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SB-695 Mitigation Fee Act: housing developments.(2021-2022)

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Date Published: 03/07/2021 02:00 PM
SB695:v98#DOCUMENT

Amended  IN  Senate  March 07, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 695

Introduced by Senator Ochoa Bogh

February 19, 2021

An act to amend Section 65400 of Section 66477 of, and to add Section 66000.1 to, the Government Code, relating to housing.


LEGISLATIVE COUNSEL'S DIGEST


SB 695, as amended, Ochoa Bogh. Planning and zoning: general plan. Mitigation Fee Act: housing developments.
The Mitigation Fee Act requires a local agency that establishes, increases, or imposes a fee as a condition of approval of a development project to, among other things, determine a reasonable relationship between the fee’s use and the type of development project on which the fee is imposed. Existing law, the Quimby Act, which is within the Subdivision Map Act, authorizes the legislative body of a city or county to require the dedication of land or to impose fees for park or recreational purposes as a condition to the approval of a tentative map or parcel subdivision map if specified requirements are met.
This bill would prohibit a local agency from imposing a housing impact requirement adopted by the local agency on a housing development project, as defined, unless specified requirements are satisfied by the local agency, including that the local agency prepare and adopt a nexus study, as specified. The bill, for purposes of these provisions, defines “housing impact requirement” as a fee imposed under the Mitigation Fee Act, dedications of parkland or in-lieu fees imposed under the Quimby Act, or a construction excise tax.
This bill would require a local agency to adopt a nexus study that is used to demonstrate compliance with these provisions, subject to specified public participation requirements.
This bill would prohibit a housing impact requirement from exceeding the amount necessary to maintain the existing level of service identified in the nexus study for the type of capital facility for which the housing impact requirement is imposed. The bill would require the nexus study to identify the existing level of service that is currently being achieved for the type of capital facility for which a housing impact requirement is imposed. The bill would prohibit a housing impact requirement from exceeding the amount necessary to mitigate the direct impact of the housing development project on the need for a capital facility or facilities identified in a capital improvement plan.
The bill would clarify that any dedication of land or requirement of the payment of fees under the Quimby Act that is also a housing impact requirement must comply with the requirements described above in addition to the requirements of the Quimby Act.
This bill would make findings that ensuring access to affordable housing is a matter of statewide concern rather than a municipal affair and, therefore, applies to all cities, including a charter city and a charter city and county.
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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law, the Planning and Zoning Law, requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. Existing law requires the planning agency of a city or county to provide an annual report to certain specified entities by April 1 of each year that includes specified information.

This bill would make a nonsubstantive change to those provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 Section 66000.1 is added to the Government Code, to read:

66000.1.
 (a) For purposes of this section:
(1) “Housing development project” means a residential development or a mixed use development consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.
(2) (A) “Housing impact requirement” means a fee, charge, dedication, or other requirement established, levied, or imposed, in whole or in part to mitigate the impact of a housing development project, including, but not limited to, a fee or charge that is any of the following:
(i) A fee described in the Mitigation Fee Act (Chapter 5 (commencing with Section 66000), Chapter 6 (commencing with Section 66010), Chapter 7 (commencing with Section 66012), Chapter 8 (commencing with Section 66016), and Chapter 9 (commencing with Section 66020)).
(ii) A dedication of parkland or an in-lieu fee imposed pursuant to Section 66477.
(iii) A construction excise tax.
(B) “Housing impact requirement” does not include a fee described in Section 66014.
(b) Notwithstanding any other law, a housing development project shall not be subject to a housing impact requirement adopted by a local agency unless, in addition to any other applicable requirements, all of the following requirements are satisfied:
(1) The local agency has prepared and adopted a nexus study pursuant to subdivision (c).
(2) Notwithstanding paragraph (2) of subdivision (g) of Section 66001, a housing impact requirement shall not exceed the amount necessary to maintain the existing level of service identified in the nexus study described in subdivision (c) that is currently being achieved, for the type of capital facility for which the housing impact requirement is imposed.
(3) A housing impact requirement shall not exceed the amount necessary to mitigate the direct impact of the housing development project or the need for a capital facility or facilities identified in a capital improvement plan adopted pursuant to Section 66002. The housing impact requirement shall not be based on or include any amount for a capital facility or facilities not identified in a capital improvement plan adopted pursuant to Section 66002.
(4) A housing impact requirement shall not be based on or include any amount for operational or maintenance purpose, and shall not be expended for any operational or maintenance purposes.
(c) (1) (A) Before subjecting a housing development project to a housing impact requirement, a local agency shall prepare and adopt a nexus study, which shall be used to demonstrate compliance with the requirements of this section.
(B) The nexus study shall be adopted by resolution at a public hearing and shall not be adopted until it is in its final form.
(C) The local agency shall provide notice of the commencement of preparation of a nexus study to any person who made a request with the local agency.
(D) A local agency shall post the nexus study in its final form on its internet website and make it available to the public for a period of at least 30 days before adopting the nexus study.
(2) (A) The nexus study shall identify the existing level of service that is currently being achieved for the type of capital facility for which a housing impact requirement is imposed.
(B) A housing impact requirement shall not be based on a capital cost level of service or similar standard in which a local agency estimates the monetary value of its existing capital facilities and bases a housing impact requirement on what is asserted to be the same level of capital cost investment incurred by existing residents.
(C) For purposes of this paragraph, “level of service” means a physically measurable quantity or quality of facilities relative to a certain number of persons or other appropriate measure.
(d) The requirements of this section apply to housing impact requirements whether levied or imposed on, or in connection with, a legislative or adjudicative land use approval or application.
(e) In any action brought to enforce this section, the local agency shall have the burden of demonstrating, by a preponderance of the evidence, compliance with this section.
(f) This section shall be construed broadly to effectuate the Legislature’s intent to establish effective constraints on local agency housing impact requirements.

