Swanson v. Marin Mun. Water Dist.

• Decision Date: 25 March 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Albert G. SWANSON, Plaintiff and Respondent, v. MARIN MUNICIPAL WATER DISTRICT, etc., et al., Defendants and Appellants. Cir. 36316.

Page 485

128 Cal.Rptr. 485

56 Cal.App.3d 512

Albert G. SWANSON, Plaintiff and Respondent, v. MARIN MUNICIPAL WATER DISTRICT, etc., et al., Defendants and Appellants.

Cir. 36316.

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

March 25, 1976.

As Modified on Denial of Rehearing April 23, 1976.

Hearing Denied May 19, 1976.

Ferguson, Hoffman, Henn & Mandel, San Francisco, Thomas H. Thorner, San Rafael, for defendants and appellants.

Albert G. Swanson, in pro per.

ROUSE, Associate Justice.

Defendant Marin Municipal Water District (hereafter 'District') appeals from a judgment granting plaintiff Albert Swanson a peremptory writ of mandate compelling District to grant plaintiff a pipeline extension and to provide water service to his real property.

For reasons set forth herein, we conclude that District did not act either fraudulently, arbitrarily or capriciously in enacting a moratorium on new water service connections. Thus we are compelled to reverse the judgment of the trial court.

The facts upon which the case was submitted to the trial court for decision disclose that, for a number of years prior to 1973, District had calculated the net safe yield of water within the district to be 30,000 acre feet per annum. On January 24, 1973, an outside consulting firm, which had been hired to report upon conditions of water supply and demand, delivered to the district a comprehensive report based upon a new computer analysis of district statistics. This report indicated that the safe annual yield within the district was in fact only 26,000 acre feet per annum. The water district staff then prepared a chart comparing the new safe yield figures with actual water consumption figures for the period July 1966 through March 1973. The chart demonstrated that actual consumption of water had exceeded the district's net safe yield, in a degree increasing with each year, in 73 of the 81 months during this period.

On February 14, 1973, following a public hearing, the board of directors of District adopted Resolution No. 4845. In its resolution, the board found that the average estimated water consumption in the district was expected to reach 32,500 acre feet in 1973--1974, but that the annual safe water yield of the district was only 26,000 acre feet; that the total storage capacity of the existing system was approximately 53,000 acre feet and that said storage was at maximum capacity at the date of the resolution; that an average runoff of 55,000 acre feet (or more) had occurred in 23 out of the 60 years of record, a runoff of 21,000 acre feet (or less) had occurred in 8 out of the 60 years, and a runoff of 35,000 acre feet (or more) had occurred in 38 out of the 60 years; that if a runoff of 21,000 acre feet (or less) were to occur in the winter of 1973--1974 and in the following year, it would be necessary to institute mandatory rationing in order to meet the demands of the system for the summer and fall months of 1975. The resolution concluded that a water shortage emergency condition prevailed within the area served by the district in that the ordinary demands and the requirements of water consumers could not be satisfied without depleting the water supply of the district to the extent that there would be insufficient water for human consumption, sanitation and fire protection. The board further determined that the water shortage emergency condition did not constitute an immediate emergency but was due to a threatened water shortage.

Plaintiff Swanson owned a parcel of Marin County real property on which he planned to build a home for himself and his family. On April 27, 1973, he filed with District an application for a pipeline extension and proposed pipeline extension agreement and paid the required engineering fee. This application and fee were conditions precedent to the approval of water service to plaintiff's property. Plaintiff had previously obtained planning commission approval of the architectural plans for his house, had obtained a building permit and had cleared the building site for the construction of a foundation.

On April 30, 1973, following a public hearing, the board of directors of District adopted Ordinance No. 120, an interim urgency ordinance which confirmed the findings contained in Resolution No. 4845 and, specifically, the existence of a threatened water shortage. Pursuant to Ordinance No. 120, District amended the Marin Municipal Water District Code to provide that no new water service would be granted or installed, with certain limited exceptions.

