Building Industry Assn. v. Marin Mun. Water Dist.

• Citation: 235 Cal.App.3d 1641,1 Cal.Rptr.2d 625
• Decision Date: 20 November 1991
• Docket Number: No. A052930,A052930
• Court: California Court of Appeals
• Parties: BUILDING INDUSTRY ASSOCIATION OF NORTHERN CALIFORNIA et al., Plaintiffs and Appellants, v. MARIN MUNICIPAL WATER DISTRICT, Defendant and Respondent.

Page 625

1 Cal.Rptr.2d 625

235 Cal.App.3d 1641

BUILDING INDUSTRY ASSOCIATION OF NORTHERN CALIFORNIA et al., Plaintiffs and Appellants, v. MARIN MUNICIPAL WATER DISTRICT, Defendant and Respondent.

No. A052930.

Court of Appeal, First District, Division 3, California.

Nov. 20, 1991.

Review Denied Feb. 19, 1992.

John M. Collette, Robert A. Schwartz, Kenneth J. Cohen, Collette and Erickson, San Francisco, Albert Bianchi, Craig A. Bestwick, Bianchi, Engel, Keegin & Talkington, San Rafael, for plaintiffs and appellants.

George A. Yuhas, Mary J. Novak, Orrick, Herrington & Sutcliffe, San Francisco, for defendant and respondent.

STRANKMAN, Associate Justice. ^*

Appellants, Building Industry Association of Northern California (BIA), Perini Land and Development Company (Perini), and others, filed petitions for writs of mandate and for declaratory and injunctive relief, in which they sought to invalidate an ordinance adopted by respondent, the Marin Municipal Water District (the District), prohibiting new water connections in the District's service area. This appeal is from the judgment of dismissal entered after the trial court sustained the District's demurrer to appellants' third amended petitions without leave to amend. We affirm the judgment.

APPELLANTS' ALLEGATIONS

According to the allegations of the petitions, the District is a municipal water district organized and existing under Water Code section 71000 et seq., which provides Appellants alleged that between 1982 and 1988, the District failed to take effective action to control demand or augment its available water supply, and that by 1988, demand approached the limits of that supply. In July 1988, the District declared a water shortage emergency pursuant to section 350 et seq.; in February 1989, it adopted a temporary moratorium on new water service connections. In December 1989, it enacted ordinance No. 302, an indefinite moratorium on new water service connections, with certain limited exceptions, pending the development of new water supplies. As a result of the moratorium, no new water service is being allowed by the District for residential construction. Appellants allege that because the District has stated that it may take from five to ten years to authorize and construct facilities to augment its water supply, the moratorium will effectively block new housing construction for at least that period.

                water to the southern two-thirds of Marin County. 1  Its water supply is highly variable and depends primarily on annual rainfall collected in a local reservoir system
                

Appellant Perini wants to build 151 housing units on 81 acres which it owns in the District, in the Town of Corte Madera. Appellants alleged that because of the moratorium, Perini will be denied a pipeline extension and will be unable to begin construction of that housing development.

The petitions alleged that the District (1) breached its statutory duties under the Water Code, including its duty to give priority to domestic use when adopting emergency water use restrictions; (2) breached its duty to augment its available water supply to meet increasing demands; (3) breached its duty to facilitate, not hinder, the development of housing; and (4) failed to comply with the terms of its own moratorium. Among other relief, the petitions sought a writ of mandate ordering the District to set aside its moratorium, allocate and reserve water for all domestic uses before imposing any new emergency regulations, and exert every reasonable effort to augment its water supply.

The trial court sustained the District's demurrer without leave to amend, on the ground that the allegations of the amended petitions did not establish any enforceable duty. Judgment was entered dismissing the action.

DISCUSSION

A. Introduction

Our task here is to determine whether the facts alleged in the petitions for writ of mandate would entitle appellants to the relief they seek under any legal theory. Although we must treat the demurrer as admitting all properly pleaded facts, it is not deemed to admit contentions, deductions, or conclusions of fact or law. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1149, 278 Cal.Rptr. 614, 805 P.2d 873; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Thus a demurrer does not admit the truth of argumentative allegations about the legal construction, operation, and effect of statutory provisions; similarly, it does not admit the truth of allegations that challenged actions are arbitrary and capricious or an abuse of discretion. (Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 621, 230 Cal.Rptr. 42.)

