*1 10, 1992.] S022080.Dec. [No. al., v. Plaintiffs and Appellants,
WILLIAM F. KNOX et al., Defendants and Respondents. CITY OF ORLAND et *4 Counsel Zumbrun, Caso,
Ronald A. Anthony T. Richard Meredith Stephens M. and M. and Chang Plaintiffs Appellants. Rumiano, Allen,
Jean McDonough, Holland & Harriet A. Steiner and Robert S. Fisher for and Defendants Respondents. Barmann, Nations,
B. C. (Kern), County Counsel Mark L. Deputy County Counsel, Howard, Rice, Nemerovski, Falk, & Canady, Robertson Steven L. Richards, Gershon, Mayer, Moutrie, & Watson Marsha Jones Robin D. Harris, Ness, Sturgis, Brunsell & and A. as Amici Sperry Samuel Sperry Curiae behalf on of Defendants and Respondents.
Opinion BAXTER, J. case concerns assessment1 for mainte- —This nance levied the of Orland for fiscal City 1989-1990 under the year and (hereafter Act of the Landscaping Lighting and Landscaping Code, Act) (Sts. Act & or the et Lighting Hy. granted We seq.).2 § the review to determine whether Act authorizes the imposition assessments for the maintenance of and existing public to evaluate parks, of Orland’s validity City against assessment as measured the “special 1We use the terms assessment” and interchangeably “benefit assessment” throughout. indicated, 2Unless otherwise all statutory further to the Highways references are Streets and Code. A, the California Constitu- tax found in article XIII section of limitations within clearly is existing parks tion. We that the maintenance conclude Act, and that the assessment authorized scope A, XIII article subject question is a valid benefit assessment that section 4. Landscaping Lighting and Act has local legis-
Since and Act authorized Landscaping Lighting levy districts and to lative bodies3 to establish benefit-related assessment construction, of certain for the and maintenance assessments installation public landscaping lighting improvements. Act, legislative body a local
To establish assessment district under district, first the formation proposes must resolution pass district, a city and orders improvement describes desired assessment detailing plans and file a county engineer prepare report (§ 22585.) If its estimating for the costs. specifications resolu- must then adopt legislative body approves engineer’s report, tion formation district and its intention order declaring 22587, 22588.) (§§ At the public hold a noticed properly public hearing. all statements and body to consider oral hearing, required *5 limitations, (§ 22590.) the legislative written to certain protests. Subject in the engi- in the matters may changes provided then order body district boundaries or improvement, neer’s the report, including changes If determines that a (§ 22591.) the legislative body assessment. proposed Act, not exist or is properly as defined the does “majority protest,” by overruled, the and ordering then a resolution may adopt 22592, 22593,4 22594.) (§§ formation of the district.
An to Act “shall of all assessment district created the consist pursuant which, body, by as determined the will be benefited territory by (§ 22503.) the and is to be the costs thereof.” pay assessed improvements formed, levied annual assessment Once an assessment district has been each hearing prior and noticed engineer’s public thereafter its own requires report (§§ 22620-22631.) to imposition. Act, legislative body governing purposes “legislative body” of the a means “the 3For herein, (§ 22529.) agency” a “local was agency.” At all times relevant board local (Stats. ch. city county, city, or a district.” county, defined to mean “a a and a 630, §2, owning representing property written owners “majority protest” protests 4A exists where been the district have percent proposed
more than 50 of the area of assessable land within protest, proceedings the majority filed and been In the event of a have not withdrawn. legislative body, by a required formation of the district are abandoned unless the vote, (§ 22593.) protest. four-fifths overrules the
Facts and Procedure May In the of Orland initiated City proceedings Council City a form assessment district under the Act. the resolution propos- district, form ing the council the nature of the city proposed described and servicing playground equip- as “Maintenance of lights, ment, restrooms, bleachers, other landscaping, irrigation systems, public at named The boundaries of the district city parks].” [five districts, were listing described four exclusive of lands within by school boundaries of the Mendocino National Forest.5 Based on statistics gathered others, Orland by parks City recreation commission and (hereafter the city) determined residents within four school living districts were by benefited equally parks.6 engineer’s each report ordered city parcel proposed $24 district be assessed unit That per dwelling 1989-1990 fiscal year. was figure obtained (4,298) units into dividing dwelling number the total costs ($103,152). Since park maintenance district formation basis, assessments were calculated on a some were per dwelling parcels $24, assessed while commercial and multiples undeveloped properties within the district were not After reviewing assessed all. the engineer’s report, council a order adopted declaring resolution intention to the formation of the assessment district.
At noticed public hearing, city council entertained oral comments both from supporters opponents of the written proposal. Twenty protests were received. After determining that a within the majority protest meaning exist,7 resolution, of the Act did not the council of four adopted by vote *6 one, finding to that the engineer’s and the report fairly properly apportioned cost of the to each in in parcel the assessment district propor- the tion estimated benefits The received each resolution parcel. the ordered improvements and the of the formation district.
