BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 504


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          Date of Hearing:  May 6, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          AB 504  
          (Gonzalez) - As Amended March 26, 2015


          SUBJECT:  Local planning.


          SUMMARY:  Authorizes a city to delegate to or contract with a  
          nonprofit public benefit corporation for certain administrative  
          or ministerial planning functions, and requires a city to retain  
          all nonadministrative or nonministerial planning functions.   
          Specifically, this bill:  


          1)Allows a city to delegate to, or authorize pursuant to a  
            contract with, a nonprofit public benefit corporation, as  
            defined, the performance of administrative or ministerial  
            planning functions and powers.


          2)Requires a city to retain all nonadministrative or  
            nonministerial planning functions.


          3)Requires a nonprofit public benefit corporation performing  
            administrative or ministerial planning functions and powers to  
            comply with the city's charter, contracting rules, municipal  
            code, ordinances, and any other applicable parts of a general  
            plan, community plan, specific plan, or other plan, and all  
            applicable local and state laws, including, but not limited  








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            to, the California Public Records Act, and the Ralph M. Brown  
            Act.


          4)Requires any planning action taken by a nonprofit public  
            benefit corporation to be appealable to the legislative body  
            of the city.


          5)Requires, on or before July 1, 2016, and annually thereafter  
            for as long as the planning functions and powers continue to  
            be delegated or an authorizing contract is in effect pursuant  
            to 1), above, a nonprofit public benefit corporation to report  
            to the legislative body of the city on its planning functions  
            it has undertaken in the previous calendar year that includes,  
            but is not limited to, a detailed description of each planning  
            function and an explanation of how it is consistent with the  
            city's charter, municipal code, ordinances, and any applicable  
            parts of a general plan, community plan, specific plan or  
            other plan, and all applicable local and state laws.


          6)Requires each report to be reviewed and approved by the  
            legislative body of the city at a noticed public hearing.


          7)Defines a nonprofit public benefit corporation as a  
            corporation organized under the Nonprofit Public Benefit  
            Corporation Law.


          8)States that the Legislature hereby finds and declares that  
            maintaining uniformity in the planning responsibilities of  
            cities within this state, including charter cities, has a  
            direct impact on the well-being of all residents of this  
            state, and that the Legislature finds and declares that  
            authorizing a city to delegate to, or authorize pursuant to a  
            contract with, a nonprofit public benefit corporation the  
            performance of administrative or ministerial planning  








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            functions and powers within the State of California is an  
            issue of statewide concern and not a municipal affair.   
            Declares that this act shall apply to every city in this  
            state, including a charter city and charter city and county.


          EXISTING LAW:  


          1)Allows a city to make and enforce within its limits all local,  
            police, sanitary, and other ordinances and regulations not in  
            conflict with general laws.


          2)Establishes the Nonprofit Corporation Law in the Corporations  
            Code, and allows a nonprofit public benefit corporation to be  
            formed under the law for any public or charitable purposes, as  
            specified.


          FISCAL EFFECT:  None


          COMMENTS:  


          1)Bill Summary.  This bill allows cities to delegate to, or  
            authorize pursuant to a contract with, a nonprofit public  
            benefit corporation (nonprofit corporation), as defined, for  
            the performance of administrative or ministerial planning  
            functions and powers, and requires cities to retain all  
            nonadministrative or nonministerial planning functions.   
            Should a nonprofit corporation undertake administrative or  
            ministerial planning functions, the bill requires the  
            nonprofit to comply with the city's charter, contracting  
            rules, municipal code, ordinances, and any other parts of a  
            general plan, community plan, specific plan, or other plan,  
            and all applicable local and state laws, including, but not  
            limited to, the California Public Records Act and the Ralph M.  








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            Brown Act.  The bill requires any planning action taken by a  
            nonprofit corporation to be appealable to the legislative body  
            of the city, and requires the nonprofit corporation to report  
            annually to the city on the planning functions it has  
            undertaken in the previous calendar year, and how those  
            actions are consistent with the city's charter, municipal  
            code, ordinances, and other specified plans and laws.  This  
            bill states that this subject of delegation of powers is an  
            issue of statewide concern, and not a municipal affair, and  
            thereby, the bill's provisions would apply to all cities in  
            California, including charter cities.


            This bill is an author-sponsored measure.


          2)Nonprofit Public Benefit Corporations and Background on Civic  
            San Diego.  Existing law allows a nonprofit public benefit  
            corporation to be formed under the Nonprofit Corporation Law  
            contained in the Corporations Code, for any "public" or  
            "charitable" purposes.  


            The City of San Diego formed Centre City Development  
            Corporation (CCDC) in 1975 and the Southeastern Economic  
            Development Corporation (SEDC) in 1980, to provide economic  
            development services.  The City, over time, delegated some  
            land use approval functions to both CCDC and SEDC, and in  
            2012, CCDC was renamed to Civic San Diego, and SEDC was merged  
            into Civic San Diego.


