BILL ANALYSIS Ó
AB 1359
Page 1
ASSEMBLY THIRD READING
AB 1359 (Roger Hernández)
As Amended May 29, 2013
Majority vote
LOCAL GOVERNMENT 5-0
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|Ayes:|Levine, Alejo, Bradford, | | |
| |Mullin, Rendon | | |
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SUMMARY : Allows Quimby Act fees to be used for the purpose of
developing new or rehabilitating existing park or recreational
facilities in a neighborhood other than the neighborhood in
which the fees were paid, if certain requirements are met.
Specifically, this bill :
1)Allows Quimby Act fees to be used for the purpose of
developing new or rehabilitating existing park or recreational
facilities in a neighborhood other than the neighborhood in
which the subdivision for which the fees were paid as a
condition to the approval of a tentative map or parcel map is
located, if all of the following requirements are met:
a) The neighborhood in which the fees are to be expended
has fewer than three acres of park area per 1,000 members
of the neighborhood population;
b) The neighborhood in which the subdivision for which the
fees were paid has a park per 1,000 members of the
neighborhood population ratio that meets or exceeds the
ratio calculated pursuant to existing law contained in the
Quimby Act; and,
c) The legislative body holds a public hearing before using
the fees. If the distance between the neighborhoods is
greater than two miles, the legislative body shall make a
finding supported by substantial evidence that it is
reasonably foreseeable that future inhabitants of the
subdivision for which the fee is imposed will use the
proposed park and recreational facilities.
2)Adds in a new requirement to provisions in the Quimby Act that
require the legislative body to adopt a general plan or
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specific plan containing policies and standards for parks and
recreational facilities, and the park and recreational
facilities are in accordance with definite principles and
standards, as follows:
a) Requires the principles and standards to provide for
consistency between the calculation of the existing
neighborhood and community park area inventory pursuant to
existing provisions in the Quimby Act and the criteria and
procedures that the local agency applies to a determination
regarding the suitability of land offered for dedication
and credits for private open space. Consistency is not
provided where the local agency refuses to do any of the
following:
i) Accept an area in complete or partial satisfaction
of the land dedication requirement on the basis that it
is unsuitable for park and recreational uses, if the area
is substantially similar to areas in the park area
inventory;
ii) Accept an area in complete or partial satisfaction
of the land dedication requirement on the basis that the
type of use the subdivider proposes is not an appropriate
park and recreational use, if the use is substantially
similar to uses on areas included in the park area
inventory; and,
iii) Provide more that the minimum required credit
pursuant existing law in the Quimby Act on the basis that
the active recreational uses proposed by the subdivider
are not appropriate park and recreational uses, if the
recreational uses are substantially similar to uses on
areas included in the park area inventory.
3)Allows the city, county, or other local agency to which the
land or fees are conveyed or paid to enter into a joint or
shared use agreement with one or more public districts in the
jurisdiction, including, but not limited to, a school district
or community college district, in order to provide access to
park or recreational facilities to residents of subdivisions
with fewer than three acres of park area per 1,000 members of
the population.
EXISTING LAW :
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1)Establishes the Quimby Act as part of the Subdivision Map Act.
