Filed 12/23/14 Thum v. Bd. of Directors Monterey Water Mgmt Dist. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

RICHARD THUM et al.,                                                 H039566
                                                                    (Monterey County
         Plaintiffs and Appellants,                                  Super. Ct. No. M113598)

         v.

BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER
MANAGEMENT DISTRICT et al.,

         Defendants and Respondents.


         The Monterey Peninsula Water Management District (District or MPWMD) was
created through the enactment of the Monterey Peninsula Water Management District
Law (“District Law”) in 1977. (Stats. 1977, ch. 527, § 1 et seq., West’s Ann. Wat.
Appen. (1995) § 118-1 et seq.)1 Richard and Sharlene Thum purchased a residential
property in 2009 and subsequently completed a bathroom addition for which they had
secured a water permit from the District in January 2010. The District’s final inspection
of the Thums’ property determined that the property was not in compliance with the
permit because there were two unauthorized showerheads. The unauthorized
showerheads were not in the new bathroom; they were in other bathrooms. The Thums
unsuccessfully appealed the determination of noncompliance to the District’s Board of



1
      All further statutory references are to this uncodified law as reprinted in West’s
Annotated Water Code Appendix unless otherwise specified.
Directors (Board). Subsequently, they unsuccessfully sought a writ of mandate and
declaratory relief from the trial court against respondents District and Board.
       The Thums appeal from the trial court’s judgment denying a writ of mandate and
declaratory relief. They argue that the trial court erred and, on various grounds,
challenge the District’s rules2 regulating the addition of residential water fixtures through
a water permitting process that requires payment of connection charges. The Thums
essentially argue that the determination of permit noncompliance was based upon the
application of ordinances and rules that exceeded respondents’ statutory authority.
       We conclude that the Thums are not entitled to writ relief. The matter must be
remanded, however, to allow the trial court to address the Thums’ complaint for
declaratory relief.
                                               I
                                         Background
A. Factual and Procedural Background
       According to their combined amended verified petition for writ of mandate and
complaint for declaratory relief, the Thums “primarily reside outside of California” and
they “purchased a vacation home in Pebble Beach in 2009.” It indicates that the Thums
obtained a water permit from the District allowing them to convert a closet to a bathroom
and, as part of the water permit process, the Thums were required to consent to a deed
restriction and pay a water connection fee.
       A notice and deed restriction regarding limitation on use of water on a property
(“Deed Restriction”), signed by the Thums and a District representative, was recorded on
January 21, 2010. The Deed Restriction states the Thums and the District “agree that the
maximum permitted water use at the Subject Property is limited to supply the Potable


2
       All further references to rules are to the District’s rules.

                                               2
water requirements for single family dwelling consisting of” enumerated water fixtures,
including “1 Standard Bathtub (may have Showerhead above)” and “2 Showers, Separate
Stall (One Showerhead).” It expressly provides: “No water use fixtures other than those
listed above have been approved or authorized for use on the Subject Property.” The
Deed Restriction states that the owners “acknowledge[]” “the limitation on the water use
fixtures referenced above have been voluntarily accepted as a condition of Water Permit
No. 30234” and “this restriction is permanent and irrevocable, unless amended by the
filing of a less restrictive deed restriction.”
       The Deed Restriction states the owners “elect[] and irrevocably covenant[]” with
the District to “abide by the conditions of [the Deed Restriction] to enable issuance of
Water Permit No. 30234.” It further indicates that the Deed Restriction agreement
“constitutes a mandatory condition precedent to receipt of regulatory approval” and
approval of the permit would have been withheld “[b]ut for the limitations . . . .” It also
states the undersigned owners “agree[] with and accept[] all terms of this document . . . .”
       The District issued Water Permit No. 30234 on January 26, 2010. The permit
specified that the permit involved adding a bathroom and expressly stated in bold, upper
case letters: “FINAL INSPECTION REQUIRED BY MPWMD.” It indicated the
number of existing fixtures, including a bathtub with a showerhead and shower stall with
one showerhead, and the number of postproject fixtures, which included an additional
shower stall with one showerhead. The permit indicated that penalties may be imposed
for additional water fixtures installed without amendment of the water permit.
       A final inspection report of the Thums’ property, dated July 6, 2010, determined
the property was not in compliance with Water Permit No. 30234 in that there were two
additional shower heads. The District sent an “Immediate Action Required” letter, dated
July 9, 2010, to the Thums. The letter stated: “The inspection report represents a final



                                                  3
decision of the General Manager and is appealable within 21 days of the date of
inspection.”
       The Thums filed a written application for an administrative appeal on July 29,
2010. Their application indicated that “Cal Am” was the water company that serviced
their property, a single family dwelling. In the application, they argued that they
“obtained a vested right to add the bathroom without additional fees or other
requirements once the District issued permit 30234” and “equitable estoppels bars the
District from finding that the Property is in noncompliance with the District’s rules”
because the District had inspected the property’s water fixtures in 2007 in connection
with a prior permit and given its final approval, no changes had been made to those
fixtures, and the Thums had relied on the District’s final approval of the fixtures under
the prior permit.
       In a supplemental letter, dated March 25, 2011, the Thums’ counsel added further
legal arguments: (1) the District does not have the statutory authority to restrict
household water use, (2) the District does not have the authority to charge connection
fees when it has not created a connection to water furnished by it, (3) the District’s
“permit rules that limit the number and location of water fixtures in a house for the
purpose of estimating water use capacity and assessing connection fees constitute a
taking in violation of the” United States and California Constitutions, (4) the District’s
“rules that count and limit the number and location of residential water fixtures violates
[sic] substantive due process” under the United States and California Constitutions,
(5) the District’s “imposition of deed restrictions on residential property constitutes an
unreasonable restraint on alienation,” and (6) the District’s “rules that permit inspections
of private residential property violate protections from government searches provided by”
the United States and California Constitutions, (7) the “District’s rules and practice of



                                              4
entering private residential homes to count water fixtures violate the right of privacy
granted under the California Constitution.”
         The Thums provided a second supplemental letter, dated April 18, 2011, in
support of their administrative appeal. They essentially reiterated their arguments that
the District made a mistake in counting the fixtures when they inspected the property in
2007 (prior to their purchase of the property), the Thums relied upon the District’s water
fixture count from 2007, they did not add any fixtures to the other bathrooms, and they
should not be penalized for the District’s error. They also raised other contentions,
including but not limited to the argument that the District’s rules were arbitrary and
vague.
         The General Manager provided a report to the Board for the hearing. Five
potential remedies for the permit violation were presented by the report. Two proposals
involved paying for a new water permit after either purchasing entitlement water from a
private company or seeking water from Monterey County’s water allocation. The other
proposed remedies were (1) permanent removal of the unauthorized fixtures,
(2) offsetting the unauthorized fixtures by installing high efficiency fixtures or appliances
to generate a water use credit and removing another water fixture (utility sink), or
(3) installing diverters to ensure that only one showerhead operated at a time.
         The Board considered the Thums’ administrative appeal at a hearing held on
April 18, 2011. At the hearing, the Thums’ counsel argued that they had obtained a
vested right to add the bathroom without additional fees or other requirements once the
District issued its permit. The Thums’ counsel asserted that equitable estoppel barred the
District from finding the property was not compliant with the District’s rules because the
District was aware of the number of fixtures from a 2007 inspection of the property while
the Thums were unaware of how the District counted fixtures and relied on the District’s
issuance of Water Permit No. 30234. Their counsel argued the deed restriction limiting

                                              5
water fixtures was an unconstitutional taking without just compensation and the District’s
rules limiting residential water fixtures violated the Thums’ substantive due process
rights.
          On May 16, 2011, the Board approved the adoption of factual findings supporting
the denial of the Thums’ appeal. Among other facts, the Board found that the District’s
July 2010 inspection revealed two independently operating showerheads that had not
been recorded during its 2007 inspection, both Water Permit No. 30234 and “the
fixture-specific deed restriction recorded when the Water Permit was issued list[ed] only
single Showerheads in the bathing enclosures,” the recorded deed restriction signed by
the Thums acknowledged that no water fixtures other than those listed on the document
had been approved or authorized, and the District’s rule 20 requires a water permit before
installing new water fixtures or modifying existing water fixtures. The Board endorsed
the proposed options available to the Thums to remedy the two unauthorized
showerheads.
B. General Legal Background
          California’s Constitution provides in pertinent part: “It is hereby declared that
because of the conditions prevailing in this State the general welfare requires that the
water resources of the State be put to beneficial use to the fullest extent of which they are
capable, and that the waste or unreasonable use or unreasonable method of use of water
be prevented, and that the conservation of such waters is to be exercised with a view to
the reasonable and beneficial use thereof in the interest of the people and for the public
welfare. . . . This section shall be self-executing, and the Legislature may also enact laws
in the furtherance of the policy in this section contained.” (Cal. Const., art. X, § 2.)
          “Legislation with respect to water affects the public welfare and the right to
legislate in regard to its use and conservation is referable to the police power of the state.
[Citation.]” (In re Maas (1933) 219 Cal. 422, 424.) “The doctrine prohibiting

