California Senate Bill SB791 Amended / Bill

 BILL NUMBER: SB 791AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 25, 2011 INTRODUCED BY Senator Steinberg FEBRUARY 18, 2011  An act to amend Section 14536 of the Government Code, relating to transportation.   An act to add Chapter 2 (commencing with Section 55830) to Part 3 of Division 2 of Title 5 of the Government Code, relating to transportatio   n.  LEGISLATIVE COUNSEL'S DIGEST SB 791, as amended, Steinberg.  California Transportation Commission: annual report.   Regional congestion reduction charge.   Existing law provides various funding sources for transportation programs and capital improvement projects. Existing law provides for designation of transportation planning agencies throughout the state with various transportation planning and programming responsibilities, including preparation of a regional transportation plan. Certain of these agencies are also designated as metropolitan planning organizations under federal law.   This bill would authorize a metropolitan planning organization, subject to majority voter approval, to impose, for up to 30 years, a regional transportation congestion reduction charge on purchasers of motor vehicle fuel in all or part of its jurisdiction, which would be collected by the fuel retailer or wholesaler and transmitted to the State Board of Equalization. The bill would define motor vehicle fuel for these purposes to include gasoline and diesel. A corresponding vehicle registration charge would be imposed on electric vehicles licensed to be driven on public roads, which would be collected by the Department of Motor Vehicles. Prior to adopting a regional congestion reduction charge, the metropolitan planning organization would be required to make certain determinations, including that the transportation demand reduction projects funded by the charge would directly and specifically benefit motorists within the region by reducing vehicle congestion so as to increase overall mobility for motorists who are paying the charge. The bill would impose various other requirements.   The bill would provide for revenues from the regional transportation congestion reduction charge to be transferred by the State Board of Equalization or the Department of Motor Vehicles, as applicable, to the appropriate metropolitan planning organization. The bill would authorize use of the revenues for certain transportation projects and programs that have been identified in the regional transportation plan, as specified. The bill would require the board of supervisors in a county in the jurisdiction of the metropolitan planning organization where the charge is to be imposed, upon request of the organization, to submit the proposed charge to the voters, and would require the organization to reimburse the associated election costs. In certain counties, the charge would be imposed by a county transportation commission rather than the metropolitan planning organization.   Existing law requires the California Transportation Commission to adopt an annual report for submission to the Legislature containing, among other things, a summary of the commission's prior-year decisions in allocating transportation capital outlay funds and an identification of timely and relevant transportation issues facing the state. Existing law, for the reports to be submitted between 2001 and 2008, requires a summary and discussion of certain loans and transfers of transportation revenues and the cashflow and project delivery impact of those loans and transfers.   This bill would delete the provisions relating to the loan and transfer summary and discussion that was to be included in the reports submitted between 2001 and 2008.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   The Legislature finds and declares all of the following:   (a) Section 65080 of the Government Code requires each transportation planning agency designated under Section 29532 or 29532.1 of that code to prepare and adopt a regional transportation plan directed at achieving a coordinated and balanced regional transportation system, including, but not limited to, mass transportation, highway, railroad, maritime, bicycle, pedestrian, goods movement, and aviation facilities and services.   (b) Federal law also requires metropolitan planning organizations to prepare regional transportation plans that consider the need to relieve congestion and to prevent congestion from occurring and to consider congestion management strategies or actions that improve the mobility of people and goods (23 C.F.R. 450.316).   (c) Achieving increased mobility within California's metropolitan regions is essential for their economic growth and environmental quality. Free movement of vehicles, goods, and services within a region is a key goal of the regional transportation plan.   (d) In attempting to achieve a coordinated and balanced regional transportation system that will achieve the greatest mobility for individuals and businesses within the region, the transportation planning agency must consider projects, taking into account land use and other effects, including induced demand and induced growth, that reduce vehicle congestion by increasing roadway and freeway capacity, as well as projects that reduce vehicle congestion by decreasing demand for roadway and freeway use.   (e) In many of California's urbanized areas, it is not practical to increase roadway or freeway capacity because of land or environmental constraints. In other parts of the state, the benefits of increased roadway and freeway capacity can be short lived because often land use changes occur that result in additional driving that absorbs the new capacity. In those areas, projects to reduce demand for roadway and freeway use, by providing alternate means of transportation, may be the most practical way to achieve reduced vehicle congestion.   (f) At the November 2, 2010, statewide general election, the voters of California approved Proposition 26, which amended Section 3 of Article XIII A and Section 1 of Article XIII C of the California Constitution. Section 3 of Article XIII A of the California Constitution requires a two-thirds vote of the Legislature for any change in a state statute that results in any taxpayer paying a higher tax. Exceptions to the definition of "tax" were also adopted. Section 1 of Article XIII C of the California Constitution adopts new definitions, including a new definition of "special tax." Exceptions to the definition of "special tax" were also adopted.   (g) An exception both to the definition of "tax" in Section 3 of Article XIII A of the California Constitution, and to the definition of "special tax" in Section 1 of Article XIII C of the California Constitution, is 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 or local government of conferring the benefit or granting the privilege.   (h) Proposition 26 also imposes a requirement on any charge enacted without a two-thirds vote that the 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 are allocated to a payor bear a fair or reasonable relationship to the payor's burdens on, or benefits received from, the governmental activity" (subdivision (d) of Section 3 of Article XIII A of the California Constitution; Section 1 of Article XIII C of the California Constitution).   (i) The requirements that the amount is not 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 burden on or benefits received from the governmental activity restate language from the Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, line of cases (see also California Farm Bureau v. State Water Resources Control Board (2011) 51 Cal.4th 421, 437-439).   (j) Under this standard, a regulatory fee does not become a tax simply because the fee may be disproportionate to the service rendered to individual payors. The question of proportionality is not measured on an individual basis. Rather, it is measured collectively, considering all rate payors (California Assn. of Professional Scientists v. Department of Fish & Game (2000) 79 Cal.App.4th 935, 948). Thus, permissible fees must be related to the overall cost of the government regulation. They need not be finely calibrated to the precise benefit each individual fee payor might derive (California Farm Bureau v. State Water Resources Control Board, supra, at p. 438).   (k) Freeway and roadway users receive a specific benefit from programs and projects that reduce vehicle congestion within a region and, therefore, it is appropriate for transportation planning agencies that are federally designated metropolitan planning organizations to impose regional charges on such freeway and roadway users that do not exceed the reasonable cost of reducing vehicle congestion. Congestion reduction is a specific benefit provided to the users of freeways and roadways that is particular and distinct to those users over and above general benefits provided to the public at large. The Legislature also finds that regional vehicle charges are an appropriate method to charge freeway and roadway users for receiving the specific benefit of reduced congestion, and that individuals and businesses that do not pay regional vehicle charges will not receive the specific benefit of reduced vehicle congestion.   (l) Freeway and roadway users also receive a specific benefit from funding for maintenance and repair of those facilities, a specific benefit to those users that is not enjoyed by the general public.   SEC. 2.   Chapter 2 (commencing with Section 55830) is added to Part 3 of Division 2 of Title 5 of the   Government Code   , to read:   CHAPTER 2. REGIONAL CONGESTION REDUCTION CHARGE 55830. (a) Subject to the approval of the voters pursuant to subdivision (f), a metropolitan planning organization designated pursuant to Section 134 of Title 23 of the United States Code may impose a regional congestion reduction charge in all or part of its jurisdiction pursuant to this section. The charge shall become operative on the first day of the first calendar quarter commencing more than 90 days after voter approval. (b) A regional congestion reduction charge imposed pursuant to this chapter must satisfy all of the following: (1) (A) The transportation projects and programs funded by the charge would directly and specifically benefit motorists within the region by reducing vehicle congestion and by providing capital improvements for maintenance, safety, and rehabilitation so as to increase overall mobility for motorists within the region who are paying the charge. (B) The metropolitan planning organization shall consider both increased ridership on transit services as well as changes in land use patterns during the planning horizon of the regional transportation plan in determining the congestion relief that would result from the transportation demand reduction projects. (C) The metropolitan planning organization shall use travel demand models consistent with Section 14522.1 and guidelines adopted by the California Transportation Commission for transportation demand models in making this determination. (D) For purposes of this subdivision, "vehicle congestion" means peak period travel speeds on regional freeways, thoroughfares, major and minor arterials, and major connectors that are less than 60 percent of the free flow speeds. (2) The specific benefits of reduced vehicle congestion are not provided to those not charged. (3) The amount of the charge does not exceed the reasonable costs of providing the congestion reduction benefits identified in the regional transportation plan. (4) The manner in which the charge is allocated to a payor bears a fair or reasonable relationship to the payor's congestion relief benefit on regional freeways, thoroughfares, major and minor arterials, and major connectors. (5) The metropolitan planning organization shall adopt any additional findings necessary