Sutco Construction Co. v. Modesto High School Dist.

• Decision Date: 22 March 1989
• Docket Number: No. F009783,F009783
• Citation: Sutco Construction Co. v. Modesto High School Dist., 256 Cal.Rptr. 671, 208 Cal.App.3d 1220 (Cal. App. 1989)
• Court: California Court of Appeals
• Parties: , 52 Ed. Law Rep. 168 SUTCO CONSTRUCTION COMPANY, INC., et al., Plaintiffs and Respondents, v. MODESTO HIGH SCHOOL DISTRICT et al., Defendants and Appellants.

Page 671

256 Cal.Rptr. 671

208 Cal.App.3d 1220, 52 Ed. Law Rep. 168

SUTCO CONSTRUCTION COMPANY, INC., et al., Plaintiffs and Respondents, v. MODESTO HIGH SCHOOL DISTRICT et al., Defendants and Appellants.

No. F009783.

Court of Appeal, Fifth District, California.

March 22, 1989.

Kronick, Moskovitz, Tiedemann & Girard and P. Addison Covert, Sacramento, for defendants and appellants.

James J. Kroll, Jr., Modesto, for plaintiffs and respondents.

OPINION

BEST, Acting Presiding Justice.

Appellants Modesto High School District, Modesto City School District, Empire Union School District and Stanislaus Union School District (Districts or appellants) appeal from a peremptory writ of mandate in favor of respondents Sutco Construction Company, Inc. (Sutco), Steven Paul Zagaris Development Company (Zagaris), and Vintage Faire Development Company, Inc. (Vintage Faire), (Developers), commanding the school districts to set aside prior impositions of school facility fees and refund all fees collected from respondents Sutco and Zagaris, and to cease further assessments pursuant to City of Modesto Ordinance No. 2438-C.S.

STATEMENT OF FACTS

On July 15, 1986, the City of Modesto adopted Ordinance No. 2438-C.S., entitled "School Site and Facility Fees," for the express purpose of providing an "additional source of revenue for school site acquisition and improvement and buildings in the school districts so that complete school sites and facilities can be provided." Section 3 of the ordinance, entitled "Effective Date," states, "This ordinance shall go into effect and will be in full force and operation from and after sixty (60) days after its final passage and adoption." Pursuant to this provision, the ordinance became operative on September 13, 1986.

Section 8-1.203 of the local ordinance, entitled "Fees: Application" provides: "The fees imposed pursuant to this article shall be applicable to every new dwelling unit or mobile home space constructed or installed in the City of Modesto."

On September 18, 1986, chapters 887 and 888 of the Statutes of 1986 ("The 1987 School Facilities Law") were approved and signed into law in California. The law became operative on January 1, 1987. Uncodified section 7 of chapter 887 discusses the need for a "comprehensive school facilities finance program":

"The Legislature finds and declares as follows:

"(a) Many areas of this state are experiencing substantial development and population growth, resulting in serious overcrowding in school facilities.

"(b) Continued economic development requires the availability of the school facilities needed to educate the state's young citizens.

"(c) In growing areas of this state, the lack of availability of the public revenues needed to construct school facilities is a serious problem, undermining both the education of the state's children and the continued economic prosperity of California.

"(d) For these reasons, a comprehensive school facilities finance program based upon a partnership of state and local governments and the private sector is required to ensure the availability of school facilities to serve the population growth generated by new development.

"(e) The Legislature therefore finds that the levying of appropriate fees by school district governing boards at the rates authorized by this act is a reasonable method of financing the expansion and construction of school facilities resulting from new economic development within the district." (Stats.1986, ch. 887, West's Cal.Legis. Service, pp. 844-845.)

Whereas the authority for the imposition of developer fees by local ordinance had been pursuant to the "police power of the City of Modesto" (Ord. No. 2438-C.S., § 8-1.201., subd. (5)), the 1987 School Facilities Law authorized assessments only as specified by Government Code section 53080:

"(a) The governing board of any school district is authorized to levy a fee, charge, dedication, or other form of requirement against any development project, as defined in Section 65928, for new construction within the boundaries of the district, for the construction or reconstruction of school facilities, subject to any limitations set forth in Chapter 4.9 (commencing with Section 65995) of Division 1 of Title 7.

"........................."

The authority to require Developers to pay school fees was limited by Government Code section 65995, ¹ subdivision (a), which provides that except for fees specifically authorized by Government Code section 53080 (or certain temporary facility fees pursuant to Gov.Code, § 65970 et seq.) no fees may be levied by a local agency.

