City of Del Mar v. Burnett

COUGHLIN, J. The City of Del Mar brought this action to determine the validity of assessment proceedings for a proposed sewerage improvement district. (See Sts. & Hy. Code, § 5265; Code Civ. Proc., §§860-870.) The defendants challenged the proceedings upon the ground (1) that a valid protest by affected property owners had not been overruled as required by law; and (2) that, in ordering the proposed improvement, the city council acted arbitrarily, unreasonably exercised its power, and abused its discretion in the premises.

Pursuant to statutory requirements, the city engineer filed a report showing each parcel of land to be assessed for the proposed improvement and the amount of assessment against such (Sts. & Hy. Code, §§ 2824, 2825); the city council noticed a hearing on this report, at which protests might be considered (Sts. & Hy. Code, §§ 2851 et seq.); and the hearing was conducted accordingly.

Prior to this hearing protests had been filed by the owners of over one-half of the area to be assessed. This constituted a majority protest under the governing statute. (Sts. & Hy. Code, § 2930.) However, the engineer’s report did not disclose the area of each of the parcels subject to assessment. At the meeting in question the engineer advised the council that there were 59 assessment parcels; that 25 protests had been filed; that 42 per cent of the owners protested; and that more than 50 per cent of the owners were “in favor of the sewer.” At that time he had made no computation to determine the amount of land owned by the protestants which, as previously noted, was more than 50 per cent of the area within the proposed assessment district.

The protesting owners were given the opportunity to appear and state their opposition at the hearing; some of them did so; but none of them advised the council that their total protests represented over one-half of the land to be assessed.

Where a proposed improvement is other than a sewerage or drainage project, a majority protest per se effects an abandonment of the proceedings. (Sts. & Hy. Code, § 2930.) On the other hand, where the improvement is for sewerage facilities, the council may proceed therewith even though a majority [757]protest has been filed if, at the protest hearing, by a four-fifths vote, it makes statutorily designated determinations and overrules the protests. Section 2932 of the Streets and Highways Code provides: “If the ... improvement is for sewerage ... facilities only and is deemed by the legislative body conducting the proceedings to be necessary for the in-habitation or use of the property benefited, and such body shall, by a four-fifths vote of all members thereof entered upon its minutes, determine that said project is feasible and that the lands to be assessed will be able to carry the burden of such proposed assessment, it may by like vote overrule a majority protest in the proceedings hereunder or in the improvement proceedings to follow. Such finding and conclusion shall be final and conclusive in the absence of fraud.” In the instant ease, the council unanimously adopted a resolution making the determination required by section 2932 and declaring that “all protests against said proposed improvement, if any, are hereby overruled. ”