Filed 6/26/13 Brooktrails Township Com. Services Dept. v. Bd. Super. Mendocino Cty. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


BROOKTRAILS TOWNSHIP
COMMUNITY SERVICES DISTRICT,
         Plaintiff and Respondent,                                   A135900

v.                                                                   (Mendocino County Super. Ct. No.
BOARD OF SUPERVISORS OF                                               SCUK CVG-1057508)
MENDOCINO COUNTY et al.,

         Defendants.


DAVID PALAND,

          Intervener and Appellant.


         Proposition 218, adopted by the voters in 1996, added articles XIII C and XIII D
to the California Constitution.1 One of its most prominent features was to tighten the
two-thirds voter approval requirement for “special” taxes and assessments imposed by
Proposition 13. (Art. XIIIA, § 4 Art. XIII C, § 2, subd. (d); art. XIII D, §§ 3, 4, subd. (g),
6, subd. (c).)2 In Paland v. Brooktrails Township Community Services Dist. Bd. of

         1
             References to articles are to the California Constitution.
         2
         Proposition 218 was entitled the “Right to Vote on Taxes Act” and had this
preamble: “The people of the State of California hereby find and declare that
Proposition 3 was intended to provide effective tax relief and to require voter approval of
tax increases. However, local governments have subjected taxpayers to excessive tax,
assessment, fee and charge increases that not only frustrate the purposes of voter approval

                                                             1
Directors (2009) 179 Cal.App.4th 1358 (Paland I), Division Five of this District
concluded that “a minimum charge imposed on parcels with connections to a water
district’s utility systems for the basic cost of providing water or sewer service, regardless
of actual use, is a charge for an immediately available property-related water or sewer
service as defined in article XIII D, section 6, subdivision (b)(4), and consequently does
not require ballot approval by affected owners.” (Id. at p. 1362.)
       This appeal involves the response of the losing party in Paland I: David Paland, a
resident of the Brooktrails Township Community Services District (District). Having
been told that he could be required to pay for sewer and water connections even if they
were inactive because he had discontinued service, Paland resolved on a novel rejoinder.
He drafted an initiative that would in effect have ended the practice he had unsuccessfully
battled in Paland I. The initiative passed, but only by a simple majority. However, at the
same election voters statewide enacted Proposition 26 with the ostensible purpose of
further tightening Proposition 218’s restrictions on revenue-generating measures that are
not approved by voters. (See fn. 5, post.)
       On petition of the District, the trial court overturned the approval of the local
initiative in the belief that a two-thirds majority was required, which was in turn premised
on the applicability of the just-enacted Proposition 26. We conclude that indulging that
premise was error, because there is nothing in Proposition 26 indicating that it was meant
to have a retroactive application. With Proposition 26 removed from consideration, the
water and sewerage operations of the District remains as discussed in Paland I—not
subject to Proposition 218’s supermajority requirement. Consequently, a simple majority
is all that was necessary for the local initiative to pass and take effect. In light of this
conclusion, we reverse.


for tax increases, but also threaten the economic security of all Californians and the
California economy itself. This measure protects taxpayers by limiting the methods by
which local government exacts revenue from taxpayers without their consent.”
(Prop. 218, §§ 1-2, Stats. 1996, pp. A-295-297; also reprinted at Historical Notes,
2B West’s Ann. Cal. Codes (2013) foll. Art. 13C, § 1, p. 363.)