                                                6
delegations of legislative power is not violated if the Legislature makes the fundamental
policy decisions and leaves to some other body, public or private, the task of achieving
the goals envisioned in the legislation. (Kugler v. Yocum (1968) 69 Cal.2d 371,
375-377 . . . .)” (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480,
507.) “ ‘It is a well-established rule of law that authority may be delegated by the
legislature to administrative boards or officers to adopt reasonable rules and terms to
carry out the general purpose for which a statute is enacted, even though the delegated
power confers a discretion or the necessity of determining terms, qualifications or facts
upon the board or officer within the scope of the legislative act. [Citations.]’ ” (Fillmore
Union High School Dist. v. Cobb (1935) 5 Cal.2d 26, 33.) “When exercising its statutory
powers, a district’s governing board of necessity has considerable discretion to decide
what is in the best interest of the population it serves. (See Wilson v. Hidden Valley Mun.
Water Dist. (1967) 256 Cal.App.2d 271, 286-287 . . . .)” (Building Industry Assn. v.
Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 1648.)
C. The District Law
       The District Law was enacted in 1977. (Stats. 1977, ch. 527, § 1 et seq., § 118-1
et seq.) In enacting the District Law, the Legislature made express findings, including
the finding that “water problems in the Monterey Peninsula area require integrated
management.” (§ 118-2.) It found and declared that “within the Monterey Peninsula
area, there is need for conserving and augmenting the supplies of water by integrated
management of ground and surface water supplies, for control and conservation of storm
and wastewater, and for promotion of the reuse and reclamation of water” and that “need
cannot be effectively met on a piecemeal basis.” (Ibid.)
       The Legislature further found and declared that “within the Monterey Peninsula
area which will be served by the public district created by this law, the water service is
principally supplied by a privately owned water supplier which does not have the

                                              7
facilities nor the ability to perform functions which are normally performed by public
agencies, including the ability to raise sufficient capital for necessary public works,
contract with, or provide necessary assurances to, federal and state agencies for financing
of water projects and supplying of water, and the regulation of the distribution of water
developed within or brought into such service area.” (§ 118-2.) It determined that it was
“necessary to create a public agency to carry out such functions which only can be
effectively performed by government, including, but not limited to, management and
regulation of the use, reuse, reclamation, conservation of water and bond financing of
public works projects.” (Ibid., italics added.) The Legislature stated: “In order to serve
the people of the Monterey Peninsula efficiently, to prevent waste or unreasonable use of
water supplies, to promote the control and treatment of storm water and wastewater, and
to conserve and foster the scenic values, environmental quality, and native vegetation and
fish and wildlife and recreation in the Monterey Peninsula and the Carmel River basin, it
is, therefore, hereby declared that a general law cannot be made applicable to such area,
and that the enactment of this special law is necessary for the public welfare and for the
protection of the environmental quality and the health and property of the residents
therein.” (Ibid.)
       As to its powers generally, the District Law expressly authorizes the District to
“exercise the powers which are expressly granted by this law, together with such powers
as are reasonably implied from such express powers and necessary and proper to carry
out the objects and purposes of the district.” (§ 118-301, italics added.) It also provides:
“The district shall have the power by resolution or ordinance to adopt regulations
respecting the exercise of its powers and the carrying out of its purposes, and to fix and
collect rates and charges for the providing or the availability of any service it is
authorized to provide or make available or for the sale, lease, or other disposition of
water or other product of its works or operations, including standby charges and

                                               8
connection charges.” (§ 118-308, italics added.) “[W]orks,” as statutorily defined,
“includes, but is not limited to, dams and damsites, reservoirs and reservoir sites, and all
conduits and other facilities useful in the control, collection, conservation, storage,
reclamation, treatment, disposal, diversion, and transmission of water, the collection,
treatment, reclamation, or disposal of sewage, waste, or storm waters, and all land,
property, franchises, easements, rights-of-way, and privileges necessary or useful to
operate, maintain, repair, or replace any of the foregoing.” (§ 118-14.)
       The District’s authority is wide-ranging. The District has power to develop water
resources, sell and dispose of water, control flood and storm waters, acquire water
systems, restrict water use during emergencies, and authorize improvements to provide
additional water during emergencies. (§ 118-325 et seq.) In addition, its authority
includes, but is not limited to, ground water management (§ 118-341 et seq.), the
construction, maintenance, improvement, and operation of “public recreational facilities
appurtenant to any water reservoir operated or contracted to be operated by the agency”
and regulation of the Carmel River (§ 118-368 et seq.), development and operation of
sewage, industrial waste and storm water facilities (§ 118-371 et seq.), and the acquisition
of property, the leasing of real property, and the exercise of eminent domain (§ 118-391
et seq.).
       More specifically as to water supply, control and distribution, the District Law
states: “The district shall have the power as limited in this law to do any and every lawful
act necessary in order that sufficient water may be available for any present or future
beneficial use or uses of the lands or inhabitants within the district, including, but not
limited to, irrigation, domestic, fire protection, municipal, commercial, industrial,
recreational, and all other beneficial uses and purposes.” (§ 118-325, italics added.) The
District has the power to “fix, revise, and collect rates and charges for the services,
facilities, or water furnished by it.” (§ 118-326, subd. (b).) It has the power to “establish

                                              9
rules and regulations . . . to provide for the sale, distribution, and use of water . . . .”
(§ 118-326, subd. (c).) Its powers also include the power to “conserve and reclaim water
for present and future use within the district.” (§ 118-328, subd. (c).)
D. Rules Regarding Water Permits, Water Use Capacity, and Connection Charges
       Since the District’s creation, the Board has enacted many ordinances3 and adopted,
amended, or revoked various rules.
       Rule 20 provides and, at the time the District issued the Thums’ water permit,
provided: “Before any Person connects to or modifies a water use Connection to a Water
Distribution System regulated by the District . . . , such Person shall obtain a written
Permit from the District or the District’s delegated agent, as described in District
Rules 21, 23 and 24.” (Rule 20-B; see Ord. Nos. 128 & 145.) A water permit is required
for, among other things, “[a]ny modification to, or relocation of, Residential water
fixtures” (rule 20-B-3) and “[installation of] new water fixtures . . . in a Residential use”
with the exception of replacement of existing water fixtures. (Rule 20-B-6, see Ord.
No. 156, adopted Nov. 18, 2013.)
       The District’s former rule 24 was adopted by ordinance No. 21 in 19854. That rule
established “connection charges” applicable to “the expansion, extension, and increased
utilization of any connection or water-measuring device in a potable water distribution
system within the District.” (Ord. No. 21, former rule 24-A.) Ordinance No. 21 was
prefaced by District findings, including the finding that “a general positive correlation
exists between the number of residential plumbing fixtures and the potential use

3
       As relevant, we cite to the District’s ordinances of which we take judicial notice
(Evid. Code, §§ 452, subd. (b), 459; see also Evid. Code, § 200) if not included in the
appellate record. All further references to ordinances are to the District’s ordinances.
4
       All further references to specific ordinances are to the ordinances enacted by the
District.