SEC. 2.

 Section 66477 of the Government Code is amended to read:

66477.
 (a) The legislative body of a city or county may, by ordinance, require the dedication of land or impose a requirement of the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a tentative map or parcel map, if all of the following requirements are met:
(1) The ordinance has been in effect for a period of 30 days prior to the filing of the tentative map of the subdivision or parcel map.
(2) The ordinance includes definite standards for determining the proportion of a subdivision to be dedicated and the amount of any fee to be paid in lieu thereof. The amount of land dedicated or fees paid shall be based upon the residential density, which shall be determined on the basis of the approved or conditionally approved tentative map or parcel map and the average number of persons per household. There shall be a rebuttable presumption that the average number of persons per household by units in a structure is the same as that disclosed by the most recent available federal census or a census taken pursuant to Chapter 17 (commencing with Section 40200) of Part 2 of Division 3 of Title 4. However, the dedication of land, or the payment of fees, or both, shall not exceed the proportionate amount necessary to provide three acres of park area per 1,000 persons residing within a subdivision subject to this section, unless the amount of existing neighborhood and community park area, as calculated pursuant to this subdivision, exceeds that limit, in which case the legislative body may adopt the calculated amount as a higher standard not to exceed five acres per 1,000 persons residing within a subdivision subject to this section.
(A) The park area per 1,000 members of the population of the city, county, or local public agency shall be derived from the ratio that the amount of neighborhood and community park acreage bears to the total population of the city, county, or local public agency as shown in the most recent available federal census. The amount of neighborhood and community park acreage shall be the actual acreage of existing neighborhood and community parks of the city, county, or local public agency as shown on its records, plans, recreational element, maps, or reports as of the date of the most recent available federal census.
(B) For cities incorporated after the date of the most recent available federal census, the park area per 1,000 members of the population of the city shall be derived from the ratio that the amount of neighborhood and community park acreage shown on the maps, records, or reports of the county in which the newly incorporated city is located bears to the total population of the new city as determined pursuant to Section 11005 of the Revenue and Taxation Code. In making any subsequent calculations pursuant to this section, the county in which the newly incorporated city is located shall not include the figures pertaining to the new city which were calculated pursuant to this paragraph. Fees shall be payable at the time of the recording of the final map or parcel map, or at a later time as may be prescribed by local ordinance.
(3) (A) The land, fees, or combination thereof are to be used only for the purpose of developing new or rehabilitating existing neighborhood or community park or recreational facilities to serve the subdivision, except as provided in subparagraph (B).
(B) Notwithstanding subparagraph (A), fees may be used for the purpose of developing new or rehabilitating existing park or recreational facilities in a neighborhood other than the neighborhood in which the subdivision for which fees were paid as a condition to the approval of a tentative map or parcel map is located, if all of the following requirements are met:
(i) The neighborhood in which the fees are to be expended has fewer than three acres of park area per 1,000 members of the neighborhood population.
(ii) The neighborhood in which the subdivision for which the fees were paid has a park area per 1,000 members of the neighborhood population ratio that meets or exceeds the ratio calculated pursuant to subparagraph (A) of paragraph (2), but in no event is less than three acres per 1,000 persons.
(iii) The legislative body holds a public hearing before using the fees pursuant to this subparagraph.
(iv) The legislative body makes a finding supported by substantial evidence that it is reasonably foreseeable that future inhabitants of the subdivision for which the fee is imposed will use the proposed park and recreational facilities in the neighborhood where the fees are used.
(v) The fees are used within a specified radius that complies with the city’s or county’s ordinance adopted pursuant to subdivision (a), and are consistent with the adopted general plan or specific plan of the city or county. For purposes of this clause, “specified radius” includes a planning area, zone of influence, or other geographic region designated by the city or county, that otherwise meets the requirements of this section.
(4) The legislative body has adopted a general plan or specific plan containing policies and standards for parks and recreational facilities, and the park and recreational facilities are in accordance with definite principles and standards.
(5) The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision.
