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
AB 1359 -- 6/19/13 -- Page 2
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
AB 1359 -- 6/19/13 -- Page 3
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.
AB 1359 -- 6/19/13 -- Page 4
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
AB 1359 -- 6/19/13 -- Page 5
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.
AB 1359 -- 6/19/13 -- Page 6
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.