ASSOCIATION OF CITIZENS AGAINST UNDERGROUNDING IN IMPROVEMENT DIST NO v. CITY OF RANCHO PALOS VERDES 10 (1984)

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 by defendant City of Rancho Palos Verdes, acting through its named defendant councilmembers, et al., pursuant to the Improvement Act of 1911 (Sts. & Hy.Code, § 5000 et seq.) and particularly Chapter 28 thereof (§§ 5896.1 et seq.) treating with the conversion of existing overhead electric and communication facilities to underground locations.¹

The events that were ultimately to result in the instant litigation had their inception over six years ago.   They were summarized as follows by respondents in their reply to certain questions we propounded following our grant of rehearing in this matter:

“On February 7, 1978, the Kings View Homeowners Association sent a letter to the Public Works Department of the City of Rancho Palos Verdes, expressing an interest in proceeding with an underground utilities conversion project.   The Public Works Director responded on February 16, 1978, advising that he would request a preliminary feasibility report and estimate from Southern California Edison Company.   On July 26, 1978, some five months later, the Area Manager for Southern California Edison reported to the homeowners and to the City as to the feasibility of the project, estimating the cost of the conversion (for electrical lines only) at ‘about $3,500 per property’ plus $500 to $1,500 per property for trenching on private property.   Upon receiving this report, the homeowners on September 20, 1978, signed and filed with the city an ‘application for petition for conversion of existing overhead utilities.’   On January 18, 1979, the Director of Public Works sent Service Request no. 3765.50 to the City Engineer requesting the preparation of the petition requested by the homeowners.   On February 5, 1979, the City Engineer sent three copies of the petition to the City.   On February 8, 1979, the Director of Public Works sent the three copies of the petition to the individuals who requested it.   The petitions were circulated and filed with the City on or about April 19, 1979.

“The Director of Public Works transmitted the petitions to the City Engineer on April 19, 1979, with a request to determine whether a sufficient number of property owners had signed the petition.   On May 1, 1979, the City Engineer reported to the Director of Public Works that the owners of 75.3% of the area of property to be included in the proposed district had signed the petition.   The Deputy City Clerk executed a certificate of sufficiency of the petition.   The City staff prepared a detailed memorandum regarding objections to the project.   On June 5, 1979, the City Council held a public hearing, heard testimony pro and con, and voted to adopt Resolution No. 79–56 ‘instituting proceeding ․ and directing preparation of resolution of intention for the conversion of existing overhead electric, telephone, and cable television facilities in Daladier Drive and other rights of way.’   The Public Works Director then asked the City Engineer to provide the maps to Southern California Edison Company to permit the preparation of the initial engineering plans.” 2

In sum, the subject petition was prepared by respondent City's employees and contained cost estimates made by its City Engineer after consultation with the affected utility companies.   As a consequence, the signatories to this “quasi-official” document must surely have relied upon these estimates to some unknown, but not insignificant, extent.

Chapter 28 of the Improvement Act under which this project was initiated appears to contemplate prompt action on the part of the subject public entity without any further confirmation since the landowners who already have signified their approval of the project are defined as those “shown on the last equalized assessment roll used by the city ․”  (See § 5896.6;  emphasis added.)   Respondents, however, advise us that in actuality adoption of a resolution ordering the work performed in the year between the compilation of assessment rolls is never a practical possibility for in every instance two to four years are required following the receipt and formal acceptance of such a petition before detailed plans and specifications can be developed.   Therefore, it allegedly has become the practice of the involved public entities to engraft onto Chapter 28 certain of the more general provisos of the Improvement Act itself, particularly sections 5220 et seq., providing for “Protest and Hearing.”

It was in 1966 that Chapter 28 was added to Part 3, Division 7, of the Improvement Act of 1911, authorizing and providing a procedure, under both the 1911 Act and the Municipal Improvement Act of 1913 (Division 12, §§ 10000 et seq.), for the conversion of existing overhead and electrical communication facilities to underground locations.   It is relatively unique in that it provides that conversions shall be initiated by petition or by assumption of more than 50 percent of the costs by the city or a public utility ³ while all other improvements proposed under the 1911 Act, with the exception of the construction of sidewalks and curbs (Chapter 27, §§ 5870 et seq.), seemingly are initiated in an unlimited fashion by the legislative body alone.   However, section 5896.4 of Chapter 28 also provides:

“Except as otherwise expressly provided by this chapter, a proceeding for a conversion shall be conducted and completed in accordance with the procedure specified elsewhere in this division.   All of the provisions of this division shall be applicable to a proceeding for a conversion.   This chapter does not affect any other law relating to the same or any similar subject, but provides an alternative authority and procedure for the subject to which it relates.   When proceeding under this chapter its provisions only need be followed.”

