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AB-3149 Mitigation Fee Act: fees: notice: publicly available data.(2019-2020)



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AB3149:v98#DOCUMENT

Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3149


Introduced by Assembly Member Gloria

February 21, 2020


An act to amend Section 66003 Sections 66016, 66019, 66020, and 66022 of the Government Code, relating to land use.


LEGISLATIVE COUNSEL'S DIGEST


AB 3149, as amended, Gloria. Mitigation Fee Act. Act: fees: notice: publicly available data.
The Mitigation Fee Act authorizes a local agency to establish, increase, or impose various fees as a condition of approval of a development project, if specified requirements are met. The act excludes certain fees, including a fee imposed pursuant to a reimbursement agreement between a local agency and a property owner or developer for specified costs of a public facility. The act requires a local agency, before levying or increasing a fee or service charge, to hold at least one open and public meeting and requires that notice of the time and place of the meeting be mailed at least 14 days prior to the meeting to any interested party who files a written request with the local agency for mailed notice of the meeting on new or increased fees or service charges. The act additionally requires the local agency to make available to the public, at least 10 days prior to the meeting, the data indicating the amount of cost, or estimated cost, required to provide the service for which the fee or service charge is levied and the revenue sources anticipated to provide the service, as specified. The act also authorizes the local agency to provide notice via electronic notification to those who specifically request it, and authorizes the legislative body of a local agency to establish a reasonable annual charge for sending notices based on the estimated cost of providing the service. The act authorizes any party to protest the imposition of a fee, dedication, reservation, or other exactions imposed on a development project within 90 or 120 days of the imposition of the fee, as applicable, and specifies procedures for those protests and actions. The act imposes the same requirements on a local agency for a new or increased fee for public facilities.

This bill would make nonsubstantive changes to that provision.

This bill would increase, for fees and service charges and for fees for specified public facilities, the time for mailing the notice of the time and place of the meeting to at least 45 days before the meeting. The bill would require the local agency to make that information available to the public at least 30 days before the meeting. The bill would require a local agency to additionally make available to the public all of the data demonstrating the requisite relationship between the amount of a fee for public facilities and the need for the public facilities. The bill would require the data to also be made available to the public on the local agency’s internet website. The bill would authorize interested parties to file an electronic request to receive the notice of the meeting time and place, and would require the local agency to mail or electronically send the notice as requested by the party. The bill would prohibit the legislative body of a local agency from establishing a reasonable annual charge for sending electronic notices. The bill would prohibit a local agency, when defending a protest or action filed for a fee or service charge, or for fees for specified public facilities, from using as evidence, or relying on in any way, data not made available to the public pursuant to these provisions. By imposing new duties on local agencies, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 66016 of the Government Code is amended to read:

66016.
 (a) Prior to levying a new fee or service charge, or prior to approving an increase in an existing fee or service charge, a local agency shall hold at least one open and public meeting, at which oral or written presentations can be made, as part of a regularly scheduled meeting. Notice of the time and place of the meeting, including a general explanation of the matter to be considered, and a statement that the data required by this section is available, shall be mailed or delivered electronically at least 14 45 days prior to the meeting to any interested party who files a written or electronic request with the local agency for mailed or electronic notice of the meeting on new or increased fees or service charges. Any written or electronic request for mailed notices shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for mailed or electronic notices shall be filed on or before April 1 of each year. The legislative body may establish a reasonable annual charge for sending written notices based on the estimated cost of providing the service. At least 10 30 days prior to the meeting, the local agency shall make available to the public public, including on its internet website, all of the data indicating the amount of cost, or estimated cost, required to provide the service for which the fee or service charge is levied and the revenue sources anticipated to provide the service, including General Fund revenues. Unless there has been voter approval, as prescribed by Section 66013 or 66014, no local agency shall levy a new fee or service charge or increase an existing fee or service charge to an amount which exceeds the estimated amount required to provide the service for which the fee or service charge is levied. If, however, the fees or service charges create revenues in excess of actual cost, those revenues shall be used to reduce the fee or service charge creating the excess.
(b) Any action by a local agency to levy a new fee or service charge or to approve an increase in an existing fee or service charge shall be taken only by ordinance or resolution. The legislative body of a local agency shall not delegate the authority to adopt a new fee or service charge, or to increase a fee or service charge.
(c) Any costs incurred by a local agency in conducting the meeting or meetings required pursuant to subdivision (a) may be recovered from fees charged for the services which were the subject of the meeting.
(d) This section shall apply only to fees and charges as described in Sections 51287, 56383, 65104, 65456, 65584.1, 65863.7, 65909.5, 66013, 66014, and 66451.2 of this code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code.
(e) Any judicial action or proceeding to attack, review, set aside, void, or annul the ordinance, resolution, or motion levying a fee or service charge subject to this section shall be brought pursuant to Section 66022.

