ASSOCIATION OF CITIZENS AGAINST UNDERGROUNDING IN IMPROVEMENT DIST NO v. CITY OF RANCHO PALOS VERDES 10

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Court of Appeal, Second District, Division 2, California.

ASSOCIATION OF CITIZENS AGAINST UNDERGROUNDING IN IMPROVEMENT DIST. NO. 4, an unincorporated association, Plaintiff and Appellant, v. The CITY OF RANCHO PALOS VERDES, Bob Ryan, Ken Snyder, Ann Shaw, Barbara Hein, and Jackie Bacharach personally and as Mayor and Members of the City Council of Rancho Palos Verdes, Julie Christiansen as Treasurer of the City of Rancho Palos Verdes and Does 1 through 10, inclusive, Defendants and Respondents.

Civ. 69099.

Decided: January 11, 1984

Knickerbocker & Fichter, Richard L. Knickerbocker and Daniel J. Conway, and Francis C. Pizzulli, Santa Monica, for plaintiff and appellant. Richards, Watson, Dreyfuss & Gershon, Steven L. Dorsey, Robert M. Goldfried, and Mitchell E. Abbott, Los Angeles, for defendants and respondents.

Plaintiff Association of Citizens Against Undergrounding in Improvement District 4 appeals from the judgment of the superior court upholding the formation of a special assessment district pursuant to the Improvement Act of 1911 (Sts. & Hy.Code, § 5000 et seq.1 ) by defendant City of Rancho Palos Verdes, et al.

Events giving rise to the instant litigation may be summarized as follows:  On or before June 1, 1979, respondents were presented with a petition requesting them “to order the conversion of the existing overhead electric and communications facilities to underground” within the district indicated on a map attached thereto.   The petition had been “signed by persons representing ownership of 75% of the area of lands in the district to be assessed for the improvement.”   On June 5, 1979, respondents by Resolution No. 79–56 initiated proceedings and directed preparation of a resolution of intention for the proposed improvement, designated “Rancho Palos Verdes Improvement District No. 4.”

A delay of nearly three years followed, occasioned by the City Engineer's inability earlier to furnish respondents with the “plans and specifications ․ together with careful estimates of the costs and expenses of such work,” as required before respondents could order any work to be done.  (Section 5130.)   Therefore, it was on June 1, 1982, that respondents adopted Resolution No. 82–36, which provided for the acquisition of necessary rights of way and construction of the utility conversion project.   They also scheduled a hearing for July 6, 1982, at 7:30 p.m. to consider the protests of those objecting to the proposal.

Notices of the time, place and purpose of this hearing were not mailed until June 16, 1982.   Nonetheless, by the time this hearing initially convened on July 6, owners of 44.08 percent of the property in the proposed district already had filed written protests.   The hearing was then continued and reset for August 3, 1982, during which period owners of an additional 19.18 percent of the property liable for assessment attempted to file written protests.   Respondents, however, refused to consider them on the ground they were untimely, but did acknowledge the withdrawal of protests which had been made by owners of some 10.04 percent of the property in the proposed district.

As a result of their decisions in this regard, respondents concluded “less than 50% legal protest was made with respect to Improvement District No. 4,” and adopted by a 4–0 vote, Resolution No. 82–50, that ordered the improvement made.2

Appellant thereafter sought to restrain implementation of this resolution by means of a petition for writ of mandamus and complaint for injunctive relief filed in the superior court.   From its failure to prevail there, this appeal is prosecuted.

Appellant advances a number of theories in support of its contention that the foregoing proceedings did not satisfy statutory or constitutional requirements.   Dispositive among these is its claim that a majority protest in fact had been timely filed and, consequently, Resolution No. 82–50 purporting to order the improvement made, had been invalidly adopted and was void.   We, therefore, need not reach its contentions regarding the alleged lack of sufficient special benefits to justify the assessment as to certain of the affected homeowners.

At issue is the construction of section 5220 in those situations where a hearing to protest a proposed improvement project is not completed in one session but is continued to a later date as provided for in section 5221.3  That is to say, we are required to decide whether or not the requirement that protests be received before “the hour set for hearing” should be construed as if it read “the hour [initially] set for hearing” even when it develops that that date is not “the hour set for [the final] hearing” on this question.

“․ Principles and canons of statutory construction require that a statute be interpreted in harmony with the act of which it is a part.  [Citation.]  ‘Since statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers, courts may consider the consequences that might flow from a particular interpretation, and construe the statute with a view to promoting rather than defeating its general purpose and the policy behind it․”  [Citation.]”  (Scuri v. Board of Supervisors (1982) 134 Cal.App.3d 400, 407, 185 Cal.Rptr. 18.)

Applying these principles to the enactments here under review, we conclude the protest and hearing procedures provided in Chapter 8 of the Improvement Act of 1911 were intended to, and do, establish a means by which the legislative body may ascertain, prior to making its final decision, whether the then current owners of a majority of the land within a proposed assessment district still favor the suggested improvement after they have been made aware of its detailed and refined terms.

