MILLER, J. —
A developer sought approval from the City of San Ramon (City) to build 48 town houses on two parcels of land. Because an analysis showed that the cost to the City of providing services to the new development would exceed the revenue generated by the project, the City conditioned its approval on the developer providing a funding mechanism to cover the difference. Using California's Mello-Roos Community Facilities Act of 1982 (Mello-Roos Act; Gov. Code, § 53311 et seq.), the developer petitioned the City to create a "community facilities district" and then, as landowner, voted to approve a tax within the district consistent with the statute to raise the necessary revenue. Plaintiff Building Industry Association of the Bay Area (the Association) filed suit against the City in superior court challenging the validity of the tax. After the parties filed cross-motions for summary judgment, the trial court upheld the tax. It is from this judgment that the Association now appeals on multiple grounds: the tax does not provide for "additional services" as required by statute; the tax is an unconstitutional general tax; and the City ordinance authorizing the tax is unconstitutional on its face because it "retaliates" against property owners by ceasing the provision of services funded by the tax if property owners in the district repeal the tax in the future.
We conclude that the tax will provide "additional services" to meet increased demand for existing services resulting from the town house development and therefore meets the requirements of the Mello-Roos Act; the tax is a special (and not a general) tax because it is imposed for specific purposes and not for general governmental purposes, and therefore meets the requirements of the California Constitution; and the property owners' constitutional and statutory rights are not burdened by an ordinance explaining that the city services funded by a special tax will not be provided by the city if the tax is repealed. Consequently, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Mello-Roos Act
The Legislature intended the Mello-Roos Community Facilities Act of 1982 (Gov. Code, § 53311 et seq.), commonly known as the Mello-Roos Act, and here sometimes referred to as "the Act," to "provide[ ] an alternative method of financing certain public capital facilities and services, especially in developing areas and areas undergoing rehabilitation." (Gov. Code, § 53311.5.)
"Before Proposition 13 was adopted, local governments could usually impose special taxes without any voter approval." (Curtin et al., Cal. Subdivision Map Act and the Development Process (Cont.Ed.Bar 2d ed. 2016) Use of Local Government Districts to Provide Services and Facilities, § 6A.27, p. 6A-33 (Curtin), citing Cal. Const., art. XI, § 5, Gov. Code, § 37100.5, and Associated Home Builders v. City of Newark (1971) 18 Cal.App.3d 107 [95 Cal.Rptr. 648].) Proposition 13 required that special taxes be approved by a two-thirds vote of the local voters (Cal. Const., art. XIII A, § 4), and prohibited local governments from levying special taxes in the absence of state enabling legislation. (California Bldg. Industry Assn. v. Governing Bd. (1988) 206 Cal.App.3d 212, 230 [253 Cal.Rptr. 497].) In passing the Mello-Roos Act, the Legislature sought to address the limitations on local governments' ability to raise money by passing enabling legislation that "authoriz[ed] the creation of community facilities districts ... empowered to impose special taxes to pay for specified services and facilities within the district."
The Act authorizes the creation of community facilities districts by "all local agencies," defined to include any city. (Gov. Code, § 53316; see § 53317, subd. (h).)
The Act brought about a sea change in local government financing. (See Monterey Park, supra, 211 Cal.App.3d at pp. 376-377.) "Before enactment of the Mello-Roos Act in 1982, local governments used assessment districts to finance improvements (such as sewer, water, streets, and drainage) that directly benefited a particular parcel of property. Special assessment financing was not disturbed by enactment of Proposition 13, but the use of assessment districts was historically confined to financing local improvements that conferred a special and direct benefit on the assessed property. The Mello-Roos Act liberalized the traditional constraints on local improvement financing and also permitted financing certain facilities and services that benefit the public generally, such as police and fire protection, recreation programs, library services, flood and storm protection services, and park maintenance." (Curtin, supra, § 6A.55, p. 6A-53, citing Gov. Code, § 53313.) "The main advantage of a Mello-Roos district is that taxes imposed under the Mello-Roos Act are special taxes, not special assessments. Govt C § 53325.3. A
In particular, the Act has affected the way in which facilities and services are financed for new developments. (See Monterey Park, supra, 211 Cal.App.3d 358.) "Typically, when facilities have been financed by imposing fees on the project developer, those fees are passed on to purchasers or units in the form of higher sale prices. By using a Mello-Roos district, however, both the local public agency and the developer avoid incurring any general obligation indebtedness to finance the needed improvements or services, because the cost is borne solely by residents of the benefited area."
