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Court of Appeal, Fifth District, California.

Michael J. STILES, Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents.

No. F018330, 268970.

Decided: October 25, 1994

Neumiller & Beardslee, Steven A. Herum and Carrie L. Brown for Plaintiff and Appellant. McDonough, Holland & Allen and Natalie E. West for Defendants and Respondents.


Homeowner, Michael J. Stiles, appeals from summary judgment (Code Civ. Proc., § 437c, subd. (1 )) upholding validity of the Stanislaus County Public Facilities Fees Ordinance (Stanislaus County Ord. No.C.S.-360).

On November 28, 1989, the Stanislaus County Board of Supervisors adopted Ordinance No.C.S.-360 to defray all or a portion of the cost of public facilities related to development projects.

On October 23, 1990, homeowner Michael J. Stiles applied to the City of Turlock for a residential building permit and learned that issuance of a permit was conditioned upon payment of $4,000+ in “Public Facilities Fees.”

On April 4, 1991, homeowner's counsel wrote the Stanislaus County Board of Supervisors and protested the imposition of the fees as a condition to the issuance of a building permit. Homeowner requested a waiver of the proposed fee and on June 4, 1991, the Stanislaus County Board of Supervisors conducted a public hearing and denied homeowner's request.

On June 28, 1991, homeowner filed a verified petition for writ of mandamus (Code Civ. Proc., §§ 1085, 1094.5) in Stanislaus County Superior Court. Homeowner named the County of Stanislaus and the City of Turlock as respondents, alleged 11 causes of action, challenged the validity of the Stanislaus County Public Facilities Fees Ordinance, and prayed for a peremptory writ of mandate, declaratory and injunctive relief, refund of fees, costs, and attorney fees. The County of Stanislaus filed an answer denying the material allegations of the petition and setting forth 12 affirmative defenses.

On March 2, 1992, homeowner moved for summary judgment (Code Civ. Proc., § 437c), claiming “the public facility fee [sic ] ordinance enacted by Stanislaus County is invalid and ultra vires because Stanislaus County lacked the requisite authority to adopt the ordinance.”

On April 27, 1992, the court conducted a hearing and denied homeowner's motion by minute order, and thereafter on May 1, 1992, the court filed a formal order stating in relevant part:

“Pursuant to stipulation of counsel entered in open court, the Court agreed to treat this matter as a cross motion for summary adjudication of the fourth cause of action 1 of the Complaint on file in this action.

“[T]he material facts raised by said motion are essentially undisputed and ․ the issue raised by the motion is an issue of law, not of fact․

“IT IS, THEREFORE, ORDERED that Petitioner's motion for summary judgment be, and it hereby is, DENIED, and that Respondents' motion for summary adjudication of the fourth cause of action be, and it hereby is, GRANTED.”

On May 11, 1992, the court signed and filed a revised formal order at the request of the respondents' counsel.

On June 26, 1992, the clerk of court signed and filed homeowner's request for dismissal of the remaining causes of action without prejudice.

On July 24, 1992, the court ordered entry of a final judgment upon stipulation of the parties and on August 3, 1992, the court filed a formal judgment in favor of the county and city.

Homeowner filed a timely notice of appeal from the August 3, 1992, judgment.2

On December 2, 1992, homeowner requested this court to take judicial notice of the pleadings in Save Stanislaus Area Farm Economy v. Board of Supervisors, No. F018332. This court deferred ruling on homeowner's request pending consideration of the appeal on its merits.3


On November 24, 1987, the County of Stanislaus and the City of Turlock and other incorporated areas within the county entered into a “Mutual Support Agreement” (Agreement) “[t]o develop a development fee reflecting the County's capital cost needs related to the increase in the population in the City.” The county proposed the cities collect the fees upon issuance of building permits and then remit the sums collected to the county on a quarterly basis. To memorialize this arrangement, the county and the cities entered into the Agreement pursuant to the Joint Exercise of Powers Act (Gov.Code, § 6500 et seq.). The City of Turlock entered into the Agreement on November 24, 1987, and extended the terms of the Agreement for several years.4

The county's department of planning and community development subsequently prepared a capital improvement program (CIP) and the board of supervisors adopted that program in July 1989. During that same year, the board of supervisors proposed a public facilities fees ordinance to address the impact of new developments upon county public facilities. The county hired Recht Hausrath & Associates, a consulting firm of urban economists, to analyze the problem and prepare necessary background reports regarding a comprehensive, county-wide program for development fees. At the same time the county approached officials of Stanislaus cities and members of the public to solicit their support for the proposed fees.

