Concerned Citizens v. West Point Fire Protection Dist.

Filed 3/8/07 Concerned Citizens v. West Point Fire Protection Dist.

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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Plaintiffs Concerned Citizens of West Point and William Doherty (collectively CCWP) filed a first amended petition for peremptory writ of mandate and complaint for declaratory and injunctive relief challenging fees imposed on new building construction by defendants West Point Fire Protection District and the West Point Fire Protection District Board of Directors (collectively the Fire District). CCWP appeals from the judgment entered after the court sustained the Fire Districts demurrer without leave to amend. We conclude CCWPs challenge was rendered moot by the Fire Districts effective rescission of Ordinance No. 2004-01 in July 2005. Accordingly, we shall reverse the judgment and direct the trial court to enter a new judgment dismissing the case as moot.

FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2004, the West Point Fire Protection District Board of Directors (Board) adopted Ordinance No. 2004-01 and two resolutions, Nos. 2004-01 and 2004-02, authorizing the Calaveras County Building Department to collect impact fees on its behalf. West Point Fire Protection District Ordinance No. 2004-01 provided:

Purpose:

To offset the cost of personnel, salaries and training which is determined by the Fire District as needed to continue the ability to provide adequate fire protection, damage control, safety for fire-fighting personnel and the delivery of other fire services as the result of residential and commercial growth within the West Point Fire Protection District. The following fees shall be levied to mitigate the impact of such growth on the continued ability of the Fire [D]istrict to maintain existing levels of service.

Fees shall only be used for personnel, salaries, wages, training, instruction and reimbursements.

A. Building Construction: Any building, including manufactured housing[,] garages, barns, other outbuildings and additions over 99% square footage or valuation of the original building.

1) RESIDENTIAL, COMMERCIAL AND PUBLIC

A one-time fee of 50 cents per square foot of new construction.

Resolution No. 2004-01 read:

WHEREAS, the West Point Fire Protection [District] has determined there is a need to offset the cost of fire and rescue maintenance and personnel training needed to continue the ability to provide adequate fire protection, damage control, safety for personnel and the delivery of other fire services and emergency services as the result of residential and commercial growth within the West Point Fire Protection District; and,

WHEREAS, the West Point Fire Protection District may establish impact mitigation fees pursuant to California Health and Safety Code Section 13916 et Seq.

THEREFORE, BE IT RESOLVED, the West Point Fire [Protection] District will establish by this resolution the schedule of fees:

A. Building Construction: Any building, including manufactured housing, garages, barns, other outbuildings and additions over 99% square footage or valuation of the original building.

1) RESIDENTIAL, COMMERCIAL AND PUBLIC

A one-time fee of 50 cents per square foot of new construction. (I CT 110)

Resolution No. 2004-02 provided:

WHEREAS, this resolution shall authorize the Calaveras County Building Department to collect fees for Mitigation of Growth on behalf of the West Point Fire Protection District; and,

WHEREAS, the West Point Fire Protection District may collect fees pursuant to Ordinance 2004-01.

THEREFORE, all fees shall be paid to the West Point Fire Protection District and collected by the Calaveras County Building Department.

This resolution shall remain in full effect until such time as a revision is adopted and passed by the West Point Fire Protection District Board or the ordinance is superseded by the regulation.

On June 21, 2005, CCWP filed its first amended petition for peremptory writ of mandate and complaint for declaratory and injunctive relief, setting forth 17 causes of action under Code of Civil Procedure sections 526, 1060, 1085, and 1094.5. The petition/complaint alleged that CCWP was an unincorporated association, . . . a group of taxpayers and landowners residing within the boundaries of . . . West Point Fire Protection District . . . within Calaveras County and William Doherty was a member of CCWP. CCWPs petition/complaint also alleged the Fire District was a special district, having its headquarters and primary fire station in West Point, Calaveras County, California . . . .

CCWPs prayer for relief sought a peremptory writ and/or temporary injunction mandating that the Fire District:

1. Set aside Ordinance No. 2004-01 and Resolution Nos. 2004-01 and 2004-02, stop collecting impact fees, freeze the funds already collected, and provide a complete accounting of fees collected pursuant to the ordinance;

2. Refund all revenue collected from developers along with legal interest;

3. Comply with articles XIII C and XIII D of the California Constitution prior to granting any approvals of ordinances concerning the imposition of fees, taxes and/or assessments; and

4. Comply with the Fire Protection District Act, Health and Safety Code sections 13800 et seq., in administering the Fire Districts business and any service-connected fees that may be enacted in the future.

