DAWSON v. TOWN OF LOS ALTOS HILLS

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

Laurence DAWSON et al., Plaintiffs and Appellants, v. TOWN OF LOS ALTOS HILLS, a Municipal Corporation, Defendant and Respondent.

Civ. 33580.

Decided: June 16, 1975

di Leonardo, Kelly, Aguilar & Leal, a Professional Corp., by Michael di Leonardo, Sunnyvale, for plaintiffs and appellants. Wilson, Jones, Morton & Lynch and Robert G. Auwbrey, San Mateo, for defendant and respondent.

Plaintiffs appeal from judgment of the Santa Clara County Superior Court in favor of defendant Town of Los Altos Hills.

ISSUES PRESENTED

1) This is a class action.

2) Certain members of the class waived their rights.

3) The town council applied the proper statutes.

4) Government Code 38902 is not applicable.

5) Resolution No. 458 became moot.

6) Defendant complied with section 10204 of Streets and Highways Code.

7) Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, applies and the case must be remanded.

RECORD

Plaintiffs filed a complaint in the Santa Clara County Superior Court against defendant, Town of Los Altos Hills. The complaint sought declaratory judgment that the proposed formation of Sanitary Sewer Assessment District No. 9 (hereinafter ‘SAD 9’) by defendant was void and illegal and that a certain resolution No. 458 of defendant was void and illegal. Plaintiffs also asked that defendant be enjoined from proceeding under SAD 9 and from levying assessments pursuant to the formation of SAD 9. The court denied plaintiffs any relief finding that all proceedings conducted by defendant in the formation of SAD 9 were valid and lawful, and that the question as to resolution No. 458 was moot. Plaintiffs appeal.

FACTS

The Town of Los Altos Hills (hereinafter ‘Town’) is split into two drainage basins. Part of the Town drains to Los Altos (Los Altos Drainage Basin) and part to Palo Alto (Palo Alto Drainage Basin). In 1967 and 1968 the Town negotiated with both Palo Alto and Los Altos for contracts which would provide for the handling of sewer discharge from the Town.1 The contract with Los Altos permitted property owners in the Los Altos Drainage Basin to individually purchase capacity rights in the Los Altos sanitary sewer system on a voluntary basis so that the Town was not committed to pay any set amount of money.

The contract with Palo Alto was entirely different and led to the problems discussed herein. This contract was drawn up on the assumption that eventually every buildable site in the Palo Alto Drainage Basin would be occupied, and therefore should share in the cost of capital improvements to the Palo Alto sewage system into which sewage from such sites would drain if and when they were connected with sewers when such were made available. To purchase capacity rights in the Palo Alto sewage system for all potential buildable sites in the Palo Alto Drainage Basin, the Town contracted in 1968 to pay Palo Alto $399,544.00 over a five-year period. Later the Town incurred an additional $270,000.00 obligation to Palo Alto in order to pay the Palo Alto Drainge Basin share in the building of a Tri-City Treatment Plant.

In 1971 the Town council realized that the Town was going to have difficulty meeting its financial obligations to Palo Alto because the only source of income to the sewer fund thus far was the purchase of 559 units of capacity rights by Palo Alto Drainage Basin residents. This left 1,202 units unpaid for.

In June 1971 the Town council adopted resolution No. 632 which stated the intention of the Town council to order the following acquisitions and/or improvements: ‘1 (a) The acquisition of capacity and disposal rights and the right of service and use in sanitary sewerage collection, transmission, treatment, outfall and disposal facilities of the City of Palo Alto on behalf of the properties within the proposed assessment district. [¶] (b) The acquisition of all rights, lands and easements and the performance of all work auxiliary to any of the above necessary to complete the same.’ The resolution further provided that the cost of the project would be chargeable upon an assessment district composed of properties benefited. The city engineer was ordered to prepare and file an engineer's report presenting (1) maps and descriptions of the acquisitions to be made, (2) an itemized and total estimated cost of the acquisitions and/or construction, (3) a diagram of the assessment district, and (4) the proposed assessment upon each subdivision of land in the district in proportion to the estimated benefits to be received by each subdivision from the acquisitions and/or construction. The resolution also provided that the improvements should be done pursuant to the Municipal Improvement Act of 1913, and that serial bonds to represent the unpaid assessments would be issued under the Improvement Bond Act of 1915.

By resolution No. 633 the Town council preliminarily approved the engineer's report. By resolution No. 634 the council set a time and place for a public hearing on the resolution of intention to form SAD 9, on the engineer's report, and for the hearing of protests.

The hearing was held on August 2, 1971. The council voted four to one to overrule the protests. The council voted that the public interest and convenience required the acquisitions and/or improvements to be made as described in, and in accordance with, the resolution of intention, and approved the engineer's report, notably the diagram of the assessment district and the amount each subdivision of land within the district would be assessed.

1) Class action.

Plaintiffs assert that it is clear from the findings of fact and conclusions of law that the trial court ignored plaintiffs' class action and approached the trial as if plaintiffs had each individually brought an action to challenge the assessments levied upon each of their respective parcels of land. This contention totally lacks merit as it is obvious from a review of the court's findings of fact and conclusions of law that the court did consider the matter as a class action. The court repeatedly therein refers to the ‘members of the class.’

What plaintiffs apparently object to is the court's findings that certain categories of members of the class had either (1) waived their rights to have any issues raised in the complaint determined by either the Town council or the court or (2) waived their right to challenge their respective assessments. However, plaintiffs cite no authority to the effect, and there is no reason that the trial court could not entertain all defenses raised by the defendant, whether these defenses be to the entire class or to individual members thereof.

2) Waiver of rights.

Plaintiffs object to the following findings of fact made by the court, and assert that to the contrary all plaintiffs were properly before the court:

‘(a) All of the individually named plaintiffs and members of the class represented by plaintiffs who failed to file written protests at or before the time set for hearing have waived their right to have any or all issues raised in the Complaint determined by said City Council or this Court.

‘(b) All of the individually named plaintiffs and members of the class represented by plaintiffs who filed written protests but failed to present evidence to the City Council in support of each or any ground of objection contained in their respective written protests have waived their right to challenge their re spective assessments on the grounds stated in their written protests or upon any issues raised in the Complaint.

‘(c) All of the individually named plaintiffs and members of the class represented by plaintiffs who filed general written protests, i. e. ‘I protest S.A.D. No. 9’, without specifying in their written protests any particular ground or reason for challenging their respective assessments have waived their right to have any or all issues raised in the Complaint determined by said City Council or this Court.

‘(d) All of the individually named plaintiffs and members of the class represented by plaintiffs who failed to protest in writing at or before the time set for hearing each of the grounds of objection contained in pages 4 through 6, paragraphs 7(a) through (f) and page 6, paragraph 9 of the Complaint have waived their right to Complaint determined by said City Council or this Court.’

The court's findings were correct. The Municipal Improvement Act of 1913 at Streets and Highways Code section 10301 specifies that the legislative body shall set a time and place for hearing protests to the proposed improvement. Section 10310 of that code further states that any interested person may object to the proposed improvement by filing a written protest with the clerk of the legislative body at or before the time set for hearing.

A property owner who fails to file a written protest waives any right to thereafter object to the improvement or assessment. (Blake v. City of Eureka (1927) 201 Cal. 643, 648, 258 P. 945, overruled on other grounds, bellus v. City of Eureka, 69 Cal.2d 336, 346, 71 Cal.Rptr. 135, 444 P.2d 711; Noyes v. Chambers & DeGolyer (1927) 202 Cal. 542, 546–547, 26 P. 1006; Teeter v. Los Angeles (1930) 209 Cal. 685, 688, 290 P. 11.) In Blake the court reasoned at pages 647–648, 258 P. at page 948: ‘It does not appear from the complaint that any objection as to this excessive cost of said improvement was ever made to the city council, and the copies of the protests annexed to the complaint do not contain any such objection or any one similar thereto. Can plaintiffs now in an action to enjoin the city council from ordering the improvement raise an objection which was not made by them or any of them in their written protests presented to the city council? If they can, then why the provision of the statute providing for the filing of written protests by the property owner with the city council? If a property owner at any stage of the proceedings to construct an improvement under said statute may by an action in court enjoin further work thereon without first complying with the statute providing for the filing of written protest, then the statutory provision requiring such protest is ineffective for any purpose whatever and can be disregarded with impunity by any property owner. . . . [A] property owner who had filed to protest cannot object to the disposition of protests to which he was not a party.’

