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HomeMy WebLinkAbout2011-05-03 PRC Regular Meeting Agenda Packet RECEi /�' CL A �t LM DESERT . . lH DAY F► � II * 211'PAWPAW F WWI 9 EATION COMMISSION *AI WA' MO,if POSTED AGENDA =s�3H. Tuesday, May 3, 2011 —8:30 a.m. CIVIC CENTER PARK(PAVILION 3)— Palm Desert Civic Center 73-510 Fred Waring Drive, Palm Desert, California 92260 I. CALL TO ORDER II. ROLL CALL III. ORAL COMMUNICATIONS Any person wishing to discuss any item not on the agenda may address the Parks and Recreation Commission at this point by giving his/her name and address for the record. This is the time and place for any person who wishes to comment on items not on the agenda. It should be noted that at the Parks and Recreation Commission's discretion, these comments may be deferred until such time on the agenda as the item is discussed. Remarks shall be limited to a maximum of five minutes, unless additional time is authorized by the Commission. IV. CONSENT CALENDAR A. MINUTES OF THE PARKS AND RECREATION COMMISSION MEETING OF TUESDAY, APRIL 5, 2011. Rec: Approve as presented Action: V. NEW BUSINESS A. PROPOSED AQUATIC CENTER FEES B. PROPOSITION 26 IMPLEMENTATION (Fees vs. Taxes) VI. CONTINUED BUSINESS NONE POSTED AGENDA PARKS AND RECREATION COMMIiIl.SS E I V E D f AL �YL CPI RIYS DESERT O,FFICEA MAY 3, 2011 C 2011 APR 29 AM 9: 50 VII. OLD BUSINESS NONE VIII. PRESENTATIONS AND UPDATES A. INSPECTION REPORTS B. FAMILY YMCA OF THE DESERT C. DESERT RECREATION DISTRICT - Program Updates - Facilities Use IX. STAFF AND COMMISSIONER COMMENTS X. ADJOURNMENT Xl. TOUR OF AQUATIC CENTER CONSTRUCTION SITE I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda for the Parks and Recreation Commission was posted on the City Hall bulletin board not less than 72 hours prior to the meeting. Dated this 29th day of April 2011. ertha A. onzale , Recordin ecretary 2 CITY OF PALM DESERT �'•'�': MINUTES 4,4710 PARKS AND RECREATION COMMISSION f REGULAR MEETING "1/4°44 °C ate' 0-...•- "��� =ft ...... f TUESDAY, APRIL 5, 2011 — 8:30 a.m. Administrative Conference Room — Palm Desert Civic Center 73-510 Fred Waring Drive, Palm Desert, California 92260 CALL TO ORDER Chairman Dash convened the meeting at 8:30 a.m. II. ROLL CALL Present: Absent Chairman Randy Guyer Commissioner Michael Barnard Vice Chair Jerry Dawson Commissioner Raymond Rodriguez Commissioner Dean Dowty Commissioner Deborah Hall Commissioner Kim Housken Commissioner Mary Helen Kelly Commissioner Christopher Thomas Staff Present: Mark Greenwood, P.E., Director of Public Works Bertha Gonzalez, Recording Secretary Ryan Stendell, Senior Management Analyst John M. Wohlmuth, City Manager Guests: Rob Ballew, YMCA of the Desert Craig DeWitt, Desert Recreation District Tatiana Hinkle, Desert Recreation District Felicia Horton, Desert Recreation District Manny Marrujo, Desert Recreation District Laura McGalliard, Desert Recreation District Jeff Ronci, Desert Recreation District Robert A. Spiegel, Councilman Van Tanner, Planning Commission Liaison 1 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 III. ORAL COMMUNICATIONS NONE IV. CONSENT CALENDAR A. MINUTES OF THE REGULAR MEETING OF TUESDAY, MARCH 1, 2011 A typographical error of 800-100 gallon was noted and corrected to 800-1000 gallons. Upon a motion by Chairman Guyer, second by Vice Chair Dawson, and a 7-0 vote of the Commission Board, the Consent Calendar was approved with the noted correction. V. NEW BUSINESS NONE VI. CONTINUED BUSINESS A. CAHUILLA HILLS PARK POTENTIAL IMPROVEMENTS As requested by the Commission, staff presented two aerials of the Cahuilla Hills Park detailing the boundaries of the property. The land, which is an HPR Zone, was bought by the City to protect the hillside; therefore, there is no intent to sell it. Mr. Stendell stated that a restroom could be constructed next to the parking area and the parking could be expanded up the road. He added that he does not foresee any issues with the construction of a parking lot, but the City will need to negotiate with the Coachella Valley Water District regarding the flat area that is currently being used for parking. Commissioner Hall inquired if the entire area could be converted to a recreation park, but Mr. Stendell responded that it will create a new project that will need to go through an environmental study. Vice Chair Dawson asked how long it will take to add the less strenuous trail and Mr. Stendell responded that there is a new planner at the Bureau of Land Management (BLM) that could be a good source for the creation of the trails or walking path. Mr. Steve Harris has hosted two interpretative dog walks and helped with the maintenance of co- managed trails. Chairman Guyer requested that Mr. Harris be invited to the next scheduled meeting and Commissioner Thomas added that a subcommittee could be formed to make trail recommendations. 2 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 Commissioner Hall suggested the formation of volunteer groups to help with the trails and in the parks. Commissioner Dowty stated that COD offers recreational classes that could gather volunteers to help maintain the trails. Should the City of Palm Desert be unable to take volunteer labor, the process could go through the BLM. The installation of the restroom is currently budgeted in the fifth year of the CIP Plan; therefore, if the Commission wishes to include it in this year's budget, another item will need to be omitted. Due to the parks potential, the Commission concurred that the accessibility of a restroom at the parks is important enough to add it to next year's budget. Upon a motion from Commissioner Kelly, second by Commissioner Thomas and a 7-0 vote of the Commission, staff was directed to submit the construction of a restroom in Cahuilla Hills Park to City Council for approval. VII. OLD BUSINESS NONE VIII. PRESENTATIONS AND UPDATES A. AQUATICS CENTER — Introduction of New Aquatics Center Manager As stated at the previous meeting, Mr. Stendell introduced the new manager of the Aquatics Center, Mrs. Karen Creasy. Mrs. Creasy informed the Committee of her lengthy experience with aquatic centers and noted her extensive research of the Palm Desert Aquatic Center and excitement to be part of the project. She added that she is currently working on bringing together the partnership of the City and YMCA and there seems to be many clubs interested in using the pool. Chairman Guyer informed the Commissioners that he opted to meet Mrs. Creasy at this meeting rather than in May when she will be busy with the opening of the center. Councilman Spiegel suggested that the Commissioners visit the Aquatics Center construction site during the next scheduled meeting and inquired if the YMCA has met with COD staff in order to determine their needs. Commissioner Dowty stated that COD met with City staff on Monday, April 4, 2011, resulting in a positive outcome. Chairman Guyer asked Mrs. Creasy if during her review of the aquatic center project, she found anything that was missed during the planning process. She responded that you can't state that something was missed; all they can do is work with what they have. She added that typically 50 meter pools don't tend to be the best revenue source, but they will do their best with the amenities they have, especially the 3 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 concession stands. Staff stated that the date for the pre-opening of the Aquatic Center has not been determined and although a Memorial Day Grand Opening is still the objective, it has not been confirmed. B. INSPECTION REPORTS Mr. Stendell reported on the following reports: — The replacement of the University Park signage is on hold until the recommendations from the JPIA establish if they need to be revised. — Mr. Jay Niemczak is working with the supplier on the warranty of the basketball nets before replacing them. — Staff is addressing the issues with the turf areas at the dog parks. — The standing water issue at Magnesia Falls Park is also being addressed. Mr. Stendell clarified that contrary to the Desert Sun article regarding the usage of pesticides, staff does not apply pesticides in the dog parks. He added that the resident did not contact City staff with the concern before making her comments to the Desert Sun. Commissioner Hall stated that since the contamination of the dog toys seem to be the concern; they need to be thrown away during the maintenance of the park in order to persuade visitors not to leave the dog toys behind. Commissioner Thomas asked how the recycling program at Freedom Park is going and if there any plans to expand it to other parks. Mr. Stendell stated that the recycling blue bins were installed by Frankie Riddle and Lisa Ream of the Special Programs Department. The program was created especially for Freedom Park, so he is not aware of any plans to expand it. C. FAMILY YMCA OF THE DESERT Mrs. Creasy informed the Commission that Healthy Kids Day and the Easter Egg Hunt is still scheduled for Saturday, April 23, 2011, behind the YMCA building. D. DESERT RECREATION DISTRICT Mr. Jeff Ronci included the Community Center evaluations in the monthly report and stated that the Tennis and Pickleball comparison is no longer available, but the attendance logs will still be presented. He added that the dance classes are full and the Tiny Tots program is now operating on a waiting list. 4 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 The monthly facilities and programming reports were presented as follows: Program /Activity Enrollment # of Class Participation Hours Hours Zumba—2 Days 1 200 10 Salsaaerobics 5 400 50 Ballroom Dancing 11 472.50 115.50 Belly Dancing 10 150 60 Painting &Advance 1 240 12 Yoga 1 Day 4 312.50 50 Yoga 2 Day 5 312.50 62.50 Beginning Ballet 3 45 9 After-School Club 25 3450 1725 Princess Party 30 60 189 Karate Taekwondo 16 720 144 Tiny Tots 33 1173 1125 Dance Play Pretend 5 36 15 Membership/ Facilities Use Rentals Daily Visits 3164 Skate Park 368 Bike 409 Tennis 3188 Pickleball 10 Facility 9 Soccer Field 76 Ballfield 183 Mr. Ronci continued by presenting the new Recreation Supervisor, Ms. Felicia Horton, who presented a PowerPoint regarding this year's International Sports Festival (aka: Senior Games). Mrs. Horton stated that the event was a great success with the help of the City's $26,000 sponsorship. Highlights of the presentation were as follows: — The City's funds were used to advertise the event through radio, flyers, brochures and print media, distribution of promotional tee shirts, and the venues, dinner and emergency response. — There were a total of 1,176 participants (335 local and 841 non- locals) from the ages of 35-91. This was an increase of 272 from last year. — Participants received a goodie bag that included sponsored items (i.e. nutritional bars, gift card, energy drink, coupons, etc.). — Awards included a gold, silver and bronze medal Ms. Horton stated that for the 2012 International Sports Festival staff is working on: refining the events; adding events for handicapped athletes; adding low cost events and three additional event days, expand the marketing plan, have all the events in Palm Desert, and 5 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 hold a pancake breakfast, ice cream social and appreciation dinner. She added that the event will be moved to Presidents Day Weekend and they will be recruiting volunteers from local non-profit organizations. Ms. Horton was asked to consult with Commissioner Dowty to establish if COD volunteers could help with the event and contact Ms. Donna Gomez from the Visitors Center to assist with marketing and the hotel packages. When asked why an athlete did not speak at this year's event, but Ms. Horton stated that staff was under the impression that Mr. Johnny Bench would be available to speak. They were informed that he would be unable to attend at the last minute; therefore, it was too late to recruit another speaker. The Commission concurred that the speaker did not have to be a baseball athlete nor a resident of Palm Desert. The only requirement was for him/her to be a resident of the Coachella Valley. Commissioner Dowty noted that he knew many football players that could be interested in participating in this year's event. Mr. Ronci concluded by presenting Ms. Tatiana Hinkle of the DRD, who then introduced the new Soap Box Derby Director, Manny Marrujo. Mr. Marrujo recapped this year's Soap Box Derby Race and thanked the City for co-sponsoring the event. He informed the Commission that the City's funding is used to pay for the franchise and road closure fees. He mentioned a number of stories that illustrated the importance of the event to the Coachella Valley families and stated that the number of participants has significantly increased from last year's event (21 participants in 2009-10 to 93 participants in 2010-11). He concluded by distributing honorary medals to the Commission members as a token of gratitude. Ms. Hinkle stated that the DRD is asking for the Commission's sponsorship of this year's event in the amount of $3,000 for two one- day rally races. Due to the budget constraints, should the Commission not be able to sponsor the two races, the DRD is asking for sponsorship of one-day rally race in March in the amount of $1,500. Responding to Commissioner Housken's inquiry, Ms. Hinkle stated that the total number of racers (93) included the adults, which race only for fun. She added that because Palm Desert allows adults to participate in this manner, the CA Families started to expand the races by offering adult races. The DRD will be holding a clinic in order to attract more Palm Desert families to the derby and an online survey is being conducted through the Palm Desert website in order to determine the best dates and times to hold the race. 6 PARKS AND RECREATION COMMISSION APPROVED MINUTES April 5, 2011 Responding to the Commission's inquiry, Ms. Hinkle stated that they currently have approximately 20 derby cars available to families that cannot afford to pay the $800 for a derby car. The cars are sponsored by private and public venues. The Commission suggested that a way to attract Palm Desert families was to have venues at the baseball and soccer games, but Ms. Hinkle stated that it can be difficult to recruit volunteers, but they will consider it. The Commission agreed that in order to be able to make a recommendation, the item will need to be formally added to the agenda. Upon a motion from Vice-Chair Dawson, second by Commissioner Kelly and 7-0 vote of the Commission, the Soap Box Derby was added to the agenda as an item of discussion. Commissioner Housken asked if the street closure fees are the same for a one-day or two-day race and staff responded that the DRD bills for actual cost; therefore, the City's cost will remain the same. Upon a motion from Commissioner Kelly, second by Chairman Guyer, and 6-1 vote of the Commission with Commissioner Housken opposing, the Commission recommended the City's Council approval to co-sponsor both races in the amount not to exceed $3,000. VIII. COMMISSIONER COMMENTS - Commissioner Housken informed the Commission that the 2012 Arbor Day Celebration will be held on Saturday, April 16, 2011, at the UCR Campus from 9:00 a.m. to 12:00 p.m. This year, Arbor Day will be a volunteer tree planting celebration, which will feature the Art and Essay Contest participants (Trees: Roots for Life). - Commissioner Thomas stated that the Pickleball Free Clinic will also be held on April 16, 2011 from 9 a.m. to 12.p.m. He then noted an article that was featured in the PD Style Magazine, which featured the pickleball courts. He added that he believes that eventually the remaining tennis court at Cahuilla Hills Park will need to be converted to four pickleball courts because of the sport's growing popularity. IX. ADJOURNMENT With no further business or discussion, and with the Commissioners' unanimous concurrence, the meeting was adjourned at 10:00 a.m. Bertha A. Gonzalez, Recording Secretary CITY OF PALM DESERT DEPARTMENT OF PUBLIC WORKS PARKS & RECREATION COMMISSION STAFF REPORT REQUEST: CONSIDERATION FOR APPROVAL OF A RECOMMENDATION TO THE CITY COUNCIL ESTABLISHING GENERAL ADMISSION FEES FOR THE PALM DESERT AQUATICS CENTER. SUBMITTED BY: Ryan Stendell, Senior Management Analyst DATE: May 3, 2011 Recommendation That the Parks and Recreation Commission recommends to the City Council approval of the presented fees for general admission of the Palm Desert Aquatics Center. Discussion The proposed fees as shown below are based on the initial data provided in the Ballard King Operations Study that was prepared during the development of the Aquatics Center Project. The YMCA has reviewed these fees and has proposed minor changes. The YMCA's most notable recommendation was the addition of an