            Civic San Diego is a nonprofit public benefit corporation,  
            formed under the California nonprofit public benefit  
            corporation law, and is organized and operated exclusively for  
            charitable purposes.  Civic San Diego has one single member  
            that has voting rights - the City of San Diego.  Civic San  
            Diego is not a city department, and Civic San Diego employees  
            are not City employees.  In recent years, Civic San Diego has  








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            been carrying out much of the winding down of the City of San  
            Diego's former redevelopment agency (RDA), under a consultant  
            agreement with the Successor Agency and Housing Successor  
            Agency, and has recently expressed an interest in expanding  
            its scope beyond its current role into the neighborhoods of  
            Encanto and City Heights.


            On April 10, 2015, a petition was filed in the Superior Court  
            of California, County of San Diego by the San Diego County  
            Building & Construction Trades Council, AFL-CIO, and Murtaza  
            Baxamusa, Ph.D., a Director on the Civic San Diego Board of  
            Directors, against Civic San Diego and the City of San Diego  
            for declaratory relief concerning:  (1) The scope and  
            oversight of Civic San Diego; (2) Conflicts of interest  
            inherent and internal to Civic San Diego; (3) The entitlement  
            to a community benefits plan; and, (4) The entitlement to a  
            formal appeals process for decisions made by Civic San Diego.


          3)Author's Statement.  According to the author, "Prior to the  
            dissolution of statewide redevelopment, California allowed  
            cities and counties the authority to establish redevelopment  
            agencies (RDAs) in order to eliminate blight through  
            development, reconstruction and rehabilitation of residential,  
            commercial, industrial and retail districts. These activities  
            were funded by local property taxes and subject to city or  
            county approval.


            "After the dissolution of redevelopment, the organizations  
            that the City of San Diego used to administer its RDA program  
            merged to form a nonprofit organization that is now known as  
            Civic San Diego-which has land use authority in various San  
            Diego neighborhoods to perform planning, zoning and permitting  
            functions. Despite the dissolution of redevelopment, Civic San  
            Diego has continued to permit development but without the  
            benefit of local property tax financing.









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            "In an effort to replace this lost funding, Civic San Diego  
            successfully applied for roughly $58 million in federal new  
            market tax credits, which are required to be used in  
            low-income communities. However, unlike redevelopment funds,  
            allocating these tax credits does not require approval by the  
            city council, nor does AB 504 seek to require city council  
            approval of the purpose.


            "Moreover, Civic San Diego has pursued plans to expand their  
            permitting and planning authority to include the City of San  
            Diego neighborhoods of City Heights and Encanto. Using new  
            market tax credits and bank loans, Civic San Diego has begun  
            putting together a $100 million investment fund to finance  
            development projects that it could potentially have the  
            ability to permit and approve without oversight by the city  
            council, which voters elected to make decisions regarding the  
            planning, zoning and permitting of development in their  
            neighborhoods.


            "California's decision to end redevelopment eliminated  
            requirements regarding community reinvestment work done by  
            groups like Civic San Diego. As it stands now, if residents do  
            not agree with what Civic San Diego has planned for their  
            community, they can only go to the board of directors of this  
            nonprofit organization-which is not accountable to the city  
            council that was elected to be stewards of the city's  
            development.


            "Civic San Diego's potential authority to dramatically  
            engineer the future of neighborhoods with little supervision  
            or accountability presents a serious conflict of interest.  
            Furthermore, the City of San Diego's arrangement with Civic  
            San Diego is comparatively new, unique in the State of  
            California, and has not been sufficiently examined. Local  
            leaders and good government advocates have even openly  








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            questioned the legality of the arrangement.


            "AB 504 will address this conflict of interest and clarify  
            state law for future local government arrangements by  
            requiring any zoning, planning and permitting activity by a  
            private individual or nonprofit organization made on behalf of  
            a local government to earn final approval by the local  
            government's governing board before implementation."


          4)Delegation of Land Use Powers and Legislative Counsel Opinion.  
            The California Constitution allows a city to "make and enforce  
            within its limits, all local, police, sanitary, and other  
            ordinances and regulations not in conflict with general laws,  
            known as the police power of cities."  It is from this  
            fundamental power that local governments derive their  
            authority to regulate land through planning, zoning, and  
            building ordinances, thereby protecting public health, safety  
            and welfare.


            The California Supreme Court has stated:


                 Under the police power granted by the Constitution,  
            counties and cities have plenary                               
            authority to govern, subject only to the limitation that they  
            exercise this power within                                     
            their territorial limits and subordinate to state law.  Apart  
            from this limitation, the "police                              
            power [of a county or city] under this provision?is as broad  
            as the police power                                            
            exercisable by the Legislature itself.   Candid Enters., Inc.  
            v. Grossmont Union High                                        
            School Dist., 39 Cal. 3d 878, 885 (1985).