                                               2
                                     BACKGROUND
       Much of the relevant history behind this dispute was set out in Paland I:
       “The Brooktrails Township Community Services District (District) was formed to
provide water and sewer service to about 6,500 real property parcels in or near Willits,
California.[3] [Citation.] About 1,536 of the parcels are currently connected to the
District’s water system, and about 1,490 are connected to its sewer system. The rest of
the parcels are undeveloped and not yet connected to the District’s utility systems.
Parcels not connected to the water and sewer systems are charged annual water
availability and sewer standby fees. Parcels connected to the water and sewer systems
are charged connection fees at the time of hookup to the systems, and thereafter fixed
monthly water and sewer ‘base rates,’ as well as inclining usage-based rates for water
service. The sewer connection is not a metered service, and is therefore not subject to a
usage charge beyond the monthly base rate.
       “Appellant David Paland, a property owner in the District, connected his parcel to
the water and sewer systems in 1986 and paid $1,800 in connection fees. In the decades
that followed, he periodically discontinued his water service when he was away from his
home for extended periods of time or when he asserts he could not afford the service. On
such occasions, he was historically charged a prorated amount of the water and sewer
base rates for the month in which his service was discontinued and was not charged again
until he requested reactivation of his water service. Until 2003, it was District policy not
to charge base rates to parcels with existing connections that were inactive because the
parcels were either undeveloped or unoccupied, or because the owners had temporarily
discontinued their service.
       “The District changed its policy in 2003. At the time, the state Department of
Health Services had imposed a moratorium on new connections pending an increase in

       3
         A community services district is authorized to exercise a wide variety of powers,
including the supply of water; the treatment of liquid and solid waste; the construction
and maintenance of roads and streets; and the provision of fire, police and emergency
services. (Gov. Code, § 61100.)


                                             3
the District’s water storage capacity. The Department of Health Services mandates
increased the District’s capital investment costs and eliminated its income from new
connections. On March 11, 2003, the District’s Board of Directors (Board) decided to
begin charging established monthly base rates to parcels with existing utility connections,
regardless of whether the owner was actually using the District’s services. On April 24,
2003, District General Manager Michael Chapman wrote to Paland and 20 other property
owners with currently or periodically inactive water meters informing them of the change
of policy.
        “Paland protested the new policy. He questioned [the] Board’s statutory authority
to impose monthly base rates on inactive connections, arguing that the practice was ‘in
the nature of a standby fee’ and that the Board had not complied with Proposition 218 or
due process. Although the Board did not rescind its policy, Paland took no immediate
legal action because he ‘did not become aware that the thing had actually gone through as
any kind of ordinance . . . .’ He did not discontinue his water service between 2003 and
2006.
        “In late 2006, Paland fell behind on his monthly bills. In October 2006, the
District notified him that his service would be shut off if he did not pay the arrears. In a
letter to the district general manager dated December 25, 2006, Paland wrote that his
water had been turned off, that he would pay the arrears as soon as he could, that he could
not afford to pay ongoing base rates because he was unemployed, and, ‘For that reason, I
have no plans to ask you to turn the water back on until I can afford the huge base rate.’
By the end of January 2007, Paland apparently had paid his arrears through November
2006. Paland’s subsequent monthly bills reflect no actual water usage. The District,
however, continued to charge Paland the monthly base rates for both water and sewer
services.
        “On May 17, 2007, Paland sued the Board for declaratory and injunctive relief.
He alleged that in 2007, pursuant to the 2003 policy, the District began charging him
monthly base rates . . . for time periods when he had requested that his water service be
turned off. He again argued the monthly base rates, when charged to customers whose


