Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV240433.
Lambden, J.
Canon Manor West Citizens Group (CMG or the association) is an association of approximately 40 homeowners and four undeveloped landowners living in the Canon Manor West subdivision (the subdivision). The subdivision is in an unincorporated area of the County of Sonoma (the county) and adjacent to the City of Rohnert Park (the city). The city charged the property owners in the subdivision a fee to connect to the city’s sewer system. After paying the charged fee under protest, CMG sued the city. The city moved for summary judgment on CMG’s complaint, which the trial court granted.
The lawsuit was brought against the city and the county, but only the city is involved in this appeal; it is unclear whether the county is still involved in this lawsuit.
On appeal, CMG protests the lower court’s rulings that the statute of limitations under Government Code section 66022 bars its claim for the recovery of the fees paid under protest and that Proposition 218 does not apply to this claim. The association also objects to the court’s rulings on its request for declaratory relief, its causes of action for promissory estoppel and a violation of due process, and the city’s motion to strike some of the evidence CMG submitted in support of its opposition to the city’s summary judgment motion. We are not persuaded by CMG’s arguments and affirm the lower court’s judgment.
All further unspecified code sections refer to the Government Code.
BACKGROUND
Contaminated Wells in the Subdivision
The subdivision is in an unincorporated area of the county and adjacent to the city. In 1993, there were 231 residential parcels in the subdivision. When built, the homes in the subdivision used local wells for water and on-site sewage disposal.
The wells in the subdivision became contaminated because of a number of septic system failures. In 1988, the county responded to the contamination by enacting an urgency ordinance, which placed a moratorium on any septic system’s construction until the septic problem could be solved.
In April 1993, the county prepared a feasibility study (the county feasibility study) for installing infrastructure within the subdivision. The proposed project required connection with the city’s sewer system. With regard to the costs related to the “Treatment Plant Connection, ” the study stated in relevant part: “The ‘Treatment Plant Connection’ Fee is the amount the Rohnert Park Sewage Treatment District charges to connect each new single family residence to the system.... This money reimburses [the city] for the construction of the Treatment Plant and a proportional share of the Regional Plant. [¶] This fee can be paid in a number of ways: [¶] The fee can be included in the cost of the Assessment District.... [¶] Alternately, this fee can be deleted from the cost of the Assessment District and payment of the fee deferred until the time the owner actually connects to the system. In this case, each owner would need to individually pay this same fee prior to connecting to the system. Owners of vacant lots would not pay this fee until the time a residence is constructed on the property. Of course, as time goes by, [the city] will likely increase this fee and then the owners will have to pay the increased fee amount in effect at the time a connection is made.”
The owners in the subdivision wished to form an assessment district (the assessment district) with the county and a petition was circulated by the county to the owners in the subdivision in the summer of 2000. In December of 2000, the county board of supervisors voted to form the assessment district. For the next nine months, the county held public hearings to discuss issues surrounding the formation of the district and to address questions of the owners in the subdivision.
On August 1, 2001, the county sent all of the owners in the subdivision a packet describing the terms of the proposed assessment district. With regard to the sewer connection fee, the document provided the following: “This fee is established by the City of Rohnert Park and is levied to reimburse the City of Rohnert Park for its contribution towards construction of pump stations, trunk lines and the treatment plant. Currently Rohnert Park has set this fee at $5,910. This fee is subject to change. The actual fee will be the fee that is in effect at the time connection to the system is formally secured by each parcel.”
City Agrees to Provide a Sewer Connection to the Subdivision
On October 11, 2001, the city and the county entered into an Agreement to Provide Public Wastewater Service to the subdivision (wastewater service agreement). Under the wastewater service agreement, the county was obligated to oversee the construction of the sewer system for the subdivision and, upon acceptance of the project by the city, the city was obligated to maintain and run the system. The wastewater service agreement stated that the “sewer connection fee shall be $5,910” for a 12-month period following the date “the Geysers Project of the Santa Rosa Subregional Sewerage System” was completed. When the period to pay the $5,910 concluded, the subdivision owners would be required to pay the connection fee “in effect on the date application for connection is submitted to” the city.
Neither party explains what the Geysers Project is.
While the cost for connecting was still frozen at $5,910, the city raised the sewer connection fee. On December 11, 2001, after publishing a notice of hearing in the local newspaper, the city council by resolution increased its sewer connection fee to $6,796.50 (sewer connection fee).