B. The City Establishes a Community Facilities District and Levies a Tax
In 2013, the City's planning commission and the city council tentatively approved the subdivision of two parcels of land to create a 48-unit town house project known as the Acre Development (Acre). The approval process included a fiscal analysis, which determined that the cost of providing services to Acre would exceed revenue generated by Acre, thus creating a negative fiscal impact to the City of about $500 per year for each town house. As a condition of approval, the City required Acre's developer to provide a funding mechanism to mitigate the negative fiscal impact.
To satisfy the condition, the landowner-developer petitioned the City Council to initiate proceedings under the Mello-Roos Act to create a community facilities district consisting of the two parcels to be developed. The City Council began those proceedings by adopting a resolution of intention to
In February 2014, the City conducted a public hearing after which it adopted a resolution approving the formation of the district, proposing a tax to be levied on parcels in the district, and describing the facilities and services to be financed. The provision of facilities is not at issue in this appeal. The services to be financed were described as follows:
The City then adopted an ordinance providing, among other things, "All of the collections of the special tax shall be used as provided for in the [Mello-Roos] Act and in the Resolution of Formation." As we will see, whether this is a permissible "special tax" or, as the Association claims, an impermissible "general tax" is a central issue in this case.
One of the provisions incorporated in the ordinance states that if the tax should be repealed by action of the voters in the district, the City will stop levying the tax, and will not be obligated to provide the facilities and services for which the tax was levied, and the property owners in the district will be responsible for any obligations that had been funded by the repealed tax.
C. The Association Files Suit
In March 2014, the Association sued the City
The Association filed a motion for summary judgment and the City filed a cross-motion. The trial court denied the Association's motion and granted the
We review a grant of summary judgment de novo, effectively assuming the role of a trial court, and applying the rules and standards that govern a trial court's determination of a motion for summary judgment. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206 [74 Cal.Rptr.3d 570, 180 P.3d 321] (Lonicki).) Code of Civil Procedure section 437c, subdivision (c) provides that a "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Because the material facts here are undisputed, this matter presents pure questions of law.
A. The Tax Complies with the Mello-Roos Act
Section 53313 provides that a Mello-Roos tax approved by a landowner vote "may only finance ... services ... to the extent that they are in addition to those provided in the territory of the district before the district was created. The additional services shall not supplant services already available within that territory when the district was created." (§ 53313, subd. (g).) The Association contends that the tax does not meet the requirements of section 53313 because a tax that pays for increased quantities of existing services to meet increased demand does not pay for "additional service[s]."
The parties rely on the following undisputed facts: The enumerated services that will be funded by the tax are services currently provided by the City to parcels within the City limits, including the parcels where Acre will be developed. The City currently provides these enumerated services at a level that is generally adequate to meet the existing demand. The City intends to use the tax revenues to meet the increased demand for the enumerated services expected to result from the development of Acre. Once the tax is imposed and the district is developed, property in the district (where the tax is levied) will receive services that are qualitatively no better than the services received by property outside the district, even though district property owners are paying an additional tax.
1. Applicable Law
The role of the court in construing a statute "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." (Code Civ. Proc., § 1858.) "`"`Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.' [Citation.] Interpretations that lead to absurd results or render words surplusage are to be avoided. [Citation.]" [Citation.]' (People v. Loeun (1997) 17 Cal.4th 1, 9 [69 Cal.Rptr.2d 776, 947 P.2d 1313].)" (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037 [175 Cal.Rptr.3d 601, 330 P.3d 912].)