Familiar rules governing the issuance of a writ of mandate are also applicable here. A petition for writ of mandate under Code of Civil Procedure section 1085 must plead facts showing that a public body or official has a clear legal and usually ministerial duty and that the petitioner has a beneficial interest in or right to the performance of that duty. (Gilbert v. State of California (1990) 218 Cal.App.3d 234, 241, 266 Cal.Rptr. 891; Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 193, 205 Cal.Rptr. 433.) On the other hand, a writ of mandate is not available to control the discretion of that public body or official. Although a court may order a public body to exercise its discretion in the first instance when it has refused to act at all, the court will not Finally, judicial review of regulations or restrictions adopted pursuant to sections 350 et seq. is specifically limited to a determination of whether the water district's actions were "fraudulent, arbitrary, or capricious," or whether it failed to follow the procedure and give the notices required by law. (§ 358; Swanson v. Marin Mun. Water Dist. (1976) 56 Cal.App.3d 512, 517-518, 128 Cal.Rptr. 485.)

                compel the exercise of that discretion in a particular manner or to reach a particular result.  (McClure v. County of San Diego (1987) 191 Cal.App.3d 807, 812, 236 Cal.Rptr. 653.)   When the duty of a public body is broadly defined, the manner in which it carries out that responsibility ordinarily requires the exercise of discretion;  under such circumstances, mandate is not available to order that public body to proceed in a particular manner.  (See, e.g., Sklar v. Franchise Tax Board, supra, 185 Cal.App.3d at pp. 622-626, 230 Cal.Rptr. 42 [mandamus will not lie to direct manner in which Franchise Tax Board should exercise its authority to administer state income tax laws].)
                

B. The District's Duties Under the Water Code

The District's resolution imposing the moratorium states the finding of its board of directors that the ordinance was a necessary and appropriate exercise of its authority pursuant to sections 350 et seq. and 71640. First, we consider appellants' contention that the District failed to comply with certain mandatory duties under section 350 and its companion sections.

Section 350 authorizes the governing body of a distributor of a public water supply to declare "a water shortage emergency condition" within its service area "whenever it finds and determines that the ordinary demands and requirements of water consumers cannot be satisfied without depleting the water supply ... to the extent that there would be insufficient water for human consumption, sanitation, and fire protection." A water shortage emergency condition within the meaning of section 350 includes both an immediate emergency, in which a district is presently unable to meet its customers' needs, and a threatened water shortage, in which a district determines that its supply cannot meet an increased future demand. (Swanson v. Marin Mun. Water Dist., supra, 56 Cal.App.3d at pp. 519-521, 128 Cal.Rptr. 485.)

Section 353 empowers a district to prescribe rules and regulations during a water shortage emergency. That section provides: "When the governing body has ... declared the existence of an emergency condition of water shortage ... it shall thereupon adopt such regulations and restrictions on the delivery of water and the consumption within said area of water ... as will in the sound discretion of such governing body conserve the water supply for the greatest public benefit with particular regard to domestic use, sanitation, and fire protection." (Emphasis added.) A ban on new service connections is explicitly authorized by section 356, which states: "The regulations and restrictions may include the right to deny applications for new or additional service connections...."

Section 354 permits the setting of water use priorities during an emergency shortage. It provides: "After allocating ... the amount of water which in the opinion of the governing body will be necessary to supply water needed for domestic use, sanitation, and fire protection, the regulations may establish priorities in the use of water for other purposes and provide for the allocation, distribution, and delivery of water for such other purposes, without discrimination between consumers using water for the same purpose or purposes."

Appellants read sections 353 and 354 to mean that before adopting a moratorium, the District was obligated to consider and make findings on the domestic water needs of both its current and its potential consumers; they then insist that the District had a statutory duty under section 354 to set aside water for all domestic users, both current and potential, before allocating water for other purposes, including nondomestic use by current consumers. To bolster their argument, they note that Appellants' interpretation of the statutory scheme is not persuasive. Under the plain language of section 353, when a water shortage emergency occurs, a district has discretion to determine how to conserve its water supply for the greatest public benefit, and no findings are required. Section 353 certainly permits a district, in the exercise of that sound discretion, to respond by imposing...