to establish that the charge satisfies the requirements of paragraph (1) of subdivision (e) of Section 1 of Article XIII C of the California Constitution. (c) The charge shall be in addition to any other levies that the metropolitan planning organization is authorized to impose. (1) The charge may be implemented for a period not to exceed 30 years on all purchasers of motor vehicle fuels sold in all or part of the jurisdiction of the metropolitan planning organization. The rate of the charge shall be established by the metropolitan planning organization on a per gallon basis. (2) With respect to electric vehicles that are licensed to be driven on public roads and that do not utilize motor vehicle fuel, the charge may be imposed on the vehicle registration for vehicles with a registration address in that part of the region where the charge on motor vehicle fuel is imposed. The charge shall be for the same period of time as the charge on motor vehicle fuel. The surcharge shall be collected by the Department of Motor Vehicles and, after deducting the department's administrative costs, the net revenues shall be transferred quarterly to the metropolitan planning organization. (3) As used in this section, motor vehicle fuel includes, but is not limited to, gasoline and diesel fuel, which shall have the same meanings set forth in Sections 7316 and 60022, respectively, of the Revenue and Taxation Code. (d) (1) Revenues from the charge may be expended for (A) transit capital, operations, and maintenance costs, (B) bicycle and pedestrian programs and projects, (C) programs and projects that would demonstrably reduce the region's rate of growth from 2005 levels in vehicle miles traveled by single-occupant vehicles, (D) conversion of high-occupancy vehicle lanes to high occupancy toll lanes or other variably tolled express lanes, (E) capital improvements relative to maintenance, safety, and rehabilitation of state highways and bridges as described in subdivision (a) of Section 14526.5 and equivalent projects on local streets and roads, and (F) related administrative costs. A metropolitan planning organization that includes a regional congestion reduction charge in its regional transportation plan shall identify the programs and projects that would be funded by the charge in the financial element of the regional transportation plan. The financial element shall also identify the eligible transit operators and other recipients and the amount of funds that would be needed from all sources, including the regional congestion reduction charge, for each year of the programs through the planning horizon of the regional transportation plan. (2) A charge authorized by this section shall provide sufficient funding, together with other funding sources realistically projected to be available, to complete each project or program, or to operate and maintain each program for the duration of the project or program as identified in the regional transportation plan. (e) (1) Following the adoption by the metropolitan planning organization of a regional transportation plan, or an amendment to a regional transportation plan, that provides for a charge pursuant to this section, the board of supervisors of each county and city and county in the jurisdiction of the metropolitan planning organization where the charge is to be imposed shall, upon the request of the metropolitan planning organization, submit to the voters at a local election consolidated with a statewide primary or general election specified by the metropolitan planning organization, a measure, adopted by the organization, authorizing the organization to impose the charge within all or part of the region consistent with subdivision (c). (2) The metropolitan planning organization shall reimburse each county or city and county in the affected part of the region for the cost of submitting the measure to the voters. These costs shall be reimbursed from revenues derived from the charge if the measure is approved by the voters or, if the measure is not approved, from any funds of the metropolitan planning organization that may be lawfully used for that purpose. (f) (1) Upon approval of the measure by a majority of the voters voting at an election within the region or the affected part of the region where the charge is to be imposed, the metropolitan planning organization may impose the charge. The charge shall be imposed on the purchaser of motor vehicle fuel at the point of retail or wholesale sale in each county or city and county within the region where the charge is imposed, and shall be collected from the purchaser by the retailer or wholesaler and transmitted to the State Board of Equalization. The measure shall provide for refund, by the board, of charges paid for motor vehicle fuel that is not used in a vehicle on public roads. (2) The motor vehicle fuel charge required to be collected by the retailer or wholesaler, and any amount unreturned to the customer which is not the charge but was collected from the customer under the representation that it was the charge, constitute debts owed by the retailer or the wholesaler to the state. (3) The motor vehicle fuel charges imposed by this section are due and payable quarterly on or before the last day of the month next succeeding each calendar quarter. The payment shall be accompanied by a return in the form prescribed by the State Board of Equalization. (g) (1) The metropolitan planning organization shall contract with the State Board of Equalization for the administration of the motor vehicle fuel charge imposed under this section, and the board shall be reimbursed for its actual cost in the administration of the charge, including administration of refunds, and for its actual cost of preparation to administer the charge based upon an independent audit. (2) The State Board of Equalization shall collect the motor vehicle fuel charges pursuant to the Fee Collection Procedures Law (Part 30 (commencing with Section 55001) of Division 2 of the Revenue and Taxation Code). (3) After deducting its cost of administering the motor vehicle fuel charge, the State Board of Equalization shall periodically transmit the net revenues, less refunds, to the metropolitan planning organization as promptly as possible. Transmittal of those revenues shall be made at least twice in each calendar quarter. (h) The net revenues of the motor vehicle fuel and electric vehicle registration charge shall be deposited into a Regional Congestion Reduction Fund, to be created and administered by the metropolitan planning organization, and shall be expended in accordance with this section. (i) (1) In an area where a charge has been approved by the voters, the metropolitan planning organization shall appoint an independent taxpayers' oversight committee to audit and oversee the programs and projects funded by the charge to ensure that expenditures are consistent with this chapter and with the measure submitted to the voters. (2) The committee shall be comprised of three persons, each of whom shall be a retired federal or state judge. Committee members shall be selected in a public meeting by the board of the metropolitan planning organization. No person currently serving as an elected or appointed city, county, special district, state, or federal public officeholder shall be eligible to serve as a member of the committee. The committee shall select no fewer than six taxpayers representing a fair cross section of the public to serve on an advisory committee. (j) (1) The metropolitan planning organization may issue bonds backed solely by revenues from the charge authorized by this section. Revenues from the charge may be pledged for payment of debt service on those bonds. (2) For purposes of this section, "bonds" means indebtedness and securities of any kind or class, including bonds, notes, bond anticipation notes, and commercial paper. (3) The metropolitan planning organization may issue bonds payable from the revenues from the charge authorized by this section at any time or from time to time. The bonds may be secured by a pledge of those revenues. The metropolitan planning organization may issue bonds to refund, purchase, or otherwise acquire bonds on terms and conditions as it shall approve. (4) The bonds may be sold at public or private sale in the forms and on such terms and conditions as the metropolitan planning organization shall approve. The metropolitan planning organization may pledge all or any part of the revenues from the charge to secure any repayment or reimbursement obligations of the metropolitan planning organization to any provider of insurance or a guarantee of liquidity or credit facility entered into to provide for the payment of the bonds. The metropolitan planning organization may employ and compensate bond counsel, financial consultants, and other advisers determined necessary by it in connection with the issuance and sale of the bonds. (5) Bonds issued under this chapter shall not be a debt or liability of any political subdivision of this state, or a pledge of the full faith and credit of the state or of any political subdivision, but shall be payable solely from the funds provided in this chapter. (6) Bonds issued by the metropolitan planning organization are legal investments for all trust funds, the funds of all insurance companies, banks, trust companies, executors, administrators, trustees, and other fiduciaries. The bonds are securities that may legally be deposited with, and received by, any state or municipal officer or agency or political subdivision of the state for any purpose for which the deposit of bonds or obligations of the state is now, or may hereafter be, authorized by law, including deposits to secure public funds. (7) Interest earned on any bonds issued under this chapter shall at all times be free from state personal income tax and corporate income tax. (8) The state hereby pledges to and agrees with the holders of bonds issued by the metropolitan planning organization that the state will not limit, alter, or restrict the rights hereby vested in the metropolitan planning organization to fulfill each pledge of revenues and any other terms of any agreement made with or for the benefit of the holders of bonds or in any way impair the rights or remedies of the holders of bonds. (k) Notwithstanding any other provision of this section, in the region served by the multicounty transportation planning agency described in Section 130004 of the Public Utilities Code, a county transportation commission may impose the charge within the county of its jurisdiction if approved by a majority of the voters in that county. The requirements of subdivision (b) shall apply to the county within the region specified in this subdivision. In this case, the county transportation commission, rather than the metropolitan planning organization, shall exercise all of the powers under this section relative to imposition of the charge. (l) (1) The requirement for voter approval pursuant to subdivision (f) is a requirement for a charge imposed specifically pursuant to this section and is not a requirement of the California Constitution. (2) The provisions of this chapter shall not limit the rights of local governments to impose any fee or charge otherwise permitted under the California Constitution.   SECTION 1.   Section 14536 of the Government Code is amended to read: 14536. (a) The annual report shall include an explanation and summary of major policies and decisions adopted by the commission during the previously completed state and federal fiscal year, with an explanation of any changes in policy associated with the performance of its duties and responsibilities over the past year. (b) The annual report may also include a discussion of any significant upcoming transportation issues anticipated to be of concern to the public and the Legislature.