                                                10
(demand) of District potable water supplies resulting from new or intensified
development” and “[t]he number of both internal and external water fixtures increases
water consumption and system demand.” (Ord. No. 21, Finding of Fact No. 9.) Former
rule 24 has been amended many times since its adoption.
       Rule 24 provides and, at the time the District issued the Thums’ water permit,
provided: “Residential Water Use Capacity shall be calculated using a fixture unit
methodology whereby each water fixture is assigned a fixture unit value that corresponds
to its approximate annual Water Use Capacity. Residential applications shall be
reviewed to determine if there is an increase in fixture units as a result of the proposed
Project.”5 (Rule 24-A; see Ord. No. 145.) As to that calculation, the District’s general
manager must “estimate Water Use Capacity of the proposed Project using the fixture
unit values . . . from Table 1: Residential Fixture Unit Count Values.”6 (Rule 24-A-1-a;
see Ord. No. 145.) The general manager must “determine if Project will result in a
positive, neutral or reduced Water Use Capacity on the Site.” (Rule 24-A-1-e; see Ord.
No. 145.) The general manager must “reduce the Estimated Annual Water Use Capacity
by any verified Water Use Credit or On-Site Water Credit applicable to the application as
shown on the Water Release Form and Water Permit application and shall determine the




5
       “Water Use Capacity” or “Capacity” is defined by District rule as “the maximum
potential water use which theoretically may occur, based on average water use data for
similar structures and uses in the Monterey Peninsula region, as shown by projected
water use tables set forth in Rule 24.” (Rule 11.)
6
       Rule 24’s “Table 1: Residential Fixture Unit Count Values,” as amended,
presently shows that a standard bathtub and shower may each have one showerhead and
additional showerheads, body spray nozzles, other additional fixtures are separately
counted. Each of those residential water fixtures has a fixture unit value of “2.” (Rule
24, Table 1.) Certain water fixtures are exempt from the residential permit requirements
and have no fixture unit value. (Rule 24-A-2.)

                                             11
Adjusted Water Use Capacity of the proposed Project.” (Rule 24-A-1-d; see Ord.
No. 145.)
       Under the District’s rule 24, “[a]n increase in Capacity (Intensification of Use)
shall cause the calculation and collection of a Connection Charge prior to issuance of a
Water Permit.”7 (Rule 24-A-1-e-(1).) As originally adopted and in its present form, the
rule established a multiplier, designated the “water supply cost component,” to be used in
calculating a connection charge. (Rule 24-C; Ord. No. 21 [former rule 24-A-5]) The rule
still requires the multiplier to be annually adjusted on July 1 and applied to each
residential water permit application. (Ibid.) Rule 24’s Table 3 shows the annually
adjusted multiplier, which has increased every year and more than doubled since 1985.
(Rule 24, Table 3.) In 2009-2010, the multiplier was $23,163.01. (Ibid.)
       Rule 24 states and, at the time the District issued the Thums’ water permit, stated:
“The Connection Charge paid for a Water Permit shall be determined by multiplying the
Adjusted Water Use Capacity by the current Connection Charge. This charge shall be
applied to each application for a Water Permit as follows: [¶] 1. Projects served by the
Main California American Water Company System and Seaside Municipal Water
Company shall pay 100 percent of the final calculation. [¶] 2. All other Water
Distribution Systems including private Wells and other Water Distribution Systems
owned and/or operated by California American Water Company outside of the main
system shall pay 18.67 percent of the final calculation.”8 (Rule 24-D; see Ord. No. 145.)


7
      “No Connection Charge shall be assessed when there is no increase in Water Use
Capacity.” (Rule 24-A-1-e-(3).) “A reduction in Water Use Capacity shall result in a
Water Use Credit upon verification that the former use has been permanently
abandoned.” (Rule 24-A-1-e-(3).)
8
      As currently written, the District’s Rule 24 confusingly refers to both the charge
imposed in connection with issuance of a water permit and the “water supply cost
component” as the “Connection Charge.”

                                             12
       Rule 24 provides and, at the time the District issued the Thums’ water permit,
provided: “The Connection Charge paid for a Water Permit under these Rules and
Regulations shall be a fee retained by the District in consideration of, and as
reimbursement for the costs and expenses incurred by the District in planning for,
acquiring, reserving, and maintaining capacity in the water distribution facilities existing
or to be constructed within the District.” (Rule 24-F-1; see Ord. No. 145.)
       Rule 23 governs the water permitting process. It states in part: “Intensification of
Use allowed by a Water Permit shall result in a deduction from a Jurisdiction’s
Allocation (for Projects served by the Main California American Water System), from a
Water Entitlement available to the property, or from the total available production limit
for that Water Distribution System.” (Rule 23-A-1-h.) “Jurisdiction” is defined by the
District as “one of the following: (1) Carmel-by-the-Sea, (2) Del Rey Oaks,
(3) Monterey City, (4) Monterey County, (5) Monterey Peninsula Airport District,
(6) Pacific Grove, (7) Sand City, or (8) Seaside.” (Rule 11.)
E. Appellants’ Combined Petition and Complaint
       The Thums’ combined petition and complaint contained seven “causes of action.”
It sought writ relief on “causes of action” one through five. It sought declaratory relief
on “causes of action” six and seven.
       The first “cause of action” alleged that the respondents’ restriction of household
water “directly contradicts” the limitation of power established by section 118-332 and
claimed that section “states the District does not have authority to restrict household uses
of water.” The prayer for relief on the first “cause of action” sought a writ of mandate
compelling respondents to “not take any actions to restrict household use of water




                                             13
pursuant to section 118-332 and Water Code section 106, remove the deed restriction
imposed on [their] property, and . . . fully and completely comply with law.”9
       The second “cause of action” asserted that “section 118-363 does not authorize the
District to charge connection fees for changes to the plumbing pipes inside a house or any
other property.” It further averred that the District violates the “legislative authority
expressed in sections 118-363, 118-308 and 118-326(b)” by “charging and collecting
connection fees when it has not provided a water connection or furnished services,
facilities or water to” them. It alleged that the District “can charge connection fees only
after it has actually augmented the established water delivery service.” The prayer for
relief on the second “cause of action” sought a writ of mandate compelling respondents to
“cease charging and collecting connection fees unless and until such actions duly comply
with law.”
       The third “cause of action” alleged that the District’s “practice of entering private
homes to count and inventory household water fixtures . . . violates the fundamental right
to privacy under Article I, section 1 of the California Constitution.” The prayer for relief
on the third “cause of action” sought a writ of mandate compelling respondents to “cease
unlawfully entering residences unless and until any such entry fully complies with the
right to privacy granted in Article 1, section 1 of the California Constitution.”
       The fourth “cause of action” alleged that the District’s warrantless inspection of
their house was unreasonable because the inspection was overbroad and the Thums’
consent was obtained under threat and, therefore, the inspection constituted an
unconstitutional government search. The prayer for relief on the fourth “cause of action”
sought a writ of mandate compelling respondents to “cease unlawfully entering homes

9
       Water Code section 106 provides: “It is hereby declared to be the established
policy of this State that the use of water for domestic purposes is the highest use of water
and that the next highest use is for irrigation.”

                                              14
unless and until any such entry into residences fully complies with Article 1, section 13
of the California Constitution and the Fourth Amendment to the United States
Constitution.”
       The fifth “cause of action” averred that the District’s rules using “household water
fixtures as a proxy for estimating household water use, but only for those households that
have sought a permit” are arbitrary, irrational and capricious. It stated that “it is not clear
to the average citizen” what fixtures are counted. It further alleged that the District’s
“selection of water fixtures as a proxy for estimating water use” and fixture counting
methodology violate “the substantive due process rights afforded under Article I,
Section 7 of the California Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution.” The prayer for relief on the fifth “cause of action” sought a
writ of mandate compelling respondents to “set aside its residential water fixture counting
rules unless and until it is able to adopt rules that rationally relate to estimating residential
water use capacity and charging connection fees” and to “fully and completely comply
with the law.”
       The sixth “cause of action” stated that, “[i]n 1996, California voters approved
Proposition 218, which amended the California Constitution by adding Articles 13C and
13D . . . .” It alleged that the District’s connection charge, calculated under rule 24, was
“unlawful because it is a general tax, or, in the alternative, it is a special tax and was not
submitted to the voters for their approval.” It stated that “[a]n actual controversy now
exists between [appellants and respondents] as to the legality of the connection charge
imposed under District Rule 24.”
       The seventh “cause of action” alleged that the “connection charge is unlawful
because it exceeds the proportional cost of service attributed to parcels, . . . it is imposed
for potential or future services, and is imposed for general government services in
violation of [California Constitution,] Article 13D, Section 6(b), or, in the alternative, it is