Plaintiffs, four owners of residential within the assessment dis trict, and sued its city council for and declaratory injunctive members alia, The alleged, $24 relief. inter complaint charge that was invalid as a 42,300 land, 5The assessment district contains acres of geographically of consists City entire of portions Orland and outlying of lands Glenn County. in 6These statistics showed that outlying county roughly residents accounted for percent regular usage of park of the facilities. people 7The 20 who protests figure submitted written owned total of 142.42 acres—this 42,300 represented less percent acreage than 1 of the proposed entire of the district. assessment, in turn was and that tax instead was invalid the electorate. for failure to receive a vote of two-thirds The there was no triable city summary contending judgment, moved issue The trial court of fact of the assessment. validity material as to the granted the failed to plaintiffs respond on the procedural ground motion ground to each of the and on the city undisputed, facts identified May there entered on was no triable issue of fact. was Judgment 1990. the trial
The Court did not on the of Appeal procedural aspect of rule that the 1989-1990 ruling, court’s but affirmed on the basis judgment valid assessment was a assessment.
Discussion Scope Landscaping Lighting I. Act. of
The of improvements first issue in this case concerns the scope The and its amici under the Act. Landscaping Lighting authorized assessments curiae contend the Act of imposition authorizes Act contend the per maintenance of existing parks.9 Conversely, plaintiffs constructed pur mits assessments for the maintenance of those only parks suant to the Act. Act are delineated The authorized under the types “ That provides part: ‘Improvement’
section 22525. section pertinent (a) The installation or following: means one or combination H] (b) statuary, The installation or construction of planting landscaping, [f] fountains, [j[] The (c) facilities. instal other ornamental structures and (e) . lation facilities . . . installa or construction public lighting [f] (f) or . The maintenance or park improvements, tion recreational . . [f] both,10 added.) (Italics . . .” servicing, of the foregoing. of a is not park under Plaintiffs contend that installed pursuant itself was authorized unless protec charge plaintiffs' rights equal $24 complaint alleged also that the violated 8The to have abandoned this claim. appear tion. Plaintiffs one on Cities support city: amicus curiae briefs in behalf 9We received three Hills, Palmdale, Verdes, Carson, Puente, Rancho Palos Seal Blythe, Cudahy, La Agoura *7 Beach, Monte, entities one on behalf of various Hollywood, South El South Gate and West Francisco, Cities, Counties, County San designated City and of “Specified Specified as Cities), (hereafter and one County Specified Supervisors and the Association of California” County of on behalf of Kern. for the furnishing of services materials 10“Maintenance” is defined to mean “the maintenance, including: servicing any improvement, of ordinary operation, [f] and usual removal, (b) Providing (a) any part any improvement. of Repair, replacement or of all or [¶] 22525, (f), the Act. which that one specifies on section subdivision Relying both, servicing, of authorized is the “maintenance or or type of any item “the foregoing,” that which constitutes plaintiffs argue every of foregoing” landscaping, statuary, is the of such as “installation” something, fountains, structures, (Italics added.) lights ornamental or parks.
We disagree with strained 22525. That plaintiffs’ reading of section Act, section means states that for expressly purposes “improvement” any “one or in its combination” of the listed various subdivi- improvements turn, 22525, (Italics added.) (f) sions. In specifies section subdivision “maintenance or as one such Given servicing” language improvement. 22525, section it is are apparent servicing that maintenance reasonably their own and are an right dependent upon not installation read, 22525, (f) under the Fairly Act. that a provides subdivision permissible improvement for of the Act includes purposes or servicing any of the categories of which are physical improvements subdivisions, listed the preceding of whether such regardless physical improvements are installed originally to the Act. pursuant
While are plaintiffs unable in the Act point that casts doubt anything on our we ascertain one reading, of its undermines statutory provisions theirs. Significantly, plaintiffs’ to construe section 22525 so as to attempt disallow use of the Act for formation of an assessment district to maintain physical installed to the Act is initially pursuant clearly at odds with section local explicitly allows bodies to utilize Act flexibly single consolidate into a district any existing maintenance or tree lighting, districts planting had previously been formed to other assessment pursuant schemes such the Improvement Act §5820) of 1911 with (commencing and the Tree Act Planting (commencing 22000). (§ with (d)(2).) subd. § Finally, our construction of Act Legislature’s effectuates the intent that the Act “provide[ alternative procedure making improve- ] (§ ments . added.) authorized . . .” regard, [t]herein italics this legislative documents submitted disclose that the underlying of the Act was purpose to offer alternative simplified procedure to “cumbersome and of other complicated” provisions assessment schemes for the trimmings, trimming, spraying, other any “Servicing” is other fountains, illuminating agent life, improvements. rubbish, debris, growth, or the defined mean “the fertilizing, maintenance of health, for any public lighting H] and other solid waste.” (b) Water for the or beauty treating furnishing other of landscaping, for disease or irrigation improvements.” facilities or for the of; (§ 22531.) P31 (a) Electric current or any landscaping, including injury. (§ 22538.) [1] lighting cultivation, (c) energy, gas, operation operation removal irrigation, or *8 140 Tree (§ Planting as Act of 5000 et and the Improvement seq.)