In addition, CCWP sought a permanent injunction enjoining the Fire District from enacting any ordinance imposing any Impact Fees, Development Fees, and/or Mitigation Fees as well as any General Taxes and Ad Valorem Taxes on properties located in the West Point Fire Protection District.

The court denied CCWPs amended application for preliminary injunction. Thereafter, on July 20, 2005, the Fire District filed a demurrer to the petition/complaint and a motion to strike the causes of action for declaratory and injunctive relief. The Fire Districts subsequent response to CCWPs opposition to the demurrer and motion to strike included a declaration signed by the Fire Districts clerk. Attached were the minutes and Resolution No. 2005-004 adopted at the July 18, 2005, meeting of the Board. The resolution was titled A RESOLUTION RESCINDING RESOLUTIONS Nos. 2004-001 [sic]; 2004-02; AND ORDINANCE NO. 2004-01; AND AUTHORIZING DISTRIBUTION OF FUNDS FROM IMPACT FEE FUNDS TO PAYORS and read:

WHEREAS, on July 12, 2004, the District passed the foregoing resolution authorizing collection of [a] fee for mitigation of growth through the County Building Official; and

WHEREAS, the foregoing Ordinance set forth the fees and conditions for collection of the fee for mitigation of growth; and

WHEREAS, an issue has arisen whether the fee for mitigation of growth is or is not sufficient to cover additional District expenses in connection with additional growth within the District; and

WHEREAS, the District has determined that additional study is required to assess the efficacy of a fee for mitigation of growth in connection with improvements to real property;

NOW, THEREFORE, BE IT RESOLVED by the Board of Directors that Resolutions [sic] Nos. 2004-01 and 2004-02 are hereby rescinded effective immediately; and

BE IT FURTHER RESOLVED that Ordinance No. 2004-02^[[1]] [sic] is hereby rescinded effective immediately;and

BE IT FURTHER RESOLVED that the County Building official shall be notified that the fee for mitigation of growth shall no longer be collected on the Districts behalf effective immediately; and that all fees for mitigation of growth thus far collected shall be returned from the Impact Fee Fund to [the] original payors.

At the hearing on its demurrer and motion to strike the Fire District argued, among other things, that CCWP lacked standing to challenge the ordinance and the case was moot because the Fire District had rescinded the challenged ordinance. On the question of mootness, CCWP responded that the Board could not rescind an ordinance by resolution. The court sustained the demurrer on grounds CCWP lacked standing under Government Code section 66020, subdivision (d) to challenge fees they had never been required to pay, and could not truthfully amend their Petition to state they paid the fee, as they admit in their pleading they have not. The court concluded the controversy was not ripe for judicial review. It did not address the question whether CCWPs claims were moot.

DISCUSSION

I

Standard of Review

On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] We deem to be true all material facts properly pled [citation] and those facts that may be implied or inferred from those expressly alleged [citation]. [] While a decision to sustain or overrule a demurrer is subject to de novo review on appeal, a grant or denial of leave to amend calls for an exercise of discretion on the part of the trial court. [Citation.] Denial of leave to amend is reviewed for abuse of discretion. [Citation.] The trial court abuses its discretion in denying leave to amend only if the plaintiff shows a reasonable possibility of curing any defect by amendment. [Citation.] (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)

The appellate court will affirm if the judgment is correct on any theory of the law applicable to the case. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; see, e.g., Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1217.)

II

Mootness

The dispositive issue on appeal is whether the Boards July 18, 2005, resolution effectively rescinded Ordinance No. 2004-01, thereby rendering CCWPs challenge moot. A preliminary question is whether we should take judicial notice of the Boards legislative action on July 18, 2005. In response to our request, the Fire District provided certified copies of Resolution No. 2005-004 and the preliminary and final minutes of the July 18, 2005, meeting at which the Board rescinded Ordinance No. 2004-01 and Resolution Nos. 2004-01 and 2004-02. Both parties submitted supplemental letter briefs on the propriety of our taking judicial notice of the documents submitted by the Fire District. Having considered the arguments submitted by CCWP and the Fire District, and rejecting CCWPs claim the typographical error in one part of Resolution No. 2005-004 rendered rescission of the prior ordinance ineffective, we take judicial notice of Resolution No. 2005-004 and the preliminary and final minutes of the July 18, 2005, Board meeting. (Evid. Code, 452, subd. (b) and 459.)