 We do not here attempt to resolve the innumerable ambiguities created by the foregoing language.   We merely reiterate the most apposite observation made by our Supreme Court in Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 686, 129 Cal.Rptr. 97, 547 P.2d 1377 that the “bewildering array of acts governing special assessments ․, each with its own distinctive scheme of procedure, might well benefit from a comprehensive legislative reexamination with a view to simplification and unification ․,” and conclude that to the extent Chapter 28 provides a self-contained procedure for a conversion project initiated by petition, it still does not preclude a legislative body, where appropriate, from utilizing certain of the other provisions of Division 7 of the 1911 Act even though such provisions initially were enacted to govern only those improvements undertaken solely by the determination of the legislative body itself.

In this instance respondents did not finally adopt the resolution of intention to proceed (Resolution 82–36) until the City Council meeting of June 1, 1982.   During the three-year period that had elapsed, (1) the title to a number of the affected parcels had changed hands so that the petition on which the project rested no longer reflected ownership “as shown by the last equalized assessment roll” (§ 5896.6;  emphasis added), 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 described in the City prepared petition.⁴

At the same June 1, 1982 session respondents also scheduled a hearing for July 6, 1972, at 7:30 p.m., to consider any protests to this resolution of intention they had so belatedly adopted, albeit their delay apparently was not ascribable to any dilatory fault on their part.   Despite the fact notices of the time, place and purpose of the hearing were not mailed until June 16, 1982, by the time proceedings initially convened on July 6, owners of 44.08 percent of the property in the proposed district already had filed written protests.

Matters were not concluded at that session, however, but were continued to August 3, 1982.   By that date owners of an additional 19.18 percent of the property liable for assessment had filed written protests.   Unfortunately respondents, relying upon the advice of their City Attorney, believed consideration of the wishes of these additional landowners was forbidden because their objections were “untimely.”   On the other hand, respondents were told they were required to acknowledge the fact that protests by owners of some 10.04 percent of the property had been withdrawn between the first and second protest hearings.

As a result of this advice respondents concluded that “less than 50% legal protest was made with respect to Improvement District No. 4” and adopted by a 4–0 vote, one councilmember being absent, Resolution No. 82–50 ordering the improvement made.⁵

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.

We need not discuss in detail each of the theories advanced by appellant in support of its contention that the foregoing events did not satisfy statutory or constitutional requirements.   Dispositive among these is its claim that respondents failed to recognize a majority protest that in fact had been timely filed.   That is, we conclude that as a result of the advice given them by their City Attorney, respondents misperceived their power and, under the circumstances of the present case, their duty to accept and consider all written protests which had been filed prior to the commencement of the continued hearing on August 3, 1982.   Consequently, Resolution No. 82–50 purporting to order the improvement made was invalidly adopted.   However, since it is possible the challenged project may yet be approved, we will also briefly address appellant's further contention that the proposed undergrounding will not provide certain of the affected homeowners sufficient special benefits to justify their inclusion in the improvement district.

Initially, we determine the appropriate construction of section 5220 in this unique situation where a hearing is held to consider objections to a proposed conversion project initiated by petition when that hearing is not completed in one session but is continued to a later date as provided for in section 5221.⁶  That is to say, we are required to decide whether or not, in this context, 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 the question.

Respondents advance the position that section 5220 prohibits the filing of written protests after the initial commencement of any type of protest hearing, regardless of whether or not such hearing is subject to adjournments or continuances.   In support of this view they direct our attention to a number of cases which, although they arose under the quite dissimilar Annexation of Uninhabited Territory Act of 1939 (Gov.Code, §§ 35300–35326), did involve hearings conducted pursuant to a statutory scheme that permitted written protests to be filed “[a]t any time before the hour set for hearing objections ․”  (See, e.g., People v. City of Palm Springs (1958) 51 Cal.2d 38, 331 P.2d 4;  Amer. Distl. Co. v. City Council, Sausalito (1950) 34 Cal.2d 660, 213 P.2d 704;  City of El Monte v. City of Industry (1961) 188 Cal.App.2d 774, 10 Cal.Rptr. 802;  McMillen v. City of El Monte (1960) 180 Cal.App.2d 394, 4 Cal.Rptr. 750;  and Heller v. City Council (1958) 157 Cal.App.2d 441, 321 P.2d 97.)   While it is true that in setting forth the factual background of these proceedings the appellate courts in certain instances mention in passing that hearings had been continued, this point was never a determinative consideration.   Consequently, in none of them was the authoring court required to interpret and decide the quoted language's potential applicability with specific reference to a continued hearing, i.e., in each of them the result would have been the same even if proceedings had convened and been concluded at a single session.

“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.)