"If the statutory language in question remains ambiguous after we consider its text and the statute's structure, then we may look to various extrinsic sources, such as legislative history, to assist us in gleaning the Legislature's intended purpose. (Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490 [167 Cal.Rptr.3d 74, 316 P.3d 1188].)" (Larkin, supra, 62 Cal.4th at p. 158.)
For the purposes of this appeal, we consider two requirements imposed by section 53313 on services funded by landowner-approved taxes: the services must be "in addition to those provided in the territory of the district before the district was created" and "[t]he additional services shall not supplant services already available within that territory when the district was created." The parties cite no decisions that interpret these requirements of section 53313, and we are aware of none.
a. Interpreting Section 53313
Our understanding of the statutory language is consistent with the dictionary definitions of "additional" and "supplant" that were presented by the City to the trial court, and recognized by the Association as being probative, though not dispositive, of the meaning of the statute. The Oxford Dictionaries define "additional" as "[a]dded, extra, or supplementary to what is already present or available." (<http://www.oxforddictionaries.com/us/definition/ american_english/additional> [as of Oct. 13, 2016].) Merriam-Webster defines "supplant" as "to take the place of and serve as a substitute for especially by reason of superior excellence or power." (<http://merriam-webster.com/ dictionary/supplant> [as of Oct. 13, 2016].)
Other provisions of the Mello-Roos Act support our analysis. Section 53311.5 explains that the purpose of the Act is to finance the facilities and services in developing areas and areas undergoing rehabilitation, precisely the situations that would likely lead to increased demand for the services authorized in section 53313. And section 53326, subdivision (b), requires that when taxes are approved by landowner vote, "the legislative body shall determine that any facilities or services financed by the district are necessary to meet increased demands placed upon local agencies as the result of development or rehabilitation occurring in the district." There is no dispute that such a determination was made in this case.
The text of section 53313 and the structure of the Mello-Roos Act suffice to support our interpretation: landowner-approved taxes may fund services that meet increased demand in the district for existing services. The legislative history of the bills drafting and later amending the statutory language provides further support, because from the first enactment of the Mello-Roos Act in 1982, the legislature was clear that landowner-approved Mello-Roos taxes could be used to satisfy an increased demand for existing services.
As first enacted, section 53313 pertained to facilities as well as services, and authorized the creation of a Mello-Roos district to provide the following types of "additional facilities and services" of the following types within an area: "[p]olice protection, including criminal justice facilities limited to jails, detention facilities, and juvenile halls," and "[f]ire protection and suppression, and provision of ambulance and paramedic facilities and services." (Former § 53313, added by Stats. 1982, ch. 1439, § 1, pp. 5486, 5487, and repealed by Stats. 1984, ch. 269, § 1, p. 1408.) The statute went on to explain what constituted "additional facilities and services" by requiring that, "A community facilities district may only provide the specific facilities and levels of services authorized in this section to the extent that they are in addition to those provided in the territory of the district before the district was created, and may not supplant specific facilities of these kinds and levels of these services already available within that territory." (Former § 53313, added by Stats. 1982, ch. 1439, § 1, pp. 5486, 5487, and repealed by Stats. 1984, ch. 269, § 1, p. 1408, italics added.) These requirements were not limited to districts approved by landowner vote. (See former § 53325.3, added by Stats. 1982, ch. 1439, § 1, pp. 5486, 5491 [authorizing landowner votes in certain circumstances], and repealed by Stats. 1984, ch. 269, § 1, p. 1408.) Nothing in the statute suggests that districts may be formed only where police protection and fire protection services were previously completely absent, or that the services to be funded by the tax must be superior to services in areas not subject to the tax.