SEC. 2.

 Section 66019 of the Government Code is amended to read:

66019.
 (a) As used in this section:
(1) “Fee” means a fee as defined in Section 66000, but does not include any of the following:
(A) A fee authorized pursuant to Section 66013.
(B) A fee authorized pursuant to Section 17620 of the Education Code, or Sections 65995.5 and 65995.7.
(C) Rates or charges for water, sewer, or electrical services.
(D) Fees subject to Section 66016.
(2) “Party” means a person, entity, or organization representing a group of people or entities.
(3) “Public facility” means a public facility as defined in Section 66000.
(b) For any fee, notice of the time and place of the meeting, including a general explanation of the matter to be considered, and a statement that the data required by this subdivision is available shall be mailed or delivered electronically at least 14 45 days prior to the first meeting to an interested party who files a written or electronic request with the city, county, or city and county for mailed or electronic notice of a meeting on a new or increased fee to be enacted by the city, county, or city and county. Any written request for mailed or electronic notices shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for mailed or electronic notices shall be filed on or before April 1 of each year. The legislative body of the city, county, or city and county may establish a reasonable annual charge for sending mailed notices based on the estimated cost of providing the service. The legislative body may send the notice electronically. At least 10 30 days prior to the meeting, the city, county, or city and county shall make available to the public public, including on its internet website, all of the data indicating the amount of cost, or the estimated cost, required to provide the public facilities and the revenue sources anticipated to fund those public facilities, including general fund revenues. revenues, and demonstrating the requisite relationship between the amount of the fee and the need for the public facilities. The new or increased fee shall be effective no earlier than 60 days following the final action on the adoption or increase of the fee, unless the city, county, or city and county follows the procedures set forth in subdivision (b) of Section 66017.
(c) If a city, county, or city and county receives a request for mailed notice pursuant to this section, or a local agency receives a request for mailed notice pursuant to Section 66016, the city, county, or city and county or other local agency may provide the notice via electronic mail for those who specifically request electronic mail notification. A city, county, city or county, or other local agency that provides electronic mail notification pursuant to this subdivision shall send the electronic mail notification to the electronic mail address indicated in the request. The electronic mail notification authorized by this subdivision shall operate as an alternative to the mailed notice required by this section.

SEC. 3.

 Section 66020 of the Government Code is amended to read:

66020.
 (a) Any party may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project, as defined in Section 66000, by a local agency by meeting both of the following requirements:
(1) Tendering any required payment in full or providing satisfactory evidence of arrangements to pay the fee when due or ensure performance of the conditions necessary to meet the requirements of the imposition.
(2) Serving written notice on the governing body of the entity, which notice shall contain all of the following information:
(A) A statement that the required payment is tendered or will be tendered when due, or that any conditions which have been imposed are provided for or satisfied, under protest.
(B) A statement informing the governing body of the factual elements of the dispute and the legal theory forming the basis for the protest.
(b) Compliance by any party with subdivision (a) shall not be the basis for a local agency to withhold approval of any map, plan, permit, zone change, license, or other form of permission, or concurrence, whether discretionary, ministerial, or otherwise, incident to, or necessary for, the development project. This section does not limit the ability of a local agency to ensure compliance with all applicable provisions of law in determining whether or not to approve or disapprove a development project.
(c) Where a reviewing local agency makes proper and valid findings that the construction of certain public improvements or facilities, the need for which is directly attributable to the proposed development, is required for reasons related to the public health, safety, and welfare, and elects to impose a requirement for construction of those improvements or facilities as a condition of approval of the proposed development, then in the event a protest is lodged pursuant to this section, that approval shall be suspended pending withdrawal of the protest, the expiration of the limitation period of subdivision (d) without the filing of an action, or resolution of any action filed. This subdivision confers no new or independent authority for imposing fees, dedications, reservations, or other exactions not presently governed by other law.
(d) (1) A protest filed pursuant to subdivision (a) shall be filed at the time of approval or conditional approval of the development or within 90 days after the date of the imposition of the fees, dedications, reservations, or other exactions to be imposed on a development project. Each local agency shall provide to the project applicant a notice in writing at the time of the approval of the project or at the time of the imposition of the fees, dedications, reservations, or other exactions, a statement of the amount of the fees or a description of the dedications, reservations, or other exactions, and notification that the 90-day approval period in which the applicant may protest has begun.
(2) Any party who files a protest pursuant to subdivision (a) may file an action to attack, review, set aside, void, or annul the imposition of the fees, dedications, reservations, or other exactions imposed on a development project by a local agency within 180 days after the delivery of the notice. Thereafter, notwithstanding any other law to the contrary, all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the imposition. Any proceeding brought pursuant to this subdivision shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain, forcible entry, and unlawful detainer proceedings.
(e) A local agency, when defending a protest or action filed pursuant to this section for a fee imposed under Section 66019, shall not use as evidence, or rely on in any way, data not made available to the public, including data not posted on the local agency’s internet website, pursuant to Section 66019.

