Implementation
Whether regulatory or policy oriented, all specific plans must contain a "program of implementation measures including regulations, programs, public works projects, and financing measures pursuant to §65451(a)(4). Common strategies are to include a form of an overlay-zone or other zoning-like regulation as part of the implementation program. Implementation of public infrastructure and facilities policy is also commonly accomplished through the inclusion of a capital improvements program.
The specific plan must include or identify a financing program. Various financing mechanisms are available to fund the programs of a specific plan including special assessment districts, the Mello-Roos Community Facilities Act, and general obligation bonds. Tax-increment financing, city and county general fund money, exactions, and other means are discussed further in Table 2.
OPR’s A Planner’s Guide To Financing Public Improvements, contains a detailed discussion of financing measures, most of which are applicable to specific plans. Other resources include OPR’s General Plan Guidelines and William Abbot’s Public Needs and Private Dollars, Solano Press.
Other specific plan implementation programs may include affordable housing projects (implementing the policies of the general plan housing element), economic development, redevelopment programs, project phasing, transportation system management, habitat conservation plans, and local air pollution control measures.
Specific Plans And Development Projects
Local agencies may require that a specific plan be adopted for an area as a prerequisite to a development project as part of the requirements of an overlay zone, other ordinances, or for consistency with the policies of the general plan.
Development Agreements:
A development agreement is a tool for establishing a vested right to proceed with development in conformance with the policies, rules, and regulations in effect at the time of approval (§65864). Development agreements provide a developer with assurances for a specified length of time that his/her project may proceed as originally approved, and not be affected by future changes in land use regulations. The authority of local governments to enter into development agreements was tested and upheld by the courts in Santa Margarita Area Residents Together v. San Luis Obispo County Board of Supervisors, 84 Cal.App. 4th 221 (2000). In many cases and in exchange for this assurance, the landowner/developer may agree to a larger dedication of land or in-lieu fee for public use as a condition of the agreement.
A specific plan facilitates the administration of a development agreement by separating the development policies and regulations applied to a project site from those of the jurisdiction as a whole. This enables a local agency to revise its jurisdiction-wide plans and ordinances without affecting the policies and regulations "frozen" by an agreement. A specific plan adopted in correlation with a development agreement would only be amended when corresponding changes are made to the agreement. (See Midway Orchards v. County of Butte, 220 Cal. App. 3d 765 (1990); and 76 Ops. Cal. Atty. Gen. 227 (1994))
Vesting Tentative Subdivision Maps:
Section 66498.1(b) provides that when a vesting tentative subdivision map is approved, a vested right shall be conveyed to proceed with development in substantial compliance with the ordinances, policies, and standards in effect at the time the application for the tentative map is complete. Once approved, a landowner/developer may proceed with a project unimpeded by subsequent changes to the applicable development regulations. A specific plan adopted prior to the approval of a vesting tentative map may provide local agencies and the landowner/developer a single reference in determining the rights to be vested.
Redevelopment:
Specific plans represent relatively precise development criteria, guidelines, and diagrams which may provide additional direction to agencies and the public in establishing uses and infrastructure improvements that are planned within a redevelopment area. Such plans also set forth in detail the planning and implementation programs that, in the opinion of the local agency, will lead to a successful redevelopment project. In addition, the precision of specific plans is useful in estimating the costs of public improvements to be funded by tax-increment financing and other fiscal programs.
Proposition 218:
Proposition 218 added Articles XIII C and D to the California Constitution controlling how general taxes are levied and requiring certain previously levied general taxes to be ratified by voters. It reduces all taxes to either general taxes or special taxes. It defines a general tax as "any tax imposed for general governmental purposes" and a special tax as "any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund." General and special taxes can be reduced or repealed through the initiative process. Benefit assessments and "property related fees and charges" cannot be imposed without prior voter approval. Fees, charges, and assessments can be reduced or repealed through the initiative process.
A city, county, or special district (including a school district) contemplating a special tax levy must hold a noticed public hearing and adopt an ordinance or resolution prior to placing the tax on the ballot. The ordinance or resolution must specify the purpose of the tax, the rate at which it will be imposed, the method of collection, and the date of the election to approve the tax levy. Approval by a 2/3 vote of the city, county, or district electorate is necessary for adoption. For additional information concerning the implications of Proposition 218 to local government financing, see OPR’s A Planner’s Guide To Financing Public Improvements.
Mello-Roos Community Facilities Act of 1982:
The Mello-Roos Act enables cities, counties, special districts, and school districts to establish community facilities districts and to levy special taxes to fund a wide variety of facilities and services required by a specific plan. A Mello-Roos tax can be applied to the planning and design work directly related to the improvements being financed and may also fund services on a pay-as-you-go basis including: police and fire protection, ambulances, flood protection recreational programs, parks, and schools. A Mello-Roos district must be established pursuant to the requirements of §53321. As with all special taxes, Mello-Roos taxes are subject to reduction or repeal by initiative.