In 1984, as part of legislation enacted to "clarify and streamline" the Mello-Roos Act, the Legislature expanded the range of additional services that could be funded by a Mello-Roos tax, and eliminated the requirement that funded facilities be "additional." (Stats. 1984, ch. 269, § 44, p. 1427; former § 53313, added by Stats. 1984, ch. 269, § 2, pp. 1408-1409.) A new
The Mello-Roos Act was further amended in 1986 to clarify that a community facilities district finances (rather than provides) facilities and services. (See Assem. Local Government Com., Rep. on 3d reading of Sen. Bill No. 1115 (1985-1986 Reg. Sess.) as amended Aug. 14, 1986, p. 2.) As part of these amendments, the Legislature clarified the section 53313 requirements for additional services by placing them in two separate sentences, rather than a single compound sentence.
In 1988, section 53313 was amended again so that the requirement that services be "additional" was limited to services financed by landowner-approved taxes. (Former § 53313, amended by Stats. 1988, ch. 1365, § 4, p. 4565; see also Legis. Counsel's Dig., Sen. Bill No. 2254, 4 Stats. 1988 (1987-1988 Reg. Sess.) Summary Dig., p. 467.) This is the state of the law
These changes in section 53313 show that over time, the Legislature has expanded the range of services and facilities that can be funded by Mello-Roos districts. From the beginning, however, Mello-Roos taxes approved by landowner votes could be used to fund an increased demand for existing services.
b. The Association's Arguments Are Not Persuasive
The Association interprets the requirement of additional services (i.e., that services must be in addition to those provided in the territory of the district before the district was created) "as pertaining to the quality of service," and the prohibition against supplanting services (i.e., the requirement that additional services not supplant services already available within that territory when the district was created) as pertaining to "the type of service." "In other words," according to the Association, "a landowner-approved tax may finance services that supplement existing services, but only if the new services provide homeowner-taxpayers a real and meaningful benefit that is over and above what non-district property owners receive as part of a standard menu of municipal services." We disagree.
i. The Language of Section 53313
ii. The Structure of the Mello-Roos Act
The Association argues that the tax here "cannot be reconciled with the Mello-Roos Act's structure," suggesting that the Act "reveal[s] a legislative concern that taxpayers should not have to pay more than similarly situated citizens without getting anything extra in return." But the Association does not point to any legislative statement of this concern, nor does the Association explain what would make citizens "similarly situated," nor what baseline should be used to determine what is "extra."
The Association claims that the purported legislative concern is reflected in the fact that the restrictions of section 53313 apply to services and not facilities, and to taxes approved by landowners as opposed to registered voters. The Association states that there is no need for special restrictions on the financing of facilities, contending that "[u]ndeveloped areas that would be part of a Mello-Roos district are unlikely to have any capital facilities nearby," and concluding that "the homeowners paying the facilities tax will actually get a higher or better level of capital improvement," all without any evidentiary support.
The Association also claims that the restrictions on taxes approved by landowner vote are "protections" that "help prevent local government abuse," by forcing elected officials to place tax measures on the ballot and campaign in support of the taxes to residents who may vote them out of office. There can be no dispute that the Mello-Roos Act imposes limits on the services funded by landowner-approved taxes. But the Association offers no authority
In discussing the structure of the Mello-Roos Act, the Association implies that Mello-Roos taxes approved by landowner vote are improper under California law. This suggestion rests entirely on the Association's citation to City of San Diego v. Shapiro (2014) 228 Cal.App.4th 756 [175 Cal.Rptr.3d 670], a case that did not even address the propriety of landowner votes under the Mello-Roos Act. Shapiro concerned the validity of a city tax that was approved in a landowner election conducted under a city ordinance that incorporated and modified certain procedures from the Mello-Roos Act pertaining to landowner elections. (Shapiro, at p. 762.) The Court of Appeal concluded that the election was invalid under the California Constitution and the city's charter (Shapiro, at p. 761) and emphasized that its opinion did not address the validity of landowner votes under the Mello-Roos Act. (Shapiro, at pp. 786, fn. 32 & 792, fn. 42.)
iii. The County Service Area Law
The Association argues we should interpret section 53313 "consistent with" a purportedly similar term in County Service Area Law (§ 25210 et seq.), which the association argues is "in pari materia" with the Mello-Roos Act.