(e)

(f) If the court finds in favor of the plaintiff in any action or proceeding brought pursuant to subdivision (d), the court shall direct the local agency to refund the unlawful portion of the payment, with interest at the rate of 8 percent per annum, or return the unlawful portion of the exaction imposed.

(f)

(g) (1) If the court grants a judgment to a plaintiff invalidating, as enacted, all or a portion of an ordinance or resolution enacting a fee, dedication, reservation, or other exaction, the court shall direct the local agency to refund the unlawful portion of the payment, plus interest at an annual rate equal to the average rate accrued by the Pooled Money Investment Account during the time elapsed since the payment occurred, or to return the unlawful portion of the exaction imposed.
(2) If an action is filed within 120 days of the date at which an ordinance or resolution to establish or modify a fee, dedication, reservation, or other exactions to be imposed on a development project takes effect, the portion of the payment or exaction invalidated shall also be returned to any other person who, under protest pursuant to this section and under that invalid portion of that same ordinance or resolution as enacted, tendered the payment or provided for or satisfied the exaction during the period from 90 days prior to the date of the filing of the action which invalidates the payment or exaction to the date of the entry of the judgment referenced in paragraph (1).

(g)

(h) Approval or conditional approval of a development occurs, for the purposes of this section, when the tentative map, tentative parcel map, or parcel map is approved or conditionally approved or when the parcel map is recorded if a tentative map or tentative parcel map is not required.

(h)

(i) The imposition of fees, dedications, reservations, or other exactions occurs, for the purposes of this section, when they are imposed or levied on a specific development.

SEC. 4.

 Section 66022 of the Government Code is amended to read:

66022.
 (a) Any judicial action or proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or motion adopting a new fee or service charge, or modifying or amending an existing fee or service charge, adopted by a local agency, as defined in Section 66000, shall be commenced within 120 days of the effective date of the ordinance, resolution, or motion.
If an ordinance, resolution, or motion provides for an automatic adjustment in a fee or service charge, and the automatic adjustment results in an increase in the amount of a fee or service charge, any action or proceeding to attack, review, set aside, void, or annul the increase shall be commenced within 120 days of the effective date of the increase.
(b) Any action by a local agency or interested person under this section shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.
(c) A local agency, when defending a protest or action filed pursuant to this section for a fee imposed under Section 66016, shall not use as evidence, or rely on in any way, data not made available to the public, including data not posted on the local agency’s internet website, pursuant to Section 66016.

(c)

(d) This section shall apply only to fees, capacity charges, and service charges described in and subject to Sections 66013, 66014, and 66016.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.
SECTION 1.Section 66003 of the Government Code is amended to read:
66003.

(a)Sections 66001 and 66002 shall not apply to a fee imposed pursuant to a reimbursement agreement by and between a local agency and a property owner or developer for that portion of the cost of a public facility paid by the property owner or developer that exceeds the need for the public facility attributable to and reasonably related to the development.

(b)This chapter shall become operative on January 1, 1989.