                                               15
a new or increased property related fee or charge within the meaning of California
Constitution Article 13D, Section 6(c) requiring voter approval, which has not been
obtained.” It stated that “[a]n actual controversy now exists between [appellants and
respondents] as to the legality of the connection charge imposed under Rule 24.”
       The prayer for relief on the sixth and seventh “causes of action” sought a
declaration that (1) “the connection charge is a general tax and as such is invalid and
illegal,” (2) “the connection charge is a special tax” that is “invalid and illegal until such
time as it is lawfully approved,” (3) “the connection charge is an invalid and illegal fee or
charge under California Constitution Article 13D Section 6(b),” or (4) “the connection
charge is an invalid and illegal new or increased fee or charge pursuant to California
Constitution Article 13D Section 6(c) until such time as it is lawfully approved.”
       Although the Thums did not expressly request a writ directing the Board to set
aside its decision denying their appeal and issue a new decision granting their appeal,
they did seek “such other and further relief as the Court deems just and reasonable.”
F. Judgment and Findings
       The trial court entered a judgment in favor of the District. Its judgment included
the following findings. The Thums’ bathroom addition did not implicate a fundamental
vested right and the more deferential standard of review under Code of Civil Procedure
section 1094.5 applies. The District’s connection charge was validated by a 1986
validation judgment and is proper. The Thums are “barred from challenging the
District’s water use restrictions pursuant to Water Permit No. 30234 (Permit) because
[they] accepted the benefits of the Permit. (Tahoe Keys Property Owners’ Assn. v. State
Water Resources Control Bd. (1994) 23 Cal.App.4th 1459.)” The District “has broad
express and implied powers to provide and conserve water, to collect money for services,
and to restrict water use during an emergency” and the District did not apply sections
118-301, 118-308, 118-325, 118-326, 118-332, 118-363, and 118-371 “in an arbitrary or

                                              16
irrational manner.” “The number of water fixtures used by the District to determine
charges reasonably relates to a proper legislative goal,” “the rules of the District, in
conformity with the enabling legislation, conserve and provide water to the Monterey
Peninsula and are not unreasonable, arbitrary or capricious,” and the “[a]llocation of
water based on the numbers and types of fixtures for a property has a real and substantial
relation to the object sought to be attained, i.e., water conservation.”
       The trial court denied writ relief. It also “denied” declaratory relief on mootness
grounds.
                                              II
                                      Writ of Mandate
A. Asserted Bars to Relief
1. Promissory Estoppel
       As indicated, relying upon the authority of Tahoe Keys, supra, 23 Cal.App.4th
1459 (Tahoe Keys), the trial court determined that petitioners were “barred from
challenging the District’s water use restrictions pursuant to Water Permit No. 30234
(Permit) because [they] accepted the benefits of the Permit.” It indicated the steps taken
by them: submitting an application to convert a storage area to a bathroom, recording a
deed restriction, paying a connection charge, agreeing to an inspection, obtaining a
building permit, and proceeding with bathroom construction.
       Impliedly based upon the foregoing judicial determination, the Thums now argue
that the trial court incorrectly concluded that they did not exhaust their administrative
remedies. They assert that they were not required “to appeal from the bathroom permit to
preserve their challenge to the fixture permit,” which was a separate issue that they
“timely challenged [] when it arose.”
       In Tahoe Keys, the Court of Appeal, Third District, stated: “A landowner or his
successor in title is barred from challenging a condition imposed in a land-use regulation

                                              17
if he has acquiesced therein by either specifically agreeing to the condition or by failing
to challenge its validity while accepting the benefits afforded. (County of Imperial v.
McDougal (1977) 19 Cal.3d 505, 510-511 . . . ; Edmonds v. County of Los Angeles
(1953) 40 Cal.2d 642, 650 . . . ; J-Marion Co. v. County of Sacramento (1977)
76 Cal.App.3d 517, 523 . . . ; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74,
78 . . . .)” (Tahoe Keys, supra, 23 Cal.App.4th at p. 1484.) Tahoe Keys is not an
exhaustion of administrative remedies case. (Id. at pp. 1469-1470, fn. 6.) The rule to
which it refers is a form of estoppel.
       In County of Imperial v. McDougal (1977) 19 Cal.3d 505 (McDougal), one of the
cases cited in Tahoe Keys, a property owner obtained “a use permit to allow commercial
sales of water from a well on [his] property, which was located in a residential
subdivision.” (Id. at p. 507.) “The permit contained a limitation that water could be sold
for use only within the county.” (Ibid.) The permit ran with the land, and when
McDougal purchased the property, he “succeeded to any benefits” of the permit. (Id. at
p. 510.) After buying the property, McDougal “proceeded to substantially increase the
volume of sales of water from the well” and he did not comply with the permit limitation
“against the sale of water for use outside the county, and much of the water from the well
was sold for distribution in Mexico.” (Id. at pp. 507-508.)
       On review of McDougal, the Supreme Court stated: “A number of cases have held
that a landowner or his successor in title is barred from challenging a condition imposed
upon the granting of a special permit if he has acquiesced therein by either specifically
agreeing to the condition or failing to challenge its validity, and accepted the benefits
afforded by the permit. [Citations.] Thus, McDougal is estopped to assert that the
prohibition in the [prior owner’s] permit against the sale of water for use outside the
county is invalid, and he is bound by the limitation.” (McDougal, supra, 19 Cal.3d at
pp. 510-511, fn. omitted.)

                                             18
       In Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642 (Edmonds), another
case cited in Tahoe Keys, the plaintiffs “maintained a trailer court for 20 trailers on their
property, consisting of five lots in an area zoned as C-3, wherein trailer courts were
permitted.” (Id. at p. 644.) After the property was rezoned for residential use, they
lawfully continued the preexisting, nonconforming use but then they unlawfully
expanded the number of trailers in violation of the local zoning ordinance. (Ibid.) They
eventually secured a conditional exception to the ordinance requiring them to “abandon
the entire nonconforming use of their property for trailer court purposes at the end of
three years.” (Id. at p. 645.) The Supreme Court stated: “For a period of three years
plaintiffs made a use of their property to which they were not entitled under the law in the
absence of the granting of the conditional exception. By their conduct they led everyone
to believe that the exception had been accepted. Plaintiffs made an oral promise on
which defendants relied to their detriment, and justice can be done only by the
enforcement of the promise. The situation presented is therefore the ordinary one of
promissory estoppel. [Citations.]”10 (Id. at p. 653.)
       Thus, it is clear under California law that “[a] landowner cannot challenge a
condition imposed upon the granting of a permit after acquiescence in the condition by
either specifically agreeing to the condition or failing to challenge its validity, and
accepting the benefits afforded by the permit. ([McDougal, supra,] 19 Cal.3d [at
pp.] 510-511 . . . .)” (Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d
642, 654.)

10
        “In California, under the doctrine of promissory estoppel, ‘[a] promise which the
promisor should reasonably expect to induce action or forbearance on the part of the
promisee or a third person and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise. The remedy granted for
breach may be limited as justice requires.’ [Citations.]” (Kajima/Ray Wilson v. Los
Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.)

                                              19
       The Thums present no argument that, under the foregoing principles, they were
not barred from challenging the deed restrictions to which they agreed in obtaining the
water permit nor have they cited any legal authority to support such argument. “ ‘[E]very
brief should contain a legal argument with citation of authorities on the points made. If
none is furnished on a particular point, the court may treat it as waived, and pass it
without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th
764, 793.) Accordingly, their challenge to the trial court’s determination pursuant to
Tahoe Keys is deemed waived.
2. Doctrine of Exhaustion of Administrative Remedies
       Respondents’ answer to the Thums’ petition and complaint asserted the
affirmative defense that appellants failed to exhaust administrative remedies.11 Even
though both sides mention the exhaustion doctrine on appeal, the trial court did not
resolve that issue in its statement of decision or judgment.
       In this appeal, the issue of whether the Thums failed to exhaust their
administrative remedies is not before us. (See Ventura v. ABM Industries Inc. (2012) 212
Cal.App.4th 258, 265 [defendants waived defense raised in answer by not seeking ruling


11
        The District’s Rule 70 provided in part: “Determinations of the General Manager
or the District Engineer may be appealed to the District Board, in writing, within
twenty-one (21) days after any such determination. Such appeal shall specify in writing
the grounds upon which it is taken, and shall reference the provision of these Rules and
Regulations which have been violated . . . .” After the Thums’ final inspection, the
District reminded the Thums of that deadline by letter. The Thums filed their
administrative appeal more than 21 days after that inspection. In addition, after the time
for initiating an appeal had passed, they expanded their arguments. Respondents did not
assert, however, that the Thums forfeited any of their legal arguments by failing to raise
them in a timely appeal from the determination of noncompliance following inspection.
Rather, their argument was that the Thums “did not exhaust their administrative remedies
because they did not object to the Water District’s powers and rules before accepting the
permit and deed restriction and building the bathroom.”

