Senate Bill 50 and School Facility Fees - California's Coalition for ...

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act . . . on the provision of adequate school facilities." Section 65995(i) prohibits an agency from denying or refusing to approve a legislative or adjudicative act involving development "on the basis of a person's refusal to provide school facilities mitigation that exceeds the amounts authorized [by SB 50]." As with the limitations on the police power in Government Code Section 65995, SB 50 makes its limitations on a city's or county's power under CEQA to mitigate school facilities impacts applicable to both adjudicative and legislative decisions. The new version of Government Code Section 65996 also recites that the development fees authorized by SB 50 are deemed to be "full and complete school facilities mitigation" for the purposes of CEQA or for any other reason. A local agency may not deny approval of a legislative or adjudicative action under CEQA relating to real estate development on the basis of the inadequacy of school facilities. D. Restoration of Power to Deny Legislative Approvals. If at a statewide election in 2006 or thereafter, a statewide general obligation measure for school facilities is submitted to the voters and the measure is not approved, Government Code Section 65996 would become inoperative and the provisions of Section 65997 would go into effect. Section 65997(d) provides that "notwithstanding any other provision of law [which would include Section 65995(i)], a public agency may refuse to approve a legislative act" involving property development on the basis that school facilities are inadequate. While Section 65997 would permit a complete denial of a legislative development approval, it still would prohibit a public agency to require payment of "a fee, charge, dedication, or other financial requirement" in excess of those authorized by SB 50 as a condition of approval. It would also prohibit a public agency from denying, pursuant to CEQA, approval of a project on the basis of the adequacy of school facilities. E. The Effects of SB 50 on Mello-Roos Districts. SB 50 forbids requiring the use of the Mello-Roos financing for schools as a condition of approval of any legislative or adjudicative action. A person's refusal to participate in a Mello-Roos school funding program may not be taken into account when considering any legislative or adjudicative action relating to land development. If a person voluntarily participates in a Mello-Roos program approved by landowner vote, the present value of the taxes to be paid are to be calculated as an amount per square foot of assessable space and credited against any developer fee liability. Mello-Roos taxes may still be used to make new development bear more of the costs that it imposes on school districts. To comply with SB 50 however, the taxes would need to be approved by two-thirds of the registered voters within the boundaries of a Mello-Roos district created by the school district (which could include the entire school district territory). Because the tax is approved by registered voters rather than landowners, the amount of the tax is not an offset to developer fees (although it would be taken into account in the justification studies done for the developer fees). It may also be possible for a school district to propose to its voters that they approve a Mello-Roos tax that is levied on any property that receives approval for development that will lead to increased enrollment on the theory that the tax is not a condition to the approval of development; it is a consequence of that approval. F. Site Designation. SB 50 severely limits cities' and counties' consideration of school facilities issues in the land use approval process, but one section of the new law preserves the traditional power of cities and counties to use the general plan and zoning to reserve areas for schools. New Section 65998 of the Government Code states that nothing in SB50 shall be interpreted to "limit
or prohibit the authority of a local agency to reserve or designate real property for a schoolsite." While a city or county may not ask a developer to donate land for a school site in exchange for a development approval, a municipality retains its general authority to designate and zone an area for a school and thereby prohibit other types of development in that area, even if the owner of the property wishes to develop it in another way. School districts should be aware, however, that, if a district does not immediately purchase the property and the designation as a schoolsite eliminates the owner's ability to make economic use of the property, the owner may have a claim against the city or county that made the site designation for compensation for a temporary regulatory taking. Section 2 Transition Rules A. Introduction. Senate Bill 50 contains certain permanent and temporary exceptions to its limitations on mitigation requirements and the application of the enhanced developer fees to projects that are in the development pipeline. These exceptions are sometimes referred to as “grandfather” provisions. These exceptions fall into four categories, as follows: B. Permanent Exception for Pre-1987 Contracts. Any residential construction that is subject to a contract (such as a development agreement or a memorandum of understanding) entered into between a person and a school district, city or county, on or before January 1, 1987, that requires payment of a fee, charge, or dedication for school facilities mitigation is not subject to the provisions of Education Code section 17620 (the basic fee authorization) nor to SB 50's new fee provisions and suspension of Mira/Hart/Murrieta. C. Permanent Exception for Pre-November 4, 1998 Contracts. Any construction that is subject to a contract (such as a development agreement or a memorandum of understanding) entered into between a person and a school district, city or county, after January 1, 1987, but before November 4, 1998, that requires payment of a fee, charge, or dedication for school facilities mitigation shall not be affected by any of the provisions of SB 50. D. Temporary Exception for Construction Subject to Condition Pre-November 4, 1998. Any construction that is not subject to a contract (as described above) but that is carried out on real property for which residential development was made subject to a condition relating to school facilities imposed by a state or local agency in connection with a legislative act approving or authorizing the residential development of the property after January 1, 1987, but before November 4, 1998, shall be required to comply with the condition, until January 1, 2000. On and after January 1, 2000, such construction may not be subject to a fee, charge, dedication, or other requirement exceeding the fee limits imposed by SB 50. E. Temporary Exception for Construction Receiving Building Permit Prior to January 1, 2000. Any construction that is neither the subject of a contract nor conditioned in the manner described in paragraph C above may not be charged more than the $1.93 per square foot
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