entry fee for children between the ages of 2-5 and seniors (60 and up). The YMCA indicates these are industry standard fee categories and will help the bottom line of the facility. The proposed entry fees are as follows: Resident/Property Owner Non-Resident Adult (13-59) $ 4.00 $ 6.00 Youth/Senior (6-12/60T) $ 3.00 $ 4.50 Junior (2-5) $ 2.50 $ 3.75 Adult Punch Card 25 visits $ 94.00 $142.00 Youth Punch Card 25 visits $ 65.00 $ 98.00 Adult 3 month pass $150.00 $225.00 Youth 3 month pass $110.00 $165.00 Adult Annual Pass $550.00 $825.00 Youth Annual Pass $420.00 $630.00 * All program fees, group rates, rental fees, lane rental fees, facility rentals, concessions fees and other fees not listed shall be determined by the of the contract operator. The YMCA believes that the fees as proposed are a good starting point for the first year of operations. The proposed fee structure allows the YMCA the freedom to set group rates, program fees, concessions fees, etc. Staff believes this will give the YMCA the flexibility needed to respond to market constraints/demands. Given the performance based structure of the operations contract, staff is comfortable with this approach. CITY OF PALM DESERT DEPARTMENT OF PUBLIC WORKS PARKS & RECREATION COMMISSION STAFF REPORT REQUEST: INFORMATIONAL DISCUSSION REGARDING THE IMPLEMENTATION OF PROPOSITION 26 APPROVED NOVEMBER 2, 2010. SUBMITTED BY: Ryan Stendell, Senior Management Analyst DATE: May 3, 2011 Attached is a memorandum from Best, Best & Krieger and Western City's Executive Summary regarding the implementation of Proposition 26 (Prop 26), which was approved November 2, 2010. The intent of Prop 26 is to define a tax vs. a regulatory fee in California. Many proponents of Prop 26 intended to curtail the practice of calling for regulatory fees which could be enacted by a simple majority vote. The final version of Prop 26 defines a tax versus a fee with the main difference being a tax must be voted and approved by 2/3 vote. Although there are several defined exceptions, City staff feels that many of the fees including some park fees are affected by Prop 26. Staff will give an oral presentation of the impacts of Prop 26 at the May meeting. BEST BEST & KRIEGER ATTORNEYS AT LAW November 11,2010 Memorandum To: PUBLIC AGENCY CLIENTS FROM: BEST BEST&KRIEGER LLP RE: UPDATE OF IMPACTS OF PROPOSITION 26 ON LOCAL AGENCY FEES AND CHARGES On November 2, 2010, California voters approved Proposition 26, a ballot initiative which further restricts the ability of the state and local agencies to raise revenues to fund government services, facilities, and programs.' Proposition 26 amends provisions of article XIII A ("Article XIII A") and article XIII C ("Article XIII C") of the California Constitution governing the imposition of taxes by providing a new definition of the term "tax." This narrow definition defines "tax" to mean "any local levy, charge, or exaction of any kind imposed by a local agency"except for seven specifically identified exceptions. In essence, fees that do not fall within one of the seven identified exceptions are thereby redefined to be taxes and subject to voter approval. In particular, the proponents of Proposition 26 intended to target state and local agency fees which they assert exceed the reasonable costs of regulation and those which exceed the reasonable costs of providing a specific benefit, privilege, government service or product. Local agency fees which may be impacted by Proposition 26 include: • Regulatory fees which are imposed to recover costs other than those associated with issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and administration and enforcement of the regulatory program. • Fees for a specific benefit, privilege, or government service which are discounted,waived, or provided at differential rates for certain individuals or classes of individuals when the cost of such discount, waiver, or differential rate is paid by other fee payers and the fee paid by such other fee payers exceeds the cost of providing them the benefit, privilege, government service or product for which the fee is imposed. Many local agency fees will continue to be subject to other statutory regulations and constitutional provisions, but will not be impacted by Proposition 26. These fees include: • Fees imposed for the entrance to, or use, purchase,rental, or lease of local government property. • Fines, penalties, or other monetary charges imposed by courts and local agencies for violations of the law. Complete copies of the ballot initiative and ballot arguments submitted for and against Proposition 26 are attached to this memorandum as Exhibit A. KELLY.SALTIl 574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW • Fees imposed as a condition of development. • Assessments and property-related fees. This memorandum updates a prior memorandum distributed to our public agency clients in August 2010 regarding Proposition 26 and summarizes the provisions of Proposition 26 that establish these new restrictions on local agencies, some of the potential impacts that it may have on Iocal agencies, and issues that remain to be addressed by the courts or through clarifying legislation. BACKGROUND The state and local agencies impose a variety of special taxes, assessments, fees and charges on individuals and entities to pay for the costs of or provide funding for government services, facilities, and programs. Several ballot initiatives have been approved by the voters between 1978 and 1994 which have restricted the ability of the state and local agencies to raise revenue through these funding sources. The first of this series of initiatives was Proposition 13. Proposition 13 added Article XIII A to the California Constitution. Billed as a property-taxpayer relief measure, it included "an interlocking `package' of a real property tax rate limitation (Article XIII A, § 1), a real property assessment limitation (Article XIII A, § 2), a restriction on state taxes (Article XIII A, § 3), and a restriction on local taxes (Article XIII A, § 4)." Amador Valley Joint Union High Sch. Dist. v. St. Bd. of Equalization, 22 Cal. 3d 208, 231 (1978). Specifically, Article XIII A, section 4 placed limitations on local agencies by establishing a two-thirds voter approval requirement for any special tax to be imposed by cities, counties, and special districts. To implement the authorizations granted to public agencies in Article XIII A, the legislature enacted California Government Code sections 50075 and 50076. California Government Code section 50075 provides that it is the intent of the legislature to provide all cities, counties, and special districts with the authority to impose special taxes pursuant to the provisions of Article XIII A. California Government Code section 50076 then excludes from the definition of special tax "any fee which does not exceed the reasonable cost of providing the service or regulatory activity for which the fee is charged and which is not levied for general revenue purposes." (Emphasis added). In 1979, the voters approved Proposition 4, which added California Constitution article XIII B ("Article XIII B"). While Proposition 13 limited state and local governments' power to increase taxes, Proposition 4 imposed a complementary limit on the rate of growth in government spending. San Francisco Taxpayers Ass v. Bd. of Supervisors, 2 Cal. 4th 571, 574 (1992). "Articles XIII A and XIII B work in tandem, together restricting California governments' power to both levy and to spend [taxes] for public purposes." City of Sacramento v. State of Calif., 50 Cal. 3d 51, 59 n. 1 (1990). 2 This memorandum does not address in any length the impacts that Proposition 26 will have on the state. For an understanding of what impacts Proposition 26 may have on the state, reference may be made to the analysis of Proposition 26 prepared by the Legislative Analyst's office attached to this memo as Exhibit B. -2- KELLY.S ALT\157442 5.2 BEST BEST & KRIEGER ATTORNEYS AT LAW Article XIII B also included provisions intended to prevent state government attempts "to force programs on local governments without the state paying for them." County of Sonoma v. Comm`n on State Mandates, 84 Cal. App. 4th 1264, 1282 (2000). Section 6 was included in article XIII B in recognition that article XIII A of the Constitution severely restricted the taxing powers of local governments. The provision was intended to preclude the state from shifting financial responsibility for carrying out governmental functions onto local entities that were ill equipped to handle the task. Specifically, it was designed to protect the tax revenues of local governments from state mandates that would require expenditure of such revenues. County of Fresno v. State of Calif., 53 Cal. 2d 482,487 (1991) (citations omitted). The concern that prompted the voters to include Article XIII B, section 6 in the California Constitution "was the perceived attempt by the state to enact legislation or adopt administrative orders creating programs to be administered by local agencies, thereby transferring to these agencies the fiscal responsibility for providing services that the state believed should be extended to the public." Long Beach Unified Sch. fist. v. State of Calif., 225 Cal. App. 3d 155, 174 (1990). Additional restrictions on the ability of local agencies to raise revenue were implemented in November 1996, when California voters approved Proposition 218. Proposition 218 amended the California Constitution by adding article XIII C ("Article XIII C") and article XIII D ("Article XIII D"). Article XIII C, section 3 established voter approval requirements for general and special taxes and provided the initiative power to voters to reduce or repeal any local tax, assessment, fee or charge, and further made such power of initiative applicable to all local agencies. Article XIII D established procedural requirements for levying assessments and imposing new, or increasing existing, property-related fees and charges. Additionally, it placed substantive limitations on the use of the revenue collected from such assessments and property- related fees and charges and on the amount of the assessment and fee or charge that may be imposed on each parcel. Shortly after the adoption of Proposition 218, the California Supreme Court determined in Sinclair Paint Co. v. State Board of Equalization, 15 Cal. 4th 866 (1997) that a fee assessed upon manufacturers of materials that contributed to environmental lead contamination could reasonably be characterized as a regulatory fee and not a special tax.3 The purpose of the fee, which was authorized pursuant to the Childhood Lead Poisoning Prevention Act of 1991 (California Health and Safety Code section 105275 et seq.), was to fund a program for evaluation, screening, and medically necessary follow-up services for children with lead poisoning. The underlying act required paint manufacturers and others whose products exposed 3 Significantly, if a fee or charge is classified as a regulatory fee or charge, a simple majority vote of both houses of the state legislature,or The legislative body of the local government proposing to adopt the fee or charge,is required for approval of the fee or charge. As previously noted, if a fee or charge is deemed to be a tax, a two-thirds approval of both houses of the state legislature is required. -3- KELLY.S ALTN 157442 5.2 BEST BEST 8r KRIEGER ATTORNEYS AT LAW children to lead contamination to bear a fair share of the cost of mitigating the resulting adverse health impacts of their lead producing products by payment of the fee. The appellant, a paint manufacturer, claimed that the fee should have been imposed as a tax with the approval of a two-thirds vote of both houses of the state legislature because proceeds of the fees did not benefit the fee payers. The court found that, provided the fee bears a reasonable relationship to the burden imposed by those charged,use of proceeds from regulatory fees do not have to confer benefits or privileges on the fee payer because they are imposed under a public agency's police power rather than its taxing power. Sinclair, 15 Cal. 4th at 875-76.4 The appellant also disputed the state's authority to impose industry-wide "remediation fees" to compensate for the adverse societal effects generated by an industry's products. The court, however, aclaiowledged that "the police power' is broad enough to include mandatory remedial measures to mitigate the past, present, or future adverse impact of the fee payer's operations, at least where, as here, the measure requires a causal connection or nexus between the product and its adverse effects. Id. at 877-878. Other post-Proposition 13 and 218 cases have defined a regulatory fee as an imposition that funds a regulatory program or that distributes the collective cost of a regulation and is "enacted for purposes broader than the privilege to use a service or to obtain a permit . . . [T]he regulatory program is for the protection of the health and safety of the public." Calif Ass'n of Profl Scientists v. Dept. of Fish & Game, 70 Cal. App. 4th 935, 952 (2000) (cost of comprehensive environmental review far surpassed the amount of the fees generated and therefore was a legal use of regulatory fees).6 In general, courts have upheld regulatory fees when (i) the fees constitute an amount necessary to carry out the purposes and provisions of the regulation; (ii) they do not exceed the reasonable cost of providing the services necessary to the 4 The court held that [f]rom the viewpoint of the general police power authority, lit could see] no reason why statutes or ordinanrPs calling polluters or producers of contaminating products to help mitigate or cleanup efforts should be deemed less "regulatory" in nature than the initial permit or licensing programs that allowed them to operate. Moreover,imposition of"mitigating"effects fees in a substantial amount . . . also "regulates" future conduct by deterring further manufacture, distribution, or sale of dangerous products, and by stimulating research and development efforts to produce safer or alternative products. Id,at 877. S The police power derives from the authority of a local government to promote the public health, safety, morals, and general welfare of the community. See County of Plumas v. Wheeler, 149 Cal. 758 (1906); Comfy. Mem Z Hosp. of San Buena Ventura v. County of Ventura, 50 Cal.. App. 4th 199, 206 (1996); Cal. Const. art. XI, § 7; Carlton Santee Corp. v. Padre Dam Mun. Water Dist., (1981) 120 Cal. App. 3d 14, 24 (1981);Kern County Farm Bureau v. County of Kern, 19 Cal. App.4th 1416(1993). 6 See, e.g., San Diego Gas &Elec. Co.,203 Cal.App.3d 1132 (1988) (upholding air pollution permit fees based on volume of pollutants emitted by permittee rather than cost of staff time devoted to issuance of permit as regulatory fees);Kern County Farm Bureau v. County of Kern, 19 Cal. App. 4th 1416 (1994) (upholding landfill assessment based on land use to reduce illegal waste haulers); City of Oakland v. Superior Court, 45 Cal. App.4th 740 (1996) (upholding regulatory fees charged to alcoholic beverage sale licensees to support project to address public nuisances associated with those sales); Calif. Bldg. Indus.Ass'n v. San Joaquin Valley Air Pollution Control Dist., 178 Cal.App.4th 120(2009)(upholding indirect source rule fee to fund off-site projects that will reduce emissions). -4- KELLY.S ALT\157442 S_2 BEST BEST & KRIEGER ATTORNEYS AT LAW activity on which the fees are based; and (iii) they are not levied for an unrelated revenue purpose.7 ANALYSIS PROPOSITION 26 FINDINGS AND DECLARATIONS The `mitigating effects regulatory fees" approved by the courts after the adoption of Proposition 218 are clearly the primary target of Proposition 26. The "Findings and Declarations of Purpose" of Proposition 26 indicate that the drafters intend to reclassify as taxes many of the fees previously approved by the courts as regulatory fees imposed for the purpose of mitigating the adverse health, environmental, and other societal effects of regulated activities. As taxes, such fees would be subject to the voter approval requirements of Article XIII A and Article XIII C. The "Findings and Declarations of Purpose" note that taxes within California have escalated as a result of the state and local agencies "disguising" new taxes as fees without having to comply with the voter approval requirements of Articles XIII A and XIII C. In particular, the proposition targets fees which are "couched as `regulatory' but which exceed the reasonable costs of actual regulation" or which "are imposed to raise revenue for a new program and are not part of any licensing or permitting program." Proposition 26, § 1(e). These fees, the proposition declares, are actually taxes which should be subject to the limitations applicable to the imposition of taxes. Id. The proposition further declares that in order to ensure the effectiveness of the constitutional limitations placed on taxes, fees, and charges established in Propositions 13 and 218, it is necessary to define what a tax means. Consequently, Proposition 26 "defines a 'tax' for state and local purposes so that neither the legislature nor local governments can circumvent these restrictions on increasing taxes by simply defining new or expanded taxes as `fees. Id. at § 1(f). The "Stop Hidden Taxes" coalition (the "Coalition") which sponsored the ballot initiative produced a list of examples of specific fees imposed on industries that it deemed would be "taxes" if Proposition 26 passed. A copy of the list is attached as Exhibit C to this memorandum. Although the list is not conclusive of whether a court would determine such fees are "taxes"within the meaning of the amendments to the California Constitution, it is instructive in discerning the intended breadth of the ballot initiative. TAXES DEFINED Proposition 26 amends Article XIII C. Article XIII C, section 1(a) defines "general tax" to mean "any tax imposed for general governmental purposes."8 Article XIII C, section 1(d) defines "special tax"to mean any tax imposed for specific purposes, including a tax 7Id. at 945. A local government need only"apply sound judgment and consider probabilities according to the best honest viewpoint of informed officials in determining the amount of the regulatory fee." United Bus. Comm'n. v. City of San Diego,91 Cal.App. 3d 156, 166(1979). 