(6) (A) The city, county, or other local public agency to which the land or fees are conveyed or paid shall develop a schedule specifying how, when, and where it will use the land or fees, or both, to develop park or recreational facilities to serve the residents of the subdivision. Any fees collected under the ordinance shall be committed within five years after the payment of the fees or the issuance of building permits on one-half of the lots created by the subdivision, whichever occurs later. If the fees are not committed, they, without any deductions, shall be distributed and paid to the then record owners of the subdivision in the same proportion that the size of their lot bears to the total area of all lots within the subdivision.
(B) The city, county, or other local agency to which the land or fees are conveyed or paid may enter into a joint or shared use agreement with one or more other public districts in the jurisdiction, including, but not limited to, a school district or community college district, in order to provide access to park or recreational facilities to residents of subdivisions with fewer than three acres of park area per 1,000 members of the population.
(7) Only the payment of fees may be required in subdivisions containing 50 parcels or less, except that when a condominium project, stock cooperative, or community apartment project, as those terms are defined in Sections 4105, 4125, and 4190 of the Civil Code, exceeds 50 dwelling units, dedication of land may be required notwithstanding that the number of parcels may be less than 50.
(8) Subdivisions containing less than five parcels and not used for residential purposes shall be exempted from the requirements of this section. However, in that event, a condition may be placed on the approval of a parcel map that if a building permit is requested for construction of a residential structure or structures on one or more of the parcels within four years, the fee may be required to be paid by the owner of each parcel as a condition of the issuance of the permit.
(9) If the subdivider provides park and recreational improvements to the dedicated land, the value of the improvements together with any equipment located thereon shall be a credit against the payment of fees or dedication of land required by the ordinance.
(b) Land or fees required under this section shall be conveyed or paid directly to the local public agency which provides park and recreational services on a communitywide level and to the area within which the proposed development will be located, if that agency elects to accept the land or fee. The local agency accepting the land or funds shall develop the land or use the funds in the manner provided in this section.
(c) If park and recreational services and facilities are provided by a public agency other than a city or county, the amount and location of land to be dedicated or fees to be paid shall, subject to paragraph (2) of subdivision (a), be jointly determined by the city or county having jurisdiction and that other public agency.
(d) This section does not apply to commercial or industrial subdivisions or to condominium projects or stock cooperatives that consist of the subdivision of airspace in an existing apartment building that is more than five years old when no new dwelling units are added.
(e) Common interest developments, as defined in Section 4100 of the Civil Code, shall be eligible to receive a credit, as determined by the legislative body, against the amount of land required to be dedicated, or the amount of the fee imposed, pursuant to this section, for the value of private open space within the development which is usable for active recreational uses.
(f) Park and recreation purposes shall include land and facilities for the activity of “recreational community gardening,” which activity consists of the cultivation by persons other than, or in addition to, the owner of the land, of plant material not for sale.
(g) As used in this section with regard to the expenditure of fees, the term “fee” includes any interest income generated from a fee charged and collected pursuant to this section.
(h) Any dedication of land or requirement of the payment of fees pursuant to this section that is also a housing impact requirement, as defined in paragraph (2) of subdivision (a) of Section 66000.1, shall comply with the requirements established in Section 66000.1 in addition to the requirements of this section.

(h)

(i) This section shall be known, and may be cited, as the Quimby Act.

(i)

(j) This section shall become operative on January 1, 2021.

SEC. 3.

 The Legislature finds and declares that excessive housing impact requirements contribute significantly to California’s housing affordability crisis and are a matter of statewide concern, and not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, the changes made by this act apply to all cities, including a charter city or a charter city and county.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs 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.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 65400 of the Government Code is amended to read:
65400.

(a)After the legislative body has adopted all or part of a general plan, the planning agency shall do both of the following:

(1)Investigate and make recommendations to the legislative body regarding reasonable and practical means for implementing the general plan, or element of the general plan, so that it will serve as an effective guide for orderly growth and development, preservation and conservation of open-space land and natural resources, and the efficient expenditure of public funds relating to the subjects addressed in the general plan.