The basic purpose served by a protest hearing is different when the proposed annexation, conversion or other proceeding is one that may originally be initiated by a determination of a legislative body, sua sponte, rather than by a petition or by that body's assumption of more than 50 percent of the cost thereof.⁷  The statutory schemes analyzed in the cited decisions involved projects which could be initiated with no financial commitment by a governmental entity, and without any expression of prior approval by the parties affected thereby, but which invested those parties with a true veto power, rather than a mere advisory expression of disapproval, after the proceedings were underway.

 By contrast, the function of a protest hearing when utilized in connection with a proposed project that has been initiated by petition, such as the present one, is to provide the 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 as “shown on the last equalized assessment roll” (§ 5220;  emphasis added) still favor the suggested improvement, as did their predecessors who signed the initiating petition (see § 5896.6), after its detailed and refined terms have become known.

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.

 Accordingly, we hold that the “[a]t any time not later than the hour set for hearing objections to the proposed work” language of section 5220 is, in this instance at least, 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 respondents made their decision to proceed on August 3, 1982, the owners of a majority of the property within the proposed district were then opposed to the improvement, we reject the concept that these protests were effectively, albeit unwittingly, overridden by the unanimous affirmative vote of those members of the legislative body then present ⁸ and conclude that respondents have not as yet properly ordered the improvement made.⁹

 Turning to appellant's claim that certain property would not be benefited by inclusion in the proposed district, we note that while property may be specially assessed only for improvements that provide it benefits beyond those received by the general public, the scope of judicial review in such actions is quite narrow, i.e., the legislative body's determination of benefit is conclusive unless the absence of benefit appears from the record or judicially noticed facts.  (White v. County of San Diego (1980) 26 Cal.3d 897, 904, 163 Cal.Rptr. 640, 608 P.2d 728.)

 Such record as has been provided us ¹⁰ indicates that the primary benefits to be derived from the proposed conversion to underground utilities are increased safety and more effective electrical service through increased transformer capacity.   Appellant's argument that the latter benefit aids only those with “pools, air conditioning, etc.” and is therefore “unequal” is unavailing.  “[S]pecial benefits can properly be determined in light of uses to which the property might reasonably be put even though some other use is made by the owner.  [Citation.]”  (White v. County of San Diego, supra, 26 Cal.3d 897, 906, 163 Cal.Rptr. 640, 608 P.2d 728.)   Similarly, respondents' determination of benefit is not reasonably subject to challenge because such secondary benefits as view enhancement and/or increased property values might inure to certain owners within the district, but not to others.

In summary, in the absence of any clear showing to the contrary, we have no basis for concluding that the improvement will not confer adequate special benefits upon each parcel of property within the district beyond that received by the general public.

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 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.   Further we shall use the term “respondents” to include all defendants but with particular reference to the defendant councilmembers.

2.   The citations to the record and to the exhibits attached to respondents' supplemental brief have been here omitted.

3.   As amended in 1972, section 5896.5 provides:  “Proceedings for a conversion shall be initiated by either a petition or by a determination of the legislative body.  (a) In order to initiate proceedings, a petition shall:  (1) Describe the proposed assessment district, as provided in Section 5181.  (2) Generally describe the proposed conversion.  (3) Request that proceedings for such conversion be taken pursuant to this division.   (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.)

4.   For the benefit of the parties in the event the proposed conversion does proceed, we observe that these increases in the estimated cost of the improvement occurred prior to the adoption of the resolution of intention and therefore do not call into play the proscription against any “changes,” as that term is defined in section 5230 (now Pub.Contract Code, § 20446), that would increase the “estimated assessable cost by more than 20 percent” (§ 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.)Nevertheless, whether a 100 percent increase in the estimated cost of a project occurs before or after its final adoption by a legislative body, and whether or not it is due to a “change” in the plans, per se, or merely a refinement thereof, or even as the result of inflation, its heavy impact upon the affected landowners remains the same.

5.   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 apparently was awarded on October 5, 1982, but all work on the project has been suspended due to the pendency of this litigation.

6.   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.”

7.   See footnote 3.

8.   Section 5222 provides:  “If 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.”

9.   In their respective replies to our inquiries following the grant of rehearing, the parties vigorously dispute whether or not a majority of the affected owners now desire completion of the project.   Manifestly it is not the province of this court to resolve such a dispute on the basis of affidavits tendered here.   However, the fact that so close and contested a question still exists does confirm our conviction that a full and fair plebiscite must yet be conducted.

10.   Our inquiry into appellant's substantive allegations is extremely curtailed since our record contains no transcripts of either the superior court or administrative proceedings sufficient to apprise us in any significant degree of the studies, reviews, reports or other information furnished to respondents before they voted to order the improvement made on August 3, 1982.

GATES, Associate Justice.

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