BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 2231 HEARING: 7/3/12
AUTHOR: Fuentes FISCAL: Yes
VERSION: 6/28/12 TAX LEVY: No
CONSULTANT: Weinberger
SIDEWALK REPAIR ORDINANCES
Requires majority-voter approval to repeal any city or
county ordinance requiring the city or county to repair
sidewalks.
Background and Existing Law
State law requires the owners of lots or portions of lots
fronting on any portion of a public street or place to
maintain any sidewalk in such condition that the sidewalk
will not endanger persons or property and maintain it in a
condition that will not interfere with the public
convenience in the use of those works or areas, except as
to those conditions created or maintained by persons other
than the owner. The superintendent of streets, as defined,
must provide specified notice to the owner or person in
possession of the property fronting on that portion of the
sidewalk out of repair or pending reconstruction, to repair
the sidewalk. Under existing law, if the repair is not
commenced within two weeks after the notice has been
provided, the superintendent of streets must make the
repair and impose the cost of the repair as a lien on the
property.
A benefit assessment is an involuntary charge that property
owners pay for a public improvement or service that
provides a special benefit to their property. The amount
of the assessment must be directly related to the amount of
the benefit that the property receives. Benefit
assessments can finance public projects like sidewalk and
street improvements.
As an alternative to benefit assessments, and only with the
free and willing consent of affected property owners,
public agencies can use "voluntary contractual assessments"
to finance public improvements to developed parcels (SB
AB 2231 -- 6/28/12 -- Page 2
837, McQuorquodale, 1987).
In some cities, including Los Angeles, Oakland, Berkeley,
Half Moon Bay, Placentia, Burlingame, and Redlands, city
ordinances make the city responsible for paying the costs
of repairing damage to sidewalks caused by street trees.
Facing total sidewalk repair costs that may exceed $1
billion, the Los Angeles City Council has been considering
a variety of options for financing the costs of sidewalk
repairs. One option reportedly under consideration last
year was to change city ordinance to make homeowners pay
for sidewalk repairs.
In response, some public officials and property owners want
to require that voters must approve any repeal of a local
ordinance that makes a city or county responsible for the
costs of repairing sidewalks. They also want to prevent a
city or county from imposing any fee, charge or assessment
for the costs of sidewalk repairs on any property owners
unless the assessment is imposed with the property owner's
free and willing consent.
Proposed Law
Assembly Bill 2231 prohibits a city or county from
repealing an ordinance that requires the city or county to
repair sidewalks unless the repeal is approved by the
majority of voters voting on that measure, in a
consolidated or general election.
AB 2231 prohibits a city or county with an ordinance that
requires the city or county to repair sidewalks from
imposing a fee, charge, or assessment against a private
property owner for sidewalk repairs under a specified
statute, unless a repeal of the city or county's sidewalk
repair ordinance is approved by a majority of voters. The
bill specifies that this prohibition on imposing fees,
charges, and assessments for sidewalk repairs does not
apply to voluntary contractual assessments levied pursuant
to specified statutes.
State Revenue Impact
No estimate.
AB 2231 -- 6/28/12 -- Page 3
Comments
1. Purpose of the bill . When a city ordinance makes the
city responsible for repairing damaged sidewalks and the
city allows sidewalks to fall into disrepair, it is unfair
for the city to change the law and force property owners to
pay the costs for decades of deferred maintenance.
Particularly during difficult economic times, when many
homeowners are struggling to avoid foreclosure, it seems
wrong for local governments to add to the costs of
homeownership by changing their long-standing sidewalk
repair policies. AB 2231 guarantees that the public will
have a voice whenever a city or county tries to shift the
financial burden for sidewalk repairs onto homeowners by
repealing a sidewalk repair ordinance. The bill also
guarantees that city that is legally responsible for the
costs of sidewalk maintenance can only impose an assessment
for sidewalk repair with a property owner's free and
willing consent. AB 2231 protects property owners by
ensuring that they fully participate in local decisions
about who pays for sidewalk repairs.