The assessment district financed the county’s construction of various public improvements serving the subdivision, including water, sewer, and service roads with associated storm drainage. The sewer portion of the assessment district project involved construction of infrastructure that would enable the owners in the subdivision to connect to the city’s sewer system. Several events, including a lawsuit and environmental challenges, delayed construction.
At the end of 2004, the ability of the owners in the subdivision to pay the original sewer connection fee of $5,910 expired. Sixty-nine property owners paid the $5,910 fee before this deadline.
The City’s Improvements to Its Sewer System and Fees Charged
The city had to make improvements to its own sewer system to ensure it had the capacity to handle the anticipated flows from the subdivision and from other developments. Between 2001 and 2006, the city worked with several consultants to analyze its infrastructure requirements.
In 2004, the city prepared a Public Facilities Finance Plan (the PFFP), which delineated the city’s costs for infrastructure improvements. Since the wastewater service agreement obligated the city to accept the original sewer connection fee of $5,910 from the owners in the subdivision until the end of 2004, the PFFP did not require the owners to pay any portion of the public facilities finance fee. In 2004, the city adopted the PFFP, which outlined a comprehensive strategy for managing the costs of capital facilities, maintenance, and services that were impacted by new development.
In 2006, when the city updated the PFFP, it included an “analysis of the sewer facilities that benefit” the subdivision and developed a specific facilities finance fee for the subdivision (subdivision facilities finance fee) to cover these costs. The PFFP stated that the subdivision was omitted in the original PFFP but, as the city completed “its Sewer Models & Studies, it became clear that both the east side Sewer and the Interceptor Outfall project would be impacted by flows from [the subdivision]. [The subdivision] will use capacity at the Subregional System and impacts the Recycled Water System Expansion. Therefore as part of the 2006 Update, [the subdivision land uses] were included in the Mitigation Fee calculations and a specific [subdivision] Fee has been calculated....” The PFFP included costs for utilities, including the fund for “major expansions” to the city’s “water and sewer system in order to provide adequate capacity” for four new projects, including the project involving the subdivision. The PFFP concluded that the subdivision facilities finance fee was $9,684, as this amount covered the costs of sewer infrastructure that directly benefited the subdivision.
On June 13, 2006, the city council held a public hearing along with its regularly scheduled meeting to consider the updated PFFP, including the proposed subdivision facilities fee. The city posted the agenda and notice of the public hearing for the meeting at least three days prior to the meeting at the city hall, the department of public safety, the community center, and the public library. Minutes reflect that the public hearing on this matter opened and closed, simultaneously, at 9:57 p.m. The subdivision facilities finance fee was adopted at the meeting and went into effect 30 days later on July 13, 2006. Resolution 2006-165, which adopted the subdivision facilities fee, specifically stated that “any judicial action or proceeding to attack, review, set aside, void, or annul this resolution shall be brought within 120 days.”
In addition to the subdivision facilities finance fee, for those property owners in the subdivision who had not paid the frozen fee of $5,910, the city imposed a fee to cover the actual costs of participation in the Santa Rosa Subregional Water Reuse Systems’ Incremental Recycled Water Program (capacity fee). Prior to November 2006, the capacity fee was a total of $7,844.75 and comprised of three separate charges: (1) an $885.75 per acre for development fee, which constituted the sewer portion (or 10 percent) of the total per acre for development fee (per acre development fee); (2) a $6,796.50 sewer service connection fee; and (3) a $162.50 fee, which constituted 50 percent of a $325 water/wastewater conservation fee (water/wastewater conservation fee).
The city council raised the per acre fee by Resolution 98-22 and updated the water/wastewater conservation fee by Resolution 90-26 at its hearing on January 27, 1998, and these fees became effective on January 28, 1998. The sewer connection fee was enacted on December 11, 2001, and became effective 30 days later.
An analysis was completed to update this capacity fee and the updated fee was set at $12,202.31. The city sent a letter dated November 15, 2006, to the subdivision property owners. This letter informed them of a possible action by the city “to increase its sewer connection fee from its current amount of $17,528.75 [$7,844.75 + $9,684] to $21,866 [$12,202.31 + $9,684]” and stated that a hearing was to take place on November 28, 2006. On November 28, 2006, the city adopted Resolution 2006-278, which abolished the prior capacity fee and reset it to $12,202.31. The resolution was set to go into effect 60 days later on January 28, 2007.
As a result of the November 2006 enactments, as of January 28, 2007, the owners in the subdivision seeking to hook up to the city’s sewer system were required to pay a $21,886.31 sewer connection fee, comprised of a $12,202.31 capacity fee and a $9,684 subdivision facilities finance fee.