                 A city must act within all applicable statutory  








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            provisions so there will be no conflict with general laws.  A  
            city's actions must also meet constitutional principles of due  
            process; they must be reasonable and nondiscriminatory, and  
            not arbitrary or capricious.  


                 A city also has the authority to enter into contracts  
            that enable it to carry out its necessary functions.  A city's  
            authority to enter into such contracts is not absolute, and it  
            is well settled that "a local government may not contract away  
            its right to exercise its police power in the future, and land  
            use regulations involve the exercise of police power."   
            Alameda County Land Use Assn. v. City of Hayward (1995) 38  
            Cal.App.4th 1716, 1724.


            According to a Legislative Counsel opinion dated April 17,  
            2015, at the request of the author of this bill to examine  
            "whether a city may contract away its land use authority to a  
            nonprofit public benefit corporation and whether the  
            Legislature may authorize a city to contract away its land use  
            authority to a nonprofit public benefit corporation,"  
            Legislative Counsel drew the following conclusion (for  
            brevity, the citations are removed):


                 We have determined that a city may not, and the  
            Legislature may not authorize a city to,                     
            contract away to a nonprofit entity its police powers, which  
            includes land use authority.                                 
            However, it is well established that a "governmental entity  
            does not contract away its                                   
            police power unless the contract amounts to the 'surrender' or  
            'abnegation' of a proper                                     
            governmental function."  Whether a contract amounts to a  
            surrender or abnegation of a                                 
            local government's police power will depend upon the facts of  
            the contract.  With respect                                 to  
            contracts with private parties, "the fact that a third party,  








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            whether private or                                           
            governmental, performs some role in applications and  
            implementation of the established                            
            legislative scheme does not render the legislation invalid as  
            an unlawful delegation."                                     
            "The general rule is that while a public body may not delegate  
            its power of control over                                    
            public affairs to a private group, it may delegate the  
            performance of administrative                                
            functions to such groups if it retains ultimate control over  
            administration so that it may                                
            safeguard the public interest."   Ultimately, "[p]owers which  
            require the exercise of                                      
            judgment and discretion?.must necessarily remain with the  
            public agency and cannot be                                  
            delegated."  Thus, the issue in each case of delegation is  
            whether ultimate control over                                
            matters involving the exercise of judgment and discretion has  
            been retained by the public                                  
            entity.  If the performance of the function being delegated  
            does not constitute the exercise                            of  
            police powers because the city retains ultimate control of  
            matters involving exercise 


            of        judgment and discretion, then a city may, and the  
            Legislature may authorize a city to,                         
            delegate such a function.
                 For the foregoing reasons, it is our opinion that a city  
            may not contract away its land use authority to a nonprofit  
            corporation, and the Legislature may not authorize a city to  
            contract away its land use authority to a nonprofit  
            corporation.  However, it is also our opinion that a city may,  
            and the Legislature may authorize a city to, by contract,  
            delegate to a nonprofit corporation the performance of certain  
            functions so long as that delegation does not constitute a  
            surrender or abnegation of the city's police power.










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          5)Policy Considerations.  The Committee may wish to consider the  
            following:


             a)   Terminology.  The terms used in the bill -  
               "administrative" and "ministerial" planning functions and  
               powers could be open to interpretation at the local level.   
               Given the case law on this issue of delegation of  
               legislative land use functions, the Committee may wish to  
               consider whether these terms are consistent with court  
               actions and plainly understood.


             b)   Necessary?  Given the lawsuit filed on April 10, 2015,  
               the Committee may wish to consider whether legislation is  
               necessary, or whether this issue is best left to the Courts  
               to decide.


          6)Arguments in Support.  Supporters argue that clarifying Civic  
            San Diego's legal standing will remove uncertainty and help  
            reduce the possibility of expensive and disruptive lawsuits,  
            and that the current arrangement does not provide the public  
            transparency and accountability necessary to incorporate  
            public opinion and community needs.


          7)Arguments in Opposition.  Opponents argue that the bill could  
            slow development to a crawl, putting at risk millions in  
            development and thousands of good paying jobs.  


          














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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Center on Policy Initiatives


          City Heights Community Development Corporation


          International Brotherhood of Electrical Workers, Local Union 569


          Plumbers & Steamfitters Local Union #230


          San Diego County Building and Construction Trades Council


          State Building and Construction Trades Council


          UNITE HERE Local 30


          United Taxi Workers of San Diego


          United Union of Roofers, Waterproofers & Allied Workers Local 45












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          Opposition


          Associated Builders and Contractors - San Diego Chapter




          Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958