                                             20
on it]; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [nonappealing respondent may
not urge error on appeal], see also Code Civ. Proc., §§ 906 [matters reviewable on
appeal], and 634 [“When a statement of decision does not resolve a controverted
issue, . . . it shall not be inferred on appeal . . . that the trial court decided in favor of the
prevailing party . . . on that issue.”].)
3. 1986 Validation Judgment
       Relying on the 1986 validation judgment validating the District’s ordinance
No. 21, which adopted former rule 24, the trial court concluded that the District’s
connection charges are proper.
       In 1986, the Monterey County Superior Court issued a judgment validating the
District’s ordinance No. 21, which was adopted on March 11, 1985. That judgment
states: “Ordinance 21 of the [MPWMD], together with the connection fees promulgated
therein, is determined to be a valid, correct and lawful ordinance. The connection
charges imposed by . . . Ordinance 21 constitute neither a tax nor an assessment, but
impose a valid user fee fashioned upon a reasonable nexus between the amount of the
charge, and the capacity for water service for which the user has a beneficial interest.”
       Section 118-412 provides: “Any action to determine the validity of any contract,
any bonds, notes, or other evidences of indebtedness, or the levy of a special assessment
shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part
2 of the Code of Civil Procedure.”12 Code of Civil Procedure section 860 et seq. was
added by statute in 1961. (Stats. 1961, ch. 1479, § 1, pp. 3331-3332.)

12
       Appellants point out that section 118-412 authorizes validation proceedings only
in specific instances, including “the levy of a special assessment.” Insofar as they may be
attempting to collaterally attack the validation judgment, we observe the general rule that
“a final judgment or order is res judicata even though contrary to statute where the court
has jurisdiction in the fundamental sense, i. e., of the subject matter and the parties.”
(Pacific Mut. Life Ins. Co. of Cal. v. McConnell (1955) 44 Cal.2d 715, 725.) Appellants
(continued)
                                                21
       “By 1961, the California codes contained a patchwork of provisions governing
validation proceedings, with each set of provisions dedicated to a different statutory
scheme. In that year, the Legislature sought to replace this patchwork with a general
validation procedure. (Stats. 1961, ch. 1479, §§ 1-3, pp. 3331-3332.) This procedure,
which the Legislature codified as Code of Civil Procedure sections 860 through 870, does
not, in itself, authorize any validation actions; rather, it establishes a uniform system that
other statutory schemes must activate by reference.” (Bonander v. Town of Tiburon
(2009) 46 Cal.4th 646, 656.)
       Code of Civil Procedure section 860 provides: “A public agency may upon the
existence of any matter which under any other law is authorized to be determined
pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court
of the county in which the principal office of the public agency is located to determine
the validity of such matter. The action shall be in the nature of a proceeding in rem.” “If
no proceedings have been brought by the public agency pursuant to this chapter [Code
Civ. Proc., § 860 et seq.], any interested person may bring an action within the time and
in the court specified by Section 860 to determine the validity of such matter.”13 (Id.,
§ 863.)
       “The judgment in a proceeding brought under the general validation procedure is
‘binding and conclusive . . . against the agency and against all other persons . . . .’ (Code
Civ. Proc., § 870, subd. (a), italics added.) Because the proceeding is in the nature of an


have not argued that the superior court lacked subject matter jurisdiction to render the
1986 validation judgment.
13
       The validation proceeding concerning the District’s ordinance No. 21 was initiated
by a private party pursuant to Code of Civil Procedure section 863 but the superior court
converted the proceeding to an in rem proceeding brought by the District pursuant to
Code of Civil Procedure section 860 after it dismissed the other parties pursuant to
stipulation.

                                              22
action against the entire world, ‘[j]urisdiction of all interested parties may be had by
[newspaper] publication of summons . . .’ and such other notice as the court may order.
(Id., § 861.)” (Bonander v. Town of Tiburon, supra, 46 Cal.4th at p. 656.)
       “A key objective of a validation action is to limit the extent to which delay due to
litigation may impair a public agency’s ability to operate financially. (Graydon v.
Pasadena Redevelopment Agency (1980) 104 Cal.App.3d 631, 644-645 . . . .)
A validation action fulfills a second important objective, which is to facilitate a public
agency’s financial transactions with third parties by quickly affirming their legality.”
(Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 843.) “ ‘The text of
section 870 and cases which have interpreted the validation statutes have placed great
importance on the need for a single dispositive final judgment.’ (Committee for
Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 197-198 . . . .)
The validating statutes should be construed so as to uphold their purpose, i.e., ‘the acting
agency’s need to settle promptly all questions about the validity of its action.’ (Millbrae
School Dist. v. Superior Court [1989] 209 Cal.App.3d [1494,] 1499 . . . .)” (Id. at
p. 842.)
       Under Code of Civil Procedure section 870, subdivision (a), a validation judgment
is “binding and conclusive” as to “all matters therein adjudicated or which at that time
could have been adjudicated . . . .” (Italics added.) The interpretation or effect of a
validation judgment presents a question of law for the reviewing court. (See John Siebel
Associates v. Keele (1986) 188 Cal.App.3d 560, 565.)
       The Thums insist that the validation judgment does not bar the present challenges
to the connection charges because the judgment was limited to validating a “bond
financing plan for a $34 million dam that was never built.” This assertion is simply
incorrect. The judgment itself did not validate any bond financing plan. Rather, it clearly
adjudicated that ordinance No. 21 is valid, correct, and lawful. Moreover, the rule

                                             23
adopted by the ordinance did not limit the use of collected connection charges to the
financing of a particular water supply project.
       In enacting ordinance No. 21, the Board made many findings supporting the
adoption of former rule 24. The Board found, among other facts, that “a general positive
correlation exists between the number of residential plumbing fixtures and the potential
use (demand) of District potable water supplies resulting from new or intensified
development.” (Ord. 21, Finding No. 9.) The Board found: “The [District] is presently
planning a water supply project with an estimated cost of approximately $34,000,000.00”
and its financing cost could exceed $172,000,000. (Ord. No. 21, Finding No. 13.) It
further found that those “long-term costs of this water supply project can be substantially
reduced by creation of a sinking fund to pre-pay a portion of the project construction
costs.” (Ibid.) In addition, the Board specifically found: “The [District] cannot fully
fund its management, monitoring, augmentation and river restoration programs from
general fund revenues to fully discharge, in a timely manner, the duties delegated by the
California Legislature, and to fulfill the current needs of District water distribution
systems and their water consumers.” (Ord. No. 21, Finding No. 23.)
       Former rule 24, as adopted in ordinance No. 21, required the District to place
18.67 percent of the collected connection charges in a separate account “A” in its general
fund and to place 81.33 percent of the collected connection charges in a separate account
“B” in its general fund. (Ord. No. 21 [former rule 24-11].) The former rule prohibited
the District from expending the funds maintained in account “B” “prior to the final
discretionary approval of a water supply project, including, if necessary for the project, a
vote of the people.” (Ord. No. 21 [former rule 24-11].) As the Thums point out, rule 24
no longer contains that prohibition. (See Ord. No. 34 [adopted May 9, 1988].)
       The deletion of the prohibition with respect to the funds in account “B” did not
change “the sole purpose” of all the “connection charge” funds, which remains to this day

