CC SR 20210615 F - AB 989 Letter of Opposition
CITY COUNCIL MEETING DATE: 06/15/2021
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to authorize the Mayor to sign a letter in opposition to
AB 989 (Gabriel).
RECOMMENDED COUNCIL ACTION:
(1) Authorize the Mayor to sign a letter in opposition to AB 989, which would create a
state appeals board that could overturn local governments’ denial of certain
housing projects.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: McKenzie Bright, Administrative Analyst
REVIEWED BY: Karina Bañales, Deputy City Manager
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Draft letter in opposition to AB 989 (page A-1)
B. Text of AB 989 (as amended May 3, 2021) (page B-1)
BACKGROUND AND DISCUSSION:
Assembly Bill No. 989, introduced by Assemblymember Jesse Gabriel (D -45-Woodland
Hills), would create an appeals board within the California Department of Housing and
Community Development (HCD) that could review and approve developments that a local
government denied, if the denial violates the Housing Accountability Act.
Among other things, the Housing Accountability Act prohibits a local agency from
disapproving a housing project containing units affordable to very low-, low- or moderate-
income renters, or conditioning the approval in a manner that renders the housing project
infeasible, unless it makes one of the following findings:
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• The jurisdiction met its share of the regional housing need for that income
category.
• The project will have a specific, adverse impact on public health or safety and there
is no feasible method to mitigate or avoid the impact without rendering the housing
development unaffordable to very low-, low-, or moderate-income renters.
• The denial or imposition of conditions is required to comply with state or federal
law.
• The project is located on agricultural or resource preservation land that does not
have adequate water or wastewater facilities.
• The jurisdiction has identified sufficient and adequate sites to accommodate its
share of the regional housing need and the project is inconsistent with both the
general plan land use designation and the zoning ordinance.
AB 989 would establish the Housing Accountability Committee, which would have
authority to review and supersede local government denial of a development or imposition
of conditions which make the project infeasible. This bill would allow a single hearing
officer to substitute their judgement about the public health or safety , not to mention
quality of life, of a city and overturn the denial following procedures that are not subject
to public review and comment.
At this time, AB 989 passed the Assembly and was ordered to the Senate on June 1,
2021.
The bill establishes a new procedural enforcement mechanism for existing state laws, but
in so doing, removes public ability for oversight and review, as well as erodes local control.
For this reason, Staff recommends the City Council authorize the Mayor to sign a letter
to Assemblymember Gabriel as drafted or with revisions, opposing AB 989.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available for
the City Council’s consideration:
1. Identify revised language to add to the letter.
2. Do not authorize the Mayor to sign the letter.
3. Take other action, as deemed appropriate.
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June 15, 2021 Via Email
The Honorable Jesse Gabriel
California State Assembly
State Capitol, P.O. Box 942849
Sacramento, CA 94249-0045
SUBJECT: Notice of Opposition to AB 989
Dear Assemblymember Gabriel:
The City of Rancho Palos Verdes strongly opposes AB 989, which would create an
appeals board within the California Department of Housing and Community
Development (HCD) that could review and approve developments that a local
government denied if the denial violates the Housing Accountability Act.
The Housing Accountability Act allows local jurisdictions, after proper notice and public
hearings within strict time limits, to deny a project because it would have a specific,
adverse impact on public health and safety. AB 989 would allow a single hearing officer
to substitute their judgement about the public health or safety of a community and
overturn the denial following procedures that are not subject to public review and
comment.
AB 989 establishes a new procedural enforcement mechanism for existing state laws,
but in so doing, removes public ability for oversight and review of housing projects. For
these reasons, the City of Rancho Palos Verdes strongly opposes AB 989.
