Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-704
of :
: September 14, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE BRUCE McPHERSON, MEMBER OF THE CALIFORNIA SENATE,
has requested an opinion on the following question:
May funds obtained as "in lieu" fees for park or recreational purposes as a condition of
approval of a subdivision map be used (1) to purchase a theatre where a variety of cultural activities,
including concerts, dance recitals, and art shows, would be exhibited, (2) to purchase land on which a theatre
would be constructed to exhibit a variety of cultural activities, or (3) to fund the construction of a theatre that
would exhibit a variety of cultural activities on land dedicated for park or recreational purposes?
CONCLUSION
Funds obtained as "in lieu" fees for park or recreational purposes as a condition of approval
of a subdivision map may be used (1) to purchase an existing theatre where a variety of cultural activities,
including concerts, dance recitals, and art shows, would be exhibited, (2) to purchase land on which a theatre
would be constructed to exhibit a variety of cultural activities, or (3) to fund the construction of a theatre that
would exhibit a variety of cultural activities on land dedicated for park or recreational purposes
ANALYSIS
The Subdivision Map Act (Gov. Code, §§ 66410-66499.37; "Act") Footnote No. 1 allows a
city or county to regulate land use when subdivisions are proposed for development. Obtaining approval of a
subdivision map is a typical step that a developer must take when subdividing property. In the course of
regulating the design and improvement of subdivisions, a city or county may impose conditions on the
issuance of a subdivision map. One authorized condition is the dedication of land or the payment of fees in
lieu thereof for park or recreational purposes made necessary by the subdivision. Section 66477 states:
"The legislative body of a city or county may, by ordinance, require the dedication of
land or impose a requirement of the payment of fees in lieu thereof, or a combination of both, for
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land or impose a requirement of the payment of fees in lieu thereof, or a combination of both, for
park or recreational purposes as a condition to the approval of a tentative map or parcel map,
provided that:
"(a) The ordinance has been in effect for a period of 30 days prior to the filing of the
tentative map of the subdivision or parcel map.
"(b) The ordinance includes definite standards for determining the proportion of a
subdivision to be dedicated and the amount of any fee to be paid in lieu thereof. The amount of
land dedicated or fees paid shall be based upon the residential density, which shall be determined
on the basis of the approved or conditionally approved tentative map or parcel map and the
average number of persons per household. . . .
"(c) The land, fees, or combination thereof are to be used only for the purpose of
developing new or rehabilitating existing neighborhood or community park or recreational
facilities to serve the subdivision.
"(d) The legislative body has adopted a general plan or specific plan containing
policies and standards for parks and recreation facilities, and the park and recreational facilities
are in accordance with definite principles and standards.
"(e) The amount and location of land to be dedicated or the fees to be paid shall bear
a reasonable relationship to the use of the park and recreational facilities by the future
inhabitants of the subdivision.
"(f) The city, county, or other local public agency to which the land or fees are
conveyed or paid shall develop a schedule specifying how, when, and where it will use the land
or fees, or both, to develop park or recreational facilities to serve the residents of the subdivision.
Any fees collected under the ordinance shall be committed within five years after the payment of
such fees or the issuance of building permits on one-half of the lots created by the subdivision,
whichever occurs later. If the fees are not committed, they, without any deductions, shall be
distributed and paid to the then record owners of the subdivision in the same proportion that the
size of their lot bears to the total area of all lots within the subdivision.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
A city proposes to use its "in lieu" funds paid under section 66477 to acquire a theatre where
a variety of cultural activities, including concerts, dance recitals, and art shows, would be exhibited. We are
asked whether the proposal would comply with the terms of section 66477, or alternatively whether the city
could use its funds to purchase land on which it would construct a theatre for cultural exhibits or to construct
a theatre for cultural exhibits on lands dedicated for parks or recreation. We conclude that all three proposals
would be permissible under the statute.
The ultimate issue to be addressed is whether a theatre used for cultural activities, such as
plays, dance recitals, concerts, and art shows, is properly considered a "recreational" facility. If it is, it may
be located on land dedicated for parks or recreation, and "in lieu" fees for park or recreation purposes may be
used to purchase, construct, or rehabilitate the theatre.
In analyzing this issue, we first note that section 66477 deals with dedications and fees for
park or recreation purposes. The fact that the statute is written in the disjunctive indicates that the
recreational component is not limited to activities associated with public parks.
The Legislature and the courts have recognized in a variety of contexts that "recreation"
encompasses cultural activities among others For example under the Community Recreation Act (Ed Code
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encompasses cultural activities, among others. For example, under the Community Recreation Act (Ed. Code,
§§ 10900-10914.5) counties, cities, schools, and special districts may organize, promote, and conduct
programs of community recreation. (Ed. Code, § 10905; 78 Ops.Cal.Atty.Gen. 181, 185-186 (1995); 4
Ops.Cal.Atty.Gen. 368 (1944).) "Recreation" is defined by the Legislature for purposes of this statutory
scheme as follows:
"'Recreation' means any activity, voluntarily engaged in, which contributes to the
physical, mental, or moral development of the individual or group participating therein, and
includes any activity in the fields of music, drama, art, handicraft, science, literature, nature
study, nature contacting, aquatic sports, and athletics, or any of them, and any informal play
incorporating any such activity." (Ed. Code, § 10901, subd. (c).)
Accordingly, the Legislature has recognized "any activity in the fields of music, drama, art, handicraft,
science, literature . . ." as constituting "recreation."
In Greek Theatre Assn. v. County of Los Angeles (1978) 76 Cal. App. 3d 768, 777-778, the
court noted that "a civic theatre presenting amateur performances of plays, musicals, light opera, and
operetta" presented an "educational and recreational benefit to the customers through viewing of the
performances." In Rhodes v. City of Palo Alto (1950) 100 Cal. App. 2d 336, 340, a city community theatre was
described as being "administered by the city recreation department," having been donated to the city to
"advance the interest of adult recreation activities."
We conclude that funds obtained as "in lieu" fees for park or recreational purposes as a
condition of approval of a subdivision map may be used (1) to purchase an existing theatre where a variety of
cultural activities, including concerts, dance recitals, and art shows, would be exhibited, (2) to purchase land
on which a theatre would be constructed to exhibit a variety of cultural activities, or (3) to fund the
construction of a theatre that would exhibit a variety of cultural activities on land dedicated for park or
recreational purposes.
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Footnote No. 1
All referenced hereafter to the Government Code are by section number only.
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