On June 7, 1973, Ordinance No. 120 was superseded by a more detailed ordinance, No. 121. This latter ordinance was again based upon a finding that a 'threatened water shortage' existed, and, further, that the ordinary demands and requirements of water consumers within defendant district could not be satisfied without depleting the water supply of the district to the extent that there would be insufficient water for human consumption, sanitation and fire protection. Ordinance No. 121, with limited exceptions, prohibited the granting of new water service where a pipeline extension was required, but allowed new service to any person who had an existing water main fronting on his property and who applied for water service within 120 days after April 30, 1973.

Plaintiff Swanson's application for water service and for a pipeline extension was rejected by District on June 15, 1973. Subsequently, on July 25, 1973, plaintiff's request for a variance was denied by District. Plaintiff then commenced this action by filing his verified petition for a writ of mandate to compel District to grant him water service.

The trial court made detailed and extensive factual findings and concluded that an emergency water shortage condition existed only when: (a) there was a complete outage on a short or long term basis; or (b) the district's system was over-committed and facing consecutive dry cycle years; or (c) the district's system was overcommitted and experiencing a dry cycle; or (d) the water storage was below the 15,000 acre feet emergency level. The court determined that none of these conditions existed in 1973 when the water moratorium ordinance was enacted, nor did they exist at present.

The court further concluded, as a matter of law, that District was without common law or statutory authority to prohibit water connections or extensions to members of its water district under the circumstances of this case; that District could not use section 71640 ¹ of the Water Code to prevent new water connections or extensions, since that section only provided for steps which could be taken against existing water users and did not authorize a water district to prohibit new water service; that the failure of District to grant plaintiff's application for water was arbitrary and discriminatory, in that District was not authorized by law, under the circumstances then existing, either to prohibit new water connections or extensions or to distinguish between applicants with or without existing frontage water mains; that District's sole statutory authority to prohibit new water connections or extensions (pursuant to Ordinances Nos. 120 and 121) was found in sections 350 through 356, and that those sections required a water shortage emergency; that at the time of the adoption of Ordinance No. 121, there was no water shortage, in that ordinary demands and requirements of the water consumers could be satisfied without depleting the district's water supply to the extent that there would be insufficient water for human consumption, sanitation and fire protection; that in fact, at least two consecutive years of minimal rainfall would have had to occur before such a condition would have existed; that District was therefore not authorized to declare a moratorium on new water connections or extensions, and that Ordinances Nos. 120 and 121 were invalid and could not be used to prevent plaintiff from receiving water service.

Judgment was entered granting plaintiff a writ of mandate compelling District to grant plaintiff's pipeline extension and to provide water service to his real property. District has appealed from that judgment.

District first contends that the water moratorium enacted by it was specifically authorized by sections 350, et seq., ² and directs our attention particularly to the provisions of section 358, which defines the scope of judicial review of the water district's actions in this situation. That section confines court review to a determination of whether the board's actions were fraudulent, arbitrary or capricious.

It should be noted that, even in the absence of such statute, the scope of review would be so limited since, by declaring a water shortage emergency condition and enacting a moratorium on new water service, District was acting in a legislative, rather than an adjudicatory, capacity. Thus District's actions were not subject to judicial review under section 1094.5 of the Code of Civil Procedure, but were reviewable only by means of ordinary mandate (Code Civ.Proc. § 1085) where the court is limited to a determination of whether District's actions were arbitrary, capricious or entirely lacking in evidentiary support, or whether it failed to follow the procedure and give the notices required by law. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29; Pitts v. Perluss (1962) 58 Cal.2d 824, 833, 27 Cal.Rptr. 19, 377 P.2d 83; Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271, 286, 63 Cal.Rptr. 889.)

The language of section 350 makes it clear that a water district is empowered to anticipate a future water shortage and to impose appropriate regulations and restrictions where, lacking such control, its water supply will become depleted and it will be unable to meet the needs of its consumers. District challenges the trial court's determination that section...