Erven v. Board of Supervisors

• Decision Date: 22 December 1975
• Court: California Court of Appeals Court of Appeals
• Parties: Clifford ERVEN et al., Petitioners and Appellants, v. RIVERSIDE COUNTY BOARD OF SUPERVISORS et al., Respondents. Civ. 15086.

Page 285

126 Cal.Rptr. 285

53 Cal.App.3d 1004

Clifford ERVEN et al., Petitioners and Appellants, v. RIVERSIDE COUNTY BOARD OF SUPERVISORS et al., Respondents.

Civ. 15086.

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

Dec. 22, 1975.

Reid, Babbage & Coil and Donald H. Dye, Riverside, for petitioners and appellants

Ray T. Sullivan, Jr., County Counsel, and Tilden L. Brooks, Deputy County Counsel, Riverside, for respondents.

OPINION

TAMURA, Associate Justice.

Petitioners sought to have the court below review and set aside actions taken by the Board of Supervisors of Riverside County authorizing an additional type of extended service in a county service area and ordering an election to be held on the question whether the maximum tax rate within the area should be increased in order to provide the additional service. The court below entered judgment denying petitioners the relief sought. This is an appeal from that judgment.

The chronology of the events leading to the instant litigation is as follows:

In 1971 the Board of Supervisors of Riverside County (Board) established a county service area in the unincorporated territory of the county known as 'Quail Valley' for the purpose of operating and maintaining street lights in the area. ¹

On November 13, 1973, the Board adopted a resolution declaring its intention to provide road improvement and maintenance service in the area and to levy a tax upon all taxable property in the area sufficient to provide the added service. The resolution set December 18, 1973, as the date for a public hearing on the matter and directed the clerk of the Board to give notice thereof by publication as provided by the County Service Area Law.

On December 18, following a public hearing, the Board adopted a resolution authorizing the additional service and the collection of taxes to pay for the service.

On March 12, 1974, the Board adopted a resolution calling a special election for the purpose of submitting to the qualified voters of the service area the question whether the maximum tax rate should be increased in order to provide the road improvement and maintenance service. The election was ordered to be consolidated with the June 4, 1974 primary election.

On May 3, 1974, petitioners (Mr. and Mrs. Erven and Mr. and Mrs. Gernand) instituted the present proceeding. ² Mr. and Mrs. Erven were residents of Los Angeles County who owned real property in the Quail Valley service area; Mr. and Mrs. Gernand were both owners of real property in and residents of the service area. Petitioners alleged that the actions taken by the Board were invalid for numerous reasons, including the following: The improvement, maintenance and operation of roads is not a 'miscellaneous extended service' which may be provided under the County Service Ara Law; the Board's failure to comply with the California Environmental Quality Act of 1970 (CEQA) rendered its actions void; notice by publication of the hearing on the Board's resolution of intention failed to comport with procedural due process requirements of the Fourteenth Amendment; the maximum tax rate election would deny petitioners equal protection of the law in that only registered voters may vote at the election. ³

Upon the filing of the petition, the court issued a writ of review and an alternative writ of mandate. The writ of review ordered the Board to file with the court the record of its proceedings pertaining to the challenged actions. The alternative writ of mandate ordered the Board to set aside the various resolutions in question or to show cause why it had not done so. As a return to the writs, the Board filed a demurrer and answer to the petition and a memorandum of authorities in opposition.

At the hearing on the petition, the cause was heard, argued and submitted on the pleading, record of the Board's proceedings and memoranda of authorities. Following submission, the trial judge announced his intended decision in writing. He determined that only questions of law were presented and rejected each of petitioners' attacks upon the validity of the Board's actions. Judgment was entered denying the petition and dismissing the cause of action for declaratory relief.

On this appeal, petitioners make substantially the same contentions advanced in the court below. They urge that the Board's actions were invalid for the following reasons: (1) The Board's resolution authorizing road improvement and maintenance in the service area under the County Service Area Law was in excess of its jurisdiction; (2) failure to comply with the CEQA before adoption of the resolution authorizing the added extended service rendered the order invalid; (3) petitioners were denied procedural due process; and (4) the order calling the maximum tax rate increase election violated the equal protection clause of the Fourteenth Amendment. From the analysis which follows we have concluded that the contentions are nonmeritorious and that the judgment should be affirmed.

