrects an erroneous
reference to a "parking and business improvement area" by
replacing that phrase with "property and business
improvement district" (Streets & Highways Code §36629, as
amended by AB 944, Steinberg, 2003).
Disposition of revenues after a PBID expires . State law
requires PBIDs to be established for a limited initial term
and specifies the procedures by which PBIDs can be renewed
for subsequent terms of up to 10 years (Streets & Highways
Code §36660). State law also specifies procedures by which
a city council or board of supervisors can disestablish a
PBID and imposes requirements on the disposition of
revenues remaining after a disestablishment (Streets &
Highways Code §§36670 and 36671). SB 1090 clarifies that
district revenues remaining after a district expires
without renewal are subject to the same requirements that
apply to revenues remaining after a disestablishment.
Water and sewer districts' lien priority . State law
authorizes local governments that provide water or sewer
service to collect specified charges for services and
infrastructure using the same laws that apply to the levy,
collection, and enforcement of property taxes. Statutes
authorizing water and sewer service providers to collect
charges using property tax billing procedures typically
allow a public agency to impose a levy on real property for
delinquent taxes and charges. The levy becomes a lien - or
"encumbrance" - on the property when that property is sold.
The statutes, however, provide an exception to this
encumbrance, when the sale occurs before the charge becomes
delinquent (AB 1342, Knox, 1973).
This exception was intended to cover only sales and new
mortgage liens occurring in the "gap period" after the
agency submits the charge for placement on the tax bill and
before the tax bill becomes due. However, a 1981 court
decision, County of Butte v. North Burbank Public Utility
District, interpreted the exception more broadly. That
decision expanded the exception to cover any existing
mortgage lien. The court held that, when a lender holding
an existing mortgage forecloses and sells the property,
later-added unpaid tax liens for delinquent utility charges
are wiped out, regardless of when they were added. This
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interpretation of the bona fide encumbrance exception
raises questions about the priority of liens that water and
sewer providers use to collect unpaid taxes and charges.
In response to the Butte decision, the Legislature amended
the public utility district statutes involved in that
decision and the Irrigation District Law (SB 1922, Johnson,
1982). Those amendments narrowed the exception to apply
only to transfers and encumbrances created during a
specified window preceding the tax bill showing the
charges. That bill, however, did not amend any of the
other statutes with the bona fide encumbrance exception to
include this clarification.
Last year, the Legislature approved AB 741 (Huffman, 2011),
which authorizes sewer service providers, at a property
owner's request, to construct sewer improvements on private
property and charge the property owner for the costs.
Irvine Ranch Water District officials are concerned that
local governments will face risks in implementing AB 741
unless statutes that authorize water and sewer districts to
use tax bill collection procedures are conformed to the
language enacted by the 1982 Johnson bill. Senate Bill
1090 narrows the bona fide encumbrance exception to protect
sewer and other water agencies using the tax bill
collection mechanisms from the Butte decision's expansive
interpretation of the exception.
Fresno and Merced counties' boundaries . State statutes
recite the official boundary descriptions of all 58
counties (Government Code §23101-§23158). State law also
allows counties to adjust their mutual boundaries
(Government Code §23200, et seq.). After counties use this
procedure they ask the Legislature to revise their
statutory boundary descriptions to match the new realities.
In 2007, Fresno and Merced county officials used these
procedures to shift 4,175 acres from Fresno County to
Merced County near the City of Dos Palos. After those
boundary changes took effect on January 1, 2008, the
Legislature then corrected the counties' statutory boundary
descriptions (SB 894, Senate Local Government Committee,
2010). County officials recently identified errors in the
new boundary descriptions that were enacted in 2010 and
want the Legislature to correct these errors. Senate Bill
1090 corrects Fresno and Merced Counties' statutory
boundary descriptions.
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Williamson Act and Photovoltaic Solar Facilities . Statutes
enacted by SB 618 (Wolk, 2011) authorize a city or county
and a landowner to simultaneously rescind a Williamson Act
contract on marginally productive or physically impaired
lands and enter into a solar-use easement that restricts
the use of land to photovoltaic solar facilities
(Government Code §§51190-51192.2). Some of the statutes
enacted by last year's Wolk bill contained drafting errors
and inconsistent terminology:
One statute incorrectly refers to agricultural
"productively" instead of "productivity" (Government
Code §51191).
Two statutes incorrectly refer to the time an
easement "terminates" instead of the time it "is
extinguished" (Government Code §51191.3 and §51192.1).
One statute incorrectly refers to an easement's
"abandonment" instead of its "termination" (Government
Code §51192.2).
To help local governments and land owners use SB 618's
provisions properly, Williamson Act practitioners want the
Legislature to correct these errors. Senate Bill 1090
corrects errors in Williamson Act statutes related to solar
facilities.
"Abuse of office" definition . State law requires a local
agency's employment contracts to contain a provision to
reimburse the local agency for specified salary, legal, and
settlement costs if an employee is convicted of a crime
involving an abuse of his or her office or position (AB
1344, Feuer, 2011). For the purposes of this requirement,
Government Code §53243.4 defines "abuse of office" as
either:
An abuse of public authority, including, but not
limited to, waste, fraud, and violation of the law
under color of authority.