8 A tax is a general tax only if its revenues are placed into the general fund of a local agency and made available for any and all governmental purposes. See Cal. Gov't Code, § 53721. A general tax may not be imposed by a local government unless it is submitted to and approved by a majority of the qualified electors voting in the election on the general tax. Cal.Const.art.XIII C,§2(b);Cal. Gov't Code,§ 53723. -5- KELLY.SALTh 574425.2 BEST BEST & KRIEGER ATILRNEYS AT LAW imposed for specific purposes, which is placed into a general fund."9 Although Article XIII C provides definitions of the terms "general tax" and"special tax," it does not provide a definition of the term "tax.," For purposes of the imposition of taxes by local agencies, Proposition 26 establishes a new definition of the term"tax"by adding section 1, subdivision (e) to Article XIII C("Section 1(e)")." This new definition is as follows: (e) As used in this article, "tax" means any levy, charge, or exaction of any kind imposed by a local government, except the following: (1) A charge imposed for a specific benefit conferred or privilege granted}2 directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege. (2) A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product. (3) A charge imposed for the reasonable regulatory costs to a local government for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof. (4) A charge imposed for entrance or use of local government property, or the purchase, rental, or lease of local government property. 9"The revenues from any special tax shall be used only for the purpose or service for which it was imposed,and for no other purpose whatsoever." Cal. Gov't Code, § 53724(e). A special tax may not be imposed by a local government unless it is submitted to and approved by a two-thirds vote of the qualified electors voting in the election on the issue. Cal. Coast.art.XIII C, §2(d);Cal. Gov't Code, § 53722. Article XIII C,section 2(a)provides that, to the extent they possess the power to tax, "special purpose districts or agencies, including school districts, shall have no power to levy general taxes." Any tax imposed by a special purpose district or agency, including school districts,therefore is a special tax. 1°The courts have previously acknowledged that"(t)he term'tax' has no fixed meaning, and the distinction between taxes and fees is frequently blurred,taking on different meanings in different contexts. In general,taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or privilege granted. Most taxes are compulsory rather than imposed in response to a voluntary decision to develop or to seek other government benefits or privileges." Sinclair, 15 Cal.4th at 874(citations omitted). "Although there are minor language differences between them,a virtually identical definition of"tax"is added to Article XIII A,section 3 and will be applicable to taxes imposed by the state. 12 It is worth noting that the drafters of Proposition 26 have used language almost identical to that used by the court in Sinclair: "In general,taxes are imposed for revenue purposes,rather than in return for a specific benefit conferred or privilege granted." Sinclair, 15 Cal.4th at 874. -6- KELLY.S ALT1157442 5.2 BEST BEST & KRIEGER ATTORNEYS AT LAW (5) A fine, penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a result of a violation of law. (6) A charge imposed as a condition of property development. (7) Assessments and property-related fees imposed in accordance with the provisions of Article XIII D. Proposition 26, § 3 (emphasis added). Section 1(e) defines what a tax is by defining what it is not. As a consequence, Proposition 26 narrows the purposes for which certain fees may be imposed by local agencies and in effect reclassifies them as taxes. In particular, Section 1(e) limits the extent to which fees may be imposed by local agencies for funding regulatory programs and services and for local agency services and products. The impacts of these definitional changes on specific fees imposed by local agencies follows. IMPACTS TO REGULATORY FEES In accordance with Section 1(e)(3), a fee is not a tax if it is imposed for the reasonable regulatory costs of the local agency. By definition, reasonable regulatory costs are solely limited to recovering the costs of"issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof." 3 Any regulatory fees,14 or any portion of regulatory fees, imposed to recover other costs of a regulatory program, including (1) regulatory fees imposed to mitigate the past,present, or future adverse impact of the fee payer's operations such as those identified in Sinclair, and (2) regulatory fees imposed to raise revenue for a new program, l5 are be deemed to be taxes. The following hypothetical regulatory fees are provided to demonstrate the types of regulatory fees that maybe implicated by Section 1(e)(3): • In addition to a tipping fee, a city imposes a surcharge on waste haulers delivering trash to a city-owned landfill to mitigate the adverse impacts that such waste has on the environment. The fee is used to fund a no cost program to dispose of household toxic materials (e.g.,paint, solvents) and electrical appliances (e.g., computer hardware,small appliances). 13 Proposition 26 provides a similar limitation in Article XIII A,section 3(b)(3). The state currently funds most of its environmental programs through such regulatory fees and would be significantly impacted by the amendment. 14 Examples of regulatory fees that may be impacted include fees for permits and licenses for: regulated businesses (e.g.,taxi cabs, card rooms, medical marijuana dispensaries, dance halls, check cashing,restaurants and other food preparation establishments, and massage parlors); fire, building, and other health and safety related permits; pet licenses. Is Regulatory fees imposed to raise general fund revenues are already deemed to be special taxes pursuant to California Government Code section 50076. -7- KELLY.SALT\1574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW • A city imposes a business license fee on businesses that sell alcoholic beverages. A portion of the revenues from the fee funds a program to address public nuisances associated with those sales. • A county establishes regulations prohibiting bus companies from idling their vehicles for more than a specified period of time and imposes a fee on such businesses to mitigate the adverse short and long term human health effects associated with exposure to pollutants from the bus emissions. The revenues from the fee are used to fund county health programs. • A city establishes regulations requiring businesses that operate surface parking lots to comply with best management practices to prevent storm water run off The city imposes an inspection fee on such businesses to ensure compliance with the regulations and to mitigate for the adverse impacts that uncontained storm water runoff has on the groundwater within the city. A portion of the fee is used to fund a storm water prevention education program in local schools. • A municipal water district establishes water conservation regulations and imposes an inspection fee on property owners who have violated provisions of the regulations governing restrictions on water use during a declared drought response level. A portion of the inspection fee is used to fund a rebate program for the installation of low volume water fixtures and the district's recycled water program. • A fire protection district imposes an inspection fee on properties located adjacent to canyons, hillsides, and other open space for brush management. A portion of the inspection fee is used to fund an emergency preparedness education program. • A community services district adopts a fee to be imposed on all persons who use grocery store carryout plastic and paper bags. The fee is imposed to mitigate the adverse impact that the fee payer's use of such materials has on the district's landfill. • A county imposes a business license fee on retail distributors of cigarettes and cigars. Revenues from the license fee are used to fund local health and education programs. In each of these instances, pursuant to Section 1(e)(3) the fee or a portion of the fee could be deemed to be a tax because it is imposed to recover costs other than the reasonable regulatory costs to the local agency for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administration enforcement of the regulations. Moreover, in each instance, because the local fee would be imposed for a specific purpose it would be deemed to be a special tax requiring a two-thirds voter approval pursuant to Article XIII C,section 2(d). -8- KELLY.SALTIt 574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW An example of a regulatory fee that may not be defined as a tax within the meaning of Section 1(e)(3) but which is designed to enforce a regulation established to mitigate the adverse impacts of a regulated activity on a community follows: • All restaurants and other food establishments must obtain a license from the county to operate their businesses. The county prohibits restaurants and other food establishments from using styrofoam products in the distribution and sale of food products. The purpose of the regulation is to mitigate the adverse impacts that styrofoam has on the county's landfill. The county imposes a fee on all restaurants and other food establishments for the reasonable costs of issuing the license, performing investigations and inspections and enforcement of the regulation. In this instance, the purpose of the regulation is to mitigate the past, present, or future adverse impact of the fee payer's operations. The fee, however, is only used for those purposes authorized pursuant to Section 1(e)(3) — to recover the reasonable costs to the local agency for issuing permits, performing investigations, inspections, and audits, and the administration enforcement of the regulations. The regulatory fee in this hypothetical would not be deemed to be a tax within the meaning of Section 1(e)(3). IMPACTS TO FEES FOR BENEFITS,PRIVILEGES,SERVICES AND PRODUCTS Section 1, subparagraphs (e)(1) and (e)(2) provide that a fee or charge will be deemed to be a tax if. (1) the fee or charge is imposed for a specific benefit conferred or privilege granted,16 or specific government service or product provided17 to the payor; and (2) the same benefit is conferred,privilege is granted, or service or product is also provided to others who are not charged for such benefit,privilege, service or product; and (3) the fee or charge exceeds the reasonable costs of providing the benefit, privilege, service or product. As previously discussed, California Government Code section 50076 provides that any fee which does not exceed the reasonable cost of providing the service for which the fee is charged and which is not levied for general revenue purposes is not deemed to be a special tax. While at first blush the provisions of Section 1 subdivisions (e)(1) and (2) do not appear to add anything new to when a fee may be deemed to be a tax, they do suggest that a more rigorous nexus for the imposition of fees and accounting of the revenues of such fees are now required. See discussion below under the heading"Burden of Proof" Moreover, these subdivisions extend the reach of what fees are deemed to be a tax to include fees not only for services,but those for a specific benefit conferred or privilege granted, or specific government product. 16 Examples of fees for a specific benefit conferred or privilege granted may include fees for trench cut permits, street closure permits,parking in restricted zones,and special event permits. 17 Examples include fees for gas and electric service, advance life support transport, park and recreation classes, street and sidewalk repairs,childcare services,and lunch programs. -9- KELLY.SA L1\1574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW As noted above,pursuant to Section 1 subdivisions (e)(1) and (e)(2), fees imposed for a specific benefit, privilege, government service or product must not exceed the reasonable costs of providing the benefit, privilege, service or product provided by the local agency. In some instances, local agencies provide services and products at "discounted" rates, at no cost to certain identified classes of individuals, or differential rates for certain customer classes. Providing discounted fees, fee waivers, or differential rates may, in some instances, cause the fees imposed on other fee payors for local agency benefits, privileges, services and products to be deemed to be to be taxes under Section 1(e). By way of demonstration, the fees imposed in the following scenarios may be implicated by Section (e)(1): • A city provides discounts to seniors and students who participate in a ceramics class provided through its parks and recreation department. • A school district offers students and charges them for lunch and after school care services, but provides such products and services for free to qualifying low income students. • A community services district operates a childcare center that is open to the public. A discount for childcare services is provided to district employees. The discount is not part of any negotiated employee benefits package. • A park district provides a discount to local residents for the fee imposed for swim classes provided at its local aquatics center. This same park district also charges different rates for swim classes provided to adults, children, and seniors. • A city provides a discount to local residents for golf lessons provided at its public golf course. • A city provides gas and electrical service within its jurisdiction and provides discounts to low income customers.'8 In the forgoing scenarios, Section 1(e) would likely reclassify these fees as taxes if(i) the cost of providing the discount, fee waiver, or differential rate for the benefit, privilege, government service or product is diverted to other payers who are required to pay for the same benefit, privilege, government service or product; and (ii) the fee or charge paid by the other fee payers exceeds the cost of providing the benefit, privilege, government service or product. If, however, the incremental cost of providing these benefits, privileges, or services and products at • 18 Although fees for gas and electrical services are specifically exempted from the substantive and procedural requirements of Article XIII D, these same fees are not exempted from the provisions of Article XIII C or the provisions of Section 1(e). See Cal. Const.art.XIII D,§3(b). Because Section 1(e)(2)is applicable to services and products provided directly to a fee payer,public agencies that provide gas and electrical service will be required to ensure that fees provided for such services do not exceed the reasonable cost of providing the service and comport with the provisions of Section 1(e)(2)and California Government Code section 50076. -10- KELLY.SALI\157442 5.2 BEST BEST & KRIEGER ATTORNEYS AT LAW a discount or no cost is funded by unrestricted revenues other than the fees or charges imposed on other fee payers (e.g. city general fund revenues, general or real property tax