This argument is not persuasive. The County Service Area Law and the Mello-Roos Act are not in pari materia. They are located in different portions of the Government Code. The County Service Area Law is in title 3, Government of Counties; the Mello-Roos Act is in title 5, Local Agencies. They pertain to different entities. The County Service Area Law pertains specifically to counties, while the Mello-Roos Act pertains to a wide range of entities, including cities, counties, school districts, joint powers entities, and redevelopment entities. (§ 53317, subd. (h).) And they serve different ends. The County Service Area Law, enacted in the early 1950's, "was a legislative response to increasing inequities between residents of incorporated and unincorporated areas respecting the rendition and receipt of various municipal type services. [Citation.] As an alternative to other methods of obtaining correlation between cost burdens and service benefits, such as annexation, incorporation or the creation of special districts, provision was made for county service areas. And, while not requiring unincorporated territories to otherwise change their status, provision was also made whereby a consistent state policy against subsidization of one group of taxpayers by another might be satisfied." (City of Santa Barbara v. County of Santa Barbara (1979) 94 Cal.App.3d 277, 287 [156 Cal.Rptr. 320] (Santa Barbara).) The inequities addressed by the County Service Area Law resulted from unprecedented growth in the unincorporated areas of California counties since 1940. (Former § 25210.1, added by Stats. 1953, ch. 858, § 1, p. 2189, repealed and replaced by Stats. 2008, ch. 158, §§ 2, 3, pp. 485, 505.) The Mello-Roos Act, in contrast, was not a response to inequities, but rather a response to the
Even if the two statutes were in pari materia, there is no definitive explication of the term "`extended services'" as it was used in the former County Service Area Law.
Furthermore, the County Service Area Law was completely revised in 2008 (Stats. 2008, ch. 158, § 2, p. 487), eliminating the terms "`extended service'" and "`miscellaneous extended services,'" which had engendered "past confusion and controversy." (Sen. Local Government Com. (2008) Serving The Public Interest: A Legislative History of SB 1458 and the "County Service Area Law," p. 50 <http://sgf.senate.ca.gov/sites/sgf.senate. ca.gov/files/STPIPublication.pdf> [as of Oct. 13, 2016].) In these circumstances, we decline to interpret the Mello-Roos Act in light of the former County Service Area Law.
B. The Tax Is a Special Tax Under the California Constitution
The Association argues that the tax is an impermissible general tax because it will finance a wide range of services and facilities and its purpose is to raise revenue to supplement the City's General Fund. Although the Association does not contend that the tax revenues anticipated here can literally be used for any and all governmental purposes, it argues that because tax revenues can be used for "a widely disparate menu of services and facilities," the tax is in effect a general tax. The Association concludes that the tax is therefore improper because the district is a "special purpose district" under Proposition 218, and as such has no power to levy general taxes. (Cal. Const., art. XIII C, § 2, subd. (a).)
The City argues that because the tax was levied under the Mello-Roos Act, it is by definition a special tax, since the Act states that "[a] tax imposed pursuant to this chapter is a special tax." (§ 53325.3.) The City also argues that the tax is a special tax under article XIII C, section 1, subdivision (d), of the California Constitution because it is imposed for specific purposes.
The undisputed facts before the trial court were that tax revenues are to be placed in a special fund, distinct from the City's General Fund, and that revenue from the tax will not be available for all governmental purposes, but only for the purposes specified in the resolution of formation (Resolution of Formation), which are included in the services listed in section 53313 of the Act.
1. Applicable Law
In 1996, the voters approved Proposition 218, which added articles XIII C and XIII D to the California Constitution. (Bay Area Cellular Telephone Co. v. City of Union City (2008) 162 Cal.App.4th 686, 692 [75 Cal.Rptr.3d 839] (Bay Area Cellular).)