such 1911 (§ (Assem. analysis Act of et Com. on Local Government seq.). 1931 22000 1; 8, 1972), 25, 1972) (as Bill at p. of No. 1268 amended (May May Assem. Bill No. (undated) see Assem. analysis Local Government staff of Sen. Com. 6, (as 1972), 1.) 1268 these acts authorize July Notably, amended other atp. im- lighting for various landscaping assessments the maintenance of are initially provements improvements without reference to whether such case, of being reading financed and installed thereunder.11 That our better, of goal section the Act’s advancing 22525 is suited than for plaintiffs’ the mainte- an “alternative” to these other acts with providing respect construction, nance, of designated as well as installation or certain our We further view improvements. note lighting landscaping liberally with the the Act “be construed Legislature’s consistent desire that (§ 22509.) to effectuate its purpose.” 22525, their identify
Aside from narrow of section reading plaintiffs contained in the Act its nothing legislative history supports else or existing their of an position. conclude that the maintenance Accordingly, authorized under the Act. park Validity II. Park Maintenance Assessment. of 1978, of an initiative measure June the voters California adopted 13) article which amended the California Constitution add (Proposition sections,12 XIII Article XIII A each designed A. contains four principal (Amador interlock with the tax relief. others assure effective (1978) 22 Valley Equalization Joint Union School Dist. v. State High Board of 208, 239, 1281].) Cal.3d 231 583 P.2d next issue Cal.Rptr. $24 as charge in this case concerns validity 11 1931, of been defined as the Planting improvements Under the Tree Act authorized have necessarily planting, of and all acts incident thereto. maintenance or removal trees 79, 1016; 22006, 1941, 1, 22087.) (Stats. see current Under the codification p. ch. 1941 § §§ amendments, 1911, any public improvement eligible and its Improvement Act of 1961 eligible act is also thereunder for maintenance funding for construction under Therefore, 880; 2179, 1, 79, 1, 1961, 4516.) (Stats. p. Stats. ch. funding. § ch. § an assessment district to order formation either Improvement permits Act district improvements separate or a both construction and maintenance other expenses maintaining operating . . . or all “the to finance added; (§ . . . .” italics see permitted to be constructed herein § such are be under the act parkways are authorized to constructed parks and Since (b)), they may also the basis for maintenance assessments whether (see subd. form § they originally constructed thereunder. were real may imposed of ad tax that on 12Section 1 sets maximum amount valorem Section places property. Section 2 a limitation on the assessed value real property. changing Finally, method restricts imposes restrictions on the state taxes. imposition by mandating approval requirement. a two-thirds voter taxes
141 sections, which measured one of those section against namely four a ability by mandating restricts the taxes” city “special impose two-thirds requirement.13 voter approval matter,
As a
we note
concede that California Con-
preliminary
plaintiffs
stitution,
(hereafter
A)
XIII A
XIII
intended to limit
article
article
is not
Indeed,
“traditional”
have uni-
Appeal
benefit assessments.
Courts of
formly held that the article XIII A’s tax
are not violated by
limitations
legitimate
(See,
City
City
assessments.
Council
San Jose
special
e.g.,
v. South (1983)
Plaintiffs do not contend the above cases were decided wrongly. they argue that the instant charge for constitutes special tax, as to a opposed legitimate assessment. In special evaluating this conten- tion, we first examine the distinctions between the public financing two mechanisms.
A. The characteristics of a assessment are not A dispute. “ ‘ special assessment is a “compulsory charge the state real placed by upon district, property within a pre-determined made under express legislative A, (hereafter “Cities, 4) 13Article XIII provides: section Counties districts, district, by a vote of the qualified may two-thirds electors of such impose special district, except taxes on such ad valorem taxes on real property or a transaction tax or sales tax on the sale of City, County real within such or district.” South, 14In the subject pursuant levied powers, to its home rule charter Nonetheless, opposed statutory to a reasoning assessment scheme. in that case is applicable here applies since article XIII A to both charter cities law general cities such as Orland. defraying expense permanent public whole authority part *10 (San Dist. v. San therein Marcos Water improvement [Citation.]” 47, 154, (1986) Cal.Rptr. 42 161 School Dist. Cal.3d [228 Marcos Unified 935].) “levied regard, against 720 a assessment is special P.2d this in real local directly benefited a property particularly by supra, 112 (Solvang, order of that Cal.App.3d to cost pay improvement.” 554.) “The of that the assessed property at rationale assessment is p. special general received has received a benefit over and above that special for benefits general required pay special The should not be public. public few, for the and the few benefited should not subsidized specially Thus, (Id., 552.) a “[although at general special public. p. [Citation.]” used finance the cost assessment is the same mechanism imposed through in of it is a cost government, reality charge recoup local compulsory benefit of particular property.” a made for public improvement special (Id., at p. assessment, tax, hand, A a a special on the other different. Unlike very “ particular tax levied reference to benefits to peculiar can be ‘without ” (1984) (Fenton v. 162 City Cal.App.3d individuals or Delano property.’