revenues, grants, or donations), the fees or charges would not be deemed a tax under Section 1(e). It is worth noting that Section 1, subdivisions (e)(1) and (2) provide that a fee is not a tax if it is imposed for a specific benefit conferred or privilege granted or government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege. By inference, this suggests that if a fee is waived (i.e. not charged) for one or more persons but all others are charged for the specific benefit conferred, privilege granted or government service or product, then the fee is a tax. Whether this was the intent of the drafters is unclear and may be the subject of litigation or subsequent legislative clarification. In addition to the hypothetical scenarios described above, some local agencies also use the revenues from fees or charges imposed for other more profitable government services and products to subsidize discounted fees-or differential rates imposed or fee waivers provided for other government services and products. If the local agency is making a "profit" from the fees or charges of certain services and products it provides, then an argument can be made that the fee or charge imposed exceeds the reasonable cost of providing the service or product. Because fees for services and products cannot exceed the reasonable costs of providing the service or product, local agencies may not be able to use the revenues from more profitable programs to fund these fee waivers or discounts. If other sources of revenue are not available to fund such fee discounts, waivers, or differential rates, they may have to be discontinued altogether or the fees will have to be adjusted to reflect the reasonable cost of providing the service or product. FEES NOT IMPACTED BY PROPOSITION 26 At least four categories of fees that are excepted from the definition of tax will be relatively unaffected by Proposition 26. These include the following specific categories of fees: (1) charges imposed for entrance to or use of local agency property, or the purchase,rental, or lease of local agency property;19 (2) fines, penalties, or other monetary charges imposed by a court or local agency as a result of a violation of law;20 (3) a charge imposed as a condition of development;21 and 19 Examples include a fees for use of park district playing fields; entrance fees for a county owned museum; lease payments for use of city-owned stadium; entrance fees for a city zoo;park entrance fees; golf green fees; entrance fees for community services district aquatic center;rental of tennis racquets at city tennis and racquet facility;rental payments for coffee shop located in city ball. Examples include a court imposed fine on a driver for a traffic violation; local agency administrative fines and penalties for violations of water district rule and regulations, fire district policies and procedures, or city municipal code. 21 Examples include development impact fees,and construction permits. -11- KELLY.SALT1574425.2 BEST BEST 8r KRIEGER ATTORNEYS AT LAW (4) assessments and property-related fees imposed in accordance with Article XIII D.22 Cal. Const. art. XIII C, § 1(e)(4)-(7). Although these fees are not deemed to be taxes within the meaning of Section 1(e), they may be subject to other constitutional or statutory limitations which restrict them. By way of example: • A city provides a discount to local residents for green fees at its municipal golf course and entrance fees to its aquatic centers. • A park district discounts rental fees for use of its sports complex to a local school district for sporting events. • A county discounts the special events fees paid by non-profit organizations for use of county-owned parks. In these examples, the public agencies would not be restricted from providing the identified discounts because the fees are imposed for entrance to or use, lease or rental of local agency property. There are no other limitations on the amount that the public agencies may impose for these purposes. • A city imposes a franchise fee on public utilities (e.g., gas and electric utilities) for the use of the public right-of-way. The amount of the franchise fee is five percent of the franchisees' annual income arising from the use, operation, or possession of the franchise. Here, the utility franchise fees would also be imposed for the use of local government property, but the amount of the franchise fee that may be imposed is limited by the provisions of the California Public Utilities Code. See Cal. Pub.Util. Code §§ 6202, 6231, 6265. • An irrigation district provides discounted rates to low income water customers. Water service fees are subject to the substantive limitations of Article XIII D, section 6, which requires that the amount of a fee imposed upon any parcel or person as an incident of property ownership must not exceed the proportional cost of the service attributable to the parcel. CaL Const. art. XIII D, § 6(b)(3). In this instance, to the extent that other water customers would be paying for the incremental cost of providing water service to low income water users, discounted water service fees would be prohibited under Article XIII D, section 6(b). Provided no revenues from water service fees of other customers are used, however, the discount would not be prohibited. • A municipal water district prosecutes violations of its water conservation ordinance and seeks to impose a fine of$1,500 for a first violation. 22 Examples include assessments imposed pursuant to the Landscape and Lighting Act of 1972 and water, sewer, and solid waste service fees. -12- KELLY.SALlII 574425.2 BEST BEST 8r KRIEGER ATTORNEYS AT LAW Although the irrigation district may impose fines for violations of its water conservation ordinance, the amount of any fine would be limited to the provisions of California Water Code section 377. Section 377 provides that a person convicted of violating a water conservation ordinance shall be punished by imprisonment in the county jail for not more than 30 days, or by a fine not exceeding$1,000, or by both. • As a condition of approval of a development project, a city imposes a fee of $1.5 million for construction of park facilities serving the proposed project. The estimated cost of the park facilities is$900,000. Although fees imposed as a condition of development are not taxes within the meaning of section 1(e), the amount of any fees imposed as a condition of development are restricted by the Mitigation Fee Act (California Government Code section 66000 et seq.). Pursuant to the Mitigation Fee Act, the city would be prohibited from imposing the development impact because it exceeds the reasonable cost of the facilities for which the fee is imposed. Cal. Gov't Code § 66001, 66005. • A transit district provides discounted transit fares to students and the disabled. • A county water district provides discounted rates to local residents for use of boats at its local reservoir. In these two examples an argument can be made that the fees imposed are for entrance to or use of local agency `property" (i.e., a fee imposed for entrance to or use of the transit district bus or use of the water district's reservoir boats). With respect to the transit fee, however, a stronger argument can be made that the transit fee is a fee for transit service, not use of the transit bus, and therefore is subject to the limitations of Section 1(e)(2) and the limitations previously discussed regarding discounts. Additionally, whether the drafters of Proposition 26 intended to use the term "property" solely to mean real property of a local agency or to include tangible property is yet another issue that may be subject to interpretation by the courts or clarification by the legislature. If such fees are not fees for entrance to or use of local government property, then in both instances the fees are likely fees for a government service or product and subject to the limitations of Section (1)(e)(2). • A city levies an assessment for the maintenance of landscape improvements within an assessment district, but exempts city property from the levy of the assessment. Although assessments are exempted from the definition of a tax, they are restricted by the provisions of Article XIII D, section 4 and California Government Code section 53753. Unless it can be shown that the city property in question does not receive any special benefit from the landscape improvements, the assessment would be invalid pursuant to Article XIIi D, section 4(a). • A community services district enters into a franchise agreement with a solid waste hauler to provide solid waste services to residential property -13- KELLY.SALT1574425 2 BEST BEST & KRIEGER ATTORNEYS AT LAW within the district. Pursuant to the franchise agreement the city collects a franchise fee from the solid waste hauler. In this final example, the franchise fee is a negotiated amount subject to an arms length transaction between the community services district and the waste hauler. As such, it is not a fee "imposed" by the district but an agreed upon price for the right to provide solid waste services within the district. Inasmuch as the fee is not"imposed" on the waste hauler, it is not a fee subject to Section 1(e). Moreover, the amount of the fee that may be imposed is not necessarily restricted. See Cal. Pub. Res. Code § 40059(a)(2) ("The authority to provide solid waste handling services may be granted under terms and conditions prescribed by the governing body of the local governmental agency by resolution or ordinance.) Based on the forgoing examples, prior to adopting any fee which falls within any of the four exceptions identified above a local agency should review any other constitutional or statutory limitations relative to the proposed fee. Additionally, a local agency should be prepared to identify, preferably in the administrative record for the adoption of any fee, why the fee in question is not a tax within the meaning of Section 1(e). FEES GRANDFATHERED IN BY PROPOSITION 26 Proposition 26 requires that any existing fee or charge imposed by the state that may be reclassified as a "tax" pursuant to Article Mt A, section 3, shall be void within twelve months of the effective date of the constitutional amendments unless reenacted by the legislature and approved by the Govemor.23 There are, however, no similar repeal provisions for existing local agency fees that may be deemed to be taxes under Section 1(e). Consequently, Proposition 26 likely will not affect any existing local agency "mitigating effects" regulatory fees or any other fees which may be interpreted to be taxes pursuant to Section 1(e). Any extension or future increase of any such fee, however, would be subject to voter approval in accordance with Article XIII C, section 2(d) as a special tax.24 23 Article XIII A, section 3(c)provides that"[ajny tax adopted after January 1, 2010, but prior to the effective date of this Act, that was not adopted in compliance with the requirements of this section is void 12 months after the effective date of this Act unless the tax is reenacted by the legislature and signed into law by the Governor in compliance with the requirements of this section." 24 Senate Bill 919, adopted as urgency legislation in July 1997, and referred to as the Proposition 218 Omnibus Implementation Act, attempted to clarify certain provisions of Proposition 218. This legislation, among other things, added Article 4.6 (commencing with section 53750) to the California Government Code. This statutory scheme is applicable to provisions of Article XIII C and Article XIII D. Inasmuch as Section 1(e) is within the Article XIII C,the provisions of the Omnibus Implementation Act are equally applicable to Section 1(e)and not just those provisions of Article XIII C and XIII D adopted by Proposition 218, Article XIII C,section 2(d)provides that no local government may"impose,extend, or increase any special tax"unless it is approved by a two-thirds vote of the electorate. When applied to an existing tax, fee or charge, "extended" is defined to mean "a decision by an agency to extend the stated effective period for the tax or fee or charge, including,but not limited to, amendment or removal of a sunset provision or expiration date." Cal.Gov't Code§53750(e). The term"increased"means for any existing tax a decision by an agency that does either of the following: (a) increases any applicable rate used to calculate the tax beyond that previously approved by the local agency; or(b)revises the methodology by which the tax is calculated, if that revision results in an increased amount being levied on any person or parcel. Id. at § 53750(h)(2XB). -14- KELLY.SALT\1574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW BURDEN OF PROOF Proposition 26 further provides that local agencies have the burden to demonstrate by a preponderance of the evidence(i.e.,that it is more likely than not) that a levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable costs of the government activity, and that the manner in which those costs are allocated to a payor bear a fair and reasonable relationship to the payor's burdens on, or benefit received from, the governmental activity. Cal. Const. art. XIII C, § 1(e). Although this amendment does not change the law with respect to what party bears the responsibility for proving that a fee or charge is not a tax,u it does specify what standard of proof—preponderance of the evidence— would be applied in the event of any challenge. Although this standard of proof is not rigorous, it does suggest that the proponents of Proposition 26 intend that a more rigorous documentation of expenses being paid for with local agency fees, and a more rigorous documented nexus between a local agency fee or charge and the allocation of costs related thereto, will be required. Consequently, it is recommended that local agencies that adopt any new or extend or increase any existing fee, closely examine the purposes for which the fee is collected and the basis upon which the fee is calculated in order to avoid classifying the new or reclassifying the existing fee as a tax pursuant Section 1(e). In particular, in establishing new or increasing existing fees for a regulatory program, local agencies must consider the reasonably necessary costs of the program, including consideration of both the estimated costs of the program and the basis for determining the apportionment of those costs. Assessment of the latter assures that the charges bear a fair or reasonable relationship to the payer's burdens on or benefits from the regulatory activity. See San Diego Gas & Elec. Co. v. San Diego County Air Pollution Control Dist., 203 Cal. App. 3d ss See, e.g., Beaumont Investors v.Beaumont-Cherry Valley Water District, 165 Cal. App.3d 227,234-235 (1985) (water district should have introduced reports or other "evidence of (1) the estimated construction costs of the proposed water system improvements, and(2)the District's basis for determining the amount of the fee allocated to plaintiff, i.e.,the manner in which defendant apportioned the contemplated construction costs among the new users, such that the charge allocated to plaintiff bore a fair or reasonable relation to plaintiff's burden on, and benefits from,the system");J.W.Jones Co. v. City of San Diego, 157 Cal.App. 3d 745 (1984)(the city record regarding the adoption of the facilities benefit assessments included a report which specified the precise costs of the public facilities to be charged to developers and the formula by which the costs were apportioned among developers); Howard Jarvis Taxpayers Association v. City of Roseville, 97 Cal.App. 4th 637(2002) (city made no showing that the in lieu fee reasonably represented the costs for the street,alley and right-of-way costs attributable to the utilities); Howard Jarvis Taxpayers Association v. City of Fresno,Cal.App.4th 914(2005)(if city wishes to recover all of its utilities' costs from user fees it must reasonably determine the unbudgeted costs of utilities enterprises in order for those costs to be recovered through rates proportional to the cost of providing service to each parcel); CaL Const art. XIII D, § 4(f) (in any action contesting the validity of any assessment, the burden shall be on the agency to demonstrate compliance with the constitutional provisions); Cal. Const. art. XIII D, § 6(b)(5) (expands upon the criteria established in California Government Code section 50076 to ensure that a property-related fee or charge does not exceed the reasonable cost of providing the service and is proportionally allocated). -15- KELLY,SALTi 574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW 1132, 1146 (1988); Beaumont Investors v. Beaumont-Cherry Valley Water Dist., 165 Cal. App. 3d 227, 234-235 (1985). UNFUNDED STATE MANDATES • Perhaps one unintended