Courts have analyzed Proposition 218's distinction between special and general taxes and concluded that, "[t]he essence of a special tax `is that its proceeds are earmarked or dedicated in some manner to a specific project or projects.' (Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 956 [46 Cal.Rptr.2d 266])." (Bay Area Cellular, supra, 162 Cal.App.4th at p. 696.) "[A] tax is special whenever expenditure of its revenues is limited to specific purposes; this is true even though there may be multiple specific purposes for
Neilson v. City of California City (2005) 133 Cal.App.4th 1296 [35 Cal.Rptr.3d 453] (Neilson) provides further support for the proposition that a tax dedicated to a wide range of specific purposes is a special tax. In Neilson, voters approved a city-imposed parcel tax, characterized as a special tax, to be used "`to pay for police, fire and recreational services, and to repair streets, parks, water line replacement and repair, and building maintenance.'" (Id. at p. 1302.) A taxpayer sued to invalidate the tax on several grounds, including that it was a general tax. (Id. at p. 1301.) The trial court sustained the city's demurrer without leave to amend. (Ibid.) In affirming, the Court of Appeal addressed the plaintiff's contention that the tax was really a general tax, which relied on the argument "that there must be some limit on the specific purposes that can be stacked together before the line is crossed and the revenues are used for `general governmental services.'" (Id. at p. 1311.) The Court of Appeal noted that the argument was unsupported by authority and contrary to the opinion in City of Roseville and to the language of Proposition 218, which uses the plural "`specific purposes'" in defining a special tax. (Neilson, at p. 1311.)
The Association's argument here that the tax is designated for so many disparate purposes that it amounts to a general tax relies entirely on a statement by the court in Neilson that it could "conceive of a special tax that permits expenditures for so many specific governmental purposes that the parts might swallow the whole." (Neilson, supra, 133 Cal.App.4th at p. 1311.) The Neilson court never reached the issue because the taxpayer neither "pled sufficient facts to show that the parcel tax [there] is such a tax,"
We disagree with the Association's argument that because the tax is intended to "supplement" the City's General Fund expenditures the tax is a general tax. If the Association were correct, there could be no special taxes, because any special revenue will necessarily "supplement" the City's General Fund expenditures. In any event, the argument is supported solely by glancing citations to Weisblat v. City of San Diego (2009) 176 Cal.App.4th 1022, 1045 [98 Cal.Rptr.3d 366] (Weisblat), which held that a purported "fee" imposed by a city without a vote of the electorate was actually a general tax.
Weisblat concerned a "processing fee" levied by the City of San Diego on taxpayers who were subject to a rental users business tax, which was part of the city's business tax. (Weisblat, supra, 176 Cal.App.4th at pp. 1028-1029.) The fee was challenged by taxpayers, who claimed it was a tax that required a vote of the electorate. (Id. at p. 1031.) The Court of Appeal agreed. (Id. at p. 1044.) To determine whether the levy was a general tax or a special tax, the court looked to Proposition 218 and City of Roseville. (Weisblat, at pp. 1044-1045.) The court "note[d] that the levy appears to be a hybrid tax," with characteristics of a general and special tax. (Id. at p. 1044.) Because the proceeds were to be deposited in the General Fund, it appeared to be a general tax. (Ibid.) But instead of being available for any and all government purposes, as would be required for a general tax, the funds were to be tracked in special accounts and monitored to ensure that they did not exceed the cost of collecting and administering the business tax program.
Weisblat is nothing like the matter before us. The tax here was never denominated a "fee": it was consistently identified as a special tax under the
We conclude that the tax is a special tax, not a general tax, for the purposes of article XIII C of the California Constitution.
C. The Ordinance Does Not Retaliate Against District Landowners
1. The Effects of a Potential Repeal of the Tax
The City ordinance imposing the tax incorporates the following provision, referring to the tax as the "Special Tax" and referring to the facilities and services authorized by the Resolution of Formation as the "Authorized Facilities and Authorized Services": "If the levy of the Special Tax is repealed by initiative or any other action participated in by the owners of parcels in [the district] ..., the City shall cease to levy the Special Tax and shall cease to be obligated to provide the Authorized Facilities and Authorized Services for which the Special Tax was levied. The obligations to provide the Authorized Facilities and Authorized Services previously funded by the repealed Special Tax shall become the obligations of any property owners association established within [the district] ..., and if there is no such association, they shall become the joint obligations of the property owners of Parcels within [the district] in proportion to the number of Parcels within [the district]." We follow the parties in referring to this provision as "Section H."
