BILL ANALYSIS                                                                                                                                                                                                    Ó




                     SENATE GOVERNANCE & FINANCE COMMITTEE
                            Senator Lois Wolk, Chair
          

          BILL NO:  AB 1359                     HEARING:  6/26/13
          AUTHOR:  R. Hernández                 FISCAL:  No
          VERSION:  6/19/13                     TAX LEVY:  No
          CONSULTANT:  Lui                      

                                QUIMBY ACT FEES
          

          Allows Quimby Act fees to be used in a neighborhood other  
          than where fees were paid, under specified conditions.


                           Background and Existing Law
           
          The Subdivision Map Act allows cities and counties to  
          impose fees or dedications of land for specific uses as  
          conditions of subdivision map approval.  Since 1975, the  
          Quimby Act, as part of the Subdivision Map Act, authorizes  
          counties and cities, by ordinance, to require subdividers  
          to dedicate land or pay in-lieu fees for park or  
          recreational purposes as a condition of approving a new  
          subdivision (SB 977, Gregorio, 1974).  The California  
          courts also ratified the use of Quimby Act fees, holding  
          that they are designed to maintain and preserve open space  
          for the recreational use of the residents of new  
          subdivisions, not the city at large (Associated  
          Homebuilders of the East Bay v. City of Walnut Creek  
          (1971)). 

          To impose Quimby Act fees, a county or city must have a  
          general plan or a specific plan that contains policies and  
          standards for park facilities.  Park and recreational  
          facilities must also be consistent with principles and  
          standards.  Special districts work with cities and counties  
          to receive parkland dedications or in-lieu fees.  

          The imposition of dedications or fees is authorized by a  
          local government's general police power, and is subject to  
          the U.S Supreme Court's "nexus" (Nollan v. Coastal  
          Commission (1987)) and "rough proportionality" tests.   The  
          "nexus" test requires a government to establish the link  
          between the exaction and the interest being advanced by  
          that exaction.  There also must be a "rough  
          proportionality" between proposed exactions and the project  




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          impacts that the exactions are intended to allay (Dolan v.  
          City of Tigard (1994)). For example, the Dolan case focused  
          on an administrative permit to expand a small plumbing and  
          electrical supply business, which was conditioned to  
          dedicate of a bike lane and a storm drainage easement along  
          an existing drainage channel. The Supreme Court overturned  
          both exactions, holding that the city must make some sort  
          of individualized determination that the required  
          dedication is related both in nature and extent to the  
          impact of the proposed development.
          In response to perceived exaction abuses, the Legislature  
          enacted AB 1600 (Cortese, 1987), known as the "Mitigation  
          Fee Act," which, like Nolan, required local agencies to  
          show a "nexus" or "reasonable relationship" between the  
          facility or park land and the proposed subdivision.   
          Counties and cities can use Quimby Act fees only for  
          developing new parks or rehabilitating parks that serve  
          that subdivision, and revenues generated through the Quimby  
          Act can't be used for park facilities' maintenance and  
          operation.  


                                   Proposed Law  

          Assembly Bill 1359 authorizes fees paid as a condition to  
          the approval of a tentative map or parcel map to be used  
          for the purpose of developing new or rehabilitating  
          existing park or recreational facilities in a neighborhood  
          other than a neighborhood located in the subdivision for  
          which fees were paid, if all of the following requirements  
          are met: 
                 The neighborhood in which the fees are to be  
               expended has fewer than three acres of park per 1,000  
               members of the neighborhood population.
                 The neighborhood in which the subdivision for which  
               the fees were paid has a park area per 1,000 members  
               of the neighborhood population ratio that meets or  
               exceeds the ratio calculated pursuant to existing  
               state law, but in no event not less than three acres  
               per 1,000 members. 
                 The legislative body holds a public hearing before  
               using the fees.  The legislative body must 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 in the  





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               neighborhood where the fees are used. 

          AB 1359 requires the principles and standards for  
          determining the proportion of a subdivision to be  
          dedicated, or in-lieu fee amount to be paid, are consistent  
          with the calculation of community park area inventory,  
          pursuant to existing state law.  Consistency is not  
          provided when the local agency refuses to: 
                 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  
               inventory;
                 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 or recreational use, if the area is  
               substantially similar to areas in the park inventory;  
               or,
                 Provide more than the minimum credit against the  
               amount of land required to be dedicated, or the amount  
               of the fee imposed, on the basis that the active  
               recreational uses the subdivider proposes is not an  
               appropriate park or recreational use, if the area is  
               substantially similar to areas in the park inventory.

          The city, county, or other local agency to which the land  
          or fees are conveyed or paid may enter into a joint or  
          shared use agreement with one or more other public  
          districts in the jurisdiction, including a school district  
          or community college district, to provide access to park or  
          recreational facilities to residents of subdivisions with  
          fewer than three acres of park per 1,000 members of the  
          population. 
                                         
           AB 1359 changes the time when fees should be paid, from the  
          time of the recording of the final map or parcel map, or as  
          prescribed by local ordinance, to the date of the final  
          inspection or when the certificate of occupancy is issued,  
          whichever occurs first. 

