(Mendocino County Super. Ct. No. SCUK CVG 07 99168). Cindee F. Mayfield, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
This appeal requires us to construe certain provisions in the taxpayer initiative Proposition 218 (Cal. Const., arts. XIII C, XIII D)*fn1 distinguishing between what may properly be classified as a property-related fee, exempt from a requirement for ballot approval by a majority of affected property owners, and an assessment for which such a vote is mandated. We conclude that a minimum charge imposed on parcels with connections to a water district‟s utility systems for the basic cost of providing water or sewer service, regardless of actual use, is a charge for an immediately available property-related service as defined in article XIII D, section 6, subdivision (b)(4), and consequently does not require ballot approval by affected owners. We therefore affirm the trial court‟s judgment for the water district.
The Brooktrails Township Community Services District (District) was formed to provide water and sewer service to about 6,500 real property parcels in or near Willits, California. (Gov. Code, § 61000 et seq.)*fn2 About 1,536 of the parcels are currently connected to the District‟s water system, and about 1,490 are connected to its sewer system. The rest of the parcels are undeveloped and not yet connected to the District‟s utility systems. Parcels not connected to the water and sewer systems are charged annual water availability and sewer standby fees. Parcels connected to the water and sewer systems are charged connection fees at the time of hookup to the systems, and thereafter fixed monthly water and sewer "base rates," as well as inclining usage-based rates for water service. The sewer connection is not a metered service, and is therefore not subject to a usage charge beyond the monthly base rate.
Appellant David Paland, a property owner in the District, connected his parcel to the water and sewer systems in 1986 and paid $1,800 in connection fees. In the decades that followed, he periodically discontinued his water service when he was away from his home for extended periods of time or when he asserts he could not afford the service. On such occasions, he was historically charged a prorated amount of the water and sewer base rates for the month in which his service was discontinued and was not charged again until he requested reactivation of his water service. Until 2003, it was District policy not to charge base rates to parcels with existing connections that were inactive because the parcels were either undeveloped or unoccupied, or because the owners had temporarily discontinued their service.
The District changed its policy in 2003. At the time, the state Department of Health Services had imposed a moratorium on new connections pending an increase in the District‟s water storage capacity. The Department of Health Services mandates increased the District‟s capital investment costs and eliminated its income from new connections.*fn3 On March 11, 2003, the District‟s Board of Directors (Board) decided to begin charging established monthly base rates*fn4 to parcels with existing utility connections, regardless of whether the owner was actually using the District‟s services.*fn5
On April 24, 2003, District General Manager Michael Chapman wrote to Paland and 20 other property owners with currently or periodically inactive water meters informing them of the change of policy.
Paland protested the new policy. He questioned Board‟s statutory authority to impose monthly base rates on inactive connections, arguing that the practice was "in the nature of a standby fee" and that the Board had not complied with Proposition 218 or due process. Although the Board did not rescind its policy, Paland took no immediate legal action because he "did not become aware that the thing had actually gone through as any kind of ordinance . . . ." He did not discontinue his water service between 2003 and 2006.
In late 2006, Paland fell behind on his monthly bills. In October 2006, the District notified him that his service would be shut off if he did not pay the arrears. In a letter to the District General Manager dated December 25, 2006, Paland wrote that his water had been turned off, that he would pay the arrears as soon as he could, that he could not afford to pay ongoing base rates because he was unemployed, and, "For that reason, I have no plans to ask you to turn the water back on until I can afford the huge base rate."
By the end of January 2007, Paland apparently had paid his arrears through November 2006. Paland‟s subsequent monthly bills reflect no actual water usage. The District, however, continued to charge Paland the monthly base rates for both water and sewer services.
On May 17, 2007, Paland sued the Board for declaratory and injunctive relief.
He alleged that in 2007, pursuant to the 2003 policy, the District began charging him monthly base rates (as adopted in Resolution No. 2006-17 on June 27, 2006) for time periods when he had requested that his water service be turned off. He again argued the monthly base rates, when charged to customers whose water service had been turned off, were "standby charges" subject to the owner voting requirements of article XIII D, section 4, and that the District had failed to comply with those requirements. He sought a declaration that Resolution No. 2006-17 was invalid on its face and as applied to him and also sought an injunction barring the resolution‟s enforcement "prior to complying with applicable voting laws." The District filed a demurrer on the ground that the complaint was filed outside the limitations period of section 66022, which provides that any judicial action to challenge a local agency resolution adopting a new fee or service charge must be commenced within 120 days of the effective date of the resolution. (§ 66022, subd. (a).) The court sustained the demurrer with leave to amend.
Paland filed an amended complaint alleging that the District adopted new water and sewer base rates on June 26, 2007, in Resolution No. 2007-10, that the resolution was subject to the requirements of article XIII D, section 4, and that the District had not complied with those requirements. The Board answered the amended complaint and filed a motion to dismiss on statute of limitations grounds. The trial court ruled that Paland‟s ...