A property owner who has filed a written protest and whose protest has been denied may not later attack the improvement or assessment on grounds not stated in the protest. (Blake v. City of Eureka, supra, 201 Cal. 643, 648, 258 P. 945, overruled on other grounds, 69 Cal.2d 346, 71 Cal.Rptr. 135, 444 P.2d 711; Jeffery v. City of Salinas (1965) 232 Cal.App.2d 29, 48, 42 Cal.Rptr. 486.) In Blake at page 648, 258 P. at page 948, the court wrote: ‘We think it logically follows that a property owner who has duly filed a protest upon certain designated grounds, and whose protest has been denied, cannot thereafter, in a proceeding in court or otherwise, complain of the denial of his protest on other grounds than those set forth therein, nor can he upon grounds not stated in any protest maintain an action to restrain the work of said improvement. We think this question has been definitely set tled by the following decisions of this court: Duncan v. Ramish, 142 Cal. 686, 696, 76 P. 661; United Real Estate etc. Co. v. Barnes, 159 Cal. 242, 244, 113 P. 167; Cohen v. City of Alameda, 183 Cal. 519, 191 P. 1110.’

As to designating grounds in the written protest, a general protest such as, ‘I protest SAD 9,’ is not sufficient to raise grounds upon which a later attack may be made upon the improvement or assessment. As stated in Jeffery v. City of Salinas, supra, 232 Cal.App.2d 29 at page 48, 42 Cal.Rptr. 486 at page 500: ‘The plaintiffs contend that such issues were raised by the protest. They point to such wording as that the proceeding for the formation of the parking district and the formation thereof, were unlawful and void and that the formation of the parking district was not in compliance with the Municipal Improvements Act of 1913. This argument is without merit. These are merely general protests and do not specify on what grounds the council should find for the plaintiffs nor do they specify the grounds now urged.’

A property owner who has filed a written protest must offer evidence to the Town council in support of his protest or he waives the right to have the matter determined by either the council or the court. (Blake v. City of Eureka, supra, 201 Cal. 643 at p. 650, 258 P. 945, overruled on other grounds, 69 Cal.2d 346, 71 Cal.Rptr. 135, 444 P.2d 711; Jeffery v. City of Salinas, supra, 232 Cal.App.2d 29 at p. 48, 42 Cal.Rptr. 486.) In Jeffery, at page 48, 42 Cal.Rptr. at page 500, the court stated: ‘Further, the court found that plaintiffs offered no evidence at the hearings to the effect that the parking lot was not a separate subdivision of land within the meaning of the act nor that the lot was benefited and should have been included in the district. The court then held that the failure to protest and to offer evidence on the matter, constituted a waiver by plaintiffs of any right to have the matter determined by either the council or the court. This ruling was correct. (See Roberts v. City of Los Angeles, supra, 7 Cal.2d [477,] p. 493, 61 P.2d 323; Keller v. City of Los Angeles, supra, 123 Cal.App. [99,] p. 106, 11 P.2d 448; Hannon v. Madden, supra, 214 Cal. [251,] p. 260, 5 P.2d 4; Tudor v. City of Rialto, supra, 164 Cal.App.2d [807,] p. 813, 331 P.2d 122.)’ The findings of the court were correct.

3) The proper statutes were applied.

Plaintiffs contend that under the rule of statutory construction contained in Code of Civil Procedure section 18592 the trial court erred in upholding the creation of the sewer assessment district under the Municipal Improvement Act of 1913 (Sts. & Hy.Code, § 10000 et seq.) and/or the Improvement Bond Act of 1915 (Sts. & Hy.Code, § 8500 et seq.), because neither act specifically provides for the creation of sewers and drains and their related facilities. Plaintiffs assert that as a matter of law the Town council should have proceeded under either the Sewer Right of Way Law of 1921 (Gov.Code, § 39000 et seq.) or under the Community Facilities Law of 1911 (Health & Saf.Code, § 4600 et seq.), because these acts do specifically provide for the creation of sewers and their related facilities.