2)Allows, pursuant to the Quimby Act, the legislative body of a
city or county to, by ordinance, require the dedication of
land or impose a requirement of the payment of fees in lieu,
or a combination of both, for park or recreational purposes as
a condition to the approval of a tentative map or parcel map,
if all of the following requirements are met:
a) The ordinance has been in effect for a period of 30 days
prior to the filing of the tentative map of the subdivision
or parcel map;
b) The ordinance includes definite standards for
determining the proportion of a subdivision to be dedicated
and the amount of a fee to be paid in lieu thereof, and
provides that the amount of land dedicated or fees paid
shall be based upon the residential density. The
dedication of land, or the payment of fees, or both, shall
not exceed the proportionate amount necessary to provide
three acres of park area per 1,000 persons residing within
a subdivision subject to this section, unless the amount of
existing neighborhood and community park area exceeds that
limit, in which case the legislative body may adopt the
calculated amount as a higher standard not to exceed five
acres per 1,000 persons residing within a subdivision:
i) The park area per 1,000 members of the population of
the city, county, or local public agency shall be derived
from the ratio that the amount of neighborhood and
community park acreage bears to the total population of
the city, county, or local public agency as shown in the
most recent available federal census. The amount of
neighborhood and community park acreage shall be the
actual acreage of existing neighborhood and community
parks of the city, county, or local public agency as
shown on its records, plans, recreational element, maps,
or reports as of the date of the most recent available
federal census;
ii) For cities incorporated after the date of the most
recent available federal census, the park area per 1,000
members of the population of the city shall be derived
from the ratio that the amount of neighborhood and
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community park acreage shown on the records, maps, or
reports of the county in which the newly incorporated
city is located bears to the total population of the new
city as determined pursuant to Revenue and Taxation Code
Section 11005. In making any subsequent calculations
pursuant to this section, the county in which the newly
incorporated city is located shall not include the
figures pertaining to the new city which were calculated
pursuant to this paragraph. Fees shall be payable at the
time of the recording of the final map or parcel map or
at a later time as may be prescribed by local ordinance.
c) Requires the land, fees, or combination thereof to be
used only for the purpose of developing new or
rehabilitating existing neighborhood or community park or
recreational facilities to serve the subdivision;
d) The legislative body has adopted a general plan or
specific plan containing policies and standards for parks
and recreation facilities, and the park and recreational
facilities are in accordance with definite principles and
standards;
e) The amount and location of land to be dedicated or the
fees to be paid shall bear a reasonable relationship to the
use of the park and recreational facilities by the future
inhabitants of the subdivision;
f) The city, county or other local public agency to which
the land or fees are conveyed or paid shall develop a
schedule specifying how, when, and where it will use the
land or fees, or both, to develop park or recreational
facilities to serve the residents of the subdivision. Fees
collected under the ordinance shall be committed within
five years after the payment of the fees of the issuance of
building permits on one-half of the lots created by the
subdivision, whichever occurs later;
g) Only the payment of fees may be required in subdivisions
containing 50 parcels or less, except that when a
condominium project, stock cooperative, or community
apartment project, exceeds 50 dwelling units, dedication of
land may be required notwithstanding that the number of
parcels may be less than 50;
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h) Subdivisions containing less than five parcels and not
used for residential purposes shall be exempted from the
requirements of this section. However, in that event, a
condition may be placed on the approval of a parcel map
that if a building permit is requested for construction of
a residential structure or structures on one or more of the
parcels within four years, the fee may be required to be
paid by the owner of each parcel as a condition of the
issuance of the permit; and,
i) If the subdivider provides park and recreational
improvements to the dedicated land, the value of the
improvements together with any equipment located thereon
shall be a credit against the payment of fees or dedication
of land required by the ordinance.
3)Requires land or fees pursuant to the Quimby Act to be
conveyed or paid directly to the local public agency which
provides park and recreational services on a communitywide
level and to the area within which the proposed development
will be located, if that agency elects to accept the land or
fee.
4)Requires, if park and recreational services and facilities are
provided by a public agency other than a city or county, the
amount and location of land to be dedicated or fees to be paid
shall, subject to 2b) above, be jointly determined by the city
or county having jurisdiction and that other public agency.
5)Authorizes cities and counties to create infrastructure
financing districts (IFDs) and issue bonds to pay for
community scale public works: highways, transit, water
systems, sewer projects, flood control, child care facilities,
libraries, parks, and solid waste facilities.
6)Allows an IFD to divert property tax increment revenues from
other local governments, excluding school districts, for up to
30 years, in order to pay back bonds issued by the IFD.
7)Requires that in order to form an IFD a city or county must
develop an infrastructure plan, send copies to every
landowner, consult with other local governments, and hold a
public hearing.