400, (5th 1979) ed. citing Dictionary 405 Black’s Law Cal.Rptr. [208 486], 1307, Indeed, in than the 1-2.) cols. is more familiar taxation p. “[n]othing a no direct enjoy tax a class or individuals who imposition upon upon for the condition to benefit from its and who are not expenditure, responsible 495, (1937) 301 U.S. (Carmichael be remedied.” v. Southern Coal Co. 1245, 1260-1261, 868, 1327], fn. 521-522 L.Ed. 57 S.Ct. 109 A.L.R. [81 Mart, omitted; & Department Agricul- v. Food see also Leslie’s Pool Inc. 1524, same].) (1990) [citing 223 ture 1543 Cal.App.3d Cal.Rptr. [273 373] 4, which, even of section same holds true for a tax for special purposes (Rider v. a levied fund a specific governmental project program tax 490, 1, (1991) 1 15 820 P.2d County Diego Cal.Rptr.2d San Cal.4th [2 Malmstrom, 1000]; supra, tax “need not special 984 Cal.App.3d [a as a benefit the taxed the same manner special . . . specifically property” assessment].) tax,
Therefore, while a like a be viewed special may, special assessment distinction been levied for a a critical as having specific purpose, sense that a assessment financing special the two mechanisms is public between con beyond benefit assessed upon property must confer if an mainte Accordingly, park ferred assessment generally.15 to the assessed improvements provides properties, nance If receive. they then the assessed owners should for the benefit property pay Los City Angeles (1961) 15In Cal.Rptr. v. 55 Cal.2d 108-109 [10 Offner 926], we cost P.2d further observed that if the assessment exceeds actual not, tax does to a effectively upon amounts (See Spring assessed general for the benefit of public. owners 217].) Street Co. City (1915) v. Los Cal. P. Angeles B. Plaintiffs’ Act’s position Lighting is that the essentially Landscaping authorization of a leg- benefit assessments for represents device XIII They, islative “end run” article A. achieving an around *11 that, effect, law, contend a never as a matter of assessment is special for a a not the financing the maintenance of because is appropriate park park be viewed as a type improvement conferring can benefit special real assert upon They existing also that the maintenance of property. is public improvement not an for which a assessment special demonstrate, be we will may imposed. As these are merit. arguments without nature, argue Plaintiffs first that their do public parks, by not provide special benefits to cite property.16 Although plaintiffs standing no authority for this proposition, they seek to distinguish parks from what describe they sewers, as “traditional” such as lights, street sidewalks view, sewers, flood In control. their while street sidewalks and flood lights, nature, may, control their confer a peculiar benefit to special prop- erty, a primary characteristic of is that it that park only benefits people, is, members of general argument, To bolster this public. plaintiffs assessment, i.e., that city’s contend basis showing for statistics that persons living within the district boundaries use the to the subject parks same degree, the notion that the benefit of is supports to parks solely people, not property.
Plaintiffs’ argument basic that never special assessment is appropriate fund park improvements is unconvincing. Significantly, plaintiffs’ attempt sewers, differentiate between street lights, sidewalks and flood control as benefits, for constituting proper subjects special parks as matters public assessment, general of such a nature as justify special virtually rejected identical to an argument nearly a the United century ago by States 611, (1898) Court Wilson v. Lambert Supreme 168 U.S. L.Ed. [42 601,18 599, Wilson, (hereafter Wilson), S.Ct. In and cases cited therein. 217] that argued park owners that property was and dedicated to the open not a general public subject was proper assessment. The special Supreme case, is a improvement, exaction tax and not an plaintiffs assessment. In this do not contend that assessment exceeds the actual cost of the at issue. 16Notably, plaintiffs not argue do at special that assessment issue confers no Rather, upon particular their own properties. they contend the devoid of district, properties benefit to all including their own. “The residents holders of the District disagreed: Court and property beneficiaries; and, within the regarded coming class of Columbia must have a from that the shall also being injured by so far declaration character, it is the welfare of inhabitants national apparent thereby tends increase the District will be Whatever promoted. attractiveness or Washington, permanent tempo as a place residence, rary private will to enhance the value of the operate at (168 situated therein 616-617 L.Ed.2d adjacent pp. thereto.” U.S. 601].)17 p. California, judicial is a history there lengthy assessment. subjects constitute