After the capacity fee was enacted, but before it went into effect, the county requested that the city permit owners in the subdivision who had not paid the connection fee when it was frozen at $5,910 to pay their connection fee immediately to avoid further increases. The city agreed. Thus, these owners in the subdivision were told to pay $17,528.75, which was comprised of (1) an $885.75 per acre for development fee, (2) a $6,796.50 sewer service connection fee, 3) a $162.50 water/wastewater conservation fee, and (4) the $9,684 subdivision facilities finance fee.
It is unclear whether any property owners in the subdivision paid the total sewer connection fee between the end of 2004, when the fee was no longer frozen at $5,910, and November 2006. If property owners did pay the fee during this time, we cannot determine from the record whether they had to pay only the $6,796.50 sewer connection fee (increased from $5,910) or they had to pay the entire capacity fee, which included the sewer connection fee and the per acre for development and water/wastewater conservation fees.
Sewer Connection Completed
The city completed construction of the connection to the sewer system in 2007 and, on December 11, 2007, the county accepted the sewer system and a notice of completion was filed. The city began accepting sewer connections for all the properties in the assessment district. By resolution of the county of supervisors, construction of the infrastructure for service roads, water, and sewer hook-ups to the parcels in the subdivision was deemed complete on December 12, 2007.
The Lawsuit
CMG, an association of approximately 40 of the subdivision homeowners who had not paid their sewer connection fees by the end of November 2006, paid the $17,528 fee under protest pursuant to section 66020 by the deadline of January 29, 2007. The protest read, “Any amount paid over [$6,796.50] is under protest.”
CMG filed its lawsuit on March 28, 2007, and filed a first amended complaint on August 30, 2007. CMG sued the city for recovery of funds, declaratory relief, breach of contract, intentional interference with contract, and violation of due process. The association sought recovery of the difference between $17,528 and $6,796 for each of its property owners. The city demurred and, on December 21, 2007, the court overruled the demurrer to the causes of action for recovery of funds, declaratory relief, and violation of due process. The court sustained the demurrer with leave to amend against the claims for breach of contract and intentional interference with contract.
The original pleading is not in the record on appeal.
CMG filed its second amended complaint for recovery of funds, declaratory relief, “breach of contract––promissory estoppel, ” and violation of due process on January 18, 2008.
On August 5, 2008, the city moved for summary judgment. CMG filed its opposition. The city filed its reply and filed declarations and a supplemental compendium of evidence and other authorities on October 30, 2008. CMG objected to the filing of documents with the city’s reply brief. On November 4, 2008, at the hearing on the summary judgment motion, the court stated that CMG should have an opportunity to respond to the material filed with the reply brief. The court continued the matter to permit CMG to conduct limited discovery regarding the material filed with the city’s reply brief and to file opposition to this supplemental material.
CMG filed its further opposition and the city filed a reply to the further opposition together with a request “to strike unauthorized pleadings” that went beyond the scope of the court’s ruling. The court held a hearing on the motion for summary judgment on January 6, 2009.
On January 7, 2009, the court filed its order granting the city’s motion for summary judgment. The court granted the city’s motion to strike CMG’s “pleadings that exceed the authorized scope of the supplemental opposition.” The court ruled that CMG’s first cause of action for recovery of funds was barred by the statute of limitations under section 66022. It also found that the city established that it complied with the notice requirements of sections 66016 and 54954.2. The court stated that Proposition 218 did not apply to the subdivision’s sewer facilities fee. It concluded that CMG could not establish its second cause of action for declaratory relief because “[n]o actual, present controversy over a proper subject exists between the parties.”
The court determined that CMG’s third cause of action for promissory estoppel failed as a matter of law. The court explained: “[CMG] cannot establish all elements of this cause of action. Under the circumstances, [CMG] cannot rely on statements made by City Officials regarding the amount or number of sewer connection fees. Such statements would go beyond City Officials’ authority. Additionally, the assessment district documents gave the [subdivision] residents an indication that additional fees could and would be charged. Indeed, in the City’s opening brief in support of its motion for summary judgment, it stated that in August 2001 the County sent all property owners in the [subdivision] a packet of documents that described the terms of the proposed Assessment district. In addition to any assessments paid to the County, they would have to pay an additional fee to the City to cover the City’s contributions toward construction of pump stations, trunk lines and the treatment plant. Also, a claim against the City for Promissory Estoppel cannot be based upon County documents herein. There are no facts which suggest the City gave the County apparent authority to act on its behalf. Finally, there are no facts which could clearly establish that a grave injustice would be done if estoppel were not applied.”
