Attachment #5
Request for Legislative Counsel Opinion
We are considering a legislative proposal that
could finance transportation services, like a public utility. The methodology requires setting rates that
could be paid for in the same manner that people pay for gasoline and other fuels,
such as diesel, to be added on to the price of the fuel at the pump. Alternatively, the fees could be collected as
part of vehicle registration based upon miles traveled measured by the odometer
reading as part of smog check or a computer chip in new cars. The rates would be determined and funds would
be allocated as follows:
1. The
State Transportation Commission or some other administrative body at the state
level would determine the needs to maintain the physical condition and the
functional condition of state level facilities, generally maintenance and
repair of existing freeways and state highways and the construction of new
roadways to meet inter-city travel needs.
They would make findings, after noticed hearings,
to establish the required level of the rate, which could be increased or
decreased annually, based upon the findings of the needs. It would work like a user fee and the people
would be paying it to the extent to which they purchased motor vehicle fuels or
drove miles.
If gasoline useage is the measure, the disparity
of fees collected between cars, which use less fuel per mile or get more miles
to the gallon as compared to larger vehicles, and trucks could be justified in
that these smaller vehicles take up less space on the roadway, pollute less and
do less damage to the roadways, thus contributing less to the maintenance costs
of the roadways.
2. In
addition to the above component which would be set uniformly throughout the
state, regional transportation agencies or some other administrative body at
the metropolitan level would establish the need for maintenance and function of
local streets and roads. In addition to
the maintenance needs, where areas are congested, additional state or local
roadways could be added.
3. A
secondary use both statewide and regionally would be authorized where the
agency finds that it is not feasible to expand the roadway capacity. Where
congestion is significantly high, the cost of adding additional lanes to a
facility or to a street are prohibitive because of the buildings that would have
to be displaced, or other problems. In
those instances, an agency could find that instead the user fee or rate funds
could be applied to develop an alternative to road usage that reduced the
congestion, thus improving the flow of traffic and the useability of the
roadway for those who chose to remain on it.
These types of funds could be used to support transit that directly
reduces congestion and for ridesharing, telecommuting or other programs that
reduce traffic congestion and improve the overall functional utility of the
roadways.
4. The
regional agencies would also take into account the needs for local streets and
roads which are based upon need information submitted by individual cities and
counties. These needs would be added together in establishing an overall
regional rate which would be added to the state rate. Rates would vary by
region but not by individual city and county.
Attachment #5
The reason for not setting the rates by
individual cities, for local streets, and roads is that it is assumed that all
motorists travel extensively outside of their own individual cities and would
use other cities' roads.
This concept for financing transportation raises
a number of legal questions.
1. For
purposes of Proposition 13, Proposition 62, Article XIX and other potential
limitations on taxes and fees, is this properly considered a user fee and not a
tax?
2.
Assuming that it is a user fee and is subject to Proposition 218 plus
all of the nexus and findings case law, such as the Nolan case, and assuming
that all of the necessary findings as to the relationship between the amount of
the user fee and the purpose for which it can be used are met, are all of the
proposed uses of these fees or rates proper?
A. State
fee for inter-city roads repair and maintenance.
B.
Statewide fee for all maintenance and repair of freeways and state
highways.
C. State
fee for construction of additional inter-city roadways.
D.
Metropolitan-area roadway maintenance.
E.
Metropolitan-area roadway expansion.
F. Metropolitan-area
transit that directly reduces congestion.
G.
Metropolitan fee for ridesharing to reduce congestion.
H.
Metropolitan fee for telecommuting to reduce congestion.
I. Local streets and roads as part of a
regional fee.
J. Local
streets and roads with findings made by local government and varying the fee
by individual city.
3. Are
there other legal hurdles that stand in the way of this concept assuming that
it is authorized by legislation and implemented as set forth in this memorandum?
