California Court of Appeals, Fourth District, Third Division
April 20, 2015
CAPISTRANO TAXPAYERS ASSOCIATION, INC., Plaintiff and Respondent,
CITY OF SAN JUAN CAPISTRANO, Defendant and Appellant.
[Modification of opinion (235 Cal.App.4th 1493; ___Cal.Rptr.3d ___).]
On May 6, 2015, the defendant in this case, City of San Juan Capistrano, called “City Water” in the published opinion, filed a petition for rehearing of the court’s decision of April 20, 2015. On May 11, City Water formally requested withdrawal of the petition for rehearing. The request is now GRANTED.
THE COURT.—IT IS ORDERED that the opinion in this case filed April 20, 2015, is hereby modified in the following particulars:
1. On page 4 [235 Cal.App.4th 1498, advance report, 1st par., line 9], after the word “parcel” in the paragraph at the top, remove the period and add the following to complete the sentence: “ – at least without a vote of the electorate.”
2. On page 4 [235 Cal.App.4th 1498, advance report, 2nd full par., line 1 J, in the paragraph that begins at the bottom, “In February 2011” should read “in February 2010.”
3. On page 10 [235 Cal.App.4th 1503, advance report, 1st par., line 8], in the last full paragraph, delete “Water Code” and replace with “Government Code.”
4. On page 10 [235 Cal.App.4th 1503, advance report, fn. 13, line 1], beginning of footnote 13, delete “Water Code” and replace with “Government Code.”
5. On page 26 [235 Cal.App.4th 1515, advance report, 1st full par., lines 1-4], delete the first two sentences in the first complete paragraph on the page (the one that begins with “City Water’s theory”) and substitute these two sentences in its stead: “City Water’s theory of penalty rates relies on article XIII C, section 1, subdivision (e)(5). This subdivision defines the word ‘tax’ to exclude fines ‘imposed by’ a local government ‘as a result of a violation of law.’” Footnote 22 and the balance of the paragraph remain the same.
6. On page 27 [235 Cal.App.4th 1515, advance report, 4th full par., line 1], delete the first sentence of the first complete paragraph, and substitute this paragraph in its stead: “The way Proposition 218 operates, water rates that exceed the cost of service operate as a tax, similar to the way a ‘carbon tax’ might be imposed on use of energy. But, we should emphasize: Just because such above-cost rates are a tax does not mean they cannot be imposed – they just have to be submitted to the relevant electorate and approved by the people in a vote. There is no reason, for example, why a water district or local government cannot, consistent with Proposition 218, seek the approval of the voters to impose a tax on water over a given level of usage – as we indicated earlier, that might be a good idea. However, if a local government body chooses to impose tiered rates unilaterally without a vote, those tiers must be based on cost of service for the incremental level of usage, not pre-determined budgets. (For the moment, of course, we need not decide whether such a proposed tax would constitute a general tax or special tax.)”
7. On page 27 [235 Cal.App.4th 1515, advance report, 4th full par., lines 1-3], at the sentence that begins “City Water’s Article X, section 2 position, ” begin a new paragraph, but delete the existing sentence (the one that begins “City Water’s Article X, section 2 position” and substitute this sentence (as the new beginning sentence): “Having chosen to bypass the electorate, City Water’s Article X, section 2 position kept it from explaining to us why it cannot anchor rates to cost of service.” The balance of that paragraph remains unchanged.
These modifications do not affect the appellate judgment.