recognition parks proper Parks, sidewalks, like have been considered lights, long street sewers and (See, e.g., to be within the domain assessments. Legislature 1909, 538, 1066; 56, 1, 104, 1923, [amending ch. p. p. Stats. ch. Stats. § 1941, 79, 1925, 419, 849; 2]; ch. Stats. ch. Stats. ch. p. Stats. § Likewise, adoption at least one decision before judicial § *12 parks. of with regard 13 the use assessments Proposition upheld special (O.T. (1932) 440 Corp. County Angeles Johnson v. Los 128 Cal.App. [17 of P.2d of assessments for of lands [upholding special acquisition use 792] (1984) Companies City Diego cf. Jones San 157 park purposes]; J.W. v. of 745 of ordinance Cal.App.3d Cal.Rptr. [upholding validity [203 580] a assessment on levying authorized “facilities benefit assessment” a special benefited within a new devel by parks street properties City (1984) v. 759 opment]; Diego San Holodnak 157 Cal.App.3d [203 of of a “facilities ben [upholding validity Cal.Rptr. 797] [hereafter Holodnak] in new development, efit assessment” used finance certain facilities public Since, as even including community parks].18) plaintiffs neighborhood concede, limit 13 was intended to benefit assessments not Proposition reasoning, nor authority that casts doubt on Wilson’s have subsequent 17Plaintiffs cite no however, the argue, because it deals with Fifth any. They we found that Wilson irrelevant protections of and because the afforded article Amendment the United States Constitution of We are did not exist in District Columbia. XIIIA of California Constitution 1898 out, County may a not be persuaded. points special of Kern assessment As amicus curiae violating special a benefit to the assessed without imposed without or in excess of 862, Sacramento, Cal.Rptr. (See v. 24 Cal.3d 874 Furey City Amendment. [157 Fifth of 403, 684, 100 844], (1979) cert. U.S. L.Ed.2d S.Ct. app. dism. and den. 444 976 P.2d [62 598 complies on benefit 476].) Consequently, special requisite special a assessment based witht A, a special special assessment without Amendment and article XIII while a both the Fifth provisions. each conflicts with of these constitutional benefit community parks specially will neighborhood and court in Holodnak observed: “The 18The City West North West. While City properties the North because their location in benefit parks by having parkland available within general public will be able to use the and benefit immediately surrounding City North city, parks particular will be to the community (157 p. Cal.App.3d West [citation].”
145 use, their we see these rejecting long historical manner of no basis for standing legitimate and decisional determinations that are parks subjects for special assessment.
Plaintiffs next
new
argue
public improve-
construction of a
only
ment, as
a
to the maintenance of an
confers
opposed
existing improvement,
benefit sufficient to
justify
argument
assessment. This
similarly
because the
for main-
unavailing
propriety
tenance
has
recognized
also
been
and the
Legislature
decades
both the
1,
1927,
543,
909;
79,
(See,
1,
1941,
courts.
e.g., Stats.
ch.
Stats.
ch.
p.
§
§
880;
192,
South,
1182;
p.
Stats.
ch.
supra, 146
Cal.App.3d
§
streets];
of landscaped
Sayre, supra,
median islands on public
[maintenance
Cal.App.3d
[operation and maintenance of flood control
cf.
system];
Bldg.
Russ
v.
Partnership
City
(1988)
&
San
County
Francisco
Cal.3d
Cal.Rptr.
[244
750 P.2d
funding
assessment-like
[upholding
324]
mechanism to pay for maintenance of
mass
municipal
systems];
transit
City
Roberts v.
Angeles (1936)
Los
P.2d
for park maintenance is never aas matter of we find appropriate and untenable suggestion that the Act itself was devised the improperly by However, Legislature. that the is not end of our inquiry. We must now examine the validity city’s determination of in special benefit this case.
C. and Act in Landscaping Lighting provides pertinent part: “Any taken under proceedings this and part any assessment levied thereto pursuant shall not be invalidated for failure to with the of this comply provisions part if such failure does substantially adversely affect of rights All by determinations made person. to this legislative body pursuant part shall be final conclusive in the absence of fraud prejudicial or abuse of (§ discretion.” 13,
Prior to the of passage Proposition stated standard for review of judicial a in special assessment Dawson v. Town Los Altos Hills
146
97,
Dawson),
(hereafter
547 P.2d
(1976)
Cal.Rptr.
Under in 16 Cal.3d we confine review our this case to the record before the and Here city judicially noticed facts. the record shows that the subject improvements are described the city engineer’s report including the maintenance of the and pools, playgrounds, picnic areas, fields, barbecue bicycle baseball and softball tennis and paths, volley courts, ball and pits horseshoe located at the various parks. city’s studies use park confirmed residents from all of the geographical areas district used these park facilities to the same and therefore roughly degree, received nearly equal benefit from of such facilities. These availability were facilities not duplicated any other nearby parks parks, only proximity closer to the within the properties district had no basic recre use, ational improvements. Based on the city studies proposed spread the total cost ($103,152) among parcels all within the assessment district based on the number dwelling units thereon. assessment, $24 This resulted per dwelling unit from which owners of undeveloped or commercial property would be effectively exempt.