                                              4
water service had been turned off, were ‘standby charges’ subject to the owner voting
requirements of article XIII D, section 4, and that the District had failed to comply with
those requirements.” (Paland I, supra, 179 Cal.App.4th 1358, 1362-1363, fns. omitted.)
Paland lost and appealed.
       Division Five agreed with the trial court that Proposition 218 did not entitle Paland
to relief. The court opened its analysis by defining the nature and scope of the problem:
       “The core issue in this appeal is whether the imposition of minimum monthly
water and sewer base rates on parcels connected to the District utility systems, regardless
of actual usage, is a property assessment subject to owner ballot approval requirements
adopted in Proposition 218 (art. XIII D, § 4), or is instead a fee or charge for a property-
related service exempted from those requirements (art. XIII D, § 6, subd. (c)).”
(Paland I, supra, 179 Cal.App.4th 1358, 1364-1365.) “The narrow focus of this dispute
is the proper interpretation and application of article XIII D, section 6, subdivision (b)(4),
which distinguishes between fees and assessments: ‘A fee or charge shall not be
extended, imposed, or increased by any agency unless it meets all of the following
requirements: [¶] . . . [¶] (4) No fee or charge may be imposed for a service unless that is
actually used by, or immediately available to, the owner of the property in question. Fees
or charges based on potential or future use of a service are not permitted. Standby
charges, whether characterized as charges or assessments, shall be classified as
assessments and shall not be imposed without compliance with Section 4.’ (Art. XIII D,
§ 6, subd. (b)(4), italics added.)” (Paland I, supra. at pp. 1366-1337.)
       “Paland argues that, despite the existence of a metered connection for water
service at his parcel, that service is still not immediately available to him, and to those
similarly situated with inactive connections, and therefore the imposition of minimum
base rates on such parcels is a standby charge that must be classified as an assessment
under article XIII D, section 6, subdivision (b)(4). He asserts that water service is not
immediately available to him when his connection is inactive because the District would
have to unlock his water meter before he could use the service. Also, he argues the
service is not immediately available because the District will not unlock his meter unless


                                              5
he pays his past-due bills. In his view, the service is not immediately available unless he
can ‘twist his tap and turn on the water.’ If, as Paland contends, the minimum monthly
base rate charged by the District is indeed a standby charge, it would unquestionably be
subject to article XIII D, section 4 assessment approval procedures.” (Paland I, supra,
179 Cal.App.4th 1358, 1367.)
       After a discussion of the relevant decisional law, the court stated: “The terms
‘immediately available’ and ‘potential or future use of a service’ as used in the initiative
are relative and inherently imprecise. Construed narrowly, service is ‘immediately
available” only if, as Paland suggests, water flows out of a faucet when the property
owner turns on the tap. However, voters might reasonably have intended “immediately
available” to include circumstances where the District has provided utility connections
directly to the owner’s parcel and the service is ‘immediately available’ subject only to
the volitional decision of the property owner to request service.” (Paland I, supra,
179 Cal.App.4th 1358, 1369.)
       “We conclude the ‘immediately available’ requirement is logically focused on the
agency’s conduct, not the property owner’s. As long as the agency has provided the
necessary service connections at the charged parcel and it is only the unilateral act of the
property owner (either in requesting termination of service or failing to pay for service)
that causes the service not to be actually used, the service is ‘immediately available and a
charge for the service is a fee rather than an assessment (assuming the other substantive
requirements of a fee are satisfied).
       “Here Paland long ago paid the connection charges and became a customer of the
District, with water and sewer services provided through pipes physically connected to
the property. He cannot contend that the services are not available to him, because quite
evidently they have been available at all times he has chosen to use them. The District
can and will immediately turn on water service to Paland’s property once Paland requests
that the service be renewed and satisfies any delinquency. Any lack of immediacy in this
process is due solely to circumstances within his control.