The Association argues that the ordinance is unconstitutional on its face because it incorporates Section H, which violates the due process rights of landowners within the District "by threatening [them] with loss of municipal services and financial ruin" if they exercise their rights to challenge the legality of the City's actions. The Association maintains that it does not matter whether any property owner has yet suffered retaliation, claiming that "[i]t is enough that the ordinary [district] property owner will seek to avoid Section H's application by refraining to exercise his or her rights."
The City contends that "Section H simply addresses the contingency that the special tax may in the future be repealed by the property owners of the district through the initiative or any other process." The City also argues that
2. Applicable Law
Facial challenges to statutes and ordinances are disfavored. Because they often rest on speculation, they may lead to interpreting statutes prematurely, on the basis of a bare-bones record. (Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 450 [170 L.Ed.2d 151, 128 S.Ct. 1184].) Also, facial challenges conflict with the fundamental principle of judicial restraint that courts should not decide questions of constitutional law unless it is necessary to do so, nor should they formulate rules broader than required by the facts before them. (Ibid.)
Section H states that if the tax is repealed by initiative or other action of the district taxpayers, the City will stop levying the tax, will no longer be required to provide the services and facilities funded by the tax, and any obligations undertaken to provide the services and facilities will become the obligations of the district property owners' association or the district property owners themselves. It is undisputed that even if the tax is repealed, and the City ceases to provide the additional services authorized in the resolution forming the district, the City would still provide the district with "standard municipal services," defined as "police, park, recreational, open space, landscaping, street and street lighting, flood and storm protection, and stormwater treatment facilities."
There is no retaliation here. There is no injury, penalty or adverse action to property owners for exercising their rights. There will doubtless be consequences if district property owners exercise their rights and that exercise results in the repeal of the tax. Those consequences may be regarded as "adverse" by some, but they may well be precisely the consequences that are
The Association's argument that Section H retaliates against property owners who exercise their rights is strained, and the cases on which the Association relies are inapposite. The Association's primary authorities, Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [50 L.Ed.2d 471, 97 S.Ct. 568], Tichinin, supra, 177 Cal.App.4th 1049, and Franklin v. Leland Stanford Junior University (1985) 172 Cal.App.3d 322 [218 Cal.Rptr. 228], concern universities or public entities which took concrete adverse action against individuals who exercised their constitutional rights. Here, however, there is no evidence that the exercise of constitutional or statutory rights would itself cause adverse action.
We conclude that the ordinance does not retaliate against district property owners for exercising their rights.
The judgment is affirmed. The City shall recover its costs on appeal.
Richman, Acting P.J., and Stewart, J., concurred.
Evidence Code section 452, subdivision (h) permits the court to "take judicial notice of `[f]acts and propositions' within the document, not the document as a whole." (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 536 [156 Cal.Rptr.3d 912], quoting Evid. Code, § 452, subd. (h), disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 [199 Cal.Rptr.3d 66, 365 P.3d 845].) The League has not identified specific facts and propositions within the report for judicial notice, which is highly problematic because the report includes opinions and recommendations as well as an appendix of over 550 pages that describes parcel taxes imposed under the authority of a number of statutes, not limited to the Mello-Roos Act. Furthermore, even if we assume that the facts and propositions included in the report are "capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" (Evid. Code, § 452, subd. (h)), neither the number of Mello-Roos districts in the state nor the range of services funded by such other districts are relevant to the dispositive issues in this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [76 Cal.Rptr.2d 749, 958 P.2d 1062] [denying request where judicial notice is neither necessary, helpful, or relevant].)