consequence of Proposition 26 is that by reclassifying certain fees as taxes local agencies may be in a better position to seek reimbursement from the state for the costs of certain programs and services that may be regarded as unfunded state mandates. As previously discussed, Article XIII B, section 6 provides that "[w]henever the Legislature or any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service"except in certain specific circumstances.26 A "new program" within the meaning of Article XIII B, section 6 is a program that carries out the governmental function of providing services to the public, or a law that, to implement state policy, imposes unique requirements on local agencies and does not apply generally to all residents and entities in the state. County of Los Angeles v. Comm'n on State Mandates, 32 Cal. App. 4th 805, 816 (1995). "Costs"is defined as costs mandated by the state for any increased costs that the local agency is required to incur as a result of any statute, or any executive order implementing any statute, which mandates a new program or higher level of service of any existing program within the meaning of Article XIU B, section 6. Cal. Gov't. Code § 17514; County of Fresno, 53 Cal. 3d at 484. A reimbursable "higher level of service" concerning an existing "program" exists when a state law or executive order mandates not merely some change that increases the cost of providing services, but an increase in the actual level or quality of governmental services provided. San Diego Unified Sch. Dist. v. Comm'n on State Mandates,33 Cal.4th 859, 877 (2004). Both Article XIII B, section 6 and state law establish certain exceptions to the state mandate provisions. Among those exceptions is California Government Code section 17556(d), which provides that a state mandate will not be considered to be "unfunded" if the local agency"has the authority to levy service charges, fees, or assessments sufficient to pay for the mandated program or increased level of service." The converse to this exception is that if a local agency does not have the authority to levy a service charge, fee, or assessment sufficient to pay for the mandated program or increased level of service the state mandate is considered "unfunded." The legislature has established an administrative process for seeking a determination that a mandate is an unfunded state mandate within the meaning of Article XIII B, section 6. Cal. Gov't Code §§ 17500 et. seq. These procedures are the sole and exclusive procedure by which a local government may claim reimbursement for state-mandated costs. Cal. Gov't Code § 17552. The procedures require the commencement of a test claim before the 26 Through Proposition IA, approved by the voters in 2004, Article XIII B, section 6 was amended to further provide that for the 2005-06 fiscal year and every subsequent fisr•1 year,for a mandate for which the costs of a local government claimant have been determined in a preceding fiscal year to be payable by the state pursuant to law,the legislature shall either appropriate, in the annual Budget Act, the full payable amount that has not been previously paid, or suspend the operation of the mandate for the fiscal year for which the annual Budget Act is applicable in a manner prescribed by law. -16- KELLY_SAO\15744251 BEST BEST & I RIEGER ATTORNEYS AT LAW Commission on State Mandates (the "Commission"), with judicial review only being available after a final determination by the Commission. Cal. Gov't Code §§ 17553, 17559. In at least one recent test claim before the Commission, local agencies successfully argued that certain requirements mandated by the state for storm water pollution prevention were unfunded mandates because the local agencies effectively did not have the authority to levy a service charge, fee, or assessment sufficient to pay for the mandated program or increased level of service. The test claim was filed by the County of San Diego and other cities located within the county (the "Claimants") alleging that various activities to reduce storm water pollution to comply with a National Pollutant Discharge Elimination Permit ("NPDES Permit") issued by the California Regional Water Quality Control Board (a state agency) mandated a new program or required a higher level of service and were therefore unfunded mandates. The Claimants successfully argued that they cannot unilaterally impose a fee on water and sewer bills to recover the cost to comply with certain requirements of the NPDES Permit because of the court decision in Howard Jarvis Taxpayers Association v. City of Salinas, 98 Cal. App. 4th 1351, 1358-1359 (2002). In the Salinas case, the court invalidated a storm water management fee imposed by the city on all owners of undeveloped parcels in the city. The court held that the storm water fee was a property-related fee pursuant to Article XIII D, section 6. Pursuant to Article XIII D, section 6(c), except for fees or charges for sewer, water and refuse collection,no property-related fee or charge may be imposed or increased until it is submitted to and approved by either (1) a majority vote of the property owners of the property subject to the fee or charge; or (2) a two- thirds vote of the electorate residing in the affected area. Because the city's storm water fee was not a water or sewer fee, the court held that the city was required to submit the fee for voter approval. The Commission recognized that the Claimants, under their police powers, have the authority to impose fees for certain of the NPDES Permit activities that are a state mandated new program or higher level of service. The Commission found,however, that the Claimants do not have sufficient fee authority within the meaning of Government Code section 17556 if the fee or assessment27 is contingent on the outcome of an election by voters or property owners. Thus, under the constraints of Proposition 218, the Commission found, the local agencies have no authority to impose fees for certain of the NPDES activities without the consent of the voters or property owners. The Commission noted that it is possible that the local agency's voters or property owners may never adopt the proposed fee or assessment, but the local agency would still be required to comply with the state mandate. Denying reimbursement under these circumstances would violate the purpose of article XIII B, section 6, which is "to preclude the state 27 Article XIII D,section 4 requires that prior to levying an assessment,a public agency must submit ballots to any property owner proposed to be subject to the assessment. If a majority of the property owners submit protests in opposition to the proposed assessment(the ballots are weighted according the financial obligation of each affected property owner),then the local agency may not impose the assessment. -17- KELLY.SALTI 574425.2 BEST BEST 8: KRIEGER ATTORNEYS AT LAW from shifting financial responsibility for carrying out governmental functions to local agencies . . . ." Statement of Decision, Discharge of Stormwater Runoff— Order No. R9-2007-0001, Case No. 07-TC-09 (March 26, 2010), p. 106. The voting requirements, the Commission held, do not impose a mere practical or economic hurdle,28 but a legal and constitutional one. Id. at 107. Consequently, the Commission held that certain of the NPDES activities are unfunded mandates of the state. As noted above, the Commission did recognize that the Claimants, pursuant to their police powers, have the authority to impose fees for certain of the NPDES Permit activities that are a state mandated new program or higher level of service. In particular, the Commission noted the regulatory fee authority of the Claimants under their police powers. See id. at 103-106. If adopted, Proposition 26 may greatly curtail the authority of local agencies to impose regulatory fees for the purpose of mitigating the adverse impacts of storm water pollution. To the extent that any such regulatory fees or charges are deemed to be taxes pursuant to Section 1(e) and therefore require voter approval for their imposition, this application of Section 2(e) may provide significant support for public agencies to argue that certain activities required under their NPDES permits, as well as other state mandated services and programs, are unfunded mandates within the meaning of Article XIII B,section 6. ISSUES THAT REMAIN TO BE RESOLVED If approved, Proposition 26 will likely be the subject of numerous lawsuits challenging fees imposed by public agencies. There are a number of provisions which may be subject to interpretation and which will remain to be resolved until otherwise clarified by the state legislature through implementing legislation or by judicial interpretation. While not exhaustive, a few of the issues that will remain to be resolved are discussed below. 1. The proposition amends both Article XIII B and Article XIII C to provide a definition of the term "tax." The former definition is applicable to the imposition of taxes by the state and the latter to the imposition of taxes by local agencies. There are a number of minor differences in the definitional language used in Proposition 26 to define what types of fees are not a"tax." Whether these differences were intentional or due to poor draftsmanship is uncertain and any resulting ambiguity will likely have to be resolved by the courts or the legislature. 2. Section 1(e)(5) exempts from the definition of tax any "fine, penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a result Of a violation of law." Not specifically defined is what constitutes the "law" for purposes of imposition of a fine or penalty. Arguably, administrative rules and regulations and policies and procedures, whether adopted by ordinance or resolution, and municipal code provisions, 28 See Connell v. Superior Court, 59 Cal. App. 4th 382 (1997) (statewide regulatory amendment that increased the level of purity of reclaimed wastewater, did not constitute a state-mandated program for which reimbursement from the state was required because the local agencies had the authority to levy fees to pay for the level of service mandated by the regulatory amendment). -I8- KELLY.SALT\1574425.2 BEST BEST & KRIEGER ATTORNEYS AT ICAW which provide for enforcement in the event of a violation thereof all constitute the"law" within the meaning of Section 1(e)(5). 3. Pursuant to Section 1(e)(4), fees imposed for entrance to or use of local government agency property are not taxes. Whether the term `property" is intended solely to mean real property (e.g., public parks and appurtenant facilities) or to include tangible property of a local agency (e.g., public agency equipment) may be the subject of further clarification by the courts and the legislature. 4. The proposition requires that any fee imposed by the state that may be reclassified as a "tax"pursuant to Article XIII A, section 3, shall be void within twelve months of the effective date of the constitutional amendments unless reenacted by the legislature and approved by the Governor. The Coalition has identified a significant number of fees which it presumably asserts would be classified as taxes under Article XIII B, section 3. See Exhibit C. If the state does not repeal these fees, it is likely that they will be the subject of lawsuits. If the fees are repealed and are not reauthorized in compliance with Article XIII, section 3,it is unclear how the state will fund the services and programs that are funded by these fees and what impact that will have on local agencies. 5. At present, Article XIII D, section 4(f) and section 6(b)(5) place the burden on the public agency imposing any assessment, fee or charge to prove compliance with - the substantive and procedural requirements of Article XIII D. These sections, however, do not establish what standard of proof shall be used in the event of any challenge. Since any fee or charge which exceeds the cost of providing a property-related service is deemed to be a special tax pursuant to California Government Code section 50076, an argument can be made that the preponderance of the evidence standard is therefore equally applicable to any challenge to a property-related fee or charge. Moreover, since assessments are part of this overall constitutional scheme of regulating taxes, assessments, fees an charges, the same standard of proof should be applied to any challenge to compliance with Article XIII D, section 4 and section 6. CONCLUSION While Proposition 26 will not impact a number of fees currently imposed by local agencies, it will restrict them from imposing new or increasing existing regulatory fees for purposes broader than the privilege to use a service or to obtain a permit. Regulatory fees which traditionally have been imposed to mitigate for the adverse impact that the activities of individuals or industries have on public health and safety and the environment, will be the most impacted by Proposition 26. Additionally, fees for services, fees imposed for a specific benefit, privilege, government service or product must not exceed the reasonable costs of providing the benefit, privilege, service or product provided by the local agency and which are discounted, waived, or provided at differential rates for certain identified classes of customers will be subject to a higher level of scrutiny. Given the broad reaching implications of this initiative on state and local fees and the ambiguities in the language used, there is a strong likelihood that it will be the subject of -19- KELLY,SALT\]574425.2 BEST BEST & KRIEGER ATTORNEYS AT IAW ongoing litigation after it is adopted and further clarification by the state legislature. To avoid any such challenges, prior to adopting any new or increasing any existing fees that may be subject to Proposition 26, local agencies should closely review the basis upon which the fees are calculated the how they are expended. Additionally, for those fees which a local agency has determined are not subject to Proposition 26, it should review any other constitutional or statutory limitations relative to the proposed fee. Moreover, a local agency should be prepared to identify, preferably in the administrative record for the adoption of any fee, why the fee in question is not a tax within the meaning of Section 1(e). If you have any questions concerning this these Constitutional amendments or their implications to your agency, please feel free to contact the firm for assistance. KELLY J. SALT -20- KELLY.SAL11t 574425.2 November 23, 2009 0 0 - 0 0 9 3 VIA PERSONAL DELIVERY caCE1VE,e) The Honorable Edmund G. Brown, Jr. NOV 2 3 2009 Attorney General 1300 I Street INITIATIVE COORDINATOR Sacramento, CA 95814 ATTORNEY GENERALS OFFICE Attention: Krystal Paris, Initiative Coordinator Re: Request for Title and Summary- initiative Constitutional Amendment Dear Mr. Brown: Pursuant to Article Ii, Section 10(d) of the California Constitution and Section 9002 of the Elections Code, I hereby request that a title and summary be prepared for the attached initiative constitutional amendment. Enclosed is a check for$200.00. My residence address is attached. All inquires or correspondence relative to this initiative should be directed to Nielsen, Merksamer, Parrinello, Mueller& Naylor, LLP, 1415 L Street, Suite 1200, Sacramento, CA 95814, (916)446-6752, Attention: Steve Lucas (telephone: 415/389- 6800). Thank you for your assistance. Sincerely, Man Zaremberg, Proanent Enclosure: Proposed Initiative Exhibit A 09 - 0093 • SECTION 1 - FINDINGS AND DECLARATIONS OF PURPOSE, The People of the State of California find and declare that: (a) Since the people overwhelmingly approved Proposition 13 in 1978,the Constitution of the State of California has required that increases in state taxes be adopted by not less than two-thirds of the members elected to each house of the Legislature. (b) Since the enactment of Proposition 218 in 1996, the Constitution of the State of California has required that increases in local taxes be approved by the voters. (c) Despite these limitations, California taxes have continued to escalate. Rates for state personal income taxes,state and local sales and use taxes, and a myriad of state and local business taxes are at all-time highs. Californians are taxed at one of the highest levels of any state in the nation. (d) Recently,the Legislature added another$12 billion in new taxes to be paid by drivers,shoppers,and anyone who earns an income. (e) This escalation in taxation does not account for the recent phenomenon whereby the Legislature and local governments have disguised new taxes as"fees"in order to extract even more revenue from California taxpayers without having to abide by these constitutional voting requirements. Fees couched as"regulatory" but which exceed the reasonable costs of