                                              6
       “A contrary conclusion would lead to an anomalous result whereby an individual
property owner could unilaterally preclude collection of his or her pro rata obligation for
the maintenance and operation of a utility system absent an owner vote, while the owner
of an adjacent parcel with an active connection would have no such option. Further, such
an argument, which would divorce the base rates imposed on parcels with inactive
connections from the base rates imposed on parcels with active connections would take
the former rates outside of Proposition 218 altogether, thus undermining rather than
assisting Paland’s case. In Richmond, in deciding that a water connection charge was not
subject to Proposition 218 requirements, the Supreme Court held that in order for a
charge to be either an assessment or fee within the meaning of Proposition 218, it must
apply to parcels that can be identified in advance. (Richmond [v. Shasta Community
Services Dist (2004) 32 Cal.4th 409,] 418–419, 427–428; see also Bighorn[-Desert View
Water Agency v. Verjil (2006) 39 Cal.4th 205,] 208–209 [recognizing conclusion in
Richmond that ‘connection charges were not “assessments” or “property-related fees or
charges” within the meaning of article XIII D’].) Both section 4 and section 6 of article
XIII D require agencies to identify affected parcels in advance of imposing an assessment
or a fee for purposes of providing notice and conducting the required voter approval
procedures. [Citation.] Because the decision to discontinue water service is a voluntary
act by the property owner that cannot be anticipated by the District, parcels affected by a
fee that specifically applied to parcels with inactive connections could not be fully
identified in advance and the fee would not be covered by Proposition 218 at all.”
(Paland I, supra, at pp. 1370-1371.)
       Thereafter, Paland drafted and sponsored Measure D, “An Initiative To Prevent
the Brooktrails Township Community Services District from Imposing Mandatory Water
and Sewer Base Rates after Service has been Discontinued.” The pertinent language
provided: “The Brooktrails Township Community Services District shall not collect base
rate service charges, or any other service charges, for water or sewer service, for more
than two days after the customer has requested discontinuance of service. The District
shall not require that a parcel owner relinquish a water or sewer connection as a condition


                                             7
of discontinuing service. The District shall not impose a fee for more than the reasonable
cost of turning the service back on when the property owner requests resumption of
service. Merely having pipes connected to the District’s water or sewer system is not a
service that may be charged for.”4
       The Mendocino County Counsel’s “Impartial Analysis” advised voters that “This
measure requires voter approval by a simple majority vote of the qualified voters.” At the
November 2, 2010 election, Measure D passed by a simple majority of 737 to 637. At
the same time, the voters of the state adopted Proposition 26, which, as relevant here,




       4
       Paland also wrote the argument in favor of Measure included in the voters’
pamphlet:
       “Everyone should have the right to decide which services they want to receive.
Nobody would expect to pay for telephone services, cable TV service, electric service,
DMV fees, or any other service they did not use. The District initiated a policy that took
away every parcel owner’s right to turn off their water to obtain service fees from 21 lot
owners who had their water turned off. The District’s policy leads to a situation where
the District turns off water for non-payment while continuing to charge the property
owner at the full base rate. This charge eventually becomes a lien on the property if not
paid.
       “In 1996, voters passed Proposition 218, which states in part:
       “ ‘No fee or charge may be imposed for a service unless that service is actually
used by, or immediately available to, the owner of the property in question. Fees or
charges based on potential or future use of a service are not permitted. Standby charges,
whether characterized as charges or assessments, shall be classified as assessments and
shall not be imposed with compliance with Section 4.’
       “Compliance with ‘Section 4’ meant that standby charges would have to be
approved by voters, in addition to meeting other requirements before assessments could
be imposed. However, in interpreting Proposition 218, the courts held that charges for
water and sewer service when water is locked off by the District are not really standby
charges, but fees for a service that is actually being received. It is hard to imagine that
property owners are receiving service even when their water is locked-off by the District.
Please vote yes on this initiative and reclaim the right to control the charges on your
property.”


                                             8
expanded the definition of what constituted a “tax” for purposes of article XIII C.5 One
of the declared purposes of Proposition 26 was to halt evasions of Proposition 218.6


