33334.12
. (a) (1) Upon failure of the agency to expend or encumber
excess surplus in the Low and Moderate Income Housing Fund within one
year from the date the moneys become excess surplus, as defined in
paragraph (1) of subdivision (g), the agency shall do either of the
following:
(A) Disburse voluntarily its excess surplus to the county housing
authority or to another public agency exercising housing development
powers within the territorial jurisdiction of the agency in
accordance with subdivision (b).
(B) Expend or encumber its excess surplus within two additional
years.
(2) If an agency, after three years has elapsed from the date that
the moneys become excess surplus, has not expended or encumbered its
excess surplus, the agency shall be subject to sanctions pursuant to
subdivision (e), until the agency has expended or encumbered its
excess surplus plus an additional amount, equal to 50 percent of the
amount of the excess surplus that remains at the end of the
three-year period. The additional expenditure shall not be from the
agency's Low and Moderate Income Housing Fund, but shall be used in a
manner that meets all requirements for expenditures from that fund.
(b) The housing authority or other public agency to which the
money is transferred shall utilize the moneys for the purposes of,
and subject to the same restrictions that are applicable to, the
redevelopment agency under this part, and for that purpose may
exercise all of the powers of a housing authority under Part 2
(commencing with Section 34200) to an extent not inconsistent with
these limitations.
(c) Notwithstanding Section 34209 or any other provision of law,
for the purpose of accepting a transfer of, and using, moneys
pursuant to this section, the housing authority of a county or other
public agency may exercise its powers within the territorial
jurisdiction of a city redevelopment agency located in that county.
(d) The amount of excess surplus that shall be transferred to the
housing authority or other public agency because of a failure of the
redevelopment agency to expend or encumber excess surplus within one
year shall be the amount of the excess surplus that is not so
expended or encumbered. The housing authority or other public agency
to which the moneys are transferred shall expend or encumber these
moneys for authorized purposes not later than three years after the
date these moneys were transferred from the Low and Moderate Income
Housing Fund.
(e) (1) Until a time when the agency has expended or encumbered
excess surplus moneys pursuant to subdivision (a), the agency shall
be prohibited from encumbering any funds or expending any moneys
derived from any source, except that the agency may encumber funds
and expend moneys to pay the following obligations, if any, that were
incurred by the agency prior to three years from the date the moneys
became excess surplus:
(A) Bonds, notes, interim certificates, debentures, or other
obligations issued by an agency, whether funded, refunded, assumed,
or otherwise, pursuant to Article 5 (commencing with Section 33640).
(B) Loans or moneys advanced to the agency, including, but not
limited to, loans from federal, state, or local agencies, or a
private entity.
(C) Contractual obligations which, if breached, could subject the
agency to damages or other liabilities or remedies.
(D) Obligations incurred pursuant to Section 33445.
(E) Indebtedness incurred pursuant to Section 33334.2 or 33334.6.
(F) Obligations incurred pursuant to Section 33401.
(G) An amount, to be expended for the operation and administration
of the agency, that may not exceed 75 percent of the amount spent
for those purposes in the preceding fiscal year.
(2) This subdivision shall not be construed to prohibit the
expenditure of excess surplus funds or other funds to meet the
requirement in paragraph (2) of subdivision (a) that the agency spend
or encumber excess surplus funds, plus an amount equal to 50 percent
of excess surplus, prior to spending or encumbering funds for any
other purpose.
(f) Nothing in this section shall be construed to limit any
authority a redevelopment agency may have under other provisions of
this part to contract with a housing authority for increasing or
improving the community's supply of low- and moderate-income housing.
(g) For purposes of this section:
(1) "Excess surplus" means any unexpended and unencumbered amount
in an agency's Low and Moderate Income Housing Fund that exceeds the
greater of one million dollars ($1,000,000) or the aggregate amount
deposited into the Low and Moderate Income Housing Fund pursuant to
Sections 33334.2 and 33334.6 during the agency's preceding four
fiscal years. The first fiscal year to be included in this
computation is the 1989-90 fiscal year, and the first date on which
an excess surplus may exist is July 1, 1994.
(2) Moneys shall be deemed encumbered if committed pursuant to a
legally enforceable contract or agreement for expenditure for
purposes specified in Section 33334.2 or 33334.3.
(3) (A) For purposes of determining whether an excess surplus
exists, it is the intent of the Legislature to give credit to
agencies which convey land for less than fair market value, on which
low- and moderate-income housing is built or is to be built if at
least 49 percent of the units developed on the land are available at
affordable housing cost to lower income households for at least the
time specified in subdivision (e) of Section 33334.3, and otherwise
comply with all of the provisions of this division applicable to
expenditures of moneys from a low- and moderate-income housing fund
established pursuant to Section 33334.3. Therefore, for the sole
purpose of determining the amount, if any, of an excess surplus, an
agency may make the following calculation: if an agency sells,
leases, or grants land acquired with moneys from the Low and Moderate
Income Housing Fund, established pursuant to Section 33334.3, for an
amount which is below fair market value, and if at least 49 percent
of the units constructed or rehabilitated on the land are affordable
to lower income households, as defined in Section 50079.5, the
difference between the fair market value of the land and the amount
the agency receives may be subtracted from the amount of moneys in an
agency's Low and Moderate Income Housing Fund.
(B) If taxes that are deposited in the Low and Moderate Income
Housing Fund are used as security for bonds or other indebtedness,
the proceeds of the bonds or other indebtedness, and income and
expenditures related to those proceeds, shall not be counted in
determining whether an excess surplus exists. The unspent portion of
the proceeds of bonds or other indebtedness, and income related
thereto, shall be excluded from the calculation of the unexpended and
unencumbered amount in the Low and Moderate Income Housing Fund when
determining whether an excess surplus exists.
(C) Nothing in this subdivision shall be construed to restrict the
authority of an agency provided in any other provision of this part
to expend funds from the Low and Moderate Income Housing Fund.
(D) The department shall develop and periodically revise the
methodology to be used in the calculation of excess surplus as
required by this section. The director shall appoint an advisory
committee to advise in the development of this methodology. The
advisory committee shall include department staff, affordable housing
advocates, and representatives of the California Redevelopment
Association, the California Society of Certified Public Accountants,
the Controller, and any other authorities or persons interested in
the field that the director deems necessary and appropriate.
(h) Communities in which an agency has disbursed excess surplus
funds pursuant to this section shall not disapprove a low- or
moderate-income housing project funded in whole or in part by the
excess surplus funds if the project is consistent with applicable
building codes and the land use designation specified in any element
of the general plan as it existed on the date the application was
deemed complete. A local agency may require compliance with local
development standards and policies appropriate to and consistent with
meeting the quantified objectives relative to the development of
housing, as required in housing elements of the community pursuant to
subdivision (b) of Section 65583 of the Government Code.
(i) Notwithstanding subdivision (a), any agency that has funds
that become excess surplus on July 1, 1994, shall have, pursuant to
subdivision (a), until January 1, 1995, to decide to transfer the
funds to a housing authority or other public agency, or until January
1, 1997, to expend or encumber those funds, or face sanctions
pursuant to subdivision (e).