8)Requires that when forming an IFD, local officials must find
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that its public facilities are of communitywide significance
and provide significant benefits to an area larger than the
IFD.
9)Requires that every local agency, who will contribute its
property tax increment revenue to the IFD, approve the plan.
10)Requires a two-thirds voter approval of the formation of the
IFD and the issuance of bonds.
FISCAL EFFECT : None
COMMENTS : This bill allows Quimby Act fees to be used for the
purpose of developing new or rehabilitating existing park or
recreational facilities in a neighborhood other than the
neighborhood in which the subdivision for which fees were paid
as a condition to the approval, if specified conditions are met.
First, the neighborhood in which the fees are to be expended
must have fewer than three acres of park area per 1,000 members
of the neighborhood population; second, the neighborhood in
which the subdivision for which the fees were paid must have a
park per 1,000 members of the neighborhood population ratio that
meets or exceeds the ratio calculated under existing law
contained in the Quimby Act; and third, the legislative body
must hold a public hearing before using the fees. Additionally,
the bill specifies that if the distance between the
neighborhoods is greater than two miles, the legislative body
shall make a finding supported by substantial evidence that it
is reasonably foreseeable that future inhabitants of the
subdivision for which the fee is imposed will use the proposed
park and recreational facilities.
The bill allows for funds to be used to create joint use
agreements between school districts, universities, counties and
cities. The bill additionally adds in new requirements to the
provisions in the Quimby Act that require the legislative body
to adopt a general plan or specific plan containing policies and
standards for parks and recreational facilities, and the park
and recreational facilities are in accordance with definite
principles and standards.
This bill is author-sponsored.
According to the author, "Local governments in California
provide a critical role in the effort to set aside parkland and
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open space for recreational purposes. Since the passage of the
Quimby Act in 1975, cities and counties have been authorized to
require developers to set aside land, donate conservation
easements, or pay fees for park improvements. Per the Quimby
Act, these funds are to 'serve the subdivision' being developed.
Thus, the resources stay in the area undergoing development.
Areas with little to no development do not receive these
resources, many of which are park poor.
"Low-income communities and communities of color suffer the most
from disparities in access to green space and from health and
social problems that stem from such inequalities. The fact is
that low-income people of color disproportionately lack equal
access to parks, school fields, beaches, trails, and forests,
which has been in part a result of unequal land use policy. In
a 2011 study, The City Project found that many areas in
California and in particular Los Angeles County can be
considered park poor. "Park poor" defined in California law
refers to any geographic area that provides less than 3 acres of
green space per 1,000 residents.
"Investing in California's parks and creating equitable access
to green space throughout the state would create healthier
communities and decrease childhood obesity. Parks also provide
an important sense of community pride and are low or no-cost
places to exercise and celebrate community events, family
events, heritage and art."
Cities and counties have been authorized since the passage of
the 1975 Quimby Act to pass ordinances requiring that developers
set aside land, donate conservation easements, or pay fees for
park improvements. The Quimby Act was substantially amended in
1982 to further define acceptable uses of or restrictions on
Quimby funds, and provide acreage/population standards and
formulas for determining the exaction. One other major change
was to specify that the exactions must be closely tied to a
project's impacts as identified through traffic studies required
by CEQA, meaning that there has to be a "nexus."
To impose Quimby Act fees, the city or county must have a
general plan or specific plan that contains policies and
standards for park facilities. Under the Quimby Act, fees must
bear a reasonable relationship to the proposed subdivision.
Those fees can only be used for developing new parks or
rehabilitating parks that serve that subdivision. As well, the
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Quimby Act requires that the amount and location of land to be
dedicated or the fees to be paid shall bear a "reasonable
relationship to the use of the park and recreational facilities
by the future inhabitants of the subdivision."
This bill broadens how and where the Quimby Act fees can be
used. The Legislature may wish to consider the implications of
undoing 30-plus years of long-held policy that requires the
local government to establish a reasonable nexus in order to
exact the fee.
