Van De Kamp, 033183 CAAGO, AGO 82-1112

Docket Nº:AGO 82-1112
Case Date:March 31, 1983
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
RODNEY O. LILYQUIST Deputy Attorney General
AGO 82-1112
No. 82-1112
California Attorney General Opinion
Office of the Attorney General State of California
March 31, 1983
         THE HONORABLE ROBERT C. FRAZEE, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following questions:          1. Must a city comply with the requirements of Government Code section 66483 when enacting a drainage fee ordinance?          2. In calculating the maximum possible drainage fee under the provisions of Government Code section 66483, is the total acreage in the drainage area to be the basis of the calculation or only the undeveloped acreage in the basin?          CONCLUSION          1. A city must comply with the requirements of Government Code section 66483 when enacting a drainage fee ordinance under its police powers regulating the division of land; however, the requirements of the statute need not be followed when enacting a drainage fee ordinance under some other police powers authority or taxation powers.          2. In calculating the maximum possible drainage fee under the provisions of Government Code section 66483, the total acreage in the drainage area is to be the basis of the calculation.          ANALYSIS          The Subdivision Map Act (Gov. Code, §§ 66410-66499.37)1 (hereafter "Act") is a comprehensive statutory scheme regulating the division of land throughout the state. The Act's principal goals are to facilitate orderly community development and avoid fraud and exploitation of land purchasers and the public. (See South Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128 Cal.App.3d 830, 844-845; Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 157-158.)          The provisions of the Act and local ordinances enacted thereunder are enforced by criminal sanctions involving the filing of required subdivision maps. In general terms, the filing of a tentative map and a final map is mandatory for divisions into five parcels or more, while the filing of a parcel map is required for divisions into four or fewer parcels. (See §§ 66426, 66428; 4 Miller & Starr, Current Law of Cal. Real Estate (1977) §§ 24:33- 24:35, pp. 60-68; 9 Hagman & Volpert, Cal. Real Estate Law & Practice (1977) §§ 290.20-290.24, pp. 290:12-290:35.) A subdivider must obtain local government approval of the appropriate map before the subdivided parcels may be offered for sale, lease or be financed. (§§ 66499.30, 66499.31; Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, 193-194; Comment, Review of Selected 1974 California Legislation (1975) 6 Pacific L.J. 125, 357, 360.)          The two questions presented for analysis concern the language and effect of section 66483, which states:
         "There may be imposed by local ordinance a requirement for the payment of fees for purposes of defraying the actual or estimated costs of constructing planned drainage facilities for the removal of surface and storm waters from local or neighborhood drainage areas and of constructing planned sanitary sewer facilities for local sanitary sewer areas, subject to the following conditions:          "(a) The ordinance has been in effect for a period of at least 30 days prior to the filing of the tentative map or parcel map if no tentative map is required.          "(b) The ordinance refers to a drainage or sanitary sewer plan adopted for a particular drainage or sanitary sewer area which contains an estimate of the total costs of constructing the local drainage or sanitary sewer facilities required by the plan, and a map of such area showing its boundaries and the location of such facilities.          "(c) The drainage or sanitary sewer plan, in the case of a city situated in a county having a countywide general drainage or sanitary sewer plan, has been determined by resolution of the legislative body of the county to be in conformity with such a county plan; or in the case of a city situated in a county not having such a plan but in a district having such a plan, has been determined by resolution of the legislative body of the district to be in conformity with the district general plan; or in the case of a city situated in a county having such a plan and in a district having such a plan, has been determined by resolution of the legislative body of the county to be in conformity with such a plan and by resolution of the legislative body of the district to be in conformity with the district general plan.          "(d) The costs, whether actual or estimated, are based upon findings by the legislative body which has adopted the local plan, that subdivision and development of property within the planned local drainage area or local sanitary sewer area will require construction of the facilities described in the drainage or sewer plan, and that the fees are fairly apportioned within such areas either on the basis of benefits conferred on property proposed for subdivision or on the need for such facilities created by the proposed subdivision and development of other property within such areas.          "(e) The fee as to any property proposed for subdivision within such a local area does not exceed the pro rata share of the amount of the total actual or estimated costs of all facilities within such area which would be assessable on such property if such costs were apportioned uniformly on a per-acre basis.          "(f) The drainage or sanitary sewer facilities planned are in addition to existing facilities serving the area at the time of the adoption of such a plan for the area.          "Such fees shall be paid to the local public agencies which provide drainage or sanitary sewer facilities, and shall be deposited by such agencies into a 'planned local
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