A Mello-Roos tax is not a special assessment, so there is no requirement that the tax be apportioned on the basis of property benefit. The tax can be structured so that it varies depending upon the zoning or development intensity of the property being assessed. Apportionment cannot, however, be done on an ad valorem basis. Some of the projects that have been funded through Mello-Roos include public works projects in "planned communities" for Orange County, Riverside County and San Diego as well as public park improvements and school facilities throughout California. See §53311 et seq. for detailed information regarding the establishment of Mello-Roos districts.
General Obligation Bonds:
In 1986, California voters approved Proposition 46, restoring the ability of local governments and school districts to issue general obligation (G.O.) bonds. General obligation bonds require approval by 2/3 of the jurisdiction’s voters and are used to finance the acquisition and construction of public capital facilities and real estate (see §29900 et seq., 43600 et seq., and Education Code §15100 et seq.). G.O. bonds are repaid through an increase in the ad valorem property tax being levied by the issuing jurisdiction.
General Obligation bonds may be used to fund such things as schools, libraries, jails, fire protection and capital improvements. According to the California Debt and Investment Advisory Commission, 27 G.O. bond measures were placed on local ballots in the November 1996 election. Fourteen passed, thirteen failed, and nine received more than 60 percent approval. Some of these bonds included K-12 school facilities and seismic-safety retrofitting of public buildings.
Public Enterprise Revenue Bonds:
Local governments have the ability to issue bonds to finance facilities for revenue producing public enterprises. The enterprises developed under these funds are financed by user charges that, in turn, are applied to bond debt service payments. Revenue bonds do not require approval by 2/3 vote since they are neither payable from taxes, nor from the general fund.
The Revenue Bond Act of 1941 (§54300 et seq.) is the most commonly used bond act. Under this act, bonds may be issued for revenue producing facilities such as airports, harbors, hospitals, parking, and garbage collection. Bonds under this act are adopted by resolution of the legislative body and subject to approval by a simple majority of the voters voting on the bond measure. One example of a public enterprise revenue bond is the Cambria Community Services District’s 1989 bond financing of a wastewater treatment plant.
Tax-Increment Financing:
Local governments may activate redevelopment agencies to improve blighted areas. Specific plans are also often used to improve the blighted areas which may at the same time be subject to a redevelopment plan. As an area is redeveloped, it may generate new property tax revenue. This revenue is known as the tax increment. A redevelopment agency engages in tax-increment financing when it funds its activities with bonds, notes, etc., secured by the increment. With certain exceptions, the agency must allocate 20 percent of the tax increment to funding low and moderate-income housing. (See §16 of Article XVI of the California Constitution and §33000 et seq. of the Health and Safety Code)
Impact Fees and Exactions:
Dedications of land and impact fees are exactions which lessen the impacts of new development resulting from increased population or demand on services. Local governments derive their authority to impose exactions from the "police power" granted to them by the State Constitution and/or specific state enabling statutes such as the Subdivision Map Act.
A legally defensible exaction must (a) "advance a legitimate state interest" (such as protection of the public health, safety, and welfare) and (b) mitigate the adverse impacts to that interest that would otherwise result from the project (as held in Nollan v. California Coastal Commission (1987) 107 S.Ct.3141). Additionally, in Dolan v. City of Tigard (1994) 114S.Ct.2309, the U.S. Supreme Court held that, in addition to the standard for essential nexus established under Nollan, there must be a "rough proportionality" between the proposed exactions and the impacts that the project are intended to allay. The California Supreme Court further defined the principals of legal exactions under Ehrlich v. City of Culver City (1996)12 Cal.App.4th 854. The Legislature has since amended the Mitigation Fee Act (§66000, et seq.) to require the local agency imposing the fee to identify the purpose of the fee and the use to which it will be put. The local agency must also specify the nexus between the development project and the improvement being financed (§66001). It must further establish that the amount of funds being collected will not exceed that needed to pay for the improvement (§66005).
Special Assessment Districts:
Special assessment districts are defined geographical areas which local governments levy assessments to pay for public projects such as streets, sewers, storm drains, landscaping and streetlighting. Special assessments pay for projects that are of specific and direct benefit to particular properties. For example, in order to finance the construction of street facilities which provide sole access to an industrial park, a local government may create an assessment district to cover the cost as it relates to the amount of benefit received by each property being assessed. Proposition 218 established common procedures for forming special assessment districts under Section 4, Article XIII D of the California Constitution. Most assessment districts may use their proceeds to secure bonds.
The following are some of the many special assessment and related acts: