Building Industry Assn. v. City of Oxnard

Opinion

THE COURT.

In June 1981, the City Council of Oxnard enacted a series of three ordinances requiring all persons who wish to construct new development in the city to pay (1) a water system connection fee, (2) a waste water connection fee, and (3) a “Growth Requirements Capital Fee.” The following month, on the day the ordinances went into effect, plaintiff Build

[3]

ing Industry Association of Southern California—a nonprofit organization representing business entities in the construction and development industry—filed the present action, seeking a permanent injunction against the enforcement of the three ordinances and a declaration that each ordinance was invalid as imposing an unauthorized “tax” rather than a permissible “fee.” Both parties moved for summary judgment. After considering the motions and accompanying affidavits, the trial court ruled in favor of the city, concluding that all three of the challenged fees were imposed “to pay for the cost of financing new capital improvements to serve the new facilities and population anticipated through development” and constituted “a reasonable exercise of the police power.” Plaintiff appealed, but challenged only that portion of the judgment upholding the validity of the Growth Requirements Capital Fee.

While the appeal was pending, the city amended the challenged Growth Requirements Capital Fee ordinance (Ord. No. 1876), clarifying the uses to which the proceeds from the fee may be put and significantly modifying the formula under which each individual fee is to be calculated. Although plaintiff contends that the modification of the ordinance has no bearing on this appeal, past California decisions establish that in proceedings of this nature—where injunctive relief against a legislative enactment is sought—the relevant provision for purposes of the appeal is the measure which is in effect at the time the appeal is decided.

(Kash Enterprises, Inc.

v.

City of Los Angeles

(1977) 19 Cal.3d 294, 306, fn. 6 [138 Cal.Rptr. 53, 562 P.2d 1302]; see also

Gregory