       5
           Specifically, Proposition 26 added a new definition to article XIII C, section 1:
      “(e) As used in this article, ‘tax’ means any levy, charge, or exaction of any kind
imposed by a local government, except the following:
        “(1) A charge imposed for a specific benefit conferred or privilege granted directly
to the payor that is not provided to those not charged, and which does not exceed the
reasonable costs to the local government of conferring the benefit or granting the
privilege.
       “(2) A charge imposed for a specific government service or product provided
directly to the payor that is not provided to those not charged, and which does not exceed
the reasonable costs to the local government of providing the service or product.
        “(3) A charge imposed for the reasonable regulatory costs to a local government
for issuing licenses and permits, performing investigations, inspections, and audits,
enforcing agricultural marketing orders, and the administrative enforcement and
adjudication thereof.
      “(4) A charge imposed for entrance to or use of local government property, or the
purchase, rental, or lease of local government property.
      “(5) A fine, penalty, or other monetary charge imposed by the judicial branch of
government or a local government, as a result of a violation of law.
       “(6) A charge imposed as a condition of property development.
       “(7) Assessments and property-related fees imposed in accordance with the
provisions of Article XIII D.
        “The local government bears the burden of proving by a preponderance of the
evidence that a levy, charge, or other exaction is not a tax, that the amount is no more
than necessary to cover the reasonable costs of the governmental activity, and that the
manner in which those costs are allocated to a payor bear a fair or reasonable relationship
to the payor’s burdens on, or benefits received from, the governmental activity.”
        The other major part of Proposition 26 was a comparable amendment to
article XIII A governing ad valorem taxation.
       6
         The Findings and Declarations of Purpose for Proposition 26 state, as relevant
here: “Since the enactment of Proposition 218 in 1996, the Constitution of the State of
California has required that increases in local taxes be approved by the voters.
[¶] Despite these limitations, California taxes have continued to escalate. Rates for . . . a
myriad of state and local business taxes are at all-time highs. Californians are taxed at
one of the highest levels of any state in the nation. [¶] . . . [¶] This escalation in taxation

                                               9
       The District promptly brought suit against the Board of Supervisors and the
County Clerk of Mendocino County for declaratory relief that Measure D “is not in
effect,” was “facially unconstitutional,” and should not be enforced “for want of having
achieved a two-thirds vote” as required by Proposition 26.
       Paland was allowed to intervene as a defendant, but not to file a cross-complaint
against the District. Thereafter, the Board of Supervisors and Clerk advised the court that
they “will not be offering a defense to this action” and were “not taking a position on the
issue.” Following a two-day bench trial, the trial court accepted the District’s argument
that the effect of Measure D allowing property owners with existing connections to “go
inactive” would raise the base rates for property owners who remained connected, which
would in practical effect amount to a raise in what property owners who remained
connected paid for the connection. The trial court reasoned that this increase amounted
to a “tax” according to the new definition of that term adopted in Proposition 26.7 (See
fn. 5, ante.)
       Paland perfected this timely appeal from the judgment entered in due course.
                                      DISCUSSION
       Paland attacks the judgment from a number of angles ranging from the erroneous
exclusion of evidence to the erroneous interpretation of state and federal Constitutions.
And while the trial court heard testimony and appears to have made a number of factual
determinations (some of which Paland attacks as lacking the support of substantial
evidence), the governing issue addressed in the trial court’s statement of decision was

does not account for the recent phenomenon whereby . . . local governments have
disguised new taxes as ‘fees’ in order to extract even more revenue from California
taxpayers without having to abide by these constitutional voting requirements . . . . [¶] In
order to ensure the effectiveness of these constitutional limitations, this measure . . .
defines a ‘tax’ for state and local governments so that neither the Legislature nor local
governments can circumvent these restrictions on increasing taxes by simply defining
new or expanded taxes as ‘fees.’ ” (Prop. 26, § 1, subds. (b), (c), (e), (f), reprinted at
Historical Notes, 2B West’s Ann. Cal. Codes (2013) foll. Art. 13A, § 3, p.297.)
       7
        The trial court also addressed certain issues—such as whether Measure D
violated the single subject rule—that are not raised on this appeal.


