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Assessment-California Constitution Section 2 of article XIII D

Assessment-California Constitution Section 2 of article XIII D

Section 2 of article XIII D defines an “assessment” as “any levy or charge upon real property . . . for a special benefit conferred upon the real property . . . .”  (Art. XIII D, § 2, subd. (b).)  It defines “special benefit” as “a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large . . . .”  (Id., § 2, subd. (i).)

Section 4 of article XIII D establishes procedures and requirements for assessments.  A local public agency may not impose an assessment, as defined in article XIII D, unless:  (1) the agency identifies “all parcels which will have a special benefit conferred upon them and upon which an assessment will be imposed” (art. XIII D, § 4, subd. (a)); (2) the agency obtains an engineer’s report that supports the assessment (id., § 4, subd. (b)); (3) the assessment does not exceed the reasonable cost of the proportional special benefit conferred on the affected parcel (id., § 4, subds. (a) & (f)); and (4) after giving notice to affected property owners and holding a public hearing, the agency does not receive a majority protest based on ballots “weighted according to the proportional financial obligation of the affected property” (id., § 4, subds. (c)-(e)).

To determine what constitutes an assessment under article XIII D, it is necessary to consider not only article XIII D’s definition of an assessment, but also the requirements and procedures that article XIII D imposes on assessments.  Article XIII D requires that an agency imposing an assessment identify “all parcels which will have a special benefit conferred upon them and upon which an assessment will be imposed.”  (Art. XIII D, § 4, subd. (a), italics added.)  The agency then must give written notice of the proposed assessment to the owners of these identified parcels (id., § 4, subd. (c)) and provide an opportunity for a protest using ballots “weighted according to the proportional financial obligation of the affected property” (id., § 4, subd. (e)).

Because the capacity charge is imposed only on property owners who apply for a new service connection, the District cannot identify the parcels upon which the capacity charge will be imposed.  Here, the District estimated that there would be 240 new connection applications, but the District did not and could not identify the specific parcels for which new connection applications would be made.  At most, the District can identify the parcels within its boundaries on which the capacity charge would be imposed if the owners applied for a service connection.  But the matter is more complex, because many existing undeveloped parcels would likely be subdivided into an indeterminable number of smaller parcels, for each of which a connection might be requested, thus making it impossible to now determine “the proportional financial obligation of the affected property.”  And even this understates the problem, because owners of property outside the District’s boundaries may seek service connections by applying for annexation of their property into the District.  Therefore, it is impossible for the District to comply with article XIII D’s requirement that the agency identify the parcels on which the assessment will be imposed and provide an opportunity for a majority protest weighted according to the proportional financial obligation of the affected property.

We agree with the Court of Appeal that the proper conclusion to be drawn from this impossibility of compliance is that an assessment within the meaning of article XIII D must not only confer a special benefit on real property, but also be imposed on identifiable parcels of real property.  Because the District does not impose the capacity charge on identifiable parcels, but only on individuals who request a new service connection, the capacity charge is not an assessment within the meaning of article XIII D.
JERRY RICHMOND et al.,    v.  SHASTA COMMUNITY SERVICES DISTRICT,  S105078-Filed 2/9/04

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