Howard Jarvis Taxpayers Assn. v. City of Roseville (2002)

HOWARD JARVIS TAXPAYERS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY OF ROSEVILLE, Defendant and Appellant.

[Modification fn. * of opinion (97 Cal.App.4th 637) on denial of petition for rehearing.]

THE COURT. fn. † -

It is ordered that the opinion filed herein on April 12, 2002, be modified as follows:

1. On page 13, in the first line of the second full paragraph [97 Cal. App. 4th 645, advance report, 4th par., line 1], the words "in Apartment Assn." are inserted between the words "court" and "recently," so the line now reads:

Our state high court in Apartment Assn. recently noted that this analysis from

2. On page 14 [97 Cal. App. 4th 696, advance report], the following paragraphs are added following footnote 18 and before the beginning of the first full paragraph:

Roseville emphasizes two passages from Apartment Assn. There the court concluded that Proposition 218 did not apply to an inspection fee that a city imposed on apartment landlords for code compliance inspections. fn. 19 The inspection fee, said the court, was "imposed on landlords not in their capacity as landowners, but in their capacity as business owners." fn. 20 In the two passages that Roseville emphasizes, the Apartment Assn. court stated that Proposition 218 "only restricts fees imposed directly on property owners in their capacity as such," and "applies only to exactions levied solely by [98 Cal. App. 4th 476e] virtue of property ownership." fn. 21 This reading was based on the plain language of Proposition 218's article XIII D, section 2(e), which defines a fee or charge as one imposed "as an incident of property ownership" rather than "on an incident of property ownership." fn. 22

The inspection fee in Apartment Assn. was imposed because the property there was being rented; here, as we have seen, the in-lieu fee was imposed because the property was being owned. As the Apartment Assn. court reiterated, the inspection fee was "more in the nature of a fee for a business license than a charge against property." fn. 23 Furthermore, article XIII D, section 2(e)'s definition of fee or charge includes "a user fee or charge for a property-related service"; a property-related service "means a public service having a direct relationship to property ownership." fn. 24 The relationship between the inspection fee in Apartment Assn. and property ownership was indirect--it was "overlain by the requirement that the landowner be a landlord." fn. 25 Here, as we have seen, the relationship between the in-lieu fee and property ownership is direct.

3. The addition of footnotes 19-24 in modification 2 above necessitates renumbering of all subsequent footnotes.

4. On page 14, in the first line of the first full paragraph [97 Cal. App. 4th 646, advance report, 1st par., line 1], the word "also" is inserted between the words "Roseville" and "cites," so the line now reads:

Roseville also cites to Howard Jarvis Taxpayers Association v.

5. On page 15, line 4 [97 Cal. App. 4th 646, advance report, 2d par., last line], after the sentence ending with the words "the amount consumed." the following sentences are added:

We do not suggest that measured or metered consumption determines, on its own, whether a fee is property-related within the meaning of Proposition 218; it is simply a factor to consider in an analysis like that undertaken in Jarvis-L.A. We also reiterate that the evidence shows, and the parties have treated, the in-lieu fee, for Proposition 218 purposes, as a separate, independent fee for water, sewer and refuse collection services, and not simply as a component part of another fee. [98 Cal. App. 4th 476f]

There is no change in the judgment.

Appellant's petition for rehearing is denied.

FN *. This modification requires the movement of text affecting pages 645-650 of the bound volume report.

FN †. Before Scotland, P. J., Davis, J., and Callahan, J.

FN 19. Apartment Assn., supra, 24 Cal.4th at pages 833, 838.

FN 20. Apartment Assn., supra, 24 Cal.4th at page 840.

FN 21. Apartment Assn., supra, 24 Cal.4th at pages 838 and 842, respectively.

FN 22. Apartment Assn., supra, 24 Cal.4th at pages 840-843.

FN 23. Apartment Assn., supra, 24 Cal.4th at page 840.

FN 24. California Constitution, article XIII D, section 2(h).

FN 25. Apartment Assn., supra, 24 Cal.4th at page 843.