(2)Provide by April 1 of each year an annual report to the legislative body, the Office of Planning and Research, and the Department of Housing and Community Development that includes all of the following:

(A)The status of the plan and progress in its implementation.

(B)(i)The progress in meeting its share of regional housing needs determined pursuant to Section 65584 and local efforts to remove governmental constraints to the maintenance, improvement, and development of housing pursuant to paragraph (3) of subdivision (c) of Section 65583.

(ii)The housing element portion of the annual report, as required by this paragraph, shall be prepared through the use of standards, forms, and definitions adopted by the Department of Housing and Community Development. The department may review, adopt, amend, and repeal the standards, forms, or definitions, to implement this article. Any standards, forms, or definitions adopted to implement this article shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2. Before and after adoption of the forms, the housing element portion of the annual report shall include a section that describes the actions taken by the local government towards completion of the programs and status of the local government’s compliance with the deadlines in its housing element. That report shall be considered at an annual public meeting before the legislative body where members of the public shall be allowed to provide oral testimony and written comments.

(iii)The report may include the number of units that have been completed pursuant to subdivision (c) of Section 65583.1. For purposes of this paragraph, committed assistance may be executed throughout the planning period, and the program under paragraph (1) of subdivision (c) of Section 65583.1 shall not be required. The report shall document how the units meet the standards set forth in that subdivision.

(C)The number of housing development applications received in the prior year.

(D)The number of units included in all development applications in the prior year.

(E)The number of units approved and disapproved in the prior year.

(F)The degree to which its approved general plan complies with the guidelines developed and adopted pursuant to Section 65040.2 and the date of the last revision to the general plan.

(G)A listing of sites rezoned to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory required by paragraph (1) of subdivision (c) of Section 65583 and Section 65584.09. The listing of sites shall also include any additional sites that may have been required to be identified by Section 65863.

(H)The number of net new units of housing, including both rental housing and for-sale housing and any units that the County of Napa or the City of Napa may report pursuant to an agreement entered into pursuant to Section 65584.08, that have been issued a completed entitlement, a building permit, or a certificate of occupancy, thus far in the housing element cycle, and the income category, by area median income category, that each unit of housing satisfies. That production report shall, for each income category described in this subparagraph, distinguish between the number of rental housing units and the number of for-sale units that satisfy each income category. The production report shall include, for each entitlement, building permit, or certificate of occupancy, a unique site identifier that must include the assessor’s parcel number, but may include street address, or other identifiers.

(I)The number of applications submitted pursuant to subdivision (a) of Section 65913.4, the location and the total number of developments approved pursuant to subdivision (c) of Section 65913.4, the total number of building permits issued pursuant to subdivision (c) of Section 65913.4, the total number of units including both rental housing and for-sale housing by area median income category constructed using the process provided for in subdivision (c) of Section 65913.4.

(J)If the city or county has received funding pursuant to the Local Government Planning Support Grants Program (Chapter 3.1 (commencing with Section 50515) of Part 2 of Division 31 of the Health and Safety Code), the information required pursuant to subdivision (a) of Section 50515.04 of the Health and Safety Code.

(K)The progress of the city or county in adopting or amending its general plan or local open-space element in compliance with its obligations to consult with California Native American tribes, and to identify and protect, preserve, and mitigate impacts to places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code, pursuant to Chapter 905 of the Statutes of 2004.

(L)The following information with respect to density bonuses granted in accordance with Section 65915:

(i)The number of density bonus applications received by the city or county.

(ii)The number of density bonus applications approved by the city or county.

(iii)Data from a sample of projects, selected by the planning agency, approved to receive a density bonus from the city or county, including, but not limited to, the percentage of density bonus received, the percentage of affordable units in the project, the number of other incentives or concessions granted to the project, and any waiver or reduction of parking standards for the project.

(M)The Department of Housing and Community Development shall post a report submitted pursuant to this paragraph on its internet website within a reasonable time of receiving the report.

(b)If a court finds, upon a motion to that effect, that a city, county, or city and county failed to submit, within 60 days of the deadline established in this section, the housing element portion of the report required pursuant to subparagraph (B) of paragraph (2) of subdivision (a) that substantially complies with the requirements of this section, the court shall issue an order or judgment compelling compliance with this section within 60 days. If the city, county, or city and county fails to comply with the court’s order within 60 days, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions. The court shall retain jurisdiction to ensure that its order or judgment is carried out. If the court determines that its order or judgment is not carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled. This subdivision applies to proceedings initiated on or after the first day of October following the adoption of forms and definitions by the Department of Housing and Community Development pursuant to paragraph (2) of subdivision (a), but no sooner than six months following that adoption.