BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  May 13, 2015


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          AB 715  
          (Daly) - As Introduced February 25, 2015


          SUBJECT:  Residential development:  school facilities fees


          SUMMARY:  Revises, for the purpose of calculating fees levied by  
          school districts for the construction or reconstruction of  
          school facilities, the definition of "assessable space" to  
          specify that a covered walkway, uncovered walkway, and enclosed  
          walkway are excluded from the calculation, and that similarly  
          excluded areas include, but are not limited to, a bike storage  
          locker or detached personal property storage space that is not a  
          part of the existing livable residential structure.  


          EXISTING LAW:  


          Under the Education Code:

          1)Authorizes the governing board of any school district to levy  
            a fee, charge, dedication, or other requirement against any  
            construction within the boundaries of the district, for the  
            purpose of funding the construction or reconstruction of  
            school facilities.  (Education Code (Section 17620(a)(1))

          2)Specifies that "construction" and "assessable space" have the  
            same meaning as defined in Section 65995 of the Government  








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            Code.  (Section 17620(a)(2))

          3)Prohibits a city or county, whether general law or chartered,  
            or the office of Statewide Health Planning and Development,  
            from issuing a building permit for any construction absent  
            certification by the appropriate school district that any fee,  
            charge, dedication, or other requirement levied by the  
            governing board of that school district has been complied  
            with, or of the district's determination that the fee, charge,  
            dedication, or other requirement does not apply to the  
            construction.  Requires the school district to issue the  
            certification immediately upon compliance with the fee,  
            charge, dedication, or other requirement.  (Section 17620(b)) 

          Under the Government Code:

          4)Specifies various levels of fees that may be assessed to fund  
            school facilities and the types of construction projects  
            subject to the fees.  Authorizes $1.93 per square foot of  
            assessable space in the case of residential construction,  
            including the location, installation, or occupancy of  
            manufactured homes and mobile homes, and $.31 per square foot  
            of chargeable covered and enclosed space for any commercial or  
            industrial construction.  (Section 65995(b)(1)(2))

          5)Specifies that the fee limits for residential and commercial  
            or industrial construction shall be increased in 2000 and  
            every two years thereafter, according to the adjustment for  
            inflation set forth in the statewide cost index for class B  
            construction, as determined by the State Allocation Board  
            (SAB) at its January meeting, which increase shall be  
            effective as of the date of that meeting. (Section  
            65995(b)(3))

          6)Defines "assessable space" as all of the square footage within  
            the perimeter of a residential structure, not including any  
            carport, walkway, garage, overhang, patio, enclosed patio,  
            detached accessory structure, or similar area.  Specifies that  
            the amount of the square footage within the perimeter of a  








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            residential structure shall be calculated by the building  
            department of the city or county issuing the building permit,  
            in accordance with the standard practice of that city or  
            county in calculating structural perimeters.  (Section  
            65995(b)(1))

          7)Requires the amount of the square footage within the perimeter  
            of a residential structure to be calculated by the building  
            department of the city or county issuing the building permit,  
            in accordance with the standard practice of that city or  
            county in calculating structural perimeters.  (Section  
            65995(b)(1))

          8)Specifies that the payment or satisfaction of a fee, charge,  
            or other requirement levied or imposed in the amount specified  
            in Government Code Sections 65995, 65995.5 or 65995.7 are  
            deemed to be full and complete mitigation of the impacts of  
            any legislative or adjudicated act, or both, involving, but  
            not limited to, the planning, use, or development of real  
            property, or any change in governmental organization or  
            reorganization, on the provision of adequate school  
            facilities.  (Section 65995(h)). 



          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  Background.  Prior to the enactment of SB 50 (L.  
          Greene), Chapter 407, Statutes of 1998, which established the  
          School Facility Program (SFP), developers were assessed a  
          mitigation fee of $1.50 per square foot of livable space for  
          each newly constructed house.  This fee provided a share of the  
          funds needed for the construction of schools to accommodate new  
          pupils expected to be served as result of the new development.   
          In addition to this fee, local governments also had the  
          authority, confirmed by the courts through litigation popularly  
          known as the Mira, Hart and Murrieta line of cases, to require  








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          developers to pay for additional school-related expenses as  
          identified in local environmental impact reports.  


          SB 50 established the current School Facility Program and  
          changed the method for determining the share of school  
          construction costs that developers would pay, which provided  
          consistency in the amount of fees developers pay to build  
          schools to accommodate new developments.  SB 50 suspended the  
          threat of lawsuits and the ability of local governments to deny  
          new developments on the basis of inadequate schools.  


          SB 50 established three levels of fees.  Level I is the  
          mitigation fee based on square footage.  SB 50 increased the  
          pre-SB 50 fee from $1.50 to $1.93 per square foot with an  
          inflation adjustment every two years according to the class B  
          construction index as determined by the SAB, the body that  
          allocates state bond funds and oversees the administration of  
          the SFP, at its January meeting.  The fee is currently at $3.36  
          per square foot for residential construction and $.54 per square  
          foot for commercial/industrial construction, and is assessed if  
          the district conducts a Justification Study that establishes the  
          connection between the development coming into the district and  
          the assessment of fees to pay for the cost of the facilities  
          needed to house future students.   Levels II and III are based  
          on availability of state bond funds.  The developer fee amounts  
          are based on the state grant levels for Level II and twice the  
          state grant levels for Level III.   


          Assessable space.  SB 50 defined "assessable space" for  
          residential construction as all of the square footage within the  
          perimeter of the residential structure.  SB 50 excludes any  
          carport, walkway, garage, overhang, patio, enclosed patio,  
          detached accessory structure, or similar area. 