                                              24
the “planning for, acquiring, and/or reserving augmented water supply capacity for
District water distribution facilities.” (Rule 24-G-2; see Ord. No. 21 [former
rule 24-A-11].) Those purposes still encompass “engineering, hydrologic, geologic,
fishery, appraisal, financial, and property acquisition endeavors.” (Ibid.) Those funds
may still be “used to acquire, maintain, and/or reserve capacity in existing water
distribution facilities existing within the District.” (Ibid.) Contrary to the Thums’ claim,
the purpose of connection charge funds has not materially changed.
       The Thums also argue that material modifications to rule 24 extinguished any
res judicata protection provided by the 1986 validation judgment. Although the Thums
have pointed out significant changes to rule 24 subsequent to the enactment of ordinance
No. 21, they have not shown that their central contention, that the District has no
statutory authority whatsoever to impose any charge for adding a residential water
fixture, could not have been adjudicated in the validation proceeding. We reiterate that a
validation judgment conclusively resolves “all matters therein adjudicated or which at
that time could have been adjudicated . . . .” (Code Civ. Proc., § 870, subd. (a).)
       Further, the essential premise of the rule has not changed. Former rule 24, as
adopted by ordinance No. 21, provided that “[t]he addition of any fixture unit by a user
shall be deemed an intensification of use requiring an expansion/extension permit, or an
amended permit pursuant to these Rules and Regulations.” (Ord. No. 21 [former
rule 24-A-1].) It required the District’s general manager to determine the “fixture unit
count,” using a table assigning “fixture unit value” to particular fixtures, for an
applicant’s anticipated intensification of residential water use facilitated by additional
fixtures. (Ord. No. 21 [former rule 24-A-3].) It further provided that “[t]he connection
charge for intensification of use from an existing connection shall exact a charge only as
it relates to the extra increment of water which will be available to and subject to use by
the applicant as the function of the relocated, increased, or altered use from the

                                              25
connection.” (Ord. No.21 [former rule 24-A-2].) The Thums incorrectly suggest that
former rule 24 only applied to a “new water connection.”
       Former rule 24, as adopted by ordinance No. 21, established a formula for
calculating the residential “connection charge” imposed upon an applicant for a water
permit. The formula involved a number of variables, including the number of fixtures,
the fixture unit value assigned to particular fixtures, the water supply cost component
multiplier, and a multiplier dependent upon the particular water distribution system that
serviced the residence. (Ord. No. 21 [former rule 24-A-3, A-5, A-6].)
       Like former rule 24, rule 24 requires the general manager to determine the number
of additional fixture units and their fixture unit values. (Rule 24-A.) The calculation of
the “connection charge” under rule 24 still involves assignment of fixture unit values to
water fixtures and the use of a “water supply cost component” multiplier. Instead of
requiring an initial calculation of an “unfactored connection charge,”14 however, rule 24
now requires the calculation of the residential “adjusted water use capacity, “15 which is
then multiplied “by the current Connection Charge [water supply cost component].”
(Rule 24-A-6 & D.)
       Although the District may have altered the formula for calculating the “connection
charge” imposed upon a residential water user, the Thums are not challenging those
changes. Rather, the Thums seek to challenge the District’s authority under the District
Law to impose any charge at all. This issue was impliedly determined against them by
the validation judgment because it was an issue that “at that time could have been

14
       Former rule 24, as adopted by ordinance No. 21, set forth the formula for
determining the “unfactored connection charge” as follows for the first 10 residential
fixture units per dwelling unit: “# of dwelling units x # of fixture unit count x
water supply cost/200.” (Ord. No. 21 [former rule 24-A-3-C].)
15
       Each fixture unit has “a value of 0.01 Acre-Foot of water.” (Rule 24-A-6-a.)
“Water use calculations” must be “rounded to the third decimal place.” (Rule 24-A-6-b.)

                                            26
adjudicated . . . .” (Code Civ. Proc., § 870, subd. (a).) Appellant have not shown that a
finding made in enacting ordinance No. 98, indicating that the District is “mindful that
people, not fixtures, use water,” has any effect on this conclusion.16
       The effect of the validation judgment on the Thums’ requests for declaratory relief
will be separately addressed below.
B. Scope of Statutory Authority
       We next examine the Thums’ claims regarding the extent of the District’s statutory
authority under the District Law. The interpretation of a statute is a question of law that
we review de novo. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717,
724; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d
692, 699.)
1. Statutory Authority to Regulate Household Water Use Capacity
a. Section 118-363
       The Thums maintain that the District has limited powers and it “was created to
focus on managing the supply of water—not the use of water.” They assert that “[t]he
responsibility for conserving and encouraging efficient use of water primarily rests with
the utility, Cal-Am.”
       Respondents maintain that the District Law allows the District “to regulate both
nonessential water use during an emergency, and to regulate water use in general.” They
imply that their statutory authority to adopt a water permitting process arises from
section 118-363. The Thums counter that, under section 118-363, the District’s power to
regulate access to a water supply “ends at the meter.”



16
       District ordinance No. 98 extended “the ‘special circumstance’ treatment afforded
to water using fixtures in a residential master bath to the addition of a second bathroom in
any existing residence.” (Ord. No. 98, Finding No. 4.)

                                             27
       In its brief, the District incompletely quotes section 118-363, which provides: “No
person, owner, or operator shall establish, extend, expand, or create a water distribution
system unless and until the approval of the board is first obtained in writing. For the
purposes of such approval, the board may adopt such rules and regulations and establish
such forms for such applications as are necessary and proper. The board may provide
by ordinance for exceptions to the requirement for approval for systems furnishing
domestic water to three or fewer parcels or lots in the district.” (§ 118-363, italics
added.) The Thums assert that their fixtures are not water distribution systems.
       Section 118-363 is contained in the District Law’s part 4, chapter 2, article 2,
which is entitled “Ground Water Management.” The article’s first provision states: “The
district shall encourage the coordination and integration of ground water supplies with
surface water supplies and for such purposes shall have the additional powers provided in
this article.” (§ 118-341.) The District is provided with the authority “to levy and collect
a ground water charge for the production of water from the ground water supplies . . . .”
(§ 118-343; see §§ 118-343.5 to 118-345.) The use of proceeds of ground water charges
may be used for only specified purposes, including paying “the costs of constructing,
maintaining, and operating facilities” to import water or to conserve or distribute water
within established ground water charge zones (§ 118-346, subd. (a)) and paying “the
costs of purchasing water for importation” into such zones. (§ 118-346, subd. (b); see
§ 118-344.) Water-producing facilities within such zones must register with the District.
(§ 118-347; see § 118-348 & § 118-349.) Section 118-360 makes it unlawful to produce
water from any unregistered water-producing facility. (§ 118-360.) Section 118-362
gives the District the additional powers, including the power to “install and maintain
water-measuring devices, and other devices which will aid in determining accurate water
production, on water-producing facilities not owned by the district” (§ 118-362,



                                             28
subd. (a).) and to “enter on to any land for the purposes enumerated in this section and for
the purpose of making investigations relating to water production” (§ 118-362, subd. (c).)
       As indicated, section 118-363 provides that the creation or expansion of a water
distribution system requires the District’s written approval and specifically authorizes the
District to adopt regulations governing that approval. This statutory provision cannot be
reasonably read as providing plenary authority to enact rules concerning the addition of
residential water fixtures in order to regulate a household’s capacity to use water.
       Citing Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1,
7 (Yamaha), the District asserts that it is “entitled to great deference in interpreting its
own Rules and Ordinances.” It may be true that “ ‘[a] court is more likely to defer to an
agency’s interpretation of its own regulation than to its interpretation of a statute, since
the agency is likely to be intimately familiar with regulations it authored and sensitive to
the practical implications of one interpretation over another.’ [Citation.]” (Id. at p. 12.)
It must be kept in mind, however, that “even quasi-legislative rules are reviewed
independently for consistency with controlling law.” (Id. at p. 11, fn. 4.) “A court does
not . . . defer to an agency’s view when deciding whether a regulation lies within the
scope of the authority delegated by the Legislature. The court, not the agency, has ‘final
responsibility for the interpretation of the law’ under which the regulation was issued.
[Citations.]” (Ibid.) “[T]here is no agency discretion to promulgate a regulation which is
inconsistent with the governing statute.” (Woods v. Superior Court (1981) 28 Cal.3d
668, 679.)
       Generally, when construing a statute, a court “first examines the statute’s words,
giving them their ordinary and usual meaning and viewing them in their statutory context,
because the statutory language is usually the most reliable indicator of legislative intent.
[Citations.]” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567.) The
word “distribution” may be defined as the “delivery or conveyance (as of . . . goods) to

                                              29
the member of a group,” such as customers. (Webster’s 3d New Internat. Dict. (1993)
p. 660.) The word “system” may be defined as “a group of devices or artificial objects
forming a network or used for a common purpose.” (Id. at p. 2322.) Thus, a “water
distribution system,” as commonly understood, does not refer to the customer’s use of, or
capacity to use, water delivered to a residence.17
       Even under the District’s own rules, a water distribution system does not
encompass a residential customer’s use of, or capacity to use, water delivered to a home.
“ ‘Water Distribution System’ means all works within the District used for the collection,
storage, transmission or distribution of water from the Source of Supply to the
Connection of a system providing water service to any Connection . . . .” (Rule 11.)
“Connection” is generally defined by District rule to mean “the point of intersection
where a User gains access to the Water Distribution System.” (Rule 11.) “User” is
defined by District rule to mean “a customer or consumer of water delivered by a Water
Distribution System” and “[u]ser” “does not include any Owner or Operator of a Water
Distribution System.” (Rule 11.)
       We agree that the addition of residential water fixtures does not extend or expand
“a water distribution system” within the meaning of section 118-363. The fact that the
District broadly defines “water distribution system” to also include the user’s piping
when there is no water meter at the point of connection (see rule 11) does not mean that
section 118-363 authorizes the District to regulate water fixtures in the home as a means
of limiting residential water use capacity. The authority granted in section 118-363 does
not encompass the power to regulate residential water fixtures.