                                            10
whether the consequence of passing Measure D was the imposition of a tax. That is an
issue of law we consider de novo. (Sinclair Paint Co. v. State Bd. of Equalization (1997)
15 Cal.4th 866, 873-874.) However, our resolution of this appeal is most expeditiously
achieved by examining the premise of the trial court’s decision, specifically, that
Proposition 26 applied to this controversy. This too presents an issue of law. (Covert v.
State Bd. of Equalization (1946) 29 Cal.2d 125, 133 [“construction and application of the
Constitution . . . is a question of law”]; Chen v. Franchise Tax Bd. (1998) 75 Cal.App.4th
1110, 1114 [same].)
       As a statewide initiative, Proposition 26 took effect the day after it was approved
by the voters. (Arts. II, § 10, subd. (a), XVIII, § 4.) In seeking to use Proposition 26 to
overturn the election result that occurred the day before it became effective, the District is
plainly trying to give Proposition 26 a retroactive application. Just as with newly enacted
statutes, constitutional amendments are presumed to have a purely prospective
application. (Strauss v. Horton (2009) 46 Cal.4th 364, 470.) This is only a presumption,
and can therefore be overcome, but doing so is no easy task. There must be either an
express retroactivity provision in the actual language of the amendment, or extrinsic
sources leave no doubt that such was the voters’ manifest intent. (Ibid.) Here, there is
neither.
       Proposition 26 did have something akin to a retroactivity provision, but one of no
help to the District. As previously shown, Proposition 26 had two components, the first
amending the definition of “tax” in article XIII A and the second doing the same for
article XIII C. (See fn. 5, ante.) The former has this language: “Any tax adopted after
January 1, 2010, but prior to the effective date of this act, that was not adopted in
compliance with the requirements of this section is void 12 months after the effective
date of this act unless the tax is reenacted by the Legislature and signed into law by the
Governor in compliance with the requirements of this section.” (Art. XIII A, § 3, subd.
(c).) There is no such language in the amendment of article XIII C, the governing
provision here. In other words, retroactivity was addressed in Proposition 26, but solely
for state measures affecting ad valorem taxes.


                                             11
       This absence is particularly telling given the history of these parts of our
constitution. When article XIII A was adopted in June 1978, the framers of Proposition
13 included the following: “This article shall take effect for the tax year beginning on
July 1 following the passage of this Amendment, except Section 3 [imposing the
two-thirds requirement on legislative modifications] which shall become effective upon
passage of this article.” (Art. XIII A, § 5.) Subsequent amendments have continued the
practice of precise chronological designations. (See id., § 2, subd. (a) [“This paragraph
shall apply to any replacement dwelling that was purchased or newly constructed on or
after November 5, 1986,” “This paragraph . . . does not apply to any replacement
dwelling that was purchased or newly constructed before November 9, 1988”],
subd. (e)(2) [“this subdivision applies to any comparable replacement property acquired
or newly constructed after July 1, 1985, and to the determination of base year values for
the 1985-86 fiscal year and fiscal years thereafter”], subd. (e)(3) [“This paragraph applies
to any comparable replacement property that is acquired or newly constructed as a
replacement for property substantially damaged or destroyed by a disaster . . . occurring
on or after October 20, 1991, and to the determination of base year values for the 1991-92
fiscal year and fiscal years thereafter”].)
       When Proposition 218 added article XIII D in November 1996, it included this
language: “Pursuant to subdivision (a) of Section 10 of Article II, the provisions of this
article shall become effective the day after the election unless otherwise provided.
Beginning July 1, 1997, all existing, new or increased assessments shall comply with this
article.” (Art. XIII D, § 5.) Additionally, “Beginning July 1, 1997, all fees or charges
shall comply with this article.” (Id., § 6, subd. (d).) But of far more consequence is that
Proposition 218 had the type of language so conspicuously absent from Proposition 26:
“Any general tax imposed, extended, or increased, without voter approval, by any local
government on or after January 1, 1995, and prior to the effective date of this article,
shall continue to be imposed only if approved by a majority vote of the voters voting in
an election on the issue of the imposition, which election shall be held within two years