In conformance with statutory requirements Landscaping Act, the held a Lighting duly noticed hearing to all affected give property owners opportunity the assessment oppose district 21Moreover, 20, ante, as indicated in footnote the court in Beaumont Investors seemed to the concern that the taxpayer sensitive if were forced to that a fee prove development was reasonably “not related to the service for which imposed, agencies gain it was local would litigational advantage undertaking, recording, not or at least effort relate cost 235-236, (165 charged.” of the service the fee Cal.App.3d pp. original.) This italics in statutes, of a less concern in including assessment cases. Assessment much Act, bodies, Lighting Landscaping typically require levying an prior to *15 assessment, to conduct public hearings noticed publicly and to review and an approve engineer’s report the (See cost of the apportioning method of costs. 22550-22595.) §§ would or the assessment proposed their as to whether not
present input Unfortunately, their proportional upon properties. to the benefits conferred or the evidence we other record of transcript are not with a or provided clear, however, did that hearing. plaintiffs statements received at It is the their to objections not did not public hearing specify attend the thereby are not Even if we presume plaintiffs assessment district at that time. determination,22 city’s from benefit challenging sufficiency barred the city the evidence to presented the record contains no indication of or district the of the assessment the boundaries challenging improvements, Indeed, the to on contrary plaintiffs’ opinions the assessment. proposed matter, not owners did affected overwhelming majority property the did not the district and to the formation of express opposition designated the area the to include their lands within city’s protest proposal the a resolution city After hearing, passed benefit.23 the holding public re- the city engineer’s the and ultimate determination that making basic the improvement “has the cost of fairly and port properly apportioned the esti- in in proportion each of land the assessment district parcel from the each respectively, mated benefits to be received parcel, improvements.” record,24 invalidating
Based this see no basis on Dawson, 676. supra, 16 Cal.3d city’s determination benefit under de contradicting city’s The record contains no evidence termination, or and no facts that tend to show nonproportionality otherwise absence of benefit to the properties. assessed
Moreover, will the assessed properties we cannot from record that say in here question. fact receive no benefit from claimed, alia, below, plaintiffs’ action was barred proceedings city 22In the inter laches, city’s protests prior to the delay, plaintiffs’ due to to submit written undue failure previously were decided confirmation of the assessment. As the merits of these claims not for the first time here. Appeal, the trial court or the Court of we decline decide them owners, hearing property city public approximately 23The mailed notice of asking they supported with whether formation along an informal “ballot” owners returned, ballots 453 owners proposed assessment district and the assessment. Of 457 owners and assessment and indicated they supported indicated assessment district formation, owners—owning only they hearing did not. on district public At written percent proposed protests. district—submitted total of less than 1 of all land three public hearing protests, or submitted written Although plaintiffs none of the attended indicating did the assessment district. they support of them returned ballots that, stating appraiser urge 24Plaintiffs us to also consider a sworn declaration from in market would not result in an increase opinion, his the creation the assessment district to evidence no consideration because our review is limited values. This declaration merits may be facts which appears city on the face of the record before the council from (Dawson, attempt to Plaintiffs have made no judicially supra, noticed. 16 Cal.3d council, appropriate judicial was is it a matter show that this evidence before the nor notice. *16 renters, While commercial owners and undeveloped property persons facilities, outside district are able to use the and the residing area, in community at of five large by presence parks benefits residential owners are property benefited of these uniquely by proximity facilities to their no for doubting The record establishes reason properties.25 that the desirability of the assessed residential is enhanced properties by presence well-maintained public pools, picnic barbecue playgrounds, areas, courts, fields, bicycle paths, baseball and softball and volleyball tennis and horseshoe in the area for the pits use of residents. enjoyment Moreover, a wide having assortment facilities such as a pool, play- ground and a tennis nearby court accessible in readily means public parks that the assessed owners may enjoy having the benefits of such improve- ments available for use their families avoiding and/or tenants while expense installing and privately maintaining such on their own in properties. the absence of evidence Finally, contrary, we may presume that the presence well-maintained land contributes to open park the attractiveness of the district and also enhances the thereby desirability of the properties therein.