Plaintiffs particularly rely upon the language contained in County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189, 323 P.2d 753, 757: ‘Where the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls (People v. Haydon, 106 Cal.App.2d 105, 111, 234 P.2d 720). As we held in Rose v. State of California, 19 Cal.2d 713, 723, 724, 123 P.2d 505, 512: ‘It is well settled, also, that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.’ (See also People v. Moroney, 24 Cal.2d 638, 644, 150 P.2d 888; Coker v. Superior Court, 70 Cal.App.2d 199, 201, 160 P.2d 885; Whittemore v. Seydel, 74 Cal.App.2d 109, 120, 168 P.2d 212.)' Plaintiffs, however, overlook another earlier statement in that same opinion at pages 188–189, 323 P.2d at page 757: ‘It has long been the rule in this state that statutes relating to the same subject matter are to be construed together and harmonized if possible (In re Estate of Wedemeyer, 109 Cal.App.2d 67, 240 P.2d 8; In re Petraeus, 12 Cal.2d 579, 582, 86 P.2d 343; People v. Trieber, 28 Cal.2d 657, 661, 171 P.2d 1; Lucas v. City of Los Angeles 10 Cal.2d 476, 483, 75 P.2d 599; Pierce v. Riley, 21 Cal.App.2d 513, 518, 70 P.2d 206).’

It is clear upon close examination of the applicable statutes that as to sewers the Legislature intended that a municipality could proceed under any of the acts mentioned above.

The Municipal Improvement Act of 1913

At section 10102 of the Streets and Highways Code the Municipal Improvement Act of 1913 allows a municipality's legislative body to acquire or install any works or improvements mentioned in the Improvement Act of 1911, and the 1911 Act specifically lists sewer works as the kind of improvements which may be installed or acquired (Sts. & Hy.Code, § 5101, subd. c). Therefore, the Municipal Improvement Act of 1913 does specifically include sewer works.

That the Legislature intended that a municipality could provide for the acquisition or installation of sewer works and related facilities such as capacity rights under either the Municipal Improvement Act of 1913 or the Sewer Right of Way Law of 1921 is evidenced by several facts. The Sewer Right of way Law of 1921 was added as chapter 12 of the Government Code (Stats.1949, ch. 79, § 1, p. 189), and only one section has been added since then (Gov.Code, § 39182, added in 1963). The chapter has now been repealed operative January 1, 1976. On the other hand Streets and Highways Code section 10102 of the Municipal improvement Act of 1913 was only added in 1953. (This is the section which allows a municipality's legislative body to acquire any work or improvement mentioned in the 1911 Act.) If the Legislature had not intended that sewer works be included under this section there have been over 20 years for the Legislature to amend this section to so indicate. Additionally, in 1961 Streets and Highways Code section 5023.1 was added to the 1911 Act. This section defines ‘acquisition’ as follows: “Acquisition' shall mean and include any acquisition necessary or appropriate in connection with any work or improvement authorized to be made under Section 5101 of this code, by gift, purchase, or eminent domain proceedings limited however to the following: [¶] (a) Land, rights-of-way or easements. [¶] (b) Sewerage disposal facilities or capacity in or right to use sewage disposal facilities. . . . [¶] ‘Acquisition cost’ or words of similar import when used in this division shall be deemed to include all incidental expenses in connection with such acquisition.'

If the Legislature had not intended sewage disposal facilities or capacity in or right to use sewage disposal facilities to be included under the works or improvements allowed by the Municipal Improvement Act of 1913 the Legislature could have so indicated at the time of the enactment of this section. It appears that the Legislature intended to provide several means by which a municipality could proceed in acquiring improvements, such as sewer capacity rights, and did not intend to limit towns like defendant to merely one act in so doing.

The Community Facilities Act of 1911

The Community Facilities Act of 1911 in Health and Safety Code section 4603 particularly deals with the question of whether a city is limited to proceeding only under that act: ‘This chapter does not affect any other law under which improvements may be made within or by any city but it provides an alternate system of proceedings for sewer work or improvement. Improvements may be made either pursuant to this chapter, or pursuant to any other law. If, however, any proceedings are commenced pursuant to this chapter, its provisions apply to any improvement made under those proceedings until such improvement is completed.’ Clearly the Community Facilities Act of 1911 does not preclude a legislative body from proceeding under any other law.

4) Government Code section 38902 not applicable.

Plaintiffs also contend that defendant should have acted under Government Code section 38902, and that in not doing so defendant ‘. . . clearly is attempting to circumvent legislation that was expressly enacted to facilitate the result that respondent wants to achieve, that is, obtain revenue to meet a contractual commitment pertaining to the acquisition of sewer services.’