The Recht consulting firm completed its draft report entitled “Stanislaus County Public Facilities Fee Program” in the fall of 1989. On December 19, 1989, the county board of supervisors adopted the Stanislaus County Public Facilities Fees Ordinance (Resolution No. 89-1724) and the ordinance became effective 60 days later. The ordinance stated in relevant part:


“A. In order to implement the goals and objectives of the County General Plan and to mitigate impacts caused by new development within the County, Public Facilities Fees are necessary. The fees are needed to finance Public Facilities and to assure that [a] new development[ ] pays its fair share for these improvements.



“The Public Facility Fees enacted pursuant to this Title are to be collected before the issuance of building permits or at the earliest time permitted by law as determined by the Chief Building Official.


“23.04.010 FEE PAYMENT

“A. Prior to the issuance of any building permit, the applicant shall pay to the Department of Building and Inspection the fees adopted by resolution.



“Fees paid under this ordinance shall be held in separate Public Facility accounts to be expended for the purpose for which they were collected by the Auditor-Controller. The Auditor-Controller shall retain fee interest accrued and allocate it to the accounts for which the original fee was imposed.”

Resolution No. 89-1724 also established a public facilities fees schedule for development within Stanislaus County. On January 23, 1990, the board adopted Resolution No. 90-126 establishing a revised public facilities fees schedule. On March 13, 1990, the board adopted Resolution No. 90-391 to approve exemptions and amendments to the Stanislaus County Public Facilities Fees Ordinance.

Homeowner was the part-owner of a door and frame manufacturing company in Ceres, California. In 1990, he sought to move his family from Modesto to Turlock. Homeowner sold his Modesto residence and began looking for a new home in Turlock. In March 1990, homeowner decided to purchase a bare lot in the Bristol Park residential subdivision and build a new home. At the time of homeowner's purchase, Bristol Park was a partially completed subdivision.

The City of Turlock approved the Bristol Park subdivision prior to the county's adoption of the Stanislaus County Public Facilities Fees Ordinance. Consequently, none of the then-existing homes in the subdivision were subject to the public facilities fees. However, homeowner sought to build a residence in the subdivision after adoption of the ordinance. On October 23, 1990, he submitted his application for a building permit to the City of Turlock and the city informed Stiles he would have to pay public facilities fees before he could obtain a building permit. Stiles paid a fee of $4,442 under protest, obtained permit No. 90-1278, and filed a protest letter with the county board of supervisors on April 4, 1991. As noted, that letter specifically requested a waiver or reduction of the fee pursuant to the ordinance.

On June 4, 1991, the board of supervisors held a public hearing to consider homeowner's request for a waiver or reduction of the fee. Homeowner argued his residence would not burden public facilities any differently than those homes built in Bristol Park prior to the adoption of the ordinance. The county ultimately denied homeowner's request for a waiver or reduction of the fee.

After completing the administrative process, Stiles petitioned for mandamus relief against the county and the city. He later moved for summary judgment as to the fourth cause of action, claiming the county had no authority to regulate outside its territorial boundaries. The Stanislaus County Superior Court denied homeowner's motion and instead granted the city and county summary adjudication as to the fourth cause of action.


Homeowner contends the county has no constitutional, statutory or implied authority to regulate beyond its boundaries. Therefore, he maintains the county's imposition of public facilities fees upon building permits issued for lots in incorporated cities is ultra vires and void.

As noted above, the instant appeal is taken from a final judgment entered after summary adjudication of issues as to the fourth cause of action in favor of respondent county. The fourth cause of action stated in relevant part:

“24. The Public Facilities Fees Ordinance enacted by Stanislaus County results in an unauthorized and extra-territorial regulation by Stanislaus County. Enactment of the Public Facilities Fees Ordinance results in a situation where two different governmental entities, the City and the County, exercise the same powers within the identical area. Since counties draw their governing powers from the Constitution, and the Constitution states that a county can enforce only within its territorial limits all local police, sanitary and other ordinances and regulations not in conflict with general laws, the Public Facilities Fees Ordinance violates California Constitution Article XI, Section 7.

“25. The County and City have exceeded their authority and committed a prejudicial abuse of discretion by collecting the fee from Petitioner because the County has no authorization under the California Constitution or otherwise to validly impose the fee within the city limits of Turlock. Therefore, the Ordinance is invalid because adopted without authorization and beyond the powers given to a county.”

At the time of the instant motion, Code of Civil Procedure section 437c, subdivision (f) provided (1) a party could move for summary adjudication as to one or more causes of action within an action and (2) such a motion could be made by itself or as an alternative to a motion for summary judgment. A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. (Stats.1990, ch. 1561, § 2, pp. _-_ .)

Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. (Former Code Civ. Proc., § 437c, subd. (c).) To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. (Horsemen's Benevolent & Protective Assn. v. Insurance Co. of North America (1990) 222 Cal.App.3d 816, 820.)

A defendant has met his or her burden of showing a cause of action has no merit if that party has shown one or more elements of the cause of action, even if not separately pleaded, cannot be established, or otherwise shows there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause or action. (Former Code Civ. Proc., § 437c, subd. (f); Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548-549; City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21, 25.) Of course, where the evidence presented by defendant does not support judgment in his or her favor, the motion will be denied without looking at the opposing evidence, if any, submitted by plaintiff. (Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 831.) The evidence of the moving party is strictly construed and that of the opposing party liberally construed. (Coppola v. Superior Court (1989) 211 Cal.App.3d 848, 862.)

Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 848.) In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513-1515; Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 757.)

Article XI, section 7 of the California Constitution states:

“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”

Development fees may be levied pursuant to the exercise of the local police power granted to cities and counties by article XI, section 7 of the Constitution. A development fee is an exaction imposed as a precondition for the privilege of developing the land. Such fees are commonly imposed on developers by local governments to lessen the adverse impact of increased population generated by the development. While general law cities and counties receive their taxing power from the Legislature under article XIII, section 24 of the Constitution, they can impose development fees pursuant to their police power without the necessity of authority from the Legislature. (California Bldg. Industry Assn. v. Governing Bd. (1988) 206 Cal.App.3d 212, 234-235; Russ Bldg. Partnership v. City and County of San Francisco (1987) 199 Cal.App.3d 1496, 1504.)

As long as the local enactments are not in conflict with general laws, the power to impose valid regulatory fees is not dependent on any legislatively authorized taxing power. Rather, the power to impose such fees exists pursuant to the direct grant of police power under article XI, section 7 of the California Constitution. (Mills v. County of Trinity (1980) 108 Cal.App.3d 656, 662.)

The California Constitution specifies that the police power bestowed upon a county may be exercised “within its limits.” (Cal. Const., art. XI, § 7.) Ordinances enacted by a county board of supervisors in the zoning and other regulatory fields are effective only in the unincorporated territory of the county. (City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264, 274-275; Stirling v. Board of Supervisors (1975) 48 Cal.App.3d 184, 187; City of South San Francisco v. Berry (1953) 120 Cal.App.2d 252, 253.)

Homeowner contends the Agreement in issue is invalid because the Joint Exercise of Powers Act applies only where all the participating entities share a common power over a common territory. He therefore asserts the particular power sought to be exercised by way of the Agreement in this case, that is, the imposition by the county of development fees within the limits of the city, is neither common nor shared, since neither entity independently possesses police power within the territory of the other.

The county responds:

“․ Turlock and the County have cooperated to implement regional fees. Their actions are specifically authorized by statute. Government Code Sections 6500 et seq., authorize public agencies, including cities and counties, to enter agreements to ‘jointly exercise any power common to the contracting parties․' ( [Gov.Code,] § 6502.) In 1987, Turlock and the County approved a Mutual Support Agreement which meets all the requirements of the Government Code.”

Government Code section 6502 states in relevant part:

“If authorized by their legislative or other governing bodies, two or more public agencies 5 by agreement may jointly exercise any power common to the contracting parties, even though one or more of the contracting agencies may be located outside this state.

“It shall not be necessary that any power common to the contracting parties may exercisable by each such contracting party with respect to the geographical area in which such power is to be jointly exercised․”

The last sentence of the quoted portion of the statute was added, with other provisions, in 1980. (Stats.1980, ch. 1356, § 1, pp. 4896-4897.) In our view, it constitutes an express legislative grant of authority to designated entities to jointly act in the geographic area covered by their agreement, so long as all contracting entities have the independent power to perform the contemplated act within some portion, but not necessarily the same portion, of the area covered by the joint agreement. As homeowner concedes, in the absence of a constitutional prohibition6 the Legislature may permit a local governmental entity to act outside its boundaries. (See The City of Oakland v. Williams (1940) 15 Cal.2d 542, 549; City of Oakland v. Brock (1937) 8 Cal.2d 639, 640-641; Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 281-284; Trimont Land Co. v. Truckee Sanitation Dist. (1983) 145 Cal.App.3d 330, 344-345; City of Pasadena v. County of L.A. (1965) 235 Cal.App.2d 153, 155-156; 1 McQuillan, Municipal Corporations (rev. ed. 1987) § 3A.09, pp. 437-438.)

To adopt the position advanced by homeowner would expunge the 1980 amendment from Government Code section 6502. Such an interpretation would be contrary to the elementary rule of construction that effect must be given if possible to every word, clause and sentence of a statute, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another. (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1269.)

We recognize the Supreme Court has said that the Joint Exercise of Powers Act does not confer any new powers upon any agency but “merely sets up a new procedure for the exercise of existing powers .” (The City of Oakland v. Williams, supra, 15 Cal.2d at p. 549.) To the extent this notion may support the position taken by homeowner in this case, it is not viable after the 1980 amendment to Government Code section 6502.

In view of our determination that the Agreement in issue is sanctioned by the 1980 amendment to Government Code section 6502, we need not address homeowner's related argument that Government Code section 66000 et seq. does not authorize the Agreement.7

In his reply brief on appeal, homeowner also contends for the first time that (1) the Agreement was an invalid attempt to augment the state-approved method of allocating revenues under the Cortese-Knox Local Government Reorganization Act of 1985 (Gov.Code, § 56000 et seq.), and (2) the Turlock City Council never deliberated or discussed the public facilities fees ordinance prepared by the county but rather “totally abdicated its decision[-]making power [in favor of the county] in violation of the doctrine of unlawful delegation.”

Points raised in a reply brief for the first time will not be considered by an appellate court unless good cause is shown for failure to present them before. (In re Marriage of Nolte (1987) 191 Cal.App.3d 966, 975.) Homeowner has failed to make such a showing in the instant case and any error below must be deemed waived.

We conclude the lower court properly granted summary adjudication as to the fourth cause of action.

The judgment is affirmed. The respondents are awarded costs on appeal.


1.  In the fourth cause of action, homeowner alleged the county had no authority to impose a fee upon development within an incorporated city.

2.  An order granting a motion for summary judgment, entire or partial, is a preliminary nonappealable order. Appeal must be taken from the final judgment ultimately entered in the case. (King v. State of California (1970) 11 Cal.App.3d 307, 310.) Here, homeowner properly appeals from the August 3, 1992, final judgment.

3.  Judicial notice may not be taken of any matter unless authorized or required by law. (Evid.Code, § 450.) Judicial notice may be taken of the records of any court of this state. (Evid.Code, §§ 452, subd. (d)(1) and 459, subd. (a).) In the instant case, homeowner apparently wants this court to take judicial notice of the following statement in a demurrer to a petition for writ of mandate in the Save Stanislaus Area Farm Economy case:“In following the above principles to their logical conclusion, it is clear that the County has no jurisdiction or power to adopt policies or ordinances affecting land use within incorporated Cities located within the County․”Homeowner apparently makes this request to show that respondents have conceded the point for purposes of the instant appeal. If that is the case, homeowner's view must be rejected. A reviewing court takes judicial notice of the fact that pleadings were prepared and filed and of their contents. However, the court does not take judicial notice that everything said therein is true. (See Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354.) Thus, we will take judicial notice of the pleadings in the Save Stanislaus case but that does not mean their contents are necessarily true as construed by homeowner.

4.  Respondents executed a second amended agreement effective July 11, 1989, which was effective through June 30, 1993.

5.  A “public agency” includes any county or city. (Gov.Code, § 6500.)

6.  Homeowner has made no claim on this appeal that any portion of Government Code section 6502 is unconstitutional on its face or in effect under the circumstances of this case.

7.  Homeowner also argues Assemblyman Sal Cannella unsuccessfully attempted to amend the Government Code during the 1991 legislative session to provide express statutory authority for counties “to regulate extraterritorially with respect to collection of development fees.” The proposed legislation, Assembly Bill 931, provided in relevant part:“[W]hen approval of a development project is made by a local agency other than a county, the county shall have the authority to prescribe a fee pursuant to Sections 66001 and 66002 for approval of a development project. The fee may be collected by the local agency for the county in return for agreed upon administrative costs. If the local agency declines to collect the fee, the county shall be empowered to collect it.”Homeowner's argument is not persuasive. The Legislature's failure to pass Assembly Bill 931 does not nullify the public facilities fees ordinance in the instant case. As the city and county note, the county has authority to adopt development fees within the unincorporated areas of the county and the city has authority to adopt development fees within its boundaries. By adopting the Agreement, both entities agreed to cooperate in the development and implementation of the fees. Existing law allowed them to act collectively to carry out their respective powers.