Government Code section 65995, subdivision (c), however, provides an exception to the elimination of local fees in subdivision (a):

"Subdivision (a) does not apply during the term of any contract entered into between a subdivider or builder and a school district, city, county, or city and county, whether general law or chartered, on or before the effective date of this chapter that requires the payment of a fee, charge, or dedication for the construction of school facilities as a condition to the approval of residential development. In addition, any development project for which a final map was approved and construction had commenced on or before September 1, 1986, is subject to only the fee, charge, dedication, or other form of requirement prescribed in any local ordinance in existence on that date and applicable to the project."

Since January 1, 1987, up to the present time, respondents Sutco and Zagaris have been assessed developer fees pursuant to the local ordinance under the alleged authority of Government Code section 65995, subdivision (c). Fees have been paid under written protest as required by Government Code section 65913.5, subdivision (a).

All of the properties owned by Developers and subject to the assessments challenged here are part of development projects for which final parcel maps had been approved and construction commenced on or before September 1, 1986.

DISCUSSION

Appellants contend that the local ordinance was in "existence" and "applicable" to the subject projects as of September 1, 1986. Respondents argue that the local ordinance had no force and effect until its operative date of September 13, 1986, and therefore cannot apply as an exception authorized by Government Code section 65995, subdivision (c).

It is this court's task to interpret Government Code section 65995 and to apply Ordinance No. 2438-C.S. in the context of the 1987 School Facilities Law, mindful of the Legislature's intent in enacting that Law.

I. WAS THE TRIAL COURT'S FINDING THAT RESPONDENTS HAD NO ADEQUATE REMEDY AND WERE THEREFORE ENTITLED TO A PEREMPTORY WRIT OF MANDATE ERRONEOUS?

Appellants question whether mandate is an appropriate remedy. A writ of mandate may be issued "to compel the performance of an act which the law specially enjoins, ..." (Code Civ. Proc., § 1085.) The writ will issue where no "plain, speedy, and adequate remedy, in the ordinary course of law" is available. (Code Civ. Proc., § 1086.) Appellants contend that Developers had an adequate legal remedy available to them in the "form of a suit for refund of the fees paid" as authorized by case law and Government Code section 65913.5.

Here, there is no dispute concerning the facts. The only issue is whether the provisions of Government Code section 65995, as a matter of law, allow the imposition of school facilities fees on Developers. If they do not, the Districts are under a legal duty to refund fees to Developers and may be directed to perform that duty by writ of mandate. The absence of another adequate remedy was determined by the trial court when it granted the alternative writ. (W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App.2d 67, 74, 1 Cal.Rptr. 49; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686, 91 Cal.Rptr. 585, 478 P.2d 17.)

The question of the availability of an adequate remedy is ordinarily one of fact, largely within the discretion of the court in which the writ is sought. (8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 44, p. 679, § 102, p. 740.) "On appeal from the decision of that court either granting or denying the writ, its determination will not be disturbed in the absence of a showing of abuse of discretion." (W.A. Rose Co. v. Municipal Court, supra, 176 Cal.App.2d 67, 74, 1 Cal.Rptr. 49.)

Since adequacy is a question of fact, a court may find that circumstances make the ordinary action an unsatisfactory remedy. In Lockhart v. Wolden (1941) 17 Cal.2d 628, 633, 111 P.2d 319, mandamus was granted to allow a tax exemption. The ordinary remedy of payment of the tax and suit to recover was found inadequate because of the numerous taxpayers involved and the probability of a multiplicity of suits. Developers contend that a suit for refund is inadequate in that appellants continue to assess fees on projects under construction as of September 1, 1986, and threaten further assessments; therefore, any suit to recover for fees already paid is an incomplete remedy. The trial court obviously agreed with Developers' argument and determined that a suit at law was not an adequate and speedy remedy. We find no abuse of discretion in this regard.

II. WAS THE LOCAL ORDINANCE "APPLICABLE" TO RESPONDENTS' DEVELOPMENT PROJECTS AS OF SEPTEMBER 1, 1986, WITHIN THE MEANING OF GOVERNMENT CODE SECTION 65995?

The crux of appellants' argument is that the terms of Government Code section 65995, subdivision (c), encompass the local ordinance, thereby allowing the assessment of school facilities fees on Developers' projects. The parties agree that the ordinance was "in existence" as of September 1, 1986, and only disagree as to whether, under the terms of the statute, the ordinance can be "applicable" before its operative date. We address this narrow inquiry here.

"Interpretation and applicability of a statute or ordinance is clearly a question of law." (9 Witkin, Cal. Procedure (3d ed....