BILL ANALYSIS �
AB 1309
Page 1
Date of Hearing: May 11, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1309 (Miller) - As Amended: May 4, 2011
SUBJECT : Public roads: fire suppression
SUMMARY : Allows a county board of supervisors, by a four-fifths
vote, to authorize use
of road funds to improve or repair specified roads for purposes
of fire suppression. Specifically,
this bill :
1)Allows a county board of supervisors (board), after it has
determined by a resolution adopted by a four-fifths vote of
its membership that the general county interest demands the
improvement or repair of a road that is not a county highway
and is not in the county maintained system, to improve or
repair the road if the improvements or repairs are necessary
for the purpose of fire suppression.
2)Provides that the improvements or repairs shall be made and
paid for in like manner as improvements or repairs of county
highways.
3)States that proceeding under the bill's provisions shall not
cause the road to become a county highway.
4)Repeals this authority as of January 1, 2017.
EXISTING LAW :
1)Allows, if a state or local emergency is declared by a county
board as a result of locally heavy rainfall or flood, the
board to authorize the expenditure of road funds for the
purpose of emergency repairs to public roads which are not
county highways and not in the county maintained system,
without obtaining a grant or lease of right-of-way, if the
repairs are necessary to provide minimum public access
necessary for the protection or preservation
of health or safety of residents.
2)Provides that a county shall not be responsible for the
maintenance of any road so repaired, and it shall not be
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liable for the condition of the road after the emergency
repairs are made.
3)Allows a county board, after they have determined by a
resolution adopted by a four-fifths vote of their membership
that general county interest demands the improvement or repair
of a privately owned road, to improve or repair such road in
consideration of the grant or lease of a right of way to the
county for its own use or the use of the state, any political
subdivision or other appropriate public agency.
4)Provides that such improvements or repairs shall be made and
paid for in like manner as improvements or repairs of county
highways, and provides that proceedings shall not cause the
road to become a county highway.
5)Requires all money received by a county from the Highway Users
Tax Fund and all money deposited by a county in its road fund
to be expended by the county exclusively for county roads for
the purposes specified in existing law.
6)Requires the governing body of each county and city to file
with the State Controller a complete report of the
expenditures for street or road purposes, and requires the
Controller to prescribe the form and contents of the report.
FISCAL EFFECT : None
COMMENTS :
1)Existing law contained in the Streets and Highways Code
(Chapter 1255, Statutes of 1941) allows county boards of
supervisors to make improvements or repairs to a private road
if a grant or lease of a right-of-way is given to the
appropriate public agency for that purpose, and if four-fifths
of the board adopts a resolution in support of the
improvements.
Current law also allows a board of supervisors to authorize
the expenditure of "road funds" for the purpose of emergency
repairs to public roads which are not county highways and not
in the county maintained system, without obtaining a grant or
lease of right-of-way, if the repairs are necessary to provide
minimum public access necessary for the protection or
preservation of health or safety of residents. In order to
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activate this authority to use public funds on non-county
roads, the board of supervisors must declare a state of local
emergency as a result of locally heavy rainfall or flood.
This section of law was added by AB 3205 (Bader), Chapter 819,
Statutes of 1984, and additionally specifies that the county,
once the improvement or repairs are complete, is not
responsible for the maintenance of any road repaired, and the
county is not liable for the condition of the road after the
emergency repairs are made.
2)An Assembly Local Government Committee analysis of AB 3205
dated May 9, 1984, raised two issues with the provisions of AB
3205. First, the analysis noted that it was "unclear as to
what would constitute a state of local emergency." Second, the
analysis stated that "under the authority granted to counties
in AB 3205, a county could authorize the expenditure of county
funds for the repair of privately owned roads, without the
grant or lease of a right-of-way." The analysis additionally
asks "whether it is appropriate under 'emergency' conditions
for a county to expend public funds for private road repairs."
3)This bill builds upon the provisions of AB 3205 to allow a
county board of supervisors, by a four-fifths vote, to
authorize use of road funds to improve or repair specified
roads for purposes of fire suppression. The bill's provisions
specify that the improvement or repair of a road would only be
applicable for a road that is not a county highway and is not
in the county maintained system. While the bill requires a
four-fifths vote of the county board of supervisors in order
to use public funds for non-county roads for the purposes of
fire suppression, the bill does not require that the county
declare a state of local emergency as was required in AB 3205.
4)The author and sponsor, Orange County, argue that this bill is
necessary because of the condition of disrepair that some of
Orange County's rural roads are in, which creates great cause
for concern. The author cites several examples of this. For
instance, during the 2007 Santiago fire, the Orange County
Fire Authority reported that emergency vehicles like
Type 1 Fire Engines and 75-foot Quint Trucks were not able to
access certain public roads. Additionally, Black Star Canyon
Road in Orange County has three bridges, each of which are in
desperate need of repair and currently constitute a
potentially hazardous route for fire suppression vehicles in
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the event of a major fire incident.
5)An Attorney General opinion from 1965 (45 Ops. Cal. Atty. Gen.
98) looked at the question of whether or not public money of
the county can be used to maintain or repair "public" roads
which are not "county" roads. As noted in the opinion,
private roads over which the public has a right to travel,
whether express or prescriptive, are considered 'public'
roads. The Streets and Highways Code restricts the use of
funds in the county "road fund" to "county roads" and "other
street and highway purposes as provided by law." As mentioned
in comment 1) above, the law does provide for several narrow
exceptions that allow for the use of public funds for
non-county roads and private roads, but in general, the law
does not allow for general maintenance expenditures to be made
from the "road funds" for public roads not in the county road
system. The opinion notes that "the general rule seems to be
that if the convenience of the public requires work to be done
by a county at general public expense on a public road, it
should be adopted as a county road and thereafter maintained
as such."
This bill adds another exception to the general rule of
prohibiting the use of public money for private roads and
public, non-county maintained roads, and does so without a
declaration of a state of local emergency by the county board
of supervisors. The Committee may wish to consider the
implications of creating another avenue in statute for which
public funds can be spent for non-county roads, and whether
this action is prudent given the 1965 Attorney General
opinion.
6)According to the author and sponsor, the authorization
contained in the bill will allow a one-time repair and
improvement of Black Star Canyon Road, but without this
authorization in statute, Orange County does not have legal
authority to improve Black Star Canyon Road. The bill would
allow any county to use public funds on any non-county road
until the provisions of the bill sunset on January 1, 2017.
The Committee may wish to consider whether other counties in
California desire to use this authority, in light of the
absence of other counties weighing in on this bill.
7)Support arguments: Current law allows for public money to be
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used on non-county roads after a local state of emergency has
been declared due to heavy rain or flooding, meaning that the
county can come in and repair a road that presents a threat to
public safety after a bad storm. This bill allows for
preventative improvements to non-county roads for fire
suppression prior to fire disasters, by allowing the county to
use public road monies.
Opposition arguments: There is a long-standing prohibition on
using public money for non-county roads, except in very
specific, narrow circumstances. The Committee may wish to
consider whether this bill sets a precedent that may open the
door for using public money for other non-county roads and
whether this authorization should be given to all counties
without a justification of that need.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Board of Supervisors �SPONSOR]
Opposition
None on file
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958