Government Code section 38902 reads:

‘A city may fix an annual sewer service standby or immediate availability charge to be applied on an area or frontage or parcel basis, or a combination thereof, within the city to be charged to such areas to which sewer service is made available for any purpose by the city, whether the sewer service is actually used or not. The city may establish schedules varying such charge according to the land uses and the degree of availability or quantity of use of such sewer service to the affected lands, and may restrict such charge to lands lying within one or more zones or areas of benefits established within such city.

‘The city may collect the standby or availability charge by billing the charged lands on a fiscal year basis or by other means available.

‘The city may collect the standby or availability charge as a part of the annual general county tax bill provided the city furnishes in writing to the board of supervisors and to the county auditor the description of each parcel for which a charge is to be billed together with the amount of the charge applicable to each parcel in sufficient time to meet the schedule established by the county for inclusion of such items on the county general tax bill. The parcel description may be the parcel number assigned by the county assessor to the parcel. In such case, the standby or availability charge shall become a lien against the parcel of land to which it is charged in the same manner as the county general taxes. Penalties may be collected for late payment of the standby or availability charge or the amount thereof unpaid in the manner and at the same rates as that applicable for late payment or the amount thereof unpaid of county general taxes.

‘If the city collects standby charges through the county general tax bill, the amount of the standby charge and any applicable penalty shall be stated on the tax bill separately from all other taxes, if practicable.’ [Emphasis added.]

The section does not apply to the instant factual situation as the Town council by contracting with Palo Alto, by approving the resolution of intention, and by creating SAD 9 did not make sewer service ‘available’ to all the subdivisions of land in SAD 9. The actions of the Town council only resulted in reserving capacity and disposal rights through Palo Alto facilities for residents of the Palo Alto Drainage Basin. The record fails to show that there are sewer pipes or any plans to construct same in the streets or adjacent to all the subdivisions of land in SAD 9. Therefore, ‘sewer service’ was not ‘made available’ within the meaning of Government Code section 38902.

5) Resolution No. 458 became moot.

Plaintiffs assert that the trial court should have determined whether resolution No. 458 was void, illegal and unconstitutional. The trial court determined that the question was moot and ‘Appellants concede that the validity and constitutionality of Resolution No. 458 may have been a moot point at trial, inasmuch as Respondent rescinded said Resolution just prior to trial.’ Nonetheless plaintiffs contend that the validity of the resolution should have been determined to prevent the Town council from readopting and reapplying same.

Resolution No. 458, though still in effect at the commencement of the Town council proceeding in question, was rescinded as regarding those proceedings by any action taken in those proceedings contrary thereto. ‘Any rule that the city council might promulgate adopting a policy regarding improvement . . . may be repealed at the pleasure of the council. This could be done directly by the city rescinding its action adopting the rule or indirectly by taking any action inconsistent with said rule.’ (Blake v. City of Eureka, supra, 201 Cal. 643 at pp. 653–654, 258 P. 945 at p. 951 overruled on other grounds, 69 Cal.2d 346, 71 Cal.Rptr. 135, 444 P.2d 711.)

The trial court correctly refused to consider resolution No. 458.

As to plaintiffs' point that the validity of the resolution should have been determined to prevent the Town council from readopting or reapplying the resolution in the future, there is a presumption that ‘. . . public officers will carry out their functions and exercise their powers in accordance with the law.’ (Housing Authority v. Forbes (1942) 51 Cal.App.2d 1, 9, 124 P.2d 194, 199; In re Hartmann (1938) 25 Cal.App.2d 55, 60, 76 P.2d 709.) The court cannot consider the possibility that a public body may possibly in the future adopt unreasonable rules or regulations. (Ex Parte McManus (1907) 151 Cal. 331, 336–337, 90 P. 702; In re Weisberg (1932) 215 Cal. 624, 633, 12 P.2d 446.)

6) Defendant complied with 10204 of Streets and Highways Code.

Plaintiffs assert that the trial court erred in finding that the proceedings taken under the Municipal Improvement Act of 1913 and the Improvement Bond Act of 1915 were valid and lawful because the evidence shows that defendant did not comply with a requirement of that act found in Streets and Highways Code section 10204. That section reads in pertinent part: ‘The report of the person or board to whom the improvement is referred by the legislative body shall contain: [¶] (a) Plans and specifications of the proposed improvement if the improvement is not already installed.’