This is a significant inquiry since, as occurred here, there may be a substantial span of time between the filing of the property owners' initiating petition and the legislative body's adoption of a resolution of intention in response thereto.   During the three-year period that here elapsed, (1) the title to a number of the affected parcels had changed hands, and (2) the cost of the project that initially had been estimated to be $4,664 per lot, exclusive of unspecified costs of bringing the underground facilities onto each property and making the proper connections, had increased to $6,788 per parcel, plus estimated connection costs of approximately $1,827 per property, for a total of $8,615;  a figure almost double that initially mentioned.

The materiality of such a huge increase becomes apparent when it is noted that any “change” in the project, as that term is defined in section 5230 (now Pub. Contract Code, § 20446), requires that hearings be conducted upon proper notice and a subsequent four-fifths vote of the legislative body.   Even then any such “change” that would increase the “estimated assessable cost by more than 20%” is proscribed (§ 5234, now Pub.Contract Code § 20452), unless “the added cost which exceeds the 20-percent limitation shall be paid by the city.”  (Sec. 5234.1, now Pub.Contract Code, § 20453.)   While it may be semantically correct, even in a period beset by extraordinary inflation, to construe the term “change” as used in section 5230 as having reference to some modification of a proposed project beyond the mere development of its detailed specifications from its original general concept, nonetheless, the consequential impact upon the affected landowner is identical in either instance.

It, therefore, appears manifest to us that the compelling nature of our Legislature's commendable effort to ensure that all cities, by a democratic process, take cognizance of their affected citizens' wishes, does not diminish simply because more than one hearing is required before a final decision is rendered.   This is particularly true when, as here, the period between the first hearing and the final one, i.e., July 6 to August 3, is longer than the relatively brief period of notice that was originally afforded the concerned landowners by the mailing on June 16.

The importance of the determinative hearing is apparent since section 5222 specifies that “[i]f the protest is against the proposed work and the legislative body finds that the protest is made by the owners of more than one-half of the area of the property to be assessed for the improvements, and protests are not withdrawn so as to reduce the same to less than a majority, no further proceedings shall be taken for a period of one year from the date of the decision of the legislative body on the hearing, unless the protests are overruled by an affirmative vote of four-fifths of the members of the legislative body.”

In addition, although the point has not been fully briefed or tendered here, it is possible that such an override would constitute a shift from a district founded upon a petition to one resting upon “a determination of the legislative body.”   The consequences of these different methodologies is most significant since section 5896.5 provides:  “Proceedings for a conversion shall be initiated by either a petition or by a determination of the legislative body․  (b) In order to initiate proceedings, the legislative body shall determine that the city or a public utility has voluntarily agreed to pay over 50 percent of all costs of conversion, excluding costs of users' connections to underground electric or communication facilities.”  (Emphasis added.)

 Accordingly, we construe the “[a]t any time not later than the hour set for hearing objections to the proposed work” language of section 5220 to be directed to that proceeding at which the legislative body's final decision on the resolution of intention is made.   Of course, consistent with our construction, the withdrawal of protests must be allowed, as was here done, at any time prior to the conclusion of that same final hearing.

This interpretation “is also supported by the rule that courts are to construe statutes in a manner which avoids constitutional difficulties.  [Citations.]  Having decided the issue on statutory grounds, we can leave the due process and [equal protection] issues for another day.”  (Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 772, 190 Cal.Rptr. 919, 661 P.2d 1073;  fn. omitted.)

 Lastly, since it is clear that at the time the city made its decision to proceed on August 3, 1982, the owners of a majority of the property within the proposed district were opposed to the improvement, we reject respondents' suggestion that these protests were effectively, albeit unwittingly, overruled by the unanimous affirmative vote of the members of the legislative body and conclude that respondents have not as yet acquired jurisdiction to order the improvement made.

The judgment is reversed and the cause remanded with directions to the superior court (1) to issue a peremptory writ of mandate directing respondents to vacate Resolution Nos. 82–36 and 82–50 and to take no further action regarding the proposed project without complying with the Improvement Act of 1911 as required by this decision, and (2) to grant such other relief as it deems proper.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references herein are to the Streets and Highways Code.   A number of these sections have since been placed in the new Public Contract Code but, for clarity, their original citations will be used here.

2.   At this hearing the respondents also approved a notice inviting bids and set 7:30 p.m. on September 21, 1982, as the time and date for their receipt.   Such a contract was apparently awarded on October 5, 1982, but all work on the project has been suspended due to the pendency of this litigation.

3.   The sections in question read as follows:  “§ 5220.   At any time not later than the hour set for hearing objections to the proposed work, any owner of property liable to be assessed for the work may make written protest against the proposed work or against the extent of the district to be assessed, or against any agreement entered into pursuant to Section 5103, or any of them.   Such protest must be in writing, must contain a description of the property in which each signer thereof is interested, sufficient to identify the same and, if the signers are not shown on the last equalized assessment roll as the owners of such property, must contain or be accompanied by written evidence that such signers are the owners of such property.   All such protests shall be delivered to the clerk, and no other protests or objections shall be considered.”  (Emphasis added.)“§ 5221.  At the time set for hearing protests the legislative body shall proceed to hear and pass upon all protests so made as required by Section 5220 and its decision shall be final and conclusive.   The legislative body may adjourn the hearings from time to time.   Any such protest may be withdrawn by the owner making the same, in writing, at any time prior to the conclusion of said protest hearing or any such adjournment thereof.”

GATES, Associate Justice.

COMPTON, Acting P.J., and BEACH, J., concur.