Sincerely,
Eric Alegria
Mayor
A-1
Assemblymember Gabriel
Jun 15, 2021
Page 2
cc: Ben Allen, Senator, 26th State Senate District
Al Muratsuchi, Assembly Member, 66th Assembly District
Jeff Kiernan, League of California Cities
Meg Desmond, League of California Cities
Marcel Rodarte, California Contract Cities Association
Rancho Palos Verdes City Council
Ara Mihranian, City Manager
Karina Bañales, Deputy City Manager
A-2
AMENDED IN ASSEMBLY MAY 3, 2021
AMENDED IN ASSEMBLY MARCH 25, 2021
california legislature—2021–22 regular session
ASSEMBLY BILL No. 989
Introduced by Assembly Member Gabriel
(Principal coauthor: Senator Gonzalez)
(Coauthors: Assembly Members Berman, Fong, Mayes, McCarty,
Quirk-Silva, Robert Rivas, and Wicks)
(Coauthor: Senator Kamlager)
February 18, 2021
An act to add Section 65585.4 65589.5.1 to the Government Code,
relating to planning and land use. housing.
legislative counsel’s digest
AB 989, as amended, Gabriel. Housing: local development decisions:
appeals. Housing Accountability Act: appeals: Housing Accountability
Committee.
Existing law requires a city or county to prepare and adopt a general
plan for its jurisdiction that contains certain mandatory elements,
including a housing element. Existing law prescribes requirements for
the housing element, including adequate sites for various types of
housing based on the existing and projected need of all economic
segments of the community. Existing law requires a city or county to
consider guidelines adopted by the Department of Housing and
Community Development in preparing its housing element and
prescribes a process for submitting the element for review by the
department. Existing law authorizes the department to take certain
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actions if it determines that the housing element does not comply with
prescribed requirements.
The Housing Accountability Act prohibits a local agency from
disapproving, or conditioning approval in a manner that renders
infeasible, specified housing development projects, including projects
for very low, low-, or moderate-income households and projects for
emergency shelters that comply with applicable, objective general plan,
zoning, and subdivision standards and criteria in effect at the time the
application for the project is deemed complete, unless the local agency
makes specified written findings based on a preponderance of the
evidence in the record.
This bill would establish a Housing Accountability Committee within
the Department of Housing and Community Development, Committee,
and would prescribe its membership. The bill would set forth the
committee’s powers and duties, including the review of appeals
regarding multifamily housing projects that cities and counties have
denied or subjected to unreasonable conditions that make the project
financially infeasible.
This bill would require that the committee be supported by the
department and hear appeals at least quarterly or more often as the
committee deems necessary. authorize an applicant who proposes a
housing development project pursuant to the Housing Accountability
Act, as described above, to appeal a local agency’s decision on the
project application to the committee. The bill would prescribe the
qualifications of proposed housing developments that would be eligible
for appeals and timelines within which applicants, the committee, and
local agencies would be required to act. The bill would require, among
other things, the local agency to transmit a copy of its decision and
reasoning to the committee, as specified, and would require all governing
members of the local agency to certify in writing, under penalty of
perjury, that their decision was not made for any unlawful or improper
purpose. By requiring members of the local agency to make
certifications under penalty of perjury, this bill would impose a
state-mandated local program. committee.
This bill would require the committee to vacate a local decision if it
finds that the local agency disapproved the housing development or
conditioned the approval of the housing development in violation of
specified provisions, and the Housing Accountability Act. The bill would
require the committee to direct order the local agency to issue any
necessary approval or permit for the development and, if applicable, to
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modify or remove any condition or requirement to make the
development no longer infeasible. conditions or requirements that
violate the act.
This bill would require a local agency to carry out a committee order
within 30 days of entry, and if the local agency fails to do so, the bill
would authorize an applicant to enforce the committee orders in court.
The bill would entitle the applicant to attorney’s fees and costs, and
would additionally authorize the court to impose specified fines on the
city or county. local agency. The bill would authorize the department
to charge applicants a fee for an appeal, as specified, and if the
committee orders approval of the proposed development or modifies
or removes any conditions or requirements imposed upon the applicant,
the bill would require a city or county local agency to reimburse the
applicant for the fee. By increasing the duties of local officials, this bill
would impose a state-mandated local program.
