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 ----------------------------------------------------------------- |Ayes:|Levine, Alejo, Bradford, | | | | |Mullin, Rendon | | | ----------------------------------------------------------------- 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 AB 1359 Page 2 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 : AB 1359 Page 3 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 AB 1359 Page 4 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; AB 1359 Page 5 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 AB 1359 Page 6 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 AB 1359 Page 7 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 AB 1359 Page 8 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 AB 1359 Page 9 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 AB 1359 Page 10 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