2. Unnecessary . Current law gives local residents ample
opportunity to influence a city council's decision to
repeal a sidewalk repair ordinance. The action repealing
an ordinance would have to be subject to a vote of the city
council in an open and public meeting, which would be
subject to the Brown Act's provisions requiring advanced
notice and opportunity for public comment. City voters can
hold city council members directly accountable in
subsequent elections for deciding to shift sidewalk repair
costs to property owners. A city council action to amend a
sidewalk repair ordinance also may be subject to voter
referendum. A successful referendum effort would require
the city council to either reverse its action or place the
matter before city voters at a future election. The fact
that the City of Los Angeles has not changed its sidewalk
repair ordinance after city residents responded negatively
to the idea, suggests that local residents may already have
sufficient opportunities to influence city officials'
decisions about allocating the costs of sidewalk repairs.
3. Too restrictive . Local governments, like many
individuals, face substantial fiscal challenges cause by
AB 2231 -- 6/28/12 -- Page 4
the recent economic downturn. Although some cities chose
to accept responsibility for the costs of sidewalk repairs,
those cities may no longer be able to afford the repairs.
Banning the imposition of any fees, charges, or assessments
to pay for sidewalk repairs ties the hands of local
officials who must make difficult choices about allocating
scarce general purpose tax revenues among competing local
needs. By making it harder for city officials to shift
repair costs to property owners, AB 2231 may simply ensure
that city sidewalks remain in a state of disrepair.
4. Constitutional question . The California Constitution
allows cities that adopt charters to control their own
"municipal affairs." In all other matters, charter cities
must follow the general, statewide laws. Because the
Constitution doesn't define "municipal affairs," the courts
determine whether a topic is a municipal affair or whether
it's an issue of statewide concern. At least four charter
cities (Berkeley, Los Angeles, Oakland, and Placentia) have
sidewalk repair ordinances that make the city responsible
for paying repair costs. AB 2231 says that it applies to
all cities, including charter cities. To support this
assertion, the bill includes a legislative finding and
declaration that the bill's provisions constitute a matter
of statewide concern and supersede any inconsistent
provisions in the charter of any county or city. Skeptics
may question whether the manner in which a city pays for
the cost of sidewalk repairs is truly a matter of statewide
concern. The Committee may wish to consider amending AB
2231 to include more detailed and specific findings to
bolster the argument that the bill's provisions should
apply to charter cities. Otherwise, the courts may not
agree.
5. Mandate . The California Constitution requires the state
government to reimburse the costs of new or expanded state
mandated local programs. Legislative Counsel says that AB
2231 creates a new state mandated local program by
requiring city and county officials to seek voter approval
of a decision to repeal an ordinance. Section 2 of the
bill requires the state to reimburse any costs identified
by the Commission on State Mandates.
Assembly Actions
AB 2231 -- 6/28/12 -- Page 5
Assembly Local Government Committee: 7-0
Assembly Appropriations Committee:12-0
Assembly Floor: 29-25
Assembly Floor (reconsideration) 47-21
Assembly Floor (amendment): 46-23
Assembly Local Government Committee: 6-0
Assembly Floor: 48-10
Support and Opposition (6/28/12)
Support : Apartment Association, California Southern
Cities; Apartment Association of Los Angeles; Building
Owners and Managers Association of California; California
Apartment Association; California Business Properties
Association; California Restaurant Association; East Bay
Rental Housing Association; International Council of
Shopping Centers; Neighborhood Market Association; NORCAL
Rental Property Association; Silver Lake Neighborhood
Council; California Association of Realtors.
Opposition : California State Association of Counties;
Cities of Camarillo, Concord, Lakewood, Los Angeles,
Palmdale, Rancho Cucamonga, Torrance, Burbank, Pasadena,
San Jose, and Sunnyvale; Counties of San Joaquin and
Ventura; Glendale City Employees Association; League of
California Cities; Organization of SMUD Employees; San
Bernardino Public Employees Association; San Luis Obispo
County Employees Association; Santa Rosa City Employees
Association.