The bill would include findings that changes proposed by this bill
address a matter of statewide concern rather than a municipal affair
and, therefore, apply to all cities, including charter cities.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act
for specified reasons.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature hereby finds and declares the
line 2 following:
line 3 (a)California is experiencing a housing crisis, with housing
line 4 demand far outstripping supply. California recently ranked 49th
line 5 out of the 50 states in housing units per capita.
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line 1 (b) Studies have shown that the housing crisis is driving high
line 2 costs of living and further threatening sustainable economic growth
line 3 in the state.
line 4 (c) Research has also shown that cost-burdened households
line 5 have had to cut back on critical basic needs like food, and can be
line 6 forced to take on additional debt in order to afford rent. Extremely
line 7 low income households in California have to pay at least one-half
line 8 of their income toward housing, putting them at risk of housing
line 9 instability and homelessness.
line 10 (d) According to the California Housing Partnership, California
line 11 needs an estimated 2,600,000 additional homes over the next 10
line 12 years, including 1,200,000 homes affordable to lower income
line 13 households.
line 14 (e) State law requires local governments to exercise their zoning
line 15 power to meet the housing needs of residents at all income levels
line 16 and to remove arbitrary constraints that prevent the development
line 17 of sufficient affordable housing.
line 18 (f) Even when proposed housing projects conform to local
line 19 zoning requirements, local officials may improperly deny projects
line 20 or subject them to unreasonable conditions that make them
line 21 financially infeasible.
line 22 (g) It is often prohibitively expensive, time-consuming, and
line 23 impractical to bring litigation challenging improper and unlawful
line 24 decisions preventing the construction of affordable housing. For
line 25 this reason, State Legislatures in Connecticut, Illinois,
line 26 Massachusetts, and Rhode Island have created alternative means
line 27 to challenge efforts to prevent the construction of affordable
line 28 housing.
line 29 (h) It is the intent of the Legislature to ensure that local
line 30 governments do not actively defy or circumvent state law and
line 31 improperly or unlawfully prevent the development of badly needed
line 32 affordable housing.
line 33 SEC. 2. Section 65585.4 is added to the Government Code, to
line 34 read:
line 35 SEC. 2. Section 65589.5.1 is added to the Government Code,
line 36 to read:
line 37 65589.5.1. (a) There shall be within the department a is hereby
line 38 established the Housing Accountability Committee consisting of
line 39 five eight members to review multifamily housing development
line 40 projects identified in subdivision (d) of Section 65589.5 that have
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line 1 been denied or subjected to unreasonable conditions that make the
line 2 project financially infeasible. conditions in violation of Section
line 3 65589.5.
line 4 (1) The director of the department and the Director of the
line 5 Governor’s Office of Planning and Research shall be ex officio
line 6 members, members of the committee, provided that they may
line 7 designate an employee of their respective department or office to
line 8 serve on the committee in their place.
line 9 (2) The remaining three six members of the committee shall be
line 10 appointed by the Governor with the advice and consent of the
line 11 Senate. One member Senate as follows:
line 12 (A) Notwithstanding Section 1099, two members shall be a
line 13 member of a city council or board of supervisors and one other
line 14 member supervisors. One member shall represent a small
line 15 jurisdiction and one member shall represent a large jurisdiction.
line 16 (B) Two members shall have extensive experience in the
line 17 development of affordable housing. The
line 18 (C) Two members shall be neither a member of a city council
line 19 or county board of supervisors nor have extensive experience in
line 20 the development of affordable housing.
line 21 (3) The appointed members shall serve for terms of two years
line 22 each, at the pleasure of the Governor. The
line 23 (4) The director of the department shall designate the
line 24 chairperson.
line 25 (3)
line 26 (5) Members of the committee shall not receive compensation
line 27 for their services, but shall be reimbursed by the department for
line 28 all reasonable expenses actually or necessarily incurred in the
line 29 performance of their official duties. The department shall provide
line 30 the space and clerical and other assistance that the committee may
line 31 require.
line 32 (4) The committee shall hear appeals pursuant to this section
line 33 at least quarterly or more often as it deems necessary. The
line 34 committee shall conduct the hearings in accordance with guidelines
line 35 established by the department. The adoption, amendment, or repeal
line 36 of a guideline authorized by this section is hereby exempted from
line 37 the rulemaking provisions of the Administrative Procedure Act
line 38 (Chapter 3.5 (commencing with Section 11340) of Part 1 of
line 39 Division 3 of Title 2).
