BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 1359 HEARING: 7/3/13
AUTHOR: R. Hernández FISCAL: No
VERSION: 6/26/13 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). California courts
have 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 also must 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
projected impacts that the exactions are intended to allay
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(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 on the dedication 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.
On June 25, the Supreme Court's majority opinion on Koontz
v. St. Johns River Water Management District (2013) found
that a government must satisfy Nollan/Dolan requirements
even if the government denies the land-use permit. The
Supreme Court also affirmed the California Supreme Court's
ruling on Erlich v. Culver City (1996) case, which required
that the Nollan/Dolan test be applied to monetary
exactions.
Counties and cities can use Quimby Act fees only to develop
new parks or rehabilitate existing parks or recreational
facilities that serve that subdivision. Revenues generated
through the Quimby Act can't be used for park facilities'
maintenance and operation.
State law authorizes the joint use of schools, parks, and
other public recreational facilities with other public
agencies (AB 3100, Greene, 1976). It also authorizes any
school district to grant the use of any building or
equipment of the district for community recreational
purposes (SB 1854, Morgan, 1990).
Environmental justice advocates would like to allocate
Quimby Act fees paid to mitigate one subdivision to pay for
parks and recreational facilities in park poor
neighborhoods.
Proposed Law
Assembly Bill 1359 authorizes fees paid as a condition to
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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
neighborhood where the fees are used.
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.
State Revenue Impact
No estimate.
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, creating "park poor" neighborhoods.
According to the author, "Low-income communities and
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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."
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
conditions they impose. Using this nexus requirement,
counties and cities can require builders to pay developers'
fees that mitigate their projects' effects. AB 1359
violates this fundamental 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 directly
challenges case law and violates the nexus test.
3. Unintended consequences . AB 1359 may set a problematic
precedent that other public agencies may attempt to follow.
If Quimby Act fees can be spent on a neighborhood other
than where the fee is 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. 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). That decision held that impact fees are not
preempted by the Quimby Act. The court 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. In contrast, the
community/recreation facility impact fees are to be used to
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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. Under AB 1359, local governments may be
vulnerable to litigation if they use fees outside the
subdivision because the bill creates a new, untested legal
standard which is not consistent with Nollan/Dollan
standards.
5. Scope . Existing law authorizes school districts to
enter into joint-use agreements for schools, parks, and
other public recreational facilities with other local
governments. It also authorizes a school district to grant
the use of any of its buildings, grounds, or equipment to
another local agency for recreation purposes. AB 551
places a similar authorization in the Quimby Act. This is
intended to provide local governments the flexibility to
use Quimby Act fees to pay for joint-use agreements.
Current law prohibits any Quimby Act fees from being used
for maintenance or operations. AB 551 departs from this
prohibition, allowing fees originally intended to offset
the impacts of development for a specific subdivision, to
finance operations at-large. The Committee may wish to
consider whether the use of fees for joint-use agreements
is consistent with the purposes of the Quimby Act.
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 310 (Goldberg, 2001) is nearly identical to AB
1359. It would have allow local park or recreational
authorities to use Quimby Act "in lieu" fees for park
and recreational development outside the area of the
subdivision charged with the fee, when certain
conditions were met. This bill also was amended to
contain different provisions.
Assembly Actions
AB 1359 -- 6/26/13 -- Page 6
Assembly Local Government:5-0
Assembly Floor: 47-26
Support and Opposition (6/27/13)
Support : Acajachemen Nation, Janeno Tribe; American
Planning Association, California Chapter; 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 Gutierrez, California State Council on
Developmental Disabilities; Latino Coalition for a Healthy
California; Montebello Unified School District; The Trust
for Public Lands; UFCW Local 1428.
Opposition : Unknown.