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The Mello-Roos Community Facilities Act of 1982 provides a versatile
method of financing public facilities, infrastructure, and services
associated with new development. It is more flexible than either
assessment district or general obligation bond financing, and can
finance a wider range of facilities and services at interest rates
that are typically 3 to 4% below conventional financing rates.
Use of Mello-Roos is expected to continue its rapid growth in
the post-Proposition 13 era. After a slow start in 1983 (with a
single bond issue of $8 million), Mello-Roos financings mushroomed
to 58 issues in 1989, totaling over $750 million. Almost one-third
of these were for school facilities.
Ironically, in the first years after passage of the Mello-Roos
Act, many developers viewed it suspiciously as simply another vehicle
by which public agencies could impose additional burdens on their
projects. More recently, however, developers have begun to regard
Mello-Roos as an important tool in the development process; one
that can often mean the difference between the success and failure
of a project.
What is a Mello-Roos District?
A Mello-Roos District, or “Community facilities district,”
is a financing district formed under the Mello-Roos Community Facilities
District Act of 1982 (the “Act”). The Act is found at
Government Code section 5311, et seq. It provides designated local
agencies (including cities, counties, school districts, and all
other municipal corporations and districts) with authority to form
Mello-Roos District to finance a broad array of public facilities
and services through imposition of special taxes approved by a two-thirds
vote of the qualified electorate of the District. The vote is either
by registered voters or, if there are fewer than twelve registered
voters within the proposed District, by landowners. The facilities
or services may be funded either through bonded indebtedness secured
by the special taxes or directly from the special tax proceeds on
a “pay-as-you-go” basis.
What facilities can be financed by Mello-Roos?
A Mello-Roos District may finance the purchase, construction,
improvement, expansion or rehabilitation of any real or tangible
property with an estimated useful life of 5 or more years. The District
may also finance the planning and design work associated with the
authorized facilities.
Authorized facilities include, but are not limited to:
1. Park, recreation, parkway, and open-space facilities
2. School sites and buildings
3. Libraries
4. Child care facilities
5. Natural gas pipeline facilities, telephone, electrical, and cable
TV facilities
6. Any other governmental facilities to which the legislative body
creating the Mello-Roos District is authorized to contribute revenue,
construct, own, or operate.
What services can be financed by Mello-Roos?
A Mello-Roos District may finance one or more of the following
services:
1. Police protection services, including the provision of services
for jails, detention facilities, and **juvenile halls
2. Fire protection and suppression services
3. Ambulance and paramedic services
4. Flood and storm protection services, including the operation
and maintenance of storm drainage systems
5. Removal or remedial action for the cleanup of any hazardous substance
related or threatened to be released into the environment.
How is the special tax apportioned?
Mello-Roos taxes have been called “designer taxes”
in recognition of the great flexibility accorded the legislative
body in apportioning the tax. The tax may be apportioned in any
manner that is fair and reasonable, except ad valoreim, i.e., based
upon the value of the property. The tax imposed under the Mello-Roos
Act is a special tax and not a special assessment, and therefore
need not be apportioned on the basis of benefit to any property.
On the other hand, there is no prohibition against a benefit-based
tax. Possible bases for apportionment of special taxes include:
1. Unit of Property (e.g., per acre, per lot, per dwelling unit,
or per square foot)
2. Consumption of Usage (e.g., estimated gallons of water used,
gallons of wastewater treated, vehicle trip generation, etc.); and
3. Equivalent Dwelling Unit (a formula based upon the level of benefit
enjoyed by a standard dwelling unit and adjusted upward or downward
for other types of property according to benefit received).
What changes can be made to a Mello-Roos District after
its formation?
After establishment of the District and approval of the special
tax, new facilities or services may be added, or the maximum special
tax may be increased or decreased. Any of these changes, however,
requires procedures almost as involved as those for formation of
the District, including adoption of an initial resolution (the “resolution
of consideration”), notice to landowners or residents, a public
hearing and a 50% protest procedure, a vote by the legislative body
to put the issue on the ballot, and an election with two-thirds
voter approval requirement for the changes.
Territory may also be annexed to an existing District after formation.
It need not be contiguous to land within the District. The procedures
for annexation are similar to those for other changes, including
adoption of a resolution of intention to annex, a public hearing
at which a majority either within the existing District or the territory
slated for annexation can protest and nullify the annexation, and
a two-thirds vote requirement. The vote, however, is only by the
qualified electors of the area proposed to be annexed, not those
of the existing District.
How is the special tax levied and collected?
The tax rate specified in the resolution of formation and submitted
to the voters is the maximum tax that may be levied by the district.
The special tax actually levied is almost always lower than the
maximum rate, and is determined by the legislative body each year
as necessary to meet the debt service requirements on any outstanding
bonds and other obligations of the District for the forthcoming
year.
Once levied, the special tax is collected twice a year in the
same manner as other property taxes. Properties of the state, federal,
or other local governments are exempt from the special tax. The
special tax is subject to the same penalties, foreclosure procedures,
and sale and lien priorities in the event of delinquency as ad valorem
taxes.
What disclosures are required concerning the special tax?
Within 15 days after voter approval of the special tax levy, the
District must record a notice of special tax lien with the County
Recorder, including the rate and method of tax apportionment. From
the date of recordation, all persons are deemed to have notice of
the tax lien. The notice imposes a lien on all non-exempt property
within the District; the lien continues in force until the special
tax obligation is paid off or the special tax ceases to be levied.
The act also prescribes specific requirements for disclosure of
Mello-Roos taxes. These apply to the sale or lease for a term exceeding
five years of any lot, parcel, or unit of a subdivision for which
a public report from the California Department of Real Estate is
not required. The prospective purchaser or lessee must be furnished
with, and must sign, a written notice containing all of the following
information:
1. A heading entitled “NOTICE OF SPECIAL TAX” in at
least 8-point type
2. A statement that the property is or will be subject to a special
tax
3. The maximum annual amount of the special tax and the number of
years for which it will be levied; and
4. The types of facilities or services to be paid for with the tax.
Failure to give the required notice, or to obtain the buyer or
lessee’s acknowledgment of the notice, does not invalidate
the sale or lease or impair the tax lien. However, willful violation
of the notice requirements subjects the seller to liability to the
purchaser for actual damages and attorneys; fees, as well as to
a fine of up to $500.
Courtesy of First American Title
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