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line 1 (b) An applicant who proposes to construct a housing
line 2 development that meets the criteria of subdivision (c) and whose
line 3 application is either denied, or approved with conditions that in
line 4 the person’s judgment render the provision of housing
line 5 economically infeasible, may appeal the decision of the city,
line 6 county, or city and county to the committee.
line 7 (c) An applicant may file an appeal with the committee if both
line 8 of the following criteria are met:
line 9 (1) The proposed housing development will meet or exceed any
line 10 of the following affordability requirements:
line 11 (A) Ten percent of the total of the housing development is
line 12 available at affordable housing cost to extremely low income
line 13 households whose household income is less than or equal to 30
line 14 percent of the area median income.
line 15 (B) Twenty percent of the total housing of the development is
line 16 available at affordable housing cost to very low income and
line 17 low-income households, as defined in Section 50105 of the Health
line 18 and Safety Code.
line 19 (C) One hundred percent of the total housing of the development
line 20 is available at affordable housing cost to moderate-income
line 21 households, as defined in Section 50093 of the Health and Safety
line 22 Code.
line 23 (2) Either of the following criteria is met:
line 24 (A) The city, county, or city and county has adopted a housing
line 25 element that the department has determined pursuant to Section
line 26 65585 to be in substantial compliance with the requirements of
line 27 this article, and the proposed housing development, exclusive of
line 28 any density bonus granted pursuant to Section 65915, is consistent
line 29 with both the density allowed by the jurisdiction’s zoning ordinance
line 30 and the general plan land use designation as specified in any
line 31 element of the general plan as of the date the application was
line 32 deemed complete, except that consistency shall not be required
line 33 with the zoning ordinance or the general plan land use designation
line 34 if the jurisdiction has not amended the ordinance or the designation
line 35 to conform to the adopted housing element.
line 36 (B) The city, county, or city and county has not adopted a
line 37 housing element that the department has determined pursuant to
line 38 Section 65585 to be in substantial compliance with the
line 39 requirements of this article, and the proposed housing development
line 40 is located on a site that is designated for residential or commercial
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line 1 uses in any element of the general plan as of the date the
line 2 application was deemed complete.
line 3 (d) (1) An applicant may file an appeal with the committee
line 4 within 45 days after the date of the decision by the local agency
line 5 to deny the application or approve the application with conditions
line 6 that render the provision of housing economically infeasible. The
line 7 committee shall notify the local agency of the filing of an appeal
line 8 within 10 days, and the local agency shall, within 10 days of the
line 9 receipt of that notice, transmit a copy of its decision and the reasons
line 10 therefor to the committee. All governing members of the local
line 11 agency shall certify in writing, under penalty of perjury, that their
line 12 decision was not made for any unlawful or improper purpose. If
line 13 the local agency does not meet the deadline, the committee shall
line 14 vacate the decision of the local agency and direct the local agency
line 15 to issue any necessary approval or permit for the development to
line 16 the applicant within 30 days of the committee’s decision. In this
line 17 instance, the case shall be considered closed. If the local agency
line 18 responds within the deadline, the appeal shall be heard within 30
line 19 days after receipt of the request for an appeal by the applicant.
line 20 (2) The appeal hearing may be conducted by the committee, a
line 21 subcommittee of two or more members of the committee, or a
line 22 hearing officer appointed by the chairperson of the committee. A
line 23 record of the proceedings shall be kept. The hearing shall be limited
line 24 to the issue of whether the local agency, in violation of Section
line 25 65589.5, disapproved a housing development project or conditioned
line 26 its approval in a manner rendering it infeasible for the development
line 27 of housing for very low, low-, or moderate-income households,
line 28 including farmworker housing, without making the findings
line 29 required by that section or without making findings supported by
line 30 a preponderance of the evidence.