We now consider the impact of the Boards actions on July 18, 2005. Whether characterized as mootness or lack of justiciability, the overriding principle is the same: courts will not entertain actions where there is no actual controversy between the parties. (3 Witkin, Cal. Procedure (4th ed. 1997) Actions, 73, pp. 132-133.)

In Wilson v. Los Angeles County Civil Service Commission (1952) 112 Cal.App.2d 450, plaintiff challenged the validity of a civil service eligibility list that had expired and was superseded by a new list. (Id. at pp. 450-451.) The court affirmed the trial court judgment granting defendants motion to dismiss, quoting Corpus Juris Secundum: A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition. . . . [As] a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition. . . . [A]lthough a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court. [Citation.] (Id. at pp. 452-453.) The court explained that the eligibility list at issue had long since expired, hence any decision regarding it would now be completely ineffectual. (Id. at p. 454.)

The same is true in the case before us. The gist of CCWPs petition/complaint, as reflected in its prayer for relief, is to set aside Ordinance No. 2004-01 and Resolution Nos. 2004-01 and 2004-02, stop collection of the challenged fees, and obtain refund of the fees already collected. The trial court could not provide the relief sought because the Board rescinded Ordinance No. 2004-01 and the implementing resolutions, and authorized refund of fees on July 18, 2005, before the hearing on the Fire Districts demurrer and motion to strike.

We find no merit in CCWPs argument raised below and in this appeal that Ordinance No. 2004-01 remains in effect because the Board lacked power to rescind an ordinance by resolution. Development impact fees adopted by local agencies are subject to the Mitigation Fee Act, Government Code section 66000, et seq. (See Warmington Old Town Assocs. v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 857-858; see also Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 326.) Government Code section 66016, subdivision (b) reads in relevant part: Any action by a local agency to levy a new fee or service charge or to approve an increase in an existing fee or service charge shall be taken only by ordinance or resolution. . . . The Supreme Court held in Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 428 (Richmond), that Government Code section 66016 authorized a local agency to increase existing water fees by resolution where the fees were initially imposed by ordinance. If a local agency may amend an ordinance by resolution, we see no legal impediment to the Board rescinding Ordinance No. 2004-01 by resolution.

CCWP relies on a 1990 opinion of the Attorney General for the proposition that Government Code section 66000 does not grant fire protection districts authority to impose fees on development projects because they lack constitutional police power. (73 Ops.Cal.Atty.Gen. 229, 232, 234-235 (1990).) However, we are bound by Richmond, not an opinion issued by the Attorney General.

We also reject CCWPs contention its action is not moot because the language of Resolution No. 2005-004 suggests the Board intends to reinstate and increase the impact fees at a later time. Should the Board reinstate impact fees, CCWP may challenge the new fees at the time after complying with the applicable standing requirements.

The trial court sustained the Fire Districts demurrer on the ground CCWP lacked standing to challenge the fee. Assuming, but not deciding that CCWP had standing for purposes of this appeal, we conclude the question raised in CCWPs petition/complaint was moot when heard by the trial court. We therefore reverse the judgment and direct the trial court to enter a new judgment ordering CCWPs petition/complaint dismissed as moot.

DISPOSITION

The judgment is reversed. On remand the court is directed to vacate the judgment and enter a new judgment dismissing appellants petition/complaint as moot. Respondents shall recover costs on appeal. (Cal. Rules of Court, rule 8.276.)

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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^[1]The Fire District noted in its reply to CCWPs opposition to the demurrer and motion to strike that although the ordinance is cited correctly at the top of the resolution as No. 2004-01, due to typographical error, the body of the resolution cites the relevant ordinance as No. 2004-02. The minutes of the Board state it rescinded Ordinance No. 2004-01.