A crime against public justice, including, but not
limited to, a crime described in Title 7 (commencing
with Section 92) of Part 1 of the Penal Code.
Some law enforcement officials worry that this definition's
cross-reference to the Penal Code excludes important crimes
that are defined in Title 5 of Part 1 of the Penal Code.
Senate Bill 1090 adds a cross-reference to the Penal Code
to more accurately define the phrase abuse of office.
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Benefit Assessment Act of 1982 validations . Numerous
statutes authorize a local government to file a validation
lawsuit, asking a superior court to determine the validity
of actions the local government has taken. The Benefit
Assessment Act of 1982 (Government Code §54703 et seq.)
allows local governments to levy assessments on real
property to pay for the maintenance and operation costs of
drainage, flood control, and street lighting services.
Unlike many other benefit assessment acts, the 1982 Act
doesn't expressly authorize local governments to use
validation lawsuits to validate 1982 Act assessments. The
California Central Valley Flood Control Association wants
the Legislature to allow local governments that levy
benefits assessments under the 1982 Act to use validation
suits to confirm their actions. Senate Bill 1090 adds
language to the 1982 Act that mirrors the validation
language that was added to the North Delta Water Agency's
governing statutes by the Local Government Omnibus Act of
2009 (SB 113, Senate Local Government Committee, 2009).
Engineers' and surveyors' seals on subdivision maps . The
Subdivision Map Act governs how cities and counties approve
applications to convert large properties into smaller
parcels for sale, lease, or financing. A major subdivision
creates five or more parcels and requires both a tentative
map and a final map. A minor subdivision (lot split)
creates four or fewer parcels and usually needs only a
parcel map. Final maps and parcel maps must be certified
by a licensed engineer or land surveyor, who must "indicate
his or her registration or license number with expiration
date and the stamp of his or her seal" on a certified map
(Government Code §66442 and §66450). The Legislature
recently repealed the requirement that an expiration date
appear on the seal that licensed engineers and surveyors
stamp on specified engineering and land surveying documents
(AB 645, Niello, 2009). The California Land Surveyors
Association wants the Legislature to conform the
Subdivision Map Act to these changes. Senate Bill 1090
deletes the requirement that final maps and parcel maps
must be stamped with a seal that indicates the expiration
date of an engineer's or surveyor's license.
Kings River Conservation District's elections . The Kings
River Conservation District (Fresno County) is a special
act special district that provides flood control, water
resource management, and power generation services to
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communities within its 1.2 million acre jurisdiction. The
District is governed by a seven-member elected board of
directors. Six of the directors represent six electoral
divisions within the District and the seventh director
represents the entire District. Because the boundaries of
these electoral divisions are defined in the District's
special act, using metes and bounds descriptions, the
boundaries can only be adjusted by the Legislature, not by
the District's board of directors. The Legislature last
amended the statute describing the District's electoral
boundaries in 1955.
District officials worry that the antiquated statutes
governing their board of directors' electoral divisions
prevent the District from complying with federal Voting
Rights Act requirements. They want the Legislature to
repeal and amend outdated provisions of the Kings River
Conservation District Act governing the district's
electoral divisions. Specifically, Senate Bill 1090:
Repeals the statutory descriptions of the
District's electoral boundaries.
Repeals other antiquated statutory provisions
governing district elections.
Requires district directors to establish seven
electoral divisions that must be, as far as
practicable, equal in population, using the most
recent federal census data as a basis.
Allows directors, when establishing division
boundaries, to consider the topography, geography,
cohesiveness, contiguity, integrity, compactness of
territory, and the community of interests of the
electoral divisions.
Requires directors to review and, if necessary,
adjust the District's electoral division boundaries
following each decennial census.
Requires a candidate for the board of directors to
reside in the electoral division for which he or she
is a candidate.
Requires a director to continue to reside within
the electoral division during his or her term of
office.
Prohibits a change in boundaries of an electoral
division from affecting an incumbent director's term
of office.
Establishes a schedule for conducting elections for
each division.
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Defines directors' terms of office.
Requires the District to conduct elections in
accordance with the Uniform District Election Law.
State Revenue Impact
No estimate.
Comment
Purpose of the bill . SB 1090 compiles nine
noncontroversial changes to state laws affecting local
agencies and land use into a single bill. Sending a bill
through the legislative process costs around $18,000. By
avoiding 8 other bills, the Committee's measure avoids over
$140,000 in legislative costs. Although the practice may
violate a strict interpretation of the single-subject and
germaneness rules, the Committee insists on a very public
review of each item. More than 100 public officials, trade
groups, lobbyists, and legislative staffers see each
proposal before it goes into the Committee's bill. Should
any item in SB 1090 attract opposition, the Committee will
delete it. In this transparent process, there is no hidden
agenda. If it's not consensus, it's not omnibus.
Support and Opposition (4/12/12)
Support : California Central Valley Flood Control
Association, Irvine Ranch Water District, Kings River
Conservation District.
Opposition : Unknown.