line 31 (6) Any appeal hearing held pursuant to this section shall be
line 32 conducted by a panel of five members of the committee. Each
line 33 five-member panel shall include the two ex officio members or
line 34 their designee and one member appointed pursuant to each of
line 35 subparagraphs (A), (B), and (C) of paragraph (2). With the
line 36 exception of the ex officio members, each panel member shall be
line 37 randomly assigned to an appeal hearing from within the groupings
line 38 of subparagraphs (A), (B), and (C) of paragraph (2), except in
line 39 circumstances where a panelist has a conflict of interest or a
line 40 scheduling conflict.
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line 1 (7) Except as specifically provided in this section, the panel
line 2 shall consider appeals pursuant to the administrative adjudication
line 3 provisions of the Administrative Procedure Act (Chapter 4.5
line 4 (commencing with Section 11400) and Chapter 5 (commencing
line 5 with Section 11500) of Part 1 of Division 3 of Title 2).
line 6 (8) The department may adopt regulations to implement this
line 7 section. The initial adoption of a regulation authorized by this
line 8 section is deemed to address an emergency, for purposes of
line 9 Sections 11346.1 and 11349.6, and the department is hereby
line 10 exempted for that purpose from the requirements of subdivision
line 11 (b) of Section 11346.1. The initial adoption of regulations shall
line 12 be valid for a period not to exceed two years. After the initial
line 13 adoption of an emergency regulation pursuant to this section, the
line 14 department may request approval from the Office of Administrative
line 15 Law to amend the regulation as an emergency regulation pursuant
line 16 to Section 11346.1.
line 17 (b) An applicant who proposes a housing development project
line 18 identified in subdivision (d) of Section 65589.5 and whose
line 19 application is subject to a decision by a local agency that the
line 20 applicant alleges violates Section 65589.5 may appeal the decision
line 21 of the local agency to a panel of the committee. The appeal shall
line 22 be limited to the issue of whether the local agency acted in violation
line 23 of Section 65589.5.
line 24 (c) (1) An applicant shall file an appeal to the committee within
line 25 30 days after the date of the decision by the local agency. The
line 26 committee shall notify the local agency of the filing of an appeal
line 27 within 10 days, and the local agency shall, within 10 days of the
line 28 receipt of that notice, transmit a copy of its decision and its
line 29 reasoning for that decision to the committee, and notify the
line 30 committee if it will contest the appeal. If the local agency does not
line 31 transmit a copy of its decision and reasoning within 10 days, the
line 32 committee shall vacate the decision of the local agency and direct
line 33 the local agency to issue any necessary approval for the
line 34 development to the applicant within 30 days of the committee’s
line 35 decision to vacate. If the local agency transmits a copy of its
line 36 decision and reasoning within 10 days, the committee shall
line 37 schedule an appeal hearing within 30 days. The hearing shall take
line 38 place no more than 60 days after the local agency receives the
line 39 initial notice, unless all parties to the hearing agree to a later date.
line 40 (3) At its next meeting following the hearing, the committee
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line 1 (2) Following the appeal hearing, the panel shall render a
line 2 written decision, based upon a majority vote, stating its findings
line 3 of fact, its conclusions, and the support for them. If the committee
line 4 vote of the panel. If the panel finds that the local agency
line 5 disapproved the a housing development identified in subdivision
line 6 (d) of Section 65598.5 in violation of Section 65589.5, it shall
line 7 vacate the decision and shall direct the local agency to issue any
line 8 necessary approval or permit for the development to the applicant
line 9 within 30 days of the committee’s panel’s decision. If the
line 10 committee panel finds that the local agency conditioned its
line 11 approval in a manner rendering the development infeasible for the
line 12 development of housing for very low, low-, or moderate-income
line 13 households in violation of that violates Section 65589.5, it the
line 14 panel shall identify the conditions or requirements that violate
line 15 subdivision (d) of Section 65589.5 in its decision and shall order
line 16 the local agency to modify or remove any such condition or
line 17 requirement so as to make the development no longer infeasible
line 18 conditions or requirements within 30 days and to issue any
line 19 necessary permit or approval.