17
       For example, the Legislature has elsewhere defined the phrase “water distribution
system” to mean “any combination of pipes, tanks, pumps, and other physical features
that deliver water from the source or water treatment plant to the consumer.” (Health &
Saf. Code, § 116275, subd. (y).)

                                             30
       Even assuming conservation of water by residential consumers is an important
component of sound, comprehensive management of water resources, we conclude that
the District’s authority to regulate water fixtures in the home must be derived from a
different statutory source than section 118-363.
b. Section 118-325
       Respondents indicate that section 118-325 provides its statutory authority to limit
water use. The Thums basically argue that the District Law empowered District to
conserve and augment the available water supply but it did not authorize the District to
regulate the residents’ use of water after delivery to a home.
       “Our fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of the enactment.” (Coalition of
Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) “[W]e
construe the words in question in context, keeping in mind the statute’s nature and
obvious purposes. [Citation.]” (Los Angeles County Metropolitan Transp. Authority v.
Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107.) “If the statutory language
is unambiguous, then its plain meaning controls. If, however, the language supports
more than one reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history. [Citation.]” (Ibid.)
       Under section 118-325, the District has the express “power as limited in this law
to do any and every lawful act necessary in order that sufficient water may be available
for any present or future beneficial use or uses of the lands or inhabitants within the
district . . . .” (§ 118-325, italics added.) Further, the District has been given the express
power to “conserve and reclaim water for present and future use within the district.”

                                              31
(§ 118-328, subd. (c).) The district may also exercise the powers that “are reasonably
implied from such express powers and necessary and proper to carry out the objects and
purposes of the district.” (§ 118-301.)
       “All powers, privileges, and duties vested in or imposed on the district shall,
except as otherwise provided, be performed by and through the board of directors.”
(§ 118-201.) The Legislative has conferred the power upon the Board to regulate: “The
board may by ordinance adopt reasonable rules and regulations to carry out its powers
and duties not inconsistent with this or any other law, and may amend, suspend, or repeal
such rules and regulations at pleasure.”18 (§ 118-256.)
       The Legislature granted the District very broad power under the foregoing
provisions. It is our conclusion that, unless otherwise statutorily limited, the District may
adopt rules to regulate residential water use capacity to ensure the availability of
sufficient water for all present and future beneficial uses. (§ 118-325.) Our conclusion is
not undermined by the Thums’ claims regarding the District Law’s limited objectives.
       It is true that regulation of household water use capacity was not a primary
purpose of enacting the District Law. Nevertheless, the Legislature envisioned the
District as the entity providing comprehensive water management for the Monterey
Peninsula area and recognized the District’s conservation objectives. (See § 118-2; see
also Office of Planning and Research, Enrolled Bill Rep. on Assem. Bill No. 1329
(1977-1978 Reg. Sess.) Aug. 24, 1977, p. 1; Cal. Dept. of Water Resources, Enrolled
Bill Rep. on Assem. Bill No. 1329 (1977-1978 Reg. Sess.) Aug. 24, 1977, p. 1.) The
Legislature intended the District to provide integrated management of water in the
Monterey Peninsula area due to existing water problems and a shortage of water

18
       Section 118-256 also provides: “A violation of a district ordinance is a
misdemeanor, which offense is subject to the provisions of subdivision (d) of Section 17
of the Penal Code.” (§ 118-256.)

                                             32
resources. (See § 118-2; Cal. Dept. of Water Resources, Enrolled Bill Rep. on Assem.
Bill No. 1329 (1977-1978 Reg. Sess.) Aug. 24, 1977, p. 1.) It intended the District to
have multiple functions, including “management and regulation” of “the use” and
“conservation of water.” (§ 118-2.)
       As described, the District Law granted very broad powers to the District. An
Enrolled Bill Report explained the background of the bill enacting the law: “A private
company, the California-American Water Company, presently controls the production,
distribution, and the sale of water in the area. Although ‘CalAm’ is regulated by the
Public Utilities Commission, there is no public agency to manage water resources or
regulate water use. . . . AB 1329 would create a public agency with extensive powers to
regulate water use in the Carmel River basin and Monterey Peninsula areas.”19 (Office of
Planning and Research, Enrolled Bill Rep. on Assem. Bill No. 1329 (1977-1978 Reg.
Sess.) Aug. 24, 1977, p. 3.)
       Focusing on the statutory phrase “as limited in this law” in section 118-325, the
Thums suggest the District’s authority there under is restricted to the statutory powers
granted elsewhere in the District Law. This interpretation would render that section
entirely superfluous. “The rules of statutory construction direct us to avoid, if possible,
interpretations that render a part of a statute surplusage. [Citations.]” (People v. Cole
(2006) 38 Cal.4th 964, 980-981.)



19
       “In 1995, the State Water Resources Control Board issued Order No. 95-10 . . . .
Order No. 95-10 found that the California-American Water Company (Cal Am), which
was the principal supplier of water to the Monterey Peninsula, had diverted excess water
from the Carmel River basin ‘without a valid basis of right,’ causing environmental harm.
Cal Am was ordered to substantially limit its diversions, to mitigate the environmental
effects of its excess usage and to develop a plan for obtaining water legally.” (Save our
Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th
99, 108.)

                                             33
       We have concluded that the grant of power described in section 118-325 is very
broad except as circumscribed by any specific limitation in the District Law. The Thums
maintain that section 118-332 is such a limitation and it precludes regulation of
household water fixtures. We disagree.
c. Section 118-332
       Section 118-332 provides: “Upon notice, hearing, and by ordinance duly adopted
by the board, the district may restrict the use of district water during any emergency
caused by drought, or other threatened or existing water shortage, and to prohibit the
wastage of district water, or the use of district water during such periods, for any purpose
other than household uses or such other restricted uses as may be determined to be
necessary by the board. During such periods the district may prohibit the use of district
water for specific uses which the district may from time to time find to be nonessential.
Every ordinance adopted pursuant to this section shall be published pursuant to
Section 6061 of the Government Code within 10 days after adoption in a newspaper of
general circulation in the district published in the county.” (Italics added.)
       The Thums interpret section 118-332 as precluding the District from regulating
household uses of water in any way. We understand section 118-332 to be an explicit
grant of power in times of water emergency. The qualifying phrase at the end of the
section’s first sentence most reasonably applies to the antecedent verb “prohibit” whose
object is “the use of district water.” (See § 118-332.) Read in context, it makes clear that
the District cannot entirely prohibit certain uses of district water.
       The qualifying phrase may not be reasonably read as prohibiting the District from
adopting rules regulating residential water use capacity under section 118-325. The
Legislature clearly knew how to restrict the District’s authority. (See, e.g., § 118-311
[hydroelectric power generated by the District’s plants “shall not be offered for sale