                                         
                              State Revenue Impact
           
          No estimate. 






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                                     Comments  

          1.   Purpose of the bill  .   Because Quimby Act fees are  
          required to serve the subdivision from which fees were  
          obtained, areas with little to no development do not  
          receive any dedication or in-lieu fees for park  
          improvements. As a result, park-poor neighborhoods do not  
          receive these resources.  According to the author,  
          "Low-income communities and communities of color suffer the  
          most from disparities in access to green space and from  
          health and social problems [stemming] from such  
          inequalities.  Low-income people of color  
          disproportionately lack equal access to parks, school  
          fields, beaches, trails, and forests.  Investing in  
          California's parks and creating equitable access to green  
          space would create healthier communities and decrease  
          childhood obesity."  Spending Quimby Act fees to benefit  
          park-poor neighborhoods creates better environments and  
          communities for all.  

          2.   Nexus  .  The power to approve development is the same  
          power public officials use to impose conditions on their  
          approvals.  County and city officials can require  
          subdividers to dedicate land or pay fees in-lieu of  
          dedication to mitigate the effects of the proposed  
          projects.  The Mitigation Fee Act, the Map Act, the Quimby  
          Act, and court decisions all require public officials to  
          identify the nexus between a project's effects and the  
          mitigation conditions they impose.  Using this nexus  
          requirement, counties and cities can require builders to  
          pay developer fees that mitigate their projects' effects.   
          AB 1359 violates this nexus test.  The bill allows local  
          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 or  
          existing deficiencies.  Despite the bill's laudable goal,  
          Legislators should be aware that the bill contradicts over  
          thirty years of Quimby Act practice, challenges case law,  
          and violates the nexus test.  As a result, local  
          governments are left vulnerable to litigation. 

          3.   Precedent  .  AB 1359 may set a precedent that other  
          agencies may attempt to follow.  If Quimby Act fees can be  
          spent on a neighborhood other than where the fee is  





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          collected, will local public works departments try to spend  
          traffic mitigation fees outside a boundary area? AB 1359  
          lays the groundwork for similar proposals. 

          4.   Local discretion  .  Existing law authorizes a special  
          district to work with the city or county in determining the  
          amount and location of land to be dedicated, or the amount  
          of fees to be paid.  In practice, local governments often  
          work closely with its special district to negotiate these  
          terms with a developer.  However, AB 1359 eliminates local  
          officials' discretion because it prohibits consistency if a  
          local agency rejects an area for various reasons, if the  
          area is "substantially similar to areas in the park  
          inventory." This means that if a 1987 development's  
          subdivision map was approved with an open-space dedication,  
          a similar 2013 development proposal could be required to  
          accept an open-space dedication, regardless of whether a  
          local government wants an open-space mitigation, because  
          open-space was previously approved.  AB 1359 hampers a  
          local community's ability to deliver park amenities as  
          desired by the local community. 


          5.   Case law  .  Provisions of this bill may have  
          implications for a state court's decision in Home Builders  
          Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore  
          (2010), which held that impact fees are not preempted by  
          the Quimby Act, and affirmed that "the Quimby Act is  
          designed to maintain and preserve open space for the  
          recreational use of the residents of new subdivisions, not  
          the city at large community or recreational facility.  In  
          contrast, impact fees are to be used to build unique  
          facilities intended to serve the entire population of the  
          city.  There is no duplication of fees." AB 1359 broadens  
          the scope of the Quimby Act beyond park fees tied to a  
          subdivision, blurring the distinction between the Quimby  
          Act and AB 1600, which imposes fees for park and  
          recreational facilities that serve a wider community.  

          6.   Previous legislation  .  AB 1359 is not the first bill  
          seeking to reallocate Quimby Act fees.  AB 2936 (Aroner,  
          2002) would have allowed cities and counties to spend  
          Quimby Act fees to prepare for park and recreational  
          facilities' master plans.  The bill was later amended to  
          contain different provisions. 






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                                 Assembly Actions  

          Assembly Local Government:5-0
          Assembly Floor:                    47-26


                         Support and Opposition  (6/20/13)

           Support  :  Acajachemen Nation, Janeno Tribe; Amigos de los  
          Rios; Anahuak Youth Sports Association; Asian and Pacific  
          Islander Obesity Prevention Alliance; Asian Pacific Policy  
          and Planning Council; California Pan Ethnic Health Network;  
          California Wilderness Coalition; Charter Oak Unified School  
          District; Cities of Baldwin Park and Coachella; The City  
          Project; Concerned Citizens of South Central Los Angeles;  
          Councilmember Brian Guitierrez, California State Council on  
          Developmental Disabilities; Latino Coalition for a Health  
          California; Montebello Unified School District; The Trust  
          for Public Lands, UFCW Local 1428; 

           Opposition  :  Unknown.