Arrowhead Woods Domestic Water Uers v. Lake Arrowhead

Community Serv. Dist.

Filed 6/13/06 Arrowhead Woods Domestic Water Uers v. Lake Arrowhead

Community Serv. Dist. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Marjorie M. Mikels for Plaintiffs and Appellants.

Best Best & Krieger, Jeffrey V. Dunn, Jeffry F. Ferre, John H. Holloway and Marc S. Ehrlich for Defendant and Respondent.

Arrowhead Woods Domestic Water Users and Taxpayers et al., plaintiffs and appellants (hereafter plaintiffs), filed a petition for writ of mandate under Code of Civil Procedure section 1085 seeking judicial review of ordinance No. 61, adopted by defendant and respondent Lake Arrowhead Community Services District (hereafter the district), and pursuant to which the district imposed a supplemental water supply fee on all district customers. Plaintiffs alleged that the district had not followed the proper procedure because (1) it adopted the ordinance based on the affirmative vote of three of the five board members when Health and Safety Code section 5471 requires the affirmative vote of two-thirds of the board members, and (2) the district gave only 44 days' notice of the hearing at which the board adopted the ordinance, rather than the statutorily required 45 days' notice.

The trial court denied the writ petition. In doing so, the court found that Health and Safety Code section 5471 is not applicable; Government Code section 61621 is the pertinent statute.^[1] The trial court also found that the board gave the required 45 days' notice of the hearing at which the ordinance was adopted. Plaintiffs appeal from that order.

Plaintiffs contend in this appeal, as they alleged in their writ petition, that Health and Safety Code section 5471 applies, and therefore an affirmative vote of two-thirds of the board members was required to adopt ordinance No. 61, and that the notice of the hearing at which ordinance No. 61 was adopted was mailed only 44 days, rather than the required 45 days, before the hearing. Plaintiffs also claim that ordinance No. 61 is subject to the majority protest provisions of California Constitution article XIII D, section 4, subdivision (e), and that the district did not meet its burden under article XIII D, section 4, subdivision (f) of the California Constitution to show that the supplemental water supply fee was proportional to the benefits conferred.^[2]

For reasons we explain below, we conclude the trial court properly denied plaintiffs' writ petition. Therefore we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent factual and procedural details are not in dispute. At a public hearing on August 7, 2004, the district, by a majority vote of its board members, adopted ordinance No. 61, which imposes a supplemental water fee on all district customers. The purpose of the fee is to generate revenue to be used to implement projects for the acquisition and development of supplemental water supplies in order to reduce and eventually eliminate the district's reliance on Lake Arrowhead as the district's sole source of water.

On September 7, 2004, plaintiffs filed a petition for writ of mandate in which they alleged ordinance No. 61 was invalid for two reasons: (1) only a majority of the board members, rather than the two-thirds required under Health and Safety Code section 5471, voted in favor of the ordinance; and (2) the district mailed notice of the August 7, 2004, hearing on June 24, 2004, and therefore did not give 45 days' notice of that hearing as required under article XIII D of the California Constitution.

The district answered the petition, and also filed points and authorities in opposition to that petition. In its opposition, the district argued that it had adopted the ordinance under the Community Services District Law, Government Code section 61000 et seq., and therefore the voting requirement set out in Health and Safety Code section 5471 did not apply. The district also argued that it had timely mailed the meeting notice by depositing the notices for mailing, with postage prepaid, on June 24, 2004. The trial court agreed with the district and denied the petition.

The district prepared and submitted a proposed order reflecting the trial court's ruling. Plaintiffs filed objections and opposition to that order in which they argued, among other things, that the trial court had not fully considered the evidence plaintiffs had offered to support the petition, and had not fully considered the pertinent law. Plaintiffs also raised a new argument, namely that ordinance No. 61 created an assessment, not a fee, and therefore the majority protest provision set out in article XIII D, section 4 of the California Constitution applies.

The trial court found that plaintiffs' objections to the proposed order were meritless and that their opposition to the order was really an improper attempt to have the trial court reconsider its ruling. Consequently, the trial court overruled plaintiffs' objections and signed the proposed order.

DISCUSSION

Plaintiffs direct their claims at the procedures the district used in exercising its discretion to enact ordinance No. 61. On appeal, â€