In summary, the record fails to establish that the in assessment question, confirmed, as finally is not to the benefits proportional bestowed on the properties assessed or that no benefits accrue to such properties. Under Dawson, supra, 676, benefit, Cal.3d the city’s determination of as set in forth its resolution approving engineer’s must be report, deemed conclusive in the absence of in any contradictory evidence the record.26
D. Finally, we address plaintiffs’ contention that is inconsistent with the theory underlying benefit assessments for the city to now finance park maintenance by assessments after having used tax previously revenues to view, for such pay maintenance. plaintiffs’ the city’s admission that operation was in parks due to jeopardy lack of funds its treasury, with coupled its decision to “shift” funding park maintenance to a special assessment, 4, violates the spirit which “is aimed at local limiting
25Although plaintiffs suggest abstractly that certain property within the district located some miles outside the possibly could not its proximity parks, to the there is no indication in the record that the owner of such property disagreed with city’s inclusion within designated area of benefit. 26Although us, the issue is presently before question whether a would be valid under Dawson if there exists evidence record which contradicts the local legislative body’s benefit determination and indicates that such arbitrary, determination was capricious, entirely lacking (See evidentiary support. Strumsky Diego v. San County Employees (1974) Retirement Assn. 11 Cal.3d Cal.Rptr. fn. 2 29].) P.2d *17 150 of funds other sections
governments’ by [article to reduced ability replace (Malmstrom, supra, 94 XIII of taxes.” by shifting types to other A] Cal.App.3d p. funding to change the decision
Contrary suggestion, city’s to plaintiffs’ theory with the sources for an is not inconsistent improvement fatally recognized long first underlying place, benefit assessments. the an out of tax a choice fund ago public entity’s initially improvement that to special later funding by revenues not it from that prevent deciding should (Irish (1929) v. Hahn 208 benefit assessment would be more appropriate. decision to [city’s original Cal. 348 P. 66 A.L.R. 1382] its financing a with did not foreclose utility system bond funds acquire assessment].)27 pro if Plainly, improvement an by special reconstruction benefit, the a whether not special public entity vides that exists correct in first it its fund. financing was out of general
Moreover, that decided to shift city the record is uncontroverted the fund to after studies confirmed general financing from benefit assessment percent that in the were 55 outlying county accounting roughly residents of of to for mainte regular usage having pay the the facilities without park 4 section is violated say spirit nance of those facilities. We cannot that the where, here, as a to in order city equalize shifts benefit assessments to benefits and burdens and to end the windfall park enjoyed use, property residential owners outside who whose city from, benefits such improvements.28 4 intend to clearly adopt the drafters of section did not
Although Rider (see County definition that its circumvention v. readily permit could 11), did not Diego, they San Cal.4th at is clear that supra, equally to section intend interfere with benefit-related assessments. Accordingly, not from preclude public shifting funding improvement does entity assessment, fund general long from its so as requisite benefit exists. where, here, legal showing that the especially is so there has been no factual or 27This public
public entity’s prior necessarily fiscal decision was linked a determination general benefit. entity only at issue of a challenge legality city’s 28We note do formation plaintiffs Landscaping beyond Section district which extends its borders. assessment beyond boundaries of Lighting Act authorizes the extension of an assessment district 5115). (commencing Improvement Act of with city pursuant provisions County Glenn provisions, requisite those obtained the consent required by As county’s unincorporated designated Supervisors portion Board of include (§ 5117.) territory proposed in the assessment district benefit area.
Conclusion We conclude that the this case challenged It valid. was levied in accordance with statutory authority, proper *18 of concerns to within the domain improvements traditionally considered be special assessments. Because record evidence contradicting contains no determination, the city’s benefit from a special say and because cannot review of the will record that the assessed receive no properties benefit or benefit from the nonproportional improvements, 1989-1990 may levied set city aside.
The judgment is affirmed. Lucas, J., Mosk, J., Panelli, Arabian, J., J., J., C. and concurred. George, KENNARD, J. Dissenting. Dissenting.—Is Is the of an existing an park “improvement” within the of the of meaning Act Landscaping Lighting (the Act), Streets and Code section et Highways seq.?1 Because I conclude that maintenance of facilities be considered an preexisting cannot statute, “improvement” within the of the I meaning controlling respectfully dissent.
Background The City of Orland initiated proceedings to create a assessment district under the Act in order to fund certain “improvements.” The were “[mjaintenance described by the council as city of servicing lights, playground equipment, landscaping, irrigation systems, restrooms, public bleachers and other city named [five parks].” Determining the parks benefited each resident in the district equally, $24 proposed assess each parcel dwelling unit for the per 1989-1990 fiscal year. Four owners of residential proposed district sued the city, contending benefit assessment was invalid under Act, any event was a tax that was invalid for failure to electorate, receive approval by two-thirds vote of the as required by article A, XIII of California Constitution. The granted trial court motion city’s summary judgment, and the of Court affirmed. Appeal
