BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          AB 2693 (Dababneh)
          Version: June 22, 2016
          Hearing Date: June 28, 2016
          Fiscal: No
          Urgency: No
          TH   


                                        SUBJECT
                                           
                    Financing Requirements: Property Improvements

                                      DESCRIPTION  

          This bill makes certain changes to the Property Assessed Clean  
          Energy program, including:
           granting a property owner the right to cancel a contractual  
            assessment prior to midnight on the third business day after  
            executing the contract without penalty or obligation;
           requiring a financing estimate document to be completed and  
            delivered to a property owner at least three business days  
            before the property owner consummates a voluntary contractual  
            assessment; and
           restricting the ability of public agencies and other parties  
            to make representations to a property owner regarding the  
            effect the financed improvements will have on the market value  
            of the property.

           (This analysis reflects amendments to be offered by the author  
                                   in committee.)

                                      BACKGROUND  

          Under existing law, local governments are authorized to offer  
          loans to private property owners to cover the initial costs of  
          renewable energy, energy efficiency, water efficiency, and other  
          improvements to private property that offer public benefits  
          through what is known as the Property Assessed Clean Energy  
          (PACE) program.  This program allows property owners to repay  
          their loans through voluntary assessments or parcel taxes, which  








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          are secured by priority liens and appear annually on property  
          tax bills until the loans are repaid.

          California currently authorizes two distinct statutory  
          frameworks under which local governments can implement and  
          administer PACE loan programs.  The first -- voluntary  
          contractual assessments -- allows property owners to finance and  
          repay costs associated with specific improvements through  
          special assessments.  Improvements covered by this category of  
          PACE financing include: renewable energy sources or energy  
          efficiency improvements that are permanently fixed to real  
          property; water efficiency improvements that are permanently  
          fixed to real property; electric vehicle charging  
          infrastructure; and seismic strengthening improvements.

          The second form of PACE financing -- Mello-Roos parcel taxes --  
          allows specially formed community facilities districts (CFD) to  
          issue bonds against these taxes to finance energy efficiency,  
          water conservation, and renewable energy improvements that are  
          affixed to or on real property and in buildings, whether the  
          real property or buildings are privately or publicly owned.   
          Under this arrangement, a CFD can initially consist solely of  
          territory proposed for future annexation to the CFD, with the  
          condition that a parcel or parcels within that territory may be  
          annexed to the CFD and subjected to the special tax only with  
          the unanimous approval of the parcel owner or owners at the time  
          of annexation.

          Due to their unique financing structure, consumers may not fully  
          understand their obligations when entering into a PACE program  
          to finance improvements to their property.  This bill would  
          require public agencies and other participants who participate  
          in PACE financing to make certain disclosures to consumers,  
          provide consumers with certain rights of rescission, and  
          restrict the types of representations that can be made, when  
          financing improvements through a PACE program.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Mello-Roos Community Facilities Act of 1982,  
          sets forth procedures for the establishment of a community  
          facilities district for the financing of certain public capital  
          facilities and services, and provides that these districts may  
          be instituted by a legislative body on its own initiative.   
          (Gov. Code Sec. 53311 et seq.)







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           Existing law  states that as an alternate and independent  
          procedure for forming a community facilities district, a  
          legislative body may form a community facilities district that  
          initially consists solely of territory proposed for annexation  
          to the community facilities district in the future, with the  
          condition that a parcel or parcels within that territory may be  
          annexed to the community facilities district and subjected to  
          the special tax only with the unanimous approval of the owner or  
          owners of the parcel or parcels at the time that the parcel or  
          parcels are annexed.  Existing law sets forth specific  
          requirements for the formation of community facilities district  
          under this alternate procedure.  (Gov. Code Sec. 53328.1.)

           Existing law  establishes an alternate procedure for authorizing  
          assessments to finance specified improvement work through the  
          creation of voluntary contractual assessments.  (Sts. & Hwy.  
          Code Sec. 5898.10.)

           This bill  restricts a public agency from permitting a property  
          owner to participate in the above community facilities district  
          and assessment programs, as specified, unless:
           the property owner's participation would not result in the  
            total amount of the annual property taxes and assessments  
            exceeding 5 percent of the property's market value, as  
            determined at the time of approval of the property owner's  
            contractual assessment; and
           the property owner receives two copies of a statutory right to  
            cancel form.

           This bill  requires a public agency or another party to provide a  
          statutory "Financing Estimate and Disclosure" form at least  
          three business days before the property owner consummates a  
          voluntary contractual assessment or a special tax, as specified.

           This bill  states that a public agency or other party to a  
          voluntary contractual assessment or a special tax shall not make  
          any representations to a property owner regarding the effect  
          that financed improvements will have on the market value of the  
          property unless that public agency or other party derives its  
          estimates of the market value using a specified methodology.
            