actual regulation or are simply imposed to raise revenue for a new program and are not part of any licensing or permitting program are actually taxes and should be subject to the limitations applicable to the imposition of taxes. (f) In order to ensure the effectiveness of these constitutional limitations,this measure also defines a "tax"for state and local purposes so that neither the Legislature nor local governments can circumvent these restrictions on increasing taxes by simply defining new or expanded taxes as"fees." SECTION 2 - SECTION 3 OF ARTICLE XIII A OF THE CALIFORNIA CONSTITUTION IS AMENDED TO READ: SEC. 3. (a) From and after the effective date of 4h-isarici-e, a-ny changes in state taxes enµcted-for fhe ose of inc.enn:ng reve f th Any change in state statute which results in any taxpoyer paying a higher tax whetrr�c er by increased Fates or changes in methods of computation must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature, except that no new ad valorem taxes on real property,or sales or transaction taxes on the sales of real property may be imposed. Page f 1 Exhibit A (b)As used in this section, "tax"means any levy,charge, or exaction of any kind imposed by the State, except the following: (1)A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the State of conferring the benefit or granting the privilege to the payor. (2)A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the State of providing the service or product to the payor. (3)A charge imposed for the reasonable regulatory costs to the State incident to issuing licenses and permits,performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof (4)A charge imposed for entrance to or use of state property, or the purchase, rental,or lease of state property, except charges governed by Section 15 ofArticle Xl. (5)A fine,penalty, or other monetary charge imposed by the judicial branch of government or the State, as a result of a violation of law. (c) Any tax adopted after January 1,2010, but prior to the effective date of this Act, that was not adopted in compliance with the requirements of this section is void 12 months after the effective date of this Act unless the tax is reenacted by the Legislature and signed into law by the Governor in compliance with the requirements of this section. (d) The State bears the burden of proving by a preponderance of the evidence that a levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable costs of the governmental activity, and that the manner in which those costs are allocated to a payor bear a fair or reasonable relationship to the payor's burdens on, or benefits received from, the governmental activity. SECTION 3 - SECTION 1 OF ARTICLE XIII C OF THE CALIFORNIA CONSTITUTION IS AMENDED TO READ: SECTION 1. Definitions. As used in this article: (a) "General tax" means any tax imposed for general governmental purposes. (b) "Local government" means any county, city,city and county, including a charter city or county,any special district,or any other local or regional governmental entity, (c) "Special district" means an agency of the State,formed pursuant to general law or a special act, for the local performance of governmental or proprietary functions with Page 12 Exhibit A limited geographic boundaries including, but not limited to,school districts and redevelopment agencies. (d) "Special tax" means any tax imposed for specific purposes, including a tax imposed for specific purposes,which is placed into a general fund. (e) As used in this article, "tax"means any levy, charge, or exaction of any kind imposed by a local government except the following: (1)A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege. (2)A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product (3)A charge imposed for the reasonable regulatory costs to a local government for issuing licenses and permits,performing investigations,inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof (4)A charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property. (5)A fine,penalty, or other monetary charge imposed by the judicial branch of government or a local government as a result of a violation of law. (6)A charge imposed as a condition of property development (7)Assessments and property-related fees imposed in accordance with the provisions ofArticle XIII D. The local government bears the burden of proving by a preponderance of the evidence that a levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable costs of the governmental activity, and that the manner in which those costs ore allocated to a payor bear a fair or reasonable relationship to the payor's burdens on, or benefits received from, the governmental activity. SECTION 4 - CONFLICTING MEASURES. In the event that this measure and another measure or measures relating to the legislative or local votes required to enact taxes or fees shall appear on the same statewide election ballot,the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event that this measure shall receive a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety,and the Page I 3 Exhibit A provisions of the other measure or measures relating to the legislative or local votes required to enact taxes or fees shall be null and void. SECTION 5 - SEVERABILITY. If any provision of this Act, or any part thereof,is for any reason held to be invalid or unconstitutional,the remaining provisions shall not be affected,but shall remain in full force and effect,and to this end the provisions of this Act are severable. Page 14 Exhibit A Legislative Analyst's Office 7/15/2010 2:30 PM FINAL Proposition 26 Increases Legislative Vote Requirement to Two-Thirds for State Levies and Charges. Imposes Additional Requirement for Voters to Approve Local Levies and Charges with Limited Exceptions. Initiative Constitutional Amendment. BACKGROUND State and local governments impose a variety of taxes,fees,and charges on individuals and businesses.Taxes—such as income,sales,and property taxes are typically used to pay for general public services such as education,prisons,health,and social services.Fees and charges, by comparison,typically pay for a particular service or program benefitting individuals or businesses. There are three broad categories of fees and charges: • User fees—such as state park entrance fees and garbage fees,where the user pays for the cost of a specific service or program. • Regulatory fees—such as fees on restaurants to pay for health inspections and fees on the purchase of beverage containers to support recycling programs. Regulatory fees pay for programs that place requirements on the activities of businesses or people to achieve particular public goals or help offset the public or environmental impact of certain activities. • Property charges—such as charges imposed on property developers to improve roads leading to new subdivisions and assessments that pay for improvements and services that benefit the property owner. Page 1 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL State law has different approval requirements regarding taxes,fees, and property charges.As Figure 1 shows,state or local governments usually can create or increase a fee or charge with a majority vote of the governing body (the Legislature,city council, county board of supervisors,etcetera). In contrast,increasing tax revenues usually requires approval by two-thirds of each house of the state Legislature (for state proposals) or a vote of the people (for local proposals). Figure 1 Approval Requirements: State and Local Taxes, Fees, and Charges State Local Tax Two-thirds of each house of the •Two-thirds of local voters if the local government Legislature for measures specifies how the funds will be used. increasing state revenues. • Majority of local voters if the local government does not specify how the funds will be used. Fee Majority of each house of the Generally,a majority of the governing body. Legislature. Property Charges Majority of each house of the Generally.a majority of the governing body.Some Legislature. also require approval by a majority of property owners or two-thirds of local voters. Disagreements Regarding Regulatory Fees. Over the years, there has been disagreement regarding the difference between regulatory fees and taxes,particularly when the money is raised to pay for a program of broad public benefit.In 1991,for example,the state began imposing a regulatory fee on businesses that made products containing lead.The state uses this money to screen children at risk for lead poisoning, follow up on their treatment, and identify sources of lead contamination responsible for the poisoning.In court, the Sinclair Paint Company argued that this regulatory fee was a tax because: (1) the program provides a broad public benefit,not a benefit to the Page 2 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL regulated business, and (2) the companies that pay the fee have no duties regarding the lead poisoning program other than payment of the fee. In 1997,the California Supreme Court ruled that this charge on businesses was a regulatory fee,not a tax.The court said government may impose regulatory fees on companies that make contaminating products in order to help correct adverse health effects related to those products. Consequently,regulatory fees of this type can be created or increased by(1) a majority vote of each house of the Legislature or(2) a majority vote of a local governing body. Proposal This measure expands the definition of a tax and a tax increase so that more proposals would require approval by two-thirds of the Legislature or by local voters. Figure 2 summarizes its main provisions. Figure 2 Major Provisions of Proposition 26 f Expands the Scope of What is a State or Local Tax • Classifies as taxes some fees and charges that government currently may Impose with a majority vote, • As a result,more state revenue proposals would require approval by two-thirds of each house of the Legislature and more local revenue proposals would require local voter approval ✓Raises the Approval Requirement for Some State Revenue Proposals • Requires a two-thirds vote of each house of the Legislature to approve laws that increase taxes on any taxpayer,even if the law's overall fiscal effect does not increase state revenues. v Repeals Recently Passed,Conflicting State Laws • Repeals recent state laws that conflict with this measure, unless they are approved again by two-thirds of each house of the Legislature.Repeal becomes effective in November 2011. Page 3 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 230 PM FINAL Definition of a State or Local Tax Expands Definition.This measure broadens the definition of a state or local tax to include many payments currently considered to be fees or charges.As a result,the measure would have the effect of increasing the number of revenue proposals subject to the higher approval requirements summarized in Figure 1. Generally,the types of fees and charges that would become taxes under the measure are ones that government imposes to address health, environmental, or other societal or economic concerns. Figure 3 provides examples of some regulatory fees that could be considered taxes,in part or in whole,under the measure.This is because these fees pay for many services that benefit the public broadly,rather than providing services directly to the fee payer. The state currently uses these types of regulatory fees to pay for most of its environmental programs. Page 4 of 9 Exhibit 13 Legislative Analyst's Office 7/15/2010 2:30 PM FINAL Figure 3 Regulatory Fees That Benefit the Public Broadly OH Recycling Fee The state imposes a regulatory fee on oil manufacturers and uses the funds for: • PubAc information and education programs. • Payments to local used oil collection programs. • Payment of recycling incentives. • Research and demonstration projects. • Inspections and enforcement of used-oil recycling facilities. Hazardous Materials Fee The slate imposes a regulatory fee on businesses that treat,dispose of,or recycle hazardous waste and uses the funds for: • Clean up of toxic waste sites. • Promotion of pollution prevention. • Evaluation of waste source reduction plans. • Certification of new environmental technologies. Fees on Alcohol Retailers Some cities impose a fee on alcohol retailers and use the funds for. • Code and maw enforcement. • Merchant education to reduce public nuisance problems associated with alcohol(such as violations of alcohol laws,violence,loitering,drug dealing,public drinking,and graffiti). Certain other fees and charges also could be considered to be taxes under the measure.For example,some business assessments could be considered to be taxes because government uses the assessment revenues to improve shopping districts (such as providing parking,street lighting,increased security, and marketing),rather than providing a direct and distinct service to the business owner. Some Fees and Charges Are Not Affected. The change in the definition of taxes would not affect most user fees,property development charges, and property assessments.This is because these fees and charges generally comply with Proposition 26's requirements already, or are exempt from its provisions. In addition, Page 5 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL most other fees or charges in existence at the time of the November 2, 2010 election would not be affected unless: • The state or local government later increases or extends the fees or charges. (In this case,the state or local government would have to comply with the approval requirements of Proposition 26_) • The fees or charges were created or increased by a state law—passed between January 1,2010 and November 2, 1010—that conflicts with Proposition 26 (discussed further below). Approval Requirement for State Tax Measures Current Requirement.The State Constitution currently specifies that laws enacted "for the purpose of increasing revenues" must be approved by two-thirds of each house of the Legislature.Under current practice,a law that increases the amount of taxes charged to some taxpayers but offers an equal (or larger) reduction in taxes for other taxpayers has been viewed as not increasing revenues. As such,it can be approved by a majority vote of the Legislature. New Approval Requirement.The measure specifies that state laws that result in any taxpayer paying a higher tax must be approved by two-thirds of each house of the Legislature. State Laws in Conflict With Proposition 26 Repeal Requirement. Any state law adopted between January 1,2010 and November 2, 2010 that conflicts with Proposition 26 would be repealed one year after the Page 6 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL proposition is approved.This repeal would not take place,however,if two-thirds of each house of the Legislature passed the law again. Recent Fuel Tax Law Changes.In the spring of 2010,the state increased fuel taxes paid by gasoline suppliers,but decreased other fuel taxes paid by gasoline retailers. Overall,these changes do not raise more state tax revenues,but they give the state greater spending flexibility over their use. Using this flexibility, the state shifted about$1 billion of annual transportation bond costs from the state's General Fund to its fuel tax funds. (The General Fund is the state's main funding source for schools,universities,prisons,health,and social services programs.)This action decreases the amount of money available for transportation programs,but helps the state balance its General Fund budget. Because the Legislature approved this tax change with a majority vote in each house, this law would be repealed in November 2011—unless the Legislature approved the tax again with a two- thirds vote in each house. Other Laws.At the time this analysis was prepared (early in the summer of 2010), the Legislature and Governor were considering many new laws and funding changes to address the state's major budget difficulties. In addition,parts of this measure would be subject to future interpretation by the courts.As a result,we cannot determine the full range of state laws that could be affected or repealed by the measure. Page 7 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL FISCAL EFFECTS Approval Requirement Changes.By expanding the scope of what is considered a tax, the measure would make it more difficult for state and local governments to pass new laws that raise revenues.This change would affect many environmental,health,and other regulatory fees (similar to the ones in Figure 3), as well as some business assessments and other levies.New laws to create—or extend—these types of fees and charges would be subject to the higher approval requirements for taxes. The fiscal effect of this change would depend on future actions by the Legislature, local governing