                                              34
directly by the district . . .”]; § 118-376 [“The district shall not . . .”]; § 118-397 [“the
district shall not have the power to . . .”]; § 118-438 [“the district shall not impose . . .”].)
       We are mindful that “courts must avoid statutory constructions that lead to
illogical or absurd results.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16
Cal.4th 105, 142.) The District was created for the very purpose of providing
comprehensive and integrated management of water in an area that had already
experienced serious water shortage problems. (See § 118-2.) “ ‘Where a statute is
theoretically capable of more than one construction [a court must] choose that which
most comports with the intent of the Legislature.’ (California Mfrs. Assn. v. Public
Utilities Com. [1979] 24 Cal.3d 836, 844 . . . .)” (White v. County of Sacramento (1982)
31 Cal.3d 676, 681.) Given the District’s broad powers and purposes, we find it
unreasonable to conclude that section 118-332 prevents the District from regulating
residential water use capacity under its authority “to do any and every lawful act
necessary in order that sufficient water may be available for any present or future
beneficial use or uses of the lands or inhabitants within the district.” (§ 118-325.)
2. Connection Charges
       The trial court determined that the “District has broad express and implied powers
to,” among other things, “collect money for services . . . .” The Thums assert that the
imposition of connection charges before the District furnishes water services violates
sections 118-308 and 118-326, subdivision (b).20 They insist that a “connection charge”



20
       The District has “the power by resolution or ordinance to adopt regulations
respecting the exercise of its powers and the carrying out of its purposes, and to fix and
collect rates and charges for the providing or the availability of any service it is
authorized to provide or make available or for the sale, lease, or other disposition of
water or other product of its works or operations, including standby charges and
connection charges.” (§ 118-308.) As indicated above, the District has the power to “fix,
(continued)
                                               35
is “a fee for connecting a user to a utility’s facilities” and the District has no authority to
impose connection charges for additional residential water fixtures.
       The broad statutory language of the District Law empowers the District to fix and
collect charges for any of its services, not just for supplying water. (See §§ 118-308,
118-326, subd. (b).) As indicated, the District defines a “connection charge” to mean “ a
fee retained by the District in consideration of, and as reimbursement for the costs and
expenses incurred by the District in planning for, acquiring, reserving, and maintaining
capacity in the water distribution facilities existing or to be constructed within the
District.” (Rules 11 & 24-F-1.) Even though the charge is denominated a “connection
charge” by the District, it is not a charge for initially connecting to a water distribution
system.
       Perhaps, the District should have given a “connection charge” a different name but
that does not mean that the District exceeds its statutory authority under the District Law
by imposing such charges. In fact, the District’s rules now recognize that the term
“capacity fee” and “connection charge” are synonymous: “ ‘Capacity Fee’ shall mean a
fee retained by the District in consideration of, and as reimbursement for the costs and
expenses incurred by the District in planning for, acquiring, reserving, and maintaining
capacity in the water distribution facilities existing or to be constructed within the
District. . . . The term ‘Capacity Fee’ shall have the same meaning as the term
‘Connection Charge.’ ”21 (Rule 11, as added by Ord. No. 157 (adopted Dec. 9, 2013),
italics omitted.)


revise, and collect rates and charges for the services, facilities, or water furnished by it.”
(§ 118-326, subd. (b).)
21
        We are aware that Government Code section 66013, subdivision (a), a part of the
Mitigation Fee Act (see Gov. Code, § 66000.5, subd. (a)), provides: “Notwithstanding
any other provision of law, when a local agency imposes fees for water connections or
sewer connections, or imposes capacity charges, those fees or charges shall not exceed
(continued)
                                               36
       The District’s authority under the District Law to collect charges for services is
not narrowly restricted to charges for furnishing water or connecting to a water
distribution system. Broadly speaking, the District’s services include “planning for,
acquiring, reserving, and maintaining capacity in the water distribution facilities existing
or to be constructed within the District.” (Rules 11 & 24-F-1.)
3. Water Permit Inspections
       District Rules require a final inspection following completion of project under a
water permit and authorize the District’s “General Manager, or his designee,” to “obtain
an inspection warrant in accord with the Code of Civil Procedure, Section 1822.50
et seq.” and to “conduct such inspections as are necessary to enforce these Rules and
Regulations.” (Rules 23-A-1-o [final inspection]; 110-A [inspection warrant].)
       The Thums assert, as they did below, that the District’s water permit inspections
violate the Fourth Amendment to the United States Constitution and article I, section 13
of the California Constitution.22 The trial court did not resolve those constitutional



the estimated reasonable cost of providing the service for which the fee or charge is
imposed, unless a question regarding the amount of the fee or charge imposed in excess
of the estimated reasonable cost of providing the services or materials is submitted to,
and approved by, a popular vote of two-thirds of those electors voting on the issue.” (See
Gov. Code, §§ 66013, subd. (b), 66017.) Although appellants mention the Mitigation Fee
Act, this appeal does not present any challenge to the District’s connection charges under
that act.
22
        The Fourth Amendment to the United States Constitution states: “The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” California Constitution, article I,
section 13 provides: “The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable seizures and searches may not be violated; and a
warrant may not issue except on probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the persons and things to be seized.”

                                             37
issues. It did find, however, that the Thums “agreed to the District’s inspection” and their
“rights under Article I, section 1, of the California Constitution were not violated.”23
Respondents contend that “the trial court’s determination regarding the Thums’ consent
to the inspection effectively moots the Thums’ argument.”
       The Thums now “admit that as a condition of the January 2010 permit they
allowed the District to perform a final inspection of the new bathroom, but they assert
their consent was limited to the new bath—they did not freely consent to an inspection of
their entire house as a condition of the January 2010 permit.” They also assert that any
further consent to inspection will be involuntary because it will be given under threat of
penalty. They also assert that the District lacks statutory authority to inspect homes or to
obtain a warrant to do so.
       The administrative record before us does not contain evidence that the Thums
were coerced into consenting to an inspection to verify permit compliance or that their
consent applied only to inspection of the new bathroom.24 Rather, the water permit
obtained by the Thums specified the number of post-project fixtures in their residence
and stated that a final inspection was required. Instead of challenging that inspection
requirement, the Thums accepted the permit and proceeded with the bathroom addition
and objected to the District’s inspection only after the fact. The record does not
demonstrate that the Thums’ consent to inspection was coerced and, therefore,
involuntary.



23
       Article I, section 1 of the California Constitution provides: “All people are by
nature free and independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.”
24
       Under District rule 70, “the appellant and/or Applicant and other Persons may
present evidence concerning the appeal” at the hearing on the appeal.

                                             38
       We find it unnecessary to resolve the Thums’ statutory and constitutional claims
that the District has no right to conduct residential inspections to confirm permit
compliance or to obtain a warrant upon refusal of consent. “The duty of this court, as of
every other judicial tribunal, is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the matter in issue in the case
before it.” (Mills v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132]; see Consolidated
Vultee Air. Corp. v. United Automobile (1946) 27 Cal.2d 859, 863.) “As a general rule,
courts will not reach constitutional questions ‘unless absolutely necessary to a
disposition’ of the case before them [citation] . . . .” (Amador Valley Joint Union High
Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 233.)
                                             III
                                     Declaratory Relief
       After denying the petition for writ of mandate, the court “denied” the complaint
for declaratory relief as moot, impliedly in light of its determination regarding the effect
of the validation judgment. A validation judgment, however, is not conclusive as to an
issue that was not and could not have been adjudicated in the proceeding. (Code Civ.
Proc., § 870, subd. (a).)
       The validation judgment conclusively resolved that connection charges did not
constitute a tax or an assessment under then-existing law. In entering that judgment, the
superior court could not have adjudicated whether the District’s current connection
charges violate California Constitution, article XIII C or article XIII D since those articles
were only added to this state’s Constitution by initiative measure in November 1996,
more than a decade after the validation judgment. Further, since the enactment of
ordinance No. 21, the “water supply cost component” multiplier used to calculate the
charge has steadily increased and, in 2009-2010, it was $23,163, having more than

                                             39
double since 1985. As indicated, the District’s formula for calculating connection
charges has substantially changed. The validation judgment did not conclusively resolve
the Thums’ claim the District’s current connection charges are invalid as special taxes or
new or increased fees or charges under article XIII C or article XIII D. (See Code Civ.
Proc., § 870.)
       Further, it is not evident from the record before us that the Thums’ complaint for
declaratory relief is now necessarily moot. Two of the Thums’ options for remedying the
permit violation require them to pay for an additional water permit, which presumably
means paying an additional “connection charge.” We express no opinion regarding the
merits of their complaint for declaratory relief.
                                       DISPOSITION
       The judgment is reversed. The matter is remanded for further proceedings with
respect to the Thums’ complaint for declaratory relief. The parties shall bear their own
costs on appeal.




                                             40
                                 ______________________________
                                 ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
MIHARA, J.
