Santa Cruz County Superior Court Superior Court No. CV168888 Trial Judge: Hon. Jeffrey Almquist
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
(Santa Cruz County Super. Ct. No. CV168888)
Petitioner Harold Griffith filed a petition for writ of mandate seeking to invalidate an ordinance enacted by respondent City of Santa Cruz (City). The ordinance calls for annual inspections of all residential rental properties within City limits. Petitioner argued, among other things, that the ordinance is preempted by the State Housing Law (Health & Saf. Code, § 17910 et seq.),*fn1 violates constitutional principles of privacy and equal protection, and imposes a tax in violation of Proposition 218 (Cal. Const., art. XIII D) and Proposition 26 (Cal. Const., art. XIII C, § 1, subd. (e)). The superior court denied the petition. Finding no error, we shall affirm.
City passed Ordinance No. 2010-17, the Residential Rental Inspection and Maintenance Program (the Ordinance), on September 7, 2010 and codified it as section 21.06.010 et seq. of the City of Santa Cruz Municipal Code (SCMC). The purpose of the Ordinance is to identify "substandard and unsafe residential buildings and dwelling units and to ensure the rehabilitation or elimination of those buildings and dwelling units that do not meet minimum building code and housing code standards, or are not safe to occupy or do not comply with zoning codes." (SCMC, § 21.06.010.) The Ordinance was prompted by City's finding "substandard, overcrowded and/or unsanitary residential rental buildings and dwelling units, the physical conditions and characteristics of which violate state and local building, housing and sanitation codes and ordinances and render them unfit or unsafe for human occupancy and habitation." City found these conditions to "jeopardize the health, safety, and welfare of their occupants and of the public" and "seriously compromise the integrity and residential quality of city neighborhoods . . . ." City's findings further explain: "It has been observed by city staff performing code enforcement functions that in general the most egregious violations of health and safety codes and negative impacts as a result of overcrowding are experienced in rental housing." (Ibid.)
Under the Ordinance, residential rental dwelling units that are not occupied by the owner of the property are subject to an annual inspection by City staff. (SCMC, § 21.06.020E.) Owners must provide access within 21 days of a request for an inspection; when there is a tenant living on the premises the owner must ask the tenant to allow the inspection. The owner will not be in violation if the tenant refuses. (Id. § 21.06.070A.) Where a tenant or landlord has refused to consent to an inspection, "the inspector shall have recourse to every remedy provided by law to secure lawful entry." (Id. § 21.06.090A.) And if the inspector has "reasonable cause to believe" that the unit is "so hazardous, unsafe or dangerous as to require immediate inspection to safeguard the public health or safety," the inspector "may use any reasonable means required to effect the entry and make an inspection." (Id. § 21.06.090B.) Well-maintained properties may avoid inspection by qualifying for self-certification. (Id. § 21.06.080.)
When an inspector observes a building, housing or sanitation violation the inspector "shall document the violation, advise the owner or operator of the violation and of the action which must be undertaken and completed in order to remedy the violation and schedule a reinspection to verify correction of the violation." (SCMC, § 21.06.070C.) Owners who fail to correct a violation are subject to City's previously enacted code enforcement provisions. (Id. § 4.01 et seq.)
The Ordinance provides for the establishment of fees for annual registration, self-certification, inspection, and reinspection in amounts "established by resolution of the city council." (SCMC, § 21.06.060.) The city council, by resolution, set the annual registration fee at $45 per unit. The inspection fee is $20 per unit; the self-certification fee is $20 per unit up to 20 percent of the units; and the reinspection fee is $107 per hour.
II. PROCEDURAL BACKGROUND
Petitioner is the owner of residential rental properties within City limits. He filed a first amended petition for writ of mandate and complaint for declaratory relief alleging that the Ordinance is preempted by the State Housing Law and duplicates or conflicts with the 1997 Uniform Housing Code (UHC) incorporated within it. Petitioner also alleged that the Ordinance violates the equal protection clauses of the state and federal Constitutions (Cal. Const., art. I, § 7; U.S. Const., 14th Amend.) and the owner or occupant's state constitutional right to privacy (Cal. Const., art. I, § 1). As to the fees, petitioner maintained that they are illegal taxes, enacted in violation of the requirements of Proposition 218. After the November 2010 passage of Proposition 26, which expanded the definition of "taxes," petitioner added it as another basis for his challenge.*fn2 In response, City introduced evidence to show that revenue from the fees was expected to be around $327,000 per year. In a declaration, City planning director, Alex Khoury stated that the cost of implementing the Ordinance would be about $321,000 per year, which includes salaries for two inspectors, one administrative assistant, and administrative expenses. In addition, implementation would require "supervisory support and support from staff of other departments [such as Finance and Fire]." It was Khoury's opinion that the total costs City would incur in implementing the Ordinance would be "equal to or greater than the fee(s) levied on rental property owners pursuant to the [Ordinance]."
The superior court denied the petition. The court concluded that the Ordinance was rationally related to City's legitimate purpose of ensuring a stock of "safe, decent and sanitary rental housing" so that there was no equal protection violation. The Ordinance was not preempted by state law because it did not set up any new or different standards and did not duplicate procedures. The fee provisions did not violate Proposition 218 and were expressly exempt from the broadened definition of "tax" provided by Proposition 26. The only evidence submitted showed that the cost of the inspection program would be about $321,000 per year while annual revenue would be around $327,000. The superior court found "there is a reasonable relationship between the fees and costs." Because the court's conclusions disposed of the declaratory relief causes of action, the court dismissed those as well.
III.ISSUES AND STANDARD OF REVIEW
Petitioner appeals from the superior court's order denying his petition for writ of mandate. He raises the same arguments he raised below: (1) preemption, (2) invasion of privacy, (3) equal protection, and (4) violation of Propositions 218 and 26. As we read them, all these arguments are subject to a de novo or independent standard of review. Any facts needed to resolve the issues are undisputed. The constitutional challenges are facial challenges to the Ordinance as it is written. In such a case we do not defer to the superior court's ruling; we independently interpret the law to determine whether or not it is constitutional. (Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th ...