Discussion Act The authorizes creation of benefit assessment districts to finance “ Section improvements. provides, pertinent part: ‘Improvement’ further statutory 1All references are to the Highways Streets and Code unless otherwise indicated. (a) The installation or of the any following: means one or combination fi[] statuary, The (b) installation or construction planting landscaping. fi[] facilities, fountains, The (c) instal- other ornamental structures and fi[] lation or construction public lighting facilities .... [1] (d) The installa- any which are appurtenant tion or construction of facilities or recreational (e) improve- The foregoing .... installation fin both, (f) servicing, ments . . . . The maintenance or . . fi[] [1]. (Italics added.) foregoing." above, facilities issue is whether maintenance preexisting As noted The of section 22525. meaning appli- can be within “improvement” statutory well goal cable rules of construction are settled. statutory (Dyna-Med, construction is to determine and effectuate intent. *19 1379, Employment Housing (1987) Fair & 43 1386 Inc. v. Com. Cal.3d [241 accord, Store, 67, 1323]; v. Drug 743 Altaville Inc. Cal.Rptr. e.g., P.2d 231, 44 238 Employment Development Department (1988) Cal.3d [242 732, so, 871].) In 746 P.2d a number of canons Cal.Rptr. doing employ construction, legislative which are “aids to statutory ascertaining probable 521, 503, (Stone (1982) 10 Superior intent.” v. Court 31 Cal.3d fn. [183 647, 809].) is statutory 646 P.2d No canon of construction Cal.Rptr. single But an infallible in all circumstances. it is guide interpretation to correct examining the words of begin statutory interpretation by task proper statute, these of the intent. usually Legislature’s are best indicator 615, 816, Kelsey (1992) 1 823 (Adoption Cal.Rptr.2d S. Cal.4th 826 [4 clear, 1216].) P.2d If construe a statute is courts should language words, unless to so according ordinary meaning to the usual and do (Brown Superior (1984) 37 Cal.3d would absurd results v. Court produce 477, 724, 272]), 691 P.2d or there is some other Cal.Rptr. compel- [208 593, (DaFonte (1992) reason to do so v. Inc. Cal.4th ling Up-Right, not 238, 140]). 828 P.2d Cal.Rptr.2d the statute straightforward. The residents’ is contend that argument They it is maintenance of not authorize assessments for maintenance unless “does installed to the statute does pursuant Although Act.” improvements as an limited to maintenance of “maintenance” it is improvement, include is, main- installed under the Act. That under statute new can an if it is “maintenance or improvement servicing, be only tenance both, (§ (f).) And “improve- subd. foregoing.” every “the under something that falls under is ment” “installation” foregoing” Act. view, this my usage, is a matter of common argument persuasive. As “maintenance” is of “im- not within the ordinarily encompassed concept And provement.” plain clear: maintenance statutory language when it is only an within of an “improvement” The 22525. meaning majority’s section that “maintenance conclusion their servicing are own right dependent and are not ante, 139) the Act” upon flatly installation under at (maj. opn., contradicts the statutory language.
The plain meaning of the the residents’ con- statutory language supports statute, struction of the and under our cases such should plain language however, lightly cast aside. majority, argument labels residents’ it, “strained” and rejects two reasons. giving
First, the majority says that the residents’ of the statute “is interpretation clearly odds with section which explicitly allows local bodies to utilize the flexibly Act to consolidate into a single district existing lighting, maintenance or tree districts planting had previously been pursuant formed to other assessment schemes . . . .” ante, (Maj. opn., at p. omitted.) italics
This analysis by majority makes little Although sense. section 22605 districts, does authorize consolidation of assessment has *20 nothing to do with whether maintenance preexisting facilities is an “improvement” within the statutory of section 22525. language
The majority does not make analysis its on this point explicit, but appar- ently comes to its conclusion based on the If following reasoning: city had consolidated the lighting assessment district with another maintenance district under section there would be no question maintenance Therefore, would be assessable. we should not distinguish between assess- schemes, ments under different since assessment always districts can consolidated.
But that the saying districts could have been consolidated is not the same consolidated, thing saying as the districts have been which is what section 22605 The did unmistakably requires. city not consolidate the district district, with another and is not entitled benefit from to it legal process chose not freely to employ. argument
The second set forth in the majority is based on opinion section states: “This which part provides alternative procedure making for herein improvements authorized and shall not to affect apply other provisions of this code.” The majority reasons that since the Legislature schemes, intended that the Act provide an alternative other to and since other assessment schemes allow assessments new, it that it does follows thing to whether the maintained is regard
without maintenance under section not matter whether an assessment for ante, (Maj. opn., maintains a new improvement. Section states this is that it is circular. argument
The with problem making procedure the Act “an alternative provides “herein (Italics added.) . . .” What are herein . authorized limits main- strictly are defined authorized”? They intended to If the had Legislature tenance shown above. improvements, under other under the Act that is authorized “any improvement authorize scheme,” It did could have done so. not. benefit assessment certainly adheres to the of the statute the residents interpretation proposed in this the statute fashion statutory language Reading itself. meaning failed set And the has majority does not lead to absurd consequences. should not forth construction any compelling why reason this commonsense be followed. they can benefits to communities parks provide significant
Public alike, serve, provided the lives parks of residents visitors enhancing one city’s maintenance. This case results from timely receive sufficient maintain its source of adequate funding establish reliable attempt commendable, has the means it Although city’s objective parks. earlier, As I said the city chosen is both foreclosed. unnecessary legally another main- could have assessment district with lighting consolidated 22605, and obtained an thereby adequate tenance district under section have immune from source of funds for maintenance that would been fashion, a different legal challenge proceed under Act. By choosing battle, focused on legal has invited and received protracted *21 statute, not judges 22525. In this our task as meaning construing of section cause, interpret and parks, to advance the cause of or to advance but to in the intent. legislative the statute manner that best effectuates apply intent, I con- established rules to determine designed Applying not to maintain facilities clude that section does authorize assessments not under the that were installed Act. I would reverse the of the Court of
Accordingly, judgment Appeal.2 grounds, I resolve case I do address solely statutory 2Because would this on question subject tax limitations of article additional whether assessment is A, of the California Constitution. XIII