This bill also requires, if Quimby Act fees are to be used for
"park poor" areas rather than to "serve" the subdivision for
which the developer has paid the Quimby fee, that before fees
are used in such a manner, the legislative body must hold a
public hearing.
Under current law, implementation of a Quimby ordinance begins
once a developer files an application for a development project
with a tentative subdivision parcel map. The map goes to a
review committee that makes recommendations on the map, which
are then sent to the planning department. The city council or
board of supervisors would then act on the final map during a
public hearing and if approved, the fees would be paid.
The Legislature may wish to consider the implications of
requiring the legislative body to hold a hearing before fees can
be used for the broader purposes pursuant to this bill's
provisions.
The bill adds an additional requirement that should the distance
between the neighborhoods where the fee is paid and where the
fees will be spent is greater than two miles, the legislative
body is required to make a finding supported by substantial
evidence that it is reasonably foreseeable that future
inhabitants of the subdivision for which the fee is imposed will
use the proposed park and recreational facilities. The
Legislature may wish to consider the requirement of "substantial
evidence" and whether this language that requires a certain
legal burden of proof made in a public hearing will open up
cities and counties to greater threats of litigation.
A previous bill, AB 2936 (Aroner) of 2002, would have allowed
counties and cities to spend their Quimby Act fees to prepare
master plans for park and recreation facilities. The Senate
Local Government Committee analysis on the bill notes that "AB
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2936 violates [the] nexus test in two ways. First, the bill
allows local officials to divert Quimby Act fees away from
capital spending and use the money for master plans. Second,
the bill allows officials to divert fees raised from a specific
subdivision and use the money to benefit the wider community.
Mitigation fees must be used to mitigate the project's effects,
not to compensate for other unmet needs." AB 2936 was
subsequently amended to address an unrelated topic.
In light of the previous legislative attempt to broaden the
usage of Quimby fees, the Legislature may wish to consider
whether the Legislature should depart from the established nexus
requirements.
The League of California Cities, in their "Notice of Concerns"
letter, writes that "There is a question of whether there is a
sufficient nexus between the fees paid and the benefit,
including the recipients of that benefit. There is abundant
case law upholding the principle that development fees are not
taxes, if they are imposed in accordance with the procedure
found in Government Code 66000 and those following. These
statutes (which constitute the Mitigation Fee Act) essentially
codify the required nexus that courts have repeatedly said is
necessary to justify a fee."
"In the case of Kings County v. City of Lemoore (2010 185
Cal.App. 4th 554 ), the California Appellate Court rejected the
idea that the Quimby Act was the exclusive statutory authority
for funding parks and recreational facilities. The court held
that a separate municipal park fee (outside the scope of the
Quimby Act) to fund city-wide recreational facilities was valid.
This raises the question of whether amending the Quimby Act is
the proper funding mechanism, given the nexus analysis that must
occur."
Given these legal concerns by cities, the Legislature may wish
to consider whether the threat of litigation would act as a
deterrent for cities and counties to actually use Quimby Act
fees for the broader purposes pursuant to the bill's provisions.
A number of existing tools already exist and are at the disposal
of local governments. Development fees are collected on each and
every permit in the state of California, and these fees include
those levied for improvement and maintenance of parks.
Additionally, Mello-Roos Districts, and Infrastructure Financing
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Districts (IFD) provide opportunities and tools which can
revitalize existing parks. The Legislature may wish to consider
whether the author's stated purpose of increasing funds to be
used in "park poor" areas could be better accomplished through
an IFD or other financing tool.
Support arguments: Supporters argue that this bill will invest
in California's parks and create more equitable access to green
space throughout the state and would create healthier
communities, decrease childhood obesity, and help alleviate
mental illness caused by lack of activity and stress.
Opposition arguments: Opponents argue that the existing
requirement to "serve the subdivision" provides the nexus
between the fee being collected and the impact from the
subdivision, and that circumventing that requirement would open
the door to constitutional and legal challenges to the
implementation of the Quimby Act.
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958
FN: 0000990