boards,and local voters. If the increased voting requirements resulted in some proposals not being approved, government revenues would be lower than otherwise would have occurred.This,in turn,likely would result in comparable decreases in state spending. Given the range of fees and charges that would be subject to the higher approval threshold for taxes,the fiscal effect of this change could be major_Over time,we estimate that it could reduce government revenues and spending statewide by up to billions of dollars annually compared with what otherwise would have occurred. Repeal of Conflicting Laws.Repealing conflicting state laws could have a variety of fiscal effects. For example,repealing the recent fuel tax laws would increase state General Fund costs by about$1 billion annually for about two decades and increase funds available for transportation programs by the same amount. Page 8 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL Because this measure could repeal laws passed after this analysis was prepared and some of the measure's provisions would be subject to future interpretation by the courts,we cannot estimate the full fiscal effect of this repeal provision. Given the nature of the proposals the state was considering in 2010,however, it is likely that repealing any adopted proposals would decrease state revenues (or in some cases increase state General Fund costs).Under this proposition, these fiscal effects could be avoided if the Legislature approves the laws again with a two-thirds vote of each house. Page 9 of 9 Exhibit B Legislative Analyst's Office 7/15/2010 2:30 PM FINAL Proposition 26 increases Legislative Vote Requirement to Two-Thirds for State Levies and Charges. Imposes Additional Requirement for Voters to Approve Local Levies and Charges with Limited Exceptions. Initiative Constitutional Amendment. Yes/No Statement A YES vote on this measure means:The definition of taxes would be broadened to include many payments currently considered to be fees or charges.As a result,more state and local proposals to increase revenues would require approval by two-thirds of each house of the Legislature or by local voters. A NO vote on this measure means: Current constitutional requirements regarding fees and taxes would not be changed. Page 1of1 Exhibit B BEST BEST & KRIEGER ATTORNEYS AT LAW EXHIBIT C SPECIFIC INDUSTRY EXAMPLES Restaurants • Fees on alcohol to litigate public nuisance associated with sale or consumption • Fees on canned beverages to mitigate waste/recycling • Fees on soda to mitigate obesity and other negative health effects • Fees on unhealthy foods, fats, sugar to mitigate negative health effects • Health inspection/monitoring fees • Traffic impact fees • Parking impact fees • Air quality impact fees • Water quality impact fees • Fees on waste production • Energy use surcharges and fees • Fees on snack food • Fees on food packaging for takeout orders • Public safety cost mitigation fees Public Utilities • Trenching fees for diminution in durability or longevity of roads, traffic congestion mitigation,mitigate potential damage to existing infrastructure • Alternative energy fees • Fossil fuel consumption fees • Eco-impairment fees for hydro-facilities Alcohol • Mitigation fees to address public nuisances associated with sale or consumption • Mitigation fees to pay for health services provided by government (mental and physical) for alcoholics or those injured or otherwise affected by alcoholics • Fees to fund public programs to prevent illegal consumption by minors or discourage abuse by adults through education,research into causes and possible cures for alcoholism Oil • Carbon consumption fees for pollution mitigation(injuries related to effects of pollution) • Eco-Impairment fees (effects of drilling, storage, or consumption on habitat or parks and recreation areas) • Carbon consumption fees to discourage consumption and encourage use of alternative fuel sources. Additionally, fuel consumption as a means for measuring "road damage fees" • Oil severance fee to mitigate oil spill clean-up,and build larger response and enforcement capabilities • Hazardous waste fees to support general hazardous waste/substances programs KELLY.SALT\t S74425.2 EXHIBIT C-1 BEST BEST & KRIEGER ATTORNEYS AT LAW • An Air District might impose a refinery gate fee to mitigate harm from diesel exhaust emissions. A city or county might impose pipeline fee to enhance public safety to respond to pipeline accidents • A state or local agency may impose gasoline fee at the pump for clean-up and mitigation of MTBE contamination at service stations or in lakes and groundwater. • A local or regional agency might impose a gasoline fee at the pump for mass transit. (Note: fees could still be assessed if connected to a specific regulation, problem or liability identifiable to the fee payer.) Tobacco • Mitigation fees: Fees for mitigating the adverse health effects of tobacco products (including evaluation, screening, and necessary follow-up services who are deemed potential victims of tobacco related injuries) • Deterrence fees: Fees to discourage consumption(by increasing cost of product) and/or to educate the general public on the consequences of tobacco consumption. Fees to prevent illegal consumption by minors Telecommunications • Cellular: Fees to reduce the impacts of DWTs (Driving While Talking), burdens on the 911 system,potential future effects of close proximity radio frequency exposure • Trenching fees for diminution in durability of roads, traffic congestion mitigation mitigate potential damage to existing infrastructure Technology Companies • Fees to mitigate the Digital Divide • Ergonomic and repetitive motion injury mitigation • Site location fees for traffic mitigation and growth impacts • Youth and video game violence prevention fee • Hardware disposal fees • Toxic/Waste fees Agriculture • Chemical/gene/hormone and other "altered food" products fees (a perceived threat for "altered food" could result in fees being levied for research, screening, testing and treatment should adverse consequences materialize or simply as a means of discouraging their use out of perceived negative externalities) • Spoiled/infected food mitigation fees • Insecticide abatement fees Food (Retailers/Grocers/Malls) • Traffic impact fees (malls and Big Box retailers) • Public safety impact fees (added security necessary because of increase concentration of people) EXHIBIT C-2 KELLY.SALT1574425.2 BEST BEST & KRIEGER ATTORNEYS AT LAW Fast Food • Traffic impact fees(where traffic backs-up at the drive-through) • Litter abatement fees • Fees to fund education, outreach, screening and treatment for obesity (fast foods having high concentrations of fat) or similar programs to discover,measure and treat the adverse health consequences of high cholesterol or caffeine TAXES Entertainment • Arenas/promoters/sports teams: Traffic impact fees. Public safety cost mitigation fees • Television/movies: Location mitigation fees (relating to traffic impacts, clean-up, public safety and emergency services). Fees on television and movie programming to mitigate effects of violence on youth or similar anti-social consequences linked to programming Non-Indian Gaming • Public safety mitigation fees (for expenses associated with a perceived increase in a criminal element associated with activity-including increase police presence, specialized investigation units) • Fees to mitigate effects on compulsive gamblers or other associated addictive consequences including screening, education, and treatment Pharmaceuticals • Mitigation for subsequently discovered health risks potentially associated with a particular drug product • Fees to fund drug education • Fees related to health research • Fees to fund health treatment • Emergency care fees • Fees covering the cost of the uninsured or underinsured • Pharmaceutical cost fees to cover the poor and/or elderly • Fees related to covering immunizations for children Railroads Generally protected by the federal "4-R Act" enacted by Congress to protect railroads from discriminatory local taxes. However, the 4-R Act applies to "taxes" and not fees or assessments. So long as the exaction does not contribute to the general fund of the government, it may not be considered a "tax" under the 4-R Act. See Wheeling & Lake Erie Railway Co. v. Public Utility Commission, et. al., Nos. 96-3703, 3704 (1998) • Consequently, fees to mitigate railroad-crossing accidents are potential • Eco-impairment fees for effects of train traffic on ecosystems or potential effects of rail accidents EXHIBIT C-3 KELLY.SALTt S74425,2 BEST BEST & KRIEGER ATTORNEYS AT LAW • Pollution abatement fees (whether for emissions or sound) • Carbon consumption fees Airlines • Pollution abatement fees • Noise abatement fees (also affected by any carbon consumption fees) • Crash mitigation fees (reimbursing local governments for costs of search and rescue, recovery or salvage and investigation) • Runway maintenance fees • Ground traffic congestion/mitigation fees Truckers • Road damage fees to mitigate damage to streets and highways caused by heavy truck traffic/spills • Fees to mitigate the adverse effects of long haul trucking and or fund programs to research evaluate and reduce potential of trucking accidents. Fees to mitigate health costs related to injuries of truck drivers or increased risk of traffic fatalities due to size of trucks used (SUV plus mitigation fee). Could be affected by carbon fuel consumption fees or pollution mitigation fees Auto Manufacturing • Carbon fuel consumption fees. Road damage fees based on size of vehicle ▪ Accident fees (for costs of responding to and treating victims) based on size/safety rating of vehicle. ▪ A deterrence fee based on fuel efficiency to fund mass transit • Tire disposal fees to mitigate costs and hazards of tire disposal • Off-road mitigation fee on 4-wheel drive and all-terrain vehicles to offset eco-damage of off-road automobile use Chemicals • Most closely related to Sinclair paint circumstance where a product is deemed hazardous, its use discontinued, and then after the fact businesses are pursued for mitigation fees ▪ Mitigation fees to offset adverse health effects of a chemical or chemical by-product • Accident/hazard mitigation fees (educating public on proper usage, storage and disposal of household chemicals; offset health costs in responding to accidents relating to household chemical accidents) General Business • Fees on businesses to fund indoor air quality maintenance and investigation programs • Hazardous waste fees to support general hazardous waste/substances programs EXHIBIT C-4 KELLY.SA L7\157442 5.2 BEST BEST & KRIEGER ATTORNEYS AT LAW Insurance ▪ Fees on property casualty insurers for firefighting, earthquake and flood mitigation/preparation, uninsured drivers and auto case court costs, among many others • Fees on health insurers for such things as premium assistance for lower income consumers and those who lack coverage, cover costs of certain medical procedures and tests and fees for consumer protection/intervention services against insurers EXHIBIT C-5 KE LLY.S AL9\15 74425.2 Western City 1 Proposition 26: An Executive Summary for The Layperson Page 1 of 4 Send to printer Close window Proposition 26 : An Executive Summary for The Layperson BY PATRICK WHITNELL ID .41/444\ Nteloe4s4 -4/0..Nk. \ is. N„,,,. 4\ kitikil Fill el Patrick Whitnell is general counsel for the League and can be reached at phitnell@cacities.org. Much effort has been expended trying to explain and analyze the purpose and effect of Proposition 26,the so-called "Stop Hidden Taxes Initiative."Wading into the morass of municipal finance is a daunting task even for the expert, and Prop. 26 adds another layer of complexity to an already complicated area.This article provides the non-expert with tools to gain a working knowledge of Prop. 26. The Starting Point: Sinclair Paint Prop. 26's genesis occurred in 1997 with the California Supreme Court's decision in Sinclair Paint v. State Board of Equalization. In this case, Sinclair Paint challenged a state fee imposed on companies that utilized lead to manufacture paint and other products.The fee was used to fund various state programs to address the impact of lead exposure on children. Sinclair Paint argued that this was not a fee but rather a tax, because Sinclair Paint did not benefit from any of the programs funded by the fee.Why is this distinction important?A fee may be adopted by the Legislature with a simple majority vote.A tax, on the other hand, requires a two-thirds vote of both houses for approval. The court disagreed and held that the fee was not imposed by the state under its power to tax, but rather was imposed under its power to regulate to protect public health, safety and welfare (commonly referred to as the "police power"). Therefore the court concluded that if the fee bore a reasonable relationship to the burden imposed by those charged the fee and the fee did not exceed the cost of the program it was funding, http://www.westerncity.com/core/pagetools.php?pageid=11894&ur1=%2FWestern-City%2... 4/27/2011 Western City Proposition 26: An Executive Summary for The Layperson Page 2 of 4 then the fee was not a tax. It did not matter that the person paying the fee did not receive any benefit from the program being funded. The Aftermath:The Rise of the"Regulatory Fee" Sinclair Paint-type fees are commonly referred to as "regulatory fees."After the Supreme Court validated regulatory fees as not being taxes, the state (as well as local agencies) looked to adopt regulatory fees to provide funding for a variety of state and local programs. Environmental review and regulation programs were a popular choice to be funded by regulatory fees. At the local level, regulatory fees were used to provide funding to address the adverse effects of certain types of business activities. For example, a city may impose a regulatory fee on businesses that sell alcohol to address the increased policing and health costs associated with drinking. The Response: Proposition 26 Business groups have long complained about regulatory fees. After the Supreme Court decision, they continued to argue that regulatory fees were nothing more than taxes, that they placed an unfair burden on businesses and that they were simply a way for the state and local governments to avoid the voting requirements imposed by Prop. 13 and Prop. 218. It's no surprise that the California Chamber of Commerce was the main proponent of Prop. 26. The best explanation of the proponent's argument for why Prop. 26 was necessary can be found in the initiative's Findings and Declarations of Purpose section, which reads: This escalation in taxation does not account for the recent phenomenon whereby the Legislature and local governments have disguised new taxes as "fees" in order to extract even more revenue from California taxpayers without having to abide by [the] constitutional voting requirements [imposed by Prop. 13 and Prop. 218]. Fees couched as"regulatory" but which exceed the reasonable costs of actual regulation or are simply imposed to raise revenue for a new program and are not part of any licensing or permitting program are actually taxes and should be subject to the limitations applicable to the imposition of taxes. Prop. 26 appeared on the November 2010 ballot and was narrowly approved by the voters with 52.5 percent of the vote. The Rule:What Does Proposition 26 Do? Prop. 26 is divided into two parts. One part addresses state fees and the other addresses local fees. Although the two parts overlap substantially, there are also significant differences. This article focuses exclusively on the part addressing local fees. Prop. 26 is a constitutional amendment that introduces, for the first time, a definition of what constitutes a local tax: As used in this article, "tax" means any levy, charge or exaction of any kind imposed by a local government ... http://www.westerncity.com/core/pagetools.php?pageid=11894&ur1=%2FWestern-City%2... 4/27/2011 Western City Proposition 26: An Executive Summary for The Layperson Page 3 of 4 Therefore, almost any requirement imposed by a local government that results in the local government receiving revenues is a local tax. This means that the local government would need to obtain a majority approval of the voters if the revenues are to be used for general governmental purposes, or a two-thirds voter approval if the revenues are to be used for a particular purpose. In contrast, a fee may be adopted by a majority vote of the city council. Fortunately for cities, this all-encompassing definition is tempered by seven exceptions set forth in Prop. 26. These exceptions encompass most—but not all —fees or charges that a city may want to impose. Unfortunately, not all the exceptions are models of clear language, and the courts will likely be the final arbiter as to their meaning. The following section provides a brief synopsis of what these exceptions cover. The Exceptions: What Proposition 26 Does Not Apply To The seven exceptions temper the broad definition of"tax" in Prop. 26. But the interpretation of these exceptions and their application in particular circumstances will be the focus of future legal arguments. A full discussion of these exceptions is beyond the scope of this article, but here is a synopsis of each exception and a few common examples of what each exception may cover. 