           This bill  makes related legislative declarations and findings,  
          and other conforming changes to existing law.








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                                        COMMENT
           
           1.Stated need for the bill  

          The author writes:

            Homeowners are at risk from two deficiencies in the law  
            governing PACE financing: A PACE encumbrance jeopardizes  
            conventional mortgage financing for the home, and PACE  
            financing extends credit secured by the home without providing  
            adequate disclosures and without the underwriting safeguards  
            applicable to other loans.  PACE loans present several  
            challenges for consumers in that they negatively affect future  
            financial transactions, there is a lack of true underwriting  
            relative to the borrower's ability to repay the debt, and the  
            terms and conditions are not adequately disclosed.  These  
            methods of finance have received attention by the Federal  
            Housing Finance Agency (FHFA), the regulator for the  
            government-sponsored entities (GSEs) known as Fannie Mae and  
            Freddie Mac.  The FHFA's concerns are rooted in longstanding  
            lending and underwriting principles.

            The GSEs exist as a secondary market providing liquidity,  
            stability and affordability to the mortgage market.  The GSEs  
            buy mortgages from lenders and the cash raised from selling  
            loans allows those lenders to engage in further lending.  This  
            process provides a stable supply of funds available for  
            mortgage loans and makes those loans more affordable for  
            consumers.  The FHFA has issued several memorandum wherein  
            they "make it clear to homeowners, lenders, other financial  
            institutions, state officials and the public that Fannie Mae  
            and Freddie Mac's policies prohibit the purchase of a mortgage  
            where the property has a first-lien PACE loan attached to it."  
             Since the federal government is responsible for backing the  
            overwhelming majority of all new mortgage originations, the  
            GSEs' unwillingness to purchase mortgages will have a chilling  
            effect on the availability of credit and the opportunity for  
            consumers to purchase or refinance homes. 

            AB 2693 will make important consumer protection changes to the  
            PACE law.  If enacted, this bill requires that PACE loans be  
            accompanied by model disclosures, ensuring that all borrowers  
            receive information about the contractual obligation they are  
            entering in to and the related financial terms and conditions  
            of such an agreement.  Specifically, AB 2693 requires that  







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            borrowers receive a standardized disclosure about their PACE  
            loan in a manner somewhat analogous to the disclosures  
            provided in connection with any other home loan.  There should  
            be no confusion in the mind of either the committee members or  
            borrowers -- these encumbrances might be labeled  
            "assessments," but they are really loans that come at the  
            expense of the borrower's equity in the property. . . .  
            Unfortunately for borrowers, if they fail to receive  
            meaningful disclosures regarding their PACE loan, they cannot  
            effectively shop for financing of energy conservation  
            improvements, and cannot make a thoughtful comparison of the  
            competing loans available to finance the home improvement.
             
            AB 2693 also allows a borrower a three day right to rescind  
            and provides the form that he or she may use to exercise that  
            right - just like other home improvement loans.  In addition,  
            recent amendments make it clear that the bill applies only to  
            single family residential PACE liens, and not commercial or  
            non-residential loans, and the rule will apply prospectively  
            to encumbrances agreed to after January 1, 2017.

           2.Improved rights and disclosures for consumers  

          This bill would require public agencies and private sector  
          partners to give consumers a specified disclosure form three  
          days before PACE financing is consummated describing the terms  
          of their PACE obligation, including financing and repayment  
          terms.  This bill would also require that consumers receive a  
          three-day form describing their right to rescind the obligation.  
           These disclosures - analogous to disclosures required in real  
          property transactions - will help consumers understand the  
          nature of the obligation they are undertaking, and should enable  
          them to compare the financing terms offered under a PACE program  
          to the terms available through other forms of financing.   
          Writing in support, the California Association of County  
          Treasurers and Tax Collectors states:

            We support the need for far greater transparency, disclosure  
            and accountability in furtherance of consumer protections when  
            it comes to PACE assessments that are administered through  
            private parties.  Many tax collectors have fielded queries  
            from angry tax payers who do not understand why their property  
            tax bill has skyrocketed after entering into a contractual  
            assessment for PACE financing for solar and other energy  
            efficiency and water conservation improvements.  In the  







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            continued absence of strict regulation in this area by a state  
            agency tasked with consumer protection, there will undoubtedly  
            be untold more angry customers contacting treasurer tax  
            collectors about their tax bill regarding these assessments  
            being placed on the tax bill.
            . . .
            At the outset of the legislation authorizing PACE liens, these  
            types of third party lenders were not contemplated.  In fact,  
            County Treasurer Tax Collectors initiated some programs,  
            notably in Placer and Sonoma, which exist to this day and  
            which do not report the same kind of angry taxpayer calls,  
            disclosure and other consumer problems.  We believe that it is  
            in the best interest of the public agency to fully and  
            completely inform the property owner of the consequences of  
            entering into such an arrangement, as the county tax bill will  
            be the mechanism by which the assessments will be collected.

