BILL ANALYSIS �
AB 1309
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ASSEMBLY THIRD READING
AB 1309 (Miller)
As Amended May 4, 2011
Majority vote
LOCAL GOVERNMENT 9-0
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|Ayes:|Smyth, Alejo, Bradford, | | |
| |Campos, Davis, Gordon, | | |
| |Hueso, Knight, Norby | | |
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SUMMARY : Allows a county board of supervisors (board), 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, 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 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
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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
liable for the condition of the road after the emergency
repairs are made.
3)Allows a 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 : Existing law contained in the Streets and Highways
Code (Chapter 1255, Statutes of 1941) allows boards 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 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
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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 activate this
authority to use public funds on non-county roads, the board
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.
An Assembly Local Government Committee analysis of AB 3205
(Bader) 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."
This bill builds upon the provisions of AB 3205 (Bader) to allow
a board, 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.
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
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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 the event of a major fire
incident.
An Attorney General (AG) 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 existing
law, 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 board. The
Legislature 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 AG opinion.
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 Legislature 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.
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Support arguments: Current law allows for public money to be
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 Legislature 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.
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958 FN: 0000665