1. The Special Benefit or Privilege Exception provides that a fee imposed by local government that provides a special benefit to the person paying the fee or directly grants the person some privilege is not a tax. Common examples include fees for planning permits, restricted neighborhood parking permits, and entertainment and street closure permits. 2. The Government Service or Product Exception provides that a fee imposed for a specific government service or government product provided directly to the person paying the fee is not a tax. Some common examples are fees for parks and recreation classes. 3. The Licenses and Permits Exception provides that the following are not taxes: a fee imposed for issuing licenses and permits; and the costs of administrative enforcement of licenses and permits. Common examples include health and safety permits, building licenses, police background checks and permits for regulated businesses (such as massage establishments, card rooms, taxicabs and tow-truck operators). For the exceptions set forth in items 1 through 3, Prop. 26 imposes the additional requirement that the fee imposed must not exceed the city's reasonable costs. If the fee does exceed the reasonable costs, then it is not eligible for any of these exceptions and would be a tax subject to voter approval. 4. The Local Government Property Exception provides that fees charged for the use of or entrance to local government property is not a tax. Some common examples are city facility room rentals, equipment rental fees, park entrance fees and golf greens fees. 5. The Fines and Penalties Exception provides that fines and penalties imposed for violations of the law are not taxes. Common examples include parking fines, code enforcement fines, library late return penalties and late payment penalties. 6. The Property Development Exception provides that a fee imposed as a condition of property development is not a tax. Some common examples are development impact fees, construction and grading http://www.westerncity.com/core/pagetools.php?pageid=11894&ur1=%2FWestern-City%2... 4/27/2011 Western City Proposition 26: An Executive Summary for The Layperson Page 4 of 4 permit fees, fees imposed by California Environmental Quality Act mitigation requirements, and Quimby Act and park mitigation fees. 7. The Prop. 218 Exception provides that property assessment and property-related fees that are already subject to the approval requirements of Prop. 218 are not taxes. Common examples include water and sewer rates and special district assessments, such as Landscape and Lighting District Act assessments. A Short Note on Proposition 26's Effective Date Prop. 26 was approved by the voters on Nov. 2, 2010. With respect to the part addressing local fees, nothing in Prop. 26 explicitly or implicitly provides that it was intended to apply to local fees that were in place prior to that date. But if a local fee that existed prior to Nov. 2, 2010, is increased or extended after that date, the fee needs to be examined to determine whether it falls within one of the seven exceptions. If it does not fall within any exception, the increased or extended fee is subject to the voter-approval requirement. Conclusion Prop. 26 continues the line of initiatives, which began with Prop. 13, that place constraints on cities' ability to raise revenues without first receiving voter approval. The seven exceptions in Prop. 26 help to significantly narrow its application, but its exact contours await future court interpretation. Therefore it is critical for cities to consult with their city attorney whenever they consider adopting a new fee or increasing or extending an existing fee. Footnote: 15 Cal. 4t" 866. http://www.westerncity.com/core/pagetools.php?pageid=11894&ur1=%2FWestern-City%2... 4/27/2011 CITY OF PALM DESERT— PARKS AND RECREATION COMMISSIONER INSPECTION FORM Inspection Date: 4/17/2011 Park: Joe Mann Commissioner: Chris Thomas Overall Appearance of Park (based on a scale of 1-5, five being the high score): 4 Deficiency (Including Specific Location) Corrective Action Taken (For Staff Use) Memorial garden — need weed removal from the concrete around the fountain Memorial garden — In front of the silver 77820 sign, there is a bush and support pole both pushed over, almost flat. Memorial garden — Parking spot#3 to the left (west) of the gate, has large pieces of concrete (from the parking block) torn off and lying up against the fence. Basketball Court—There are white chalk markings on the south side of the court on the border area surrounding the court. CITY OF PALM DESERT— PARKS AND RECREATION COMMISSIONER INSPECTION FORM Inspection Date: 4/17/2011 Park: Freedom Park Commissioner: Chris Thomas Overall Appearance of Park (based on a scale of 1-5, five being the high score): 4 Deficiency (Including Specific Location) Corrective Action Taken (For Staff Use) Black graffiti on seat of park bench outside of North side of tennis courts Tennis courts need repainting or resurfacing Gonzalez, Bertha From: Stendell, Ryan Sent: Monday, April 18, 2011 1:05 PM To: Gonzalez, Bertha Subject: FW: Park Inspection Original Message---- From:Jan&Jerry Dawson Imailto:jdawson@dc.rr.coml Sent: Monday,April 18, 2011 12:34 PM To: Stendell, Ryan Cc:Jerry Dawson Subject: Park Inspection Ryan, I inspected the PD Soccer park today: April 18 - 10:30 AM i Looks clean and the horse-shoe pits look very playable -hope the guys like them. The grass looks very beat from all the play. It will be good to give it a rest. The blue paint on the inside of each pavilion needs to be cleaned up and re-painted. Also other blue-paint areas such at the hand rail on the sloping sidewalk leading down to the soccer field are very chipped and look unsightly. Jerry 2 U) et O 11- u. `� c Z M Y O cat H V ,- o D. ► a Q Z N U .53 III CZ 111 lc W Z E.Q co N cnC a 0 n' `as � 3 "� -q" ' % u_ V -- `• 0 0 a _ )1 �, 0o W -C) CO \.._) ti:"" O O CDv gift.-, C.) A t tins a. §)1- kC..b '' ... Q c 8 c t). Iti. 73 .crslci 1 ei g., Am.. . I Cl) 7...'•-• 4 .i CO C a. o. r; ,:i —1 < c "-_,,,. N . 11 1► • a) t Alj-C.6 z--) Z1 1— 4 , ...., co (r, i,••-. .(,.._.ro ,,,,: 1:„,„4412-.. t 'tlrh %e'Lci O C., tu N G O 4-* \ ;•:-.6) 4.° Is _ N Z .) o m 0 ",c• ON ‘ -... O to w ` 43 'IA ,% lb' s3 a v4. o _.� in 44 ,i,....-61,1 ...._.. ...._ „ v t --‘s 0 �.0,3 �- A 8 --A 11-1 k .... , t, . .2, % :14 -, _. -41 Z t cnin V,' A c U . a City of Palm Desert Parks and Recreation Commissioner Inspection Form Date of Inspection: 4/14/2011 Park: Ironwood Park Overall Appearance of Park (based on a scale of 1-5, five being the high score): 1 2 3 4 X Deficiency (Including Specific Location) Corrective Action Taken (For Staff Use) The palm tree area at the south end of the park (just east of Bighorn well) needs some tending. It's a mess. Comment: Grass looks to have been recently "aerated" Inspected By: Kim Housken , , ww . . • • • • _ DESERT RECREATION DISTRICT Date: 04/27/2011 To: City of Palm Desert Recreation Commission From: Jeff Ronci Subject: Recreation Commission Meeting Submitted Information CC: Recreation Commission: Attached for your reference are the April 2011 participation statistics for Recreation Programs provided by the Desert Recreation District to the City of Palm Desert and residents. I also included the Palm Desert Community Center daily visit report, Facility hourly use comparisons, and Facility reservation count and comparison reports. Per request I have also included usage for the Civic Center Tennis Courts. Balanced Training Boot Camp is not reflected in the Report as Registration is handled separately.) will provide this to you at the meeting. It should be noted that there are numerous opportunities for additional programming and the Desert Recreation District is continually exploring new and exciting programs to bring to Palm Desert. Desert Recreation District RecTrac Page: 1 Run Date: 04/27/11 Participation Report Run Time: 10:23A User: JRO Actv Sec Description Beg Date End Date Beg Time End Time Meeting Days Status Enrol Class Hrs Partic Hrs 636100 28 PD Zumba-2 Days 04/05/2011 04/28/2011 5:30P 6:30P Tu,Th BELOW 0 160.00 0.00 Resident 0 Non-Resident 0 643101 14 PD Salsaerobics 04/05/2011 04/28/2011 8:OOA 9:OOA Tu,Th AVAIL 7 320.00 56.00 Resident 7 Non-Resident 0 645900 06 PD Ballroom Dancing 04/05/2011 05/10/2011 7:00P 8:45P Tu AVAIL 0 472.50 0.00 Resident 0 Non-Resident 0 645901 06 PD Belly Dancing 04/11/2011 05/16/2011 6:00P 7:00P M AVAIL 7 150.00 42.00 Resident 5 Non-Resident 2 645906 10 PD Painting&Advanc 04/04/2011 04/25/2011 9:OOA 12:00P M AVAIL 1 240.00 12.00 Resident 1 Non-Resident 0 646101 07 Bill Miller(5 Pack) 04/01/2011 04/30/2011 12:OOA 12:OOA M,Tu,W,Th,F,Sa BELOW 0 0.00 0.00 Resident 0 Non-Resident 0 646302 07 PD Yoga 1 Day/wk 04/04/2011 04/28/2011 10:30A 11:45A Tu,Th AVAIL 4 250.00 40.00 Resident 4 Non-Resident 0 646303 16 PD Yoga 2 Day/wk 04/04/2011 04/28/2011 10:30A 11:45A Tu,Th AVAIL 3 250.00 30.00 Resident 3 Non-Resident 0 665900 16 PD Beginning Ballet 04/02/2011 04/30/2011 10:OOA 10:45A Sa AVAIL 2 56.25 7.50 Resident 2 Non-Resident 0 666400 38 PD After-School Clu 04/01/2011 04/29/2011 3:00P 6:00P M,Tu,W,Th,F AVAIL 33 3150.00 2079.00 Resident 31 Non-Resident 2 666908 15 PD Guitar Beg 04/06/2011 05/04/2011 7:00P 8:00P W AVAIL 10 75.00 50.00 Resident 9 Non-Resident 1 666909 13 PD Guitar Int. 04/06/2011 05/04/2011 8:00P 9:00P W BELOW 4 75.00 20.00 Resident 4 Non-Resident 0 676203 17 PD Karate Taekwondo 04/06/2011 04/27/2011 6:00P 7:00P W,F AVAIL 11 280.00 77.00 Resident 11 Non-Resident 0 18 PD Karate Taekwondo 04/06/2011 04/27/2011 7:00P 8:00P W,F AVAIL 0 280.00 0.00 Resident 0 Non-Resident 0 676211 71 PD Volleyball I 04/07/2011 04/28/2011 9:30A 10:30A Th BELOW 2 60.00 8.00 Resident 2 Non-Resident 0 72 PD Volleyball II 04/07/2011 04/28/2011 11:OOA 12:30P Th BELOW 2 120.00 12.00 Resident 2 Non-Resident 0 73 PD Volleyball III 04/07/2011 04/28/2011 1:00P 2:30P Th BELOW 1 150.00 6.00 Resident 0 Non-Resident 1 686400 23 PD Tiny Tots M,W,F 04/01/2011 04/29/2011 9:OOA 12:00P M,W,F BELOW 15 663.00 585.00 Resident 13 Non-Resident 2 31 PD Tiny Tots T,TH 04/05/2011 04/28/2011 9:OOA 12:00P Tu,Th FULL 17 408.00 408.00 Resident 17 Non-Resident 0 686900 16 PD Dance Play Prete 04/02/2011 04/30/2011 9:OOA 9:45A Sa AVAIL 5 45.00 18.75 Resident 5 Non-Resident 0 Desert Recreation District RecTrac Page: 2 Run Date: 04/27/11 Participation Report Run Time: 10:23A User: JRO Actv Sec Description Beg Date End Date Beg Time End Time Meeting Days Status Enrol Class Hrs Partic Hrs TOTAL ACTIVITES IN SELECTED RANGE:20 TOTAL ENROLLEES IN SELECTED RANGE: 124 TOTAL RESIDENT ENROLLEES IN SELECTED RANGE: 116 TOTAL NON-RESIDENT ENROLLEES IN SELECTED RANGE:8 MAXIMUM ENROLLEE HOURS IN RANGE SELECTED:7204.75 TOTAL PARTICIPATION HOURS IN RANGE:3451.25 SELECTION CRITERIA Date Range:03/20/2011 Thru 04/30/2011 Sort By:Activity Status Type: Total By: Maxium Enrollment Hrs Actv/Sec Range:600000-01 Thru 799999-ZZ Actv/Sec Wildcard:- Individual Selections: Status To Include:Active:Yes Inactive:No Cancelled: No Pending: No Location Range: PALM Thru PALM Include Roster History:No An'"'next to the Class Hours or Participation Hours column indicates a number that exceeds 999999 Desert Recreation District RecTrac Page: 1 Run Date: 04/27/11 PASS DAILY VISIT REPORT Run Time: 10:17A User: JRO Date Type Hourly Visit Counts 04/01/2011 TOTAL TOTAL VISITS ON 04/01/2011 IN TYPE RANGE: 120 04/02/2011 TOTAL TOTAL VISITS ON 04/02/2011 IN TYPE RANGE:37 04/04/2011 TOTAL TOTAL VISITS ON 04/04/2011 IN TYPE RANGE: 162 04/05/2011 TOTAL TOTAL VISITS ON 04/05/2011 IN TYPE RANGE: 121 04/06/2011 TOTAL TOTAL VISITS ON 04/06/2011 IN TYPE RANGE: 150 04/07/2011 TOTAL TOTAL VISITS ON 04/07/2011 IN TYPE RANGE:94 04/08/2011 TOTAL TOTAL VISITS ON 04/08/2011 IN TYPE RANGE:97 04/09/2011 TOTAL TOTAL VISITS ON 04/09/2011 IN TYPE RANGE:41 04/11/2011 TOTAL TOTAL VISITS ON 04/11/2011 IN TYPE RANGE: 152 04/12/2011 TOTAL TOTAL VISITS ON 04/12/2011 IN TYPE RANGE: 127 04/13/2011 TOTAL TOTAL VISITS ON 04/13/2011 IN TYPE RANGE: 147 04/14/2011 TOTAL TOTAL VISITS ON 04/14/2011 IN TYPE RANGE: 108 04/15/2011 TOTAL TOTAL VISITS ON 04/15/2011 IN TYPE RANGE: 106 04/16/2011 TOTAL TOTAL VISITS ON 04/16/2011 IN TYPE RANGE:38 04/18/2011 TOTAL TOTAL VISITS ON 04/18/2011 IN TYPE RANGE: 160 04/19/2011 TOTAL TOTAL VISITS ON 04/19/2011 IN TYPE RANGE: 115 04/20/2011 TOTAL TOTAL VISITS ON 04/20/2011 IN TYPE RANGE: 143 04/21/2011 TOTAL TOTAL VISITS ON 04/21/2011 IN TYPE RANGE: 102 04/22/2011 TOTAL TOTAL VISITS ON 04/22/2011 IN TYPE RANGE: 125 04/23/2011 TOTAL TOTAL VISITS ON 04/23/2011 IN TYPE RANGE:48 04/25/2011 TOTAL TOTAL VISITS ON 04/25/2011 IN TYPE RANGE: 182 04/26/2011 TOTAL TOTAL VISITS ON 04/26/2011 IN TYPE RANGE: 115 04/27/2011 TOTAL TOTAL VISITS ON 04/27/2011 IN TYPE RANGE:50 RANGE TOTALS: 06A-07A 111 07A-08A 85 08A-09A 198 09A-10A 255 10A-11 A 214 11 A-12P 152 12P-01 P 245 01 P-02P 162 02P-03P 81 03P-04P 176 04P-05P 238 05P-06P 206 06P-07P 194 07P-08P 200 08P-09P 23 TOTAL VISITS FOR 04/01/2011-04/30/2011:2540 SELECTION CRITERIA: Date Range:04/01/2011 Thru 04/30/2011 Time Range: 6:OOA Thru 9:00P Location Range:PALM Thru PALM Days Of The Week:Mon,Tue,Wed,Thu,Fri,Sat,Sun Sort Option: Date Individual Selections: PRIMEMB Desert Recreation District Civic Center Tennis Courts Attendance Apr-11 Day Tennis Pickleball Part Part 1 135 2 118 3 116 4 122 5 118 Tennis / Pickleball Monthly Usage 6 132 7 128 8 116 9 126 10 124 11 129 12 112 13 122 Pickleball 14 116 0 15 96 0% 16 128 =— I DTennis 17 132 � 18 102 � ■Pickleball 19 131 Tennis 20 120 3072 21 119 100% 22 125 23 130 24 156 25 119 26 27 28 29 30 31 Total: 3072 0 Skate / Bike Monthly Usage Bike 341 ,Alip ---------,, 44% ❑Skate ,76,_lisili Skate ❑ Bike 439 56% Facilty Hours Used / Bal!fields ballfield #3 Ballfield #1 128.00 150.50 ballfield #2 139.00 Ballfield #2 150.50 ballfield #1 142.00 Ballfield #3 150.50 Ballfield #4 107.00 FACILITY RESERVATION COUNT / Ballfields Facility ballfield #3 Ballfield #1 23.00 28.00 ballfield #2 24.00 Ballfield #2 28.00 ballfield #1 25.00 Ballfield #3 28.00 FACILITY RESERVATION COUNT / Pavilions Facility Pavillion #1 4.00 Pavillion #3 2.00 Pavillion #2 4.00 Facilty Hours Used SOCCR-FRDOM-FIELD SOCCR-HOVEL-FLD1 4.00 15.00 *OCR HOVEL1tS0CCF FLD5OVEL-FLD2 36.75 26.00 SOCCR-HOVEL-FLD4 96.00 SOCCR-HOVEL-FLD3 124.50 FACILITY RESERVATION COUNT SOCCR-FRDOM-FIELD 2.00 Facility SOCCR- SOCCR-HOVEL- HOVEL-FLD5 FLD1 7.00 8.00 SOCCR-HOVEL-FLD2 10.00 SOCCR-HOVEL-FLD4 SOCCR-HOVEL-FLD3 22.00 � -.-i Parks and Recreation Commission Meetingof May , ;'�` ';s ;_ `:toil��' n£�:- 3, 2011 1 `y ,py"i'�° 3 __ • , , ' 1� • '4 tea _ 'i.} '. R��R� ",� - �" II .0 \ -�4 -,ter% /1i0, . • '` -- �t1 4- .0 ' s, U- 4 ,' ll S _ 'fie ,�� � + nil .�.i i f �� a# , rr' � ,/ a 4 1. r•',r . .„.........___ _ ,4• yya0 11**Isonrtt F is ( 44_,,,1f,r l ..... t,-,,,t.....;401;„.....7 _________� a # 3 ESL 4 -� ,, 111119 'v "• ,.., - > . _ -• MAGNESIA-FAI.s QRIvlE� , .� ffi„,,,ram- ,,, . g. ... I: ii -. a e ..x ems' Y 'F +c.': — au INF Fi,$j [' c 11" ii. 3 :*iit RN 6 ...,-. jig IM,I s T 1 1 ;f �kit ., YL i "y E 4 • a r: 5Itilli4h4 VW nA r ty PRIVATE ROADF=.."1 1:ty - °t jj e, -- ., fn c`]}I i'r� 4f y i.}emu 1 ,s ‘„;.,r- ^ —1:;,._.,...."r:---,---„,<_ , iIz Wr' I'rii .� "[ � �t sF `y , 7 44l i��,� i ,fir Z-.. s - H. ..., : „ l�.l ,. ,"""T - ,g .1 s• ,�, �� -,,,, _1., , _ -ill' R .,..A . •' _„0.-„,,... ,n,..- Ai(,, sZ., ii, ik....-.... '--,..-....,- ,`,!,' J 41 .„ i \ . ---_- * ._ ,t ..-,-,172 ', ...t• -1, .. ,, , il - ,_ . ',------ i * . „iri L* --,_— -,..-", w ' ,If 17---- Ili a - _ ` t , �� -`..� Ae t'�g 3r.--r. .in II's ~ a y.,'%I.' - ,'""` ' - r.. r. • FRED WARIN 4M 'E, _ G DRIVE` - — - IL -..-L-+ �^ , -;-_,,, , t- . ni. �-r ..., , Y�.,.* ,s � ,., i. 14,,,_Lf '*'iir �,� `! lie 1 _ ,• .0'" r r il�,t nk.; 'N'�' -F' 4 4 7 SA�ITA ROSA WAY__ ��' G' SANTA ROSA WAY } f . ^ J I � y'r . 1 �t� p - - id - 0, SA`N , ,, W • d. `.N N I C H O _$ r s ' ` cii wiii51 1.4 1 � ,, L+ Legend 0 ;� 1:5,868 f.s,im._ — Circulation Network Streets sr.. L} City Boundary 2009 Notes Red Band 1 Green:Band 2 -fi 4 • Blue Band_3 ATTN:Due to the Tour of the Aquatics Center the Parks and Recreation Meeting of May 3,2011 will be held at Pavilion#3 in Civic Center Park. Please let me know