Plaintiffs contend that the section has not been complied with because ‘. . . the Engineer's Report does not contain plans and specifications of the proposed improvement because none ever existed.’ Plaintiffs overlook the language of the section which says ‘if the improvement is not already installed.’ Here the improvement to be acquired is capacity rights in, and rights of use of, facilities which have been installed by the City of Palo Alto. Thus the capacity rights and rights of use here involved are a part of the Palo Alto facilities, and have been ‘already installed’ within the meaning of Streets and Highways Code section 10204, subdivision a. Therefore the Engineer's Report did not need to include plans and specifications thereof.

7) Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, applies.

Plaintiffs filed a supplemental brief after the Supreme Court's decision issued in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29. Plaintiffs correctly contend that under the Strumsky decision the trial court herein applied the wrong standard of review in reaching its conclusion that substantial evidence supported the Town council's determination that the property of each class member was benefited by the proposed acquisition, and its determination as to the amount of the benefit.

In Strumsky the court overturned the long established rule that whether the findings were supported by substantial evidence was the standard to be used in judicial review of an administrative order or decision by a local agency or a state agency of local jurisdiction. The court wrote: ‘After solemn and extended consideration we have concluded that there no longer exists any rational or legal justification for distinguishing with regard to judicial review between, on the one hand, local agencies and state agencies of local jurisdiction and, on the other, state agencies of legislative origin having statewide jurisdiction. Accordingly, we hold that the rule of judicial review applicable to adjudicatory orders or decisions of the latter class of agencies—which was reaffirmed and explained by us in Bixby [Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242]—is also applicable to adjudicatory orders or decisions of agencies in the former class. That rule is as follows: If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court's inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record.’ [Emphasis added.] (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28 at p. 32, 112 Cal.Rptr. 805 at p. 807, 520 P.2d 29 at p. 31.)

The issue to be determined in the instant case is whether the Town council's decision to create SAD 9 and to assess property owners in the proposed assessment district for the cost of the acquisition of the sewer capacity rights was a decision which ‘substantially affects a fundamental vested right.’

The owner of real property has a fundamental vested right in that property. Few rights in our society are so closely protected by our laws as are property rights. Such rights are fundamental in their economic aspects and in their importance to the individual in the life situation. Real property in this state particularly, often has a high economic value. Moreover, the financial and emotional security offered by the ownership of land cannot be overstated.

That the creation of an assessment district, and the consequent burden that assessment itself places on the property right, substantially affects that right is clear, for the assessment attaches as a lien upon the property assessed. Failure of a property owner to pay that assessment may well result in the loss of the property right. (Sts. & Hy.Code, § 10402.5; 70 Am.Jur.2d, Special or Local Assessments, § 163, p. 968.)

Because the Town council's decision in question did substantially affect a fundamental vested right the trial court should have exercised its independent judgment in reviewing the evidence, and overturned the findings of the council if they were not supported by the weight of the evidence. And, while the trial court could not have foreseen the Strumsky decision, that decision is clear in its mandate that ‘. . . this rule shall apply to all pending and future proceedings in trial courts and all pending and future appeals.’ (Strumsky v. San Diego County Employees Assn., supra, 11 Cal.3d 28 at p. 45, 112 Cal.Rptr. 805 at p. 816, 520 P.2d 29 at p. 40.) The case must be remanded to the trial court for determination under the rule announced in Strumsky. (Young v. Governing Board (1974) 40 Cal.App.3d 769, 781, 115 Cal.Rptr. 456, modified, 41 Cal.App.3d 162d.)

Defendant contends that the levying of special assessments is an exercise of the power of taxation and therefore does ‘not divest vested property rights.’ The question, of course, is not whether a property right is ‘divested’ but whether it is ‘substantially affected.’ Moreover, ‘A local or special assessment, though a tax in the broad sense of the term, is distinguishable in that it is a charge on the property to compel payment for a benefit to the particular property.’ (5 Witkin, Summary of Cal.Law (8th ed. 1974) Taxation, § 5, p. 3992.)

The judgment is reversed and the case remanded to the trial court to exercise its independent judgment on the evidence in accordance with the Strumsky rule.

Each party will bear its own costs.

FOOTNOTES

FOOTNOTE.  

1.  The contracts only provide for capacity rights in the sewer systems of Palo Alto and Los Altos. They do not provide for the construction of sewer lines in either basin.

2.  ‘The intention of the Legislature or parties. In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.’

BRAY, Associate Justice.* FN* Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

TAYLOR, P. J., and KANE, J., concur.

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