I

Petitioners' contention that the Board lacked jurisdiction to authorize road improvement and maintenance in the service area as an additional extended service under the County Service Area Law is two-pronged. First, they urge that the authorization was beyond the statutory power conferred on the Board by the County Service Area Law. Secondly, they urge that since all roads in the area, except one, are private roads and since public funds may not be expended on private roads, the Board lacked the power to authorize the added service.

The first prong of petitioners' argument is based upon the language of the County Service Area Law, particularly sections 25210.4 and 25210.4a, quoted below. ⁴ Petitioners urge that since those sections fail to make express mention of road improvement and maintenance, the Board lacked power to authorize such service under the County Service Ara Law. Pointing to the specific mention in section 25210.4a of 'Street and highway sweeping' and 'Street and highway lighting,' they urge that had the Legislature intended to authorize street improvement and maintenance, it would have expressly said so.

Petitioners' reading of the statute is too restrictive. Section 25210.4 authorizes establishment of a county service area for the purpose of providing within the area 'any other governmental services,' referred to as 'miscellaneous extended services,' 'which the county is authorized by law to perform and which the county does not also perform to the same extent on a countywide basis both within and without cities, . . .' Of all governmental services rendered by a county, road improvement and maintenance are the most basic and traditional. They are services which the county does not perform on a countywide basis both within and outside of cities; with certain exceptions (see e.g., Sts. & Hy.Code, §§ 1700--1704, 1720, (1732), the services are authorized to be performed by the county only in unincorporated territory. (See Sts. & Hy.Code, § 1020.) Since road improvement and maintenance are basic governmental services and otherwise qualify under section 25210.4, subdivision (d), as services for which a service area may be established, the fact that they are not specifically mentioned in section 25210.4a may not be taken as an intention to exclude them. Indeed, section 25210.4a expressly provides that the term 'miscellaneous extended services' shall include 'but shall not be limited to' those specifically mentioned in the section. Manifestly, the Legislature did not intend the specific services listed in the section to be all inclusive.

Our reading of the statute is borne out by the legislative history of section 25210.4a as recounted by the Attorney General in 22 Opinions of the Attorney General at page 18 where he states: 'The law was proposed to the Legislature as Assembly Bill No. 1841. As carried in the original bill, proposed section 25210.4 expressly excepted construction and maintenance of county roads from the class of 'miscellaneous extended services.' By an amendment in the Assembly on April 10, 1953, the exception was stricken from the bill. This action remained unchanged throughout successive amendments to the bill. The original bill indicates an understanding on the part of its authors that road work is one form of miscellaneous extended services, which has to be barred in specific terms, if at all. The amendment, on the other hand, demonstrates a legislative intent to include road work within the category of miscellaneous services.'

We agree with the Attorney General's conclusion that road improvement and maintenance constitutes 'miscellaneous extended services' within the purview of the County Service Area Law.

Petitioners rely on Byers v. Board of Supervisors, 262 Cal.App.2d 148, 68 Cal.Rptr. 549, where this court held that a board of supervisors lacked statutory authority to establish a county service area for the purpose of acquiring, maintaining and operating a television translator station. ⁵ The rationale of Byers was that unless specifically authorized, the County Service Area Law contemplated establishment of a service area for the purpose of providing only such services as are 'historically governmental in nature; activities consistent with our general scheme of government.' (262 Cal.App.2d at 156, 68 Cal.Rptr. at 554.) Since road improvement and maintenance are traditional governmental functions rendered by counties, the conclusion we reach in the case at bench is consistent with Byers.

The second prong of petitioners' jurisdictional argument merits little consideration. They contend that since the evidence before the Board was that all roads in the service area, except one, were in private ownership and since public funds may not ordinarily be expended on private roads, the Board lacked jurisdiction to authorize road improvement as an extended service in the area.

Petitioners' contention lacks merit. By necessary implication, the Board's...