                                              12
of the effective date of this article and in compliance with subdivision (b).” (Art. XIII C,
§ 2, subd. (c).)
       Thus, those who framed the direct antecedents of Proposition 26 knew how to
specify when new rules would take effect. They also knew how to provide for the demise
of measures that were not reenacted. The framers of Proposition 26 made no provision
directing that it would impose new requirements for the validity of existing local
government assessments, fees, or charges. “When we interpret an initiative, we . . .
consider the initiative’s language, giving the words their ordinary meaning and
construing this language in the context of the . . . initiative as a whole. If the language is
not ambiguous, we presume the voters intended the meaning apparent from that language,
and we may not add to the [language] or rewrite it to conform to some assumed intent not
apparent from that language.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 571; accord, Howard Jarvis Taxpayers Assn. v. City of San Diego (1999)
72 Cal.App.4th 230, 235.) In the context of Proposition 26, the assumed intent we cannot
insert is retroactive application to existing local assessments, fees, or charges.
       We have examined the ballot arguments attending Proposition 26, and have found
nothing evidencing an intent for retroactive application. The District in its brief points to
nothing in the official voter information guide indicative of such an intent.
       With Proposition 26 removed from consideration, two factors become dispositive.
The first is Paland I, which established that the District’s water and sewerage operations
were not being conducted in violation of Proposition 218. More precisely, Division Five
held that the money property owners were required to pay did not qualify as a tax
requiring a two-thirds vote, or even as an assessment that required a simple majority vote
(and at a hearing that did not necessitate an actual election); the money exacted was a fee,
the imposition of which did not even require a vote of any kind. (Paland I, supra,
179 Cal.App.4th 1358, 1365-1367, 1371-1372; see art. XIII D, §§ 3-4.) Thus,
Proposition 218 was not an impediment to Paland seeking to change the District’s current
fee structure. (Cf. Batt v. City and County of San Francisco (2010) 184 Cal.App.4th 163,
176 [Proposition 218 not applicable to existing municipal tax].)


                                              13
       The second factor is Proposition 218’s directive that “Notwithstanding any other
provisions of this Constitution, . . . the initiative power shall not be prohibited or
otherwise limited in matters of reducing or repealing any tax, assessment, fee or charge.
The power of initiative to affect local taxes, assessments, fees and charges shall be
applicable to all local governments . . . .” (Art. XIII C, § 3; see Bighorn-Desert View
Water Agency v. Verjil, supra, 39 Cal.4th 205, 213 [this language also applicable to art.
XIII C fee and charges].) Using that power is precisely what Paland—and the majority of
the District’s voters—did in passing Measure D.
       The District does not convince us that the predicate of this analysis—that
application of Proposition 26 involves the issue of retroactivity—is faulty. The trial court
concluded that while Proposition 26 took effect the day after the election, the application
of Elections Code section 9320 made Measure D effective “at a later date.”8 The District
defends this reasoning, insisting that because Proposition 26 was therefore effective
before Measure D, there is no true issue of retroactivity. This court has previously
recognized that “ ‘A . . . retroactive statute is one that operates on matters that occurred,
or on rights, obligations, or conditions that existed, before the time of its enactment,
giving them an effect different from that which they had under previously law.’ ”
(Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 613.) The “rights,
obligations, [and] conditions that existed” prior to enactment of Proposition 26 was the
legal landscape analyzed in Paland I and assumed by the Mendocino County Counsel to
be legally accurate. Proposition 26 would entirely reorder that landscape. Thus, the
retroactivity of Proposition 26 is truly presented.




       8
         Concerning special district elections, the cited statute provides: “If a majority of
the voters voting on a proposed ordinance in its favor, the ordinance shall become a valid
and binding ordinance of the district. The ordinance shall be considered as adopted upon
the date the vote is declared by the district board, and shall go into effect 10 days after
that date.” The parties were unable to establish the precise date that Measure D became
effective, only that it was “sometime during the month of November 2010.”


                                              14
                                 DISPOSITION
     The judgment is reversed.



                                          _________________________
                                          Richman, J.


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Lambden, J.




                                     15