          What does this bill do?  This bill, sponsored by the California  








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          Apartment Association, expands the assessable space exclusions  
          to include any covered walkway, uncovered walkway, and enclosed  
          walkway.  The bill also specifies that exclusion of a "similar  
          area" includes, but is not limited to, a bike storage locker or  
          detached personal property storage space that is not a part of  
          the existing livable residential structure.  


          "Assessable space" is determined by a city or county building  
          department and the fee must be determined and paid before a  
          building permit is issued.  According to the author's office,  
          the intent of the bill is not to expand excluded areas, but to  
          provide some level of clarification and consistency.  Because  
          the law is not specific, building and planning departments  
          throughout the state have different interpretations of what is  
          assessable.    


          Walkways.  Current law specifies that what is countable includes  
          the area "within" the perimeter of a residential building.  It  
          is up to city or county building departments to determine which  
          areas "within" the perimeters are counted, commonly in  
          accordance with California building standards practices.  While  
          walkways outside an exterior wall or a door are not counted, a  
          hallway or walkway inside a residential structure is counted.   
          Adding "covered" or "uncovered" before walkway is clarifying in  
          nature and does not change what is currently assessable or not  
          assessable, but the bill's inclusion of "enclosed walkway" may  
          be construed as excluding inside hallways or walkways that are  
          currently assessable.   


          Opposition, including the Orange County Department of Education  
          (OCDE), has raised this concern.  The OCDE states, "Prior to  
          this bill being introduced, there was disagreement about how  
          livable space should be defined in a development in a part of  
          the City of Santa Ana that is in the Tustin Unified School  
          District [USD].  The developer in this case challenged the  
          payment of fees on internal hallways that the developer deemed  








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          to be 'non-livable space.'  An appeal to the City's Planning  
          Commission found for the school district.  What is at stake is  
          no small amount of developer fee revenue.  In all, developers in  
          this portion of the district have challenged the internal  
          hallway fees which total $930,343,000.  Should AB 715 have been  
          in law when these fees had been levied, the fee revenue, which  
          serves as a part of the local school construction match in  
          Tustin USD, would have been reduced by almost $1 million."


          According to the author, this bill is intended to clarify that  
          walkways may be covered or uncovered and is not intended to  
          affect hallways inside the perimeter of a residential building.   
          Staff recommends striking "enclosed walkway" to eliminate any  
          confusion.  


          Bike storage lockers.  The bill's expansion of excluded "similar  
          area" to include, but not be limited to, exclusion of "detached  
          bike storage lockers" is consistent with current law if the  
          lockers are in separate units outside of the residential  
          structure.  In the Tustin USD conflict, the lockers are separate  
          from the apartment units, but are located in a corridor within  
          the perimeter of a residential building.  If these lockers  
          increase the square footage available to a resident, similar to  
          closets inside an apartment unit, the Committee may wish to  
          consider whether they should be assessed.  The Committee may  
          also wish to consider whether a detached bike storage locker is  
          similar to a detached accessory structure currently excluded as  
          assessable space.  Staff recommends clarifying that a detached  
          accessory structure includes a detached bike storage locker.   
          Adding "including, but not limited to," is ambiguous and may  
          perpetuate the inconsistencies in assessing "assessable space"  
          of concern to the author.  Staff recommends striking the  
          remaining parts of the bill.    


          Financing school facilities.  SB 50 not only standardized the  
          amount and levels of developer fees, the bill also established a  








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          funding program that relies on a partnership between the state  
          through state bond funds, local communities through local bond  
          funds, and developers through developer fees.  The last  
          statewide bond was passed in November 2006.  Funds for the  
          construction of new schools and the modernization of existing  
          facilities were exhausted in 2012.  The Governor, in his 2015-16  
          budget, proposes to decrease the level of state funding  
          substantially and increase local contributions by adjusting the  
          tax rates for local bonds and modifying developer fees by  
          consolidating the three levels into one fee at a level between  
          Level II and Level III, subject to local negotiation.    


          Arguments in support.  The California Apartment Association  
          states, "Advances in apartment design and construction have  
          created confusion for local jurisdictions regarding what is  
          considered 'assessable space' under state statute.  As  
          environmental consciousness and bike ridership have increased,  
          many new apartment structures have added detached bike storage  
          lockers and other types of storage, which are separate from the  
          apartment unit.  Similarly, many developers have put covers on  
          walkways to accommodate tenants and those with disabilities.  AB  
          715 would make it clear that covered walkways and detached bike  
          lockers and storage are exempt from assessment, just as  
          'walkways' and 'detached accessory structures' are today in  
          current law."


          Arguments in opposition.  The Association of California School  
          Administrators (ACSA) states, "Since 1986, when the state  
          allowed school district levied developer fees, the definition of  
          assessable space has included internal hallways; although,  
          districts typically do not levy fees on external or covered  
          walkways.  By excluding internal hallways from the definition of  
          assessable space, AB 715 would significantly reduce the  
          chargeable square footage that fees could be levied upon.  ACSA  
          believes that the legislature should not approve significant  
          changes to the financing of school facilities without  
          consideration to the overall program.  The future of state  








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          participation in the funding of school facilities is at risk.   
          We do not believe this is the time to limit legitimate developer  
          fee square footage from financing needed school facilities."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Apartment Association




          Opposition


          Association of California School Administrators


          California Association of School Business Officials


          California School Boards Association


          Coalition for Adequate School Housing


          Orange County Department of Education




          Analysis Prepared by:Sophia Kwong Kim / ED. / (916) 319-2087








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