line 20 (e)
line 21 (d) In any appeal before the committee, the applicant shall have
line 22 the initial burden of proof to show that it has met the requirements
line 23 of subdivision (c). In a case of approval with conditions or
line 24 requirements imposed, the applicant shall also have the burden of
line 25 proof to show that the conditions and requirements render the
line 26 provision of housing economically infeasible. If the applicant
line 27 meets the initial burden of proof, then the local agency shall have
line 28 the burden of proof to show that its action was consistent with
line 29 Section 65589.5. burdens of proof and standards of review shall
line 30 be those established in Section 65589.5.
line 31 (f)
line 32 (e) The city or county local agency shall carry out the order of
line 33 the committee within 30 days of its entry, and upon failure to do
line 34 so, the order of the committee shall for all purposes be deemed to
line 35 be the action of the local agency, unless the applicant consents to
line 36 a different decision or order by the local agency. The applicant
line 37 may enforce the orders of the committee in court. The applicant
line 38 shall be entitled to attorney’s fees and costs if the applicant prevails
line 39 in an enforcement action, and the court may impose fines on the
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AB 989 — 9 — B-9
line 1 city or county local agency consistent with subdivision (k) and (l)
line 2 of Section 65589.5.
line 3 (g)
line 4 (f) The department may charge a fee to the applicant that shall
line 5 not exceed the reasonable cost to the committee of providing the
line 6 hearing. If the committee orders approval of the proposed
line 7 development or modifies or removes any conditions or
line 8 requirements imposed upon the applicant, the city or county local
line 9 agency shall reimburse the applicant for the fee paid pursuant to
line 10 this subdivision.
line 11 (h)
line 12 (g) For the purposes of this section section, the following terms
line 13 have the following meanings:
line 14 (1) “Area median income” means area median income as
line 15 periodically established by the department pursuant to Section
line 16 50093 of the Health and Safety Code.
line 17 (2)
line 18 (1) “Committee” means the Housing Accountability Committee.
line 19 (3) “Housing development” means a development project
line 20 consisting of 10 or more residential dwelling units or an emergency
line 21 shelter facility.
line 22 (2) “Large jurisdiction” has the same meaning as in subdivision
line 23 (d) of Section 53559.1 of the Health and Safety Code.
line 24 (3) “Small jurisdiction” has the same meaning as in subdivision
line 25 (c) of Section 53559.1 of the Health and Safety Code.
line 26 (i)
line 27 (h) The remedies provided in this section are in addition to any
line 28 other remedy provided by law.
line 29 (j)
line 30 (i) The Legislature finds and declares that this section addresses
line 31 a matter of statewide concern rather than a municipal affair as that
line 32 term is used in Section 5 of Article XI of the California
line 33 Constitution. Therefore, this section applies to all cities, including
line 34 charter cities.
line 35 SEC. 3. No reimbursement is required by this act pursuant to
line 36 Section 6 of Article XIII B of the California Constitution because
line 37 a local agency or school district has the authority to levy service
line 38 charges, fees, or assessments sufficient to pay for the program or
line 39 level of service mandated by this act or because costs that may be
line 40 incurred by a local agency or school district will be incurred
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line 1 because this act creates a new crime or infraction, eliminates a
line 2 crime or infraction, or changes the penalty for a crime or infraction,
line 3 within the meaning of Section 17556 of the Government Code, or
line 4 changes the definition of a crime within the meaning of Section 6
line 5 of Article XIII B of the California Constitution.
line 6 SEC. 3. No reimbursement is required by this act pursuant to
line 7 Section 6 of Article XIII B of the California Constitution because
line 8 a local agency or school district has the authority to levy service
line 9 charges, fees, or assessments sufficient to pay for the program or
line 10 level of service mandated by this act, within the meaning of Section
line 11 17556 of the Government Code.
O
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