           3.Opposition concerns  

          Although the author and sponsors have worked extensively with  
          opponents to this bill to address their concerns, some technical  
          matters in the proposed statutory notices still divide the  
          parties.  The California Solar Energy Industries Association  
          (CALSEIA), writing in opposition, states:

            CALSEIA is the state's largest voice for the solar industry,  
            representing 375 contractors, manufacturers, distributors, and  
            other members of the state's solar industry.  PACE is an  
            innovative financing tool that allows property owners to  
            finance energy-efficiency, water-efficiency, and renewable  
            energy generation improvements as a voluntary property tax  
            assessment.  Over 70,000 PACE program participating homeowners  
            will save 9.1 billion kWh of energy, 3.4 billion gallons of  
            water and $2.5 billion in homeowners' utility bills - while  
            creating 13,124 new California jobs.  PACE is already the most  
            successful energy- and water-financing improvement program in  
            California history - administered and funded almost  
            exclusively with private capital ($2+ billion to date).

            We strongly support openness and transparency.  We agree that  
            industry standard disclosure practices are vital to the  
            ongoing attractiveness and sustainability of PACE in  
            California, and we will work with the supporters to reach  
            consensus on specific language.  We support a strong and  
            robust disclosure bill.  However, several technical, but  







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            critical issues still remain.  California must continue to  
            lead the Nation in creating and sustaining innovative policy  
            to combat the impacts of climate change.  Water-efficiency,  
            energy-efficiency, and renewable energy upgrades to  
            residential properties are integral to furthering the State's  
            goals of reducing greenhouse gas emissions; insulating the  
            state from the impacts of dwindling water resources; and  
            helping Californians save money.


           Support  :  California Association of County Treasurers and Tax  
          Collectors; California Coast Credit Union; California Community  
          Banking Network; Central Valley Community Bank; Comercia Bank;  
          Commonwealth Central Credit Union; Community West Bank; El  
          Dorado Savings Bank; Farmers and Merchants Bank of Central  
          California; First Choice Bank; First Northern California Credit  
          Union; Heritage Community Credit Union; Neighborhood National  
          Bank; Patelco Credit Union; Provident Credit Union; Sacramento  
          Credit Union; Safe Credit Union; San Diego County Credit Union;  
          San Francisco Federal Credit Union; Schools Financial Credit  
          Union; Sierra Central Credit Union; Star One Credit Union;  
          Valley First Credit Union; Valley Republic Bank; Two Individuals

           Opposition  :  California Solar Energy Industries Association;  
          Renew Financial; Renovate America 

                                        HISTORY
           
           Source  :  California Association of Realtors; California Bankers  
          Association; California Credit Union League; California Escrow  
          Association; California Land Title Association; California  
          Mortgage Association; California Mortgage Bankers Association;  
          United Trustees Association

           Related Pending Legislation  :  AB 2618 (Nazarian, 2016)  would  
          add seismic improvements to the types of improvements that can  
          be financed on publicly or privately owned property by a  
          community facilities district (CFD) that is formed through an  
          alternative process that allows property owners to voluntarily  
          annex their property into the CFD.  This bill is pending on the  
          Senate Floor.

           Prior Legislation :

          SB 692 (Hancock, Ch. 219, Stats. 2013) made several changes to  







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          the Mello-Roos Community Facilities Act and the Mark-Roos Bond  
          Pooling Act, including authorizing Mello-Roos Act special taxes  
          to pay for maintenance and operation of specified real property,  
          and adding leases to the list of property interests that Joint  
          Powers Authorities can use to finance public capital  
          improvements.

          SB 555 (Hancock, Ch. 493, Stats. 2011) authorized Mello-Roos  
          community facilities districts to finance renewable energy,  
          energy efficiency, and water efficiency improvements on private  
          property.
          SB 279 (Hancock, 2009) would have added the acquisition,  
          installation, and improvement of energy efficiency, water  
          conservation, and renewable energy improvements to the types of  
          facilities that a community facilities district may finance, or  
          refinance, regardless of whether the buildings or property are  
          privately or publicly owned.  This bill was vetoed by Governor  
          Schwarzenegger.

          AB 1709 (Hancock, 2007) was substantially similar to SB 279  
          (Hancock, 2009), and was also vetoed by Governor Schwarzenegger.

           Prior Vote  :

          Senate Governance and Finance Committee (Ayes 6, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)
          Assembly Local Government Committee (Ayes 9, Noes 0)
          Assembly Banking and Finance Committee (Ayes 11, Noes 1)

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