With regard to the fourth cause of action for violation of due process, the court stated that the city established that it complied with proper notice requirements.
Notice of entry of judgment was filed on February 11, 2009. CMG filed a timely notice of appeal.
DISCUSSION
I. The Grant of Summary Judgment
A. Standard of Review
We review a trial court’s grant of summary judgment de novo. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389.) “In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing [the] defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in [the] plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
The trial court shall grant the defendant’s motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law.” (Code of Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made the required showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853.) California law requires that a defendant moving for summary judgment “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854, fn. omitted.)
B. CMG’s Claim for Recovery of Funds and the Statute of Limitations
CMG contends that the lower court erred in finding that its claim for recovery of funds was barred by the 120-day statute of limitations under section 66022. It asserts that the city increased its $6,796.50 sewer connection fee unlawfully by adding the $9,684 subdivision facilities finance fee, the $885.75 per acre development fee, and the $162.50 water/wastewater conservation fee. The 120-day statute of limitations under section 66022 does not apply, according to CMG, because the three additional fees were not sewer capacity charges and therefore not governed by this statute.
1. The Relevant Statutes
Section 66022, subdivision (a) provides the following: “(a) Any judicial action or proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or motion adopting a new fee or service charge, or modifying or amending an existing fee or service charge, adopted by a local agency... shall be commenced within 120 days of the effective date of the ordinance, resolution, or motion. [¶] If an ordinance, resolution, or motion provides for an automatic adjustment in a fee or service charge, and the automatic adjustment results in an increase in the amount of a fee or service charge, any action or proceeding to attack, review, set aside, void, or annul the increase shall be commenced within 120 days of the effective date of the increase.” This statute applies “only to fees, capacity charges, and service charges described in and subject to Sections 66013, 66014, and 66016.” (§ 66022, subd. (c).)
Section 66013, subdivision (a) states that “when a local agency imposes fees for water connections or sewer connections, or imposes capacity charges, those fees or charges shall not exceed the estimated reasonable cost of providing the service for which the fee or charge is imposed....” Subdivision (b)(1) of section 66013 defines “ ‘[s]ewer connection’ ” as “the connection of a structure or project to a public sewer system.” A sewer capacity charge is a fee “for public facilities in existence at the time a charge is imposed or charges for new public facilities to be acquired or constructed in the future that are of proportional benefit to the person or property being charged....” (§ 66013, subd. (b)(3).)
Section 66016 concerns the notice requirements. Subdivisions (a) and (b) of section 66016 read in relevant part: “(a) Prior to levying a new fee or service charge, or prior to approving an increase in an existing fee or service charge, a local agency shall hold at least one open and public meeting, at which oral or written presentations can be made, as part of a regularly scheduled meeting. Notice of the time and place of the meeting, including a general explanation of the matter to be considered, and a statement that the data required by this section is available, shall be mailed at least 14 days prior to the meeting to any interested party who files a written request with the local agency for mailed notice of the meeting on new or increased fees or service charges.... Unless there has been voter approval, as prescribed by Section 66013 or 66014, no local agency shall levy a new fee or service charge or increase an existing fee or service charge to an amount which exceeds the estimated amount required to provide the service for which the fee or service charge is levied. If, however, the fees or service charges create revenues in excess of actual cost, those revenues shall be used to reduce the fee or service charge creating the excess. [¶] (b) Any action by a local agency to levy a new fee or service charge or to approve an increase in an existing fee or service charge shall be taken only by ordinance or resolution. The legislative body of a local agency shall not delegate the authority to adopt a new fee or service charge, or to increase a fee or service charge.”
Section 66014 refers to zoning and permit fees.
Accordingly, if section 66022 applies to the fees charged by the city, CMG had 120 days to challenge the fees. The fees contested by CMG were adopted in 1998, 2001, and November 2006. CMG did not file its lawsuit until March 28, 2007, beyond the 120-day time limit set forth in section 66022. Thus, if section 66022 applies to the fees charged to the subdivision, CMG’s claims are time-barred.
2. The $9,684 Subdivision Facilities Finance Fee
The $9,684 subdivision facilities finance fee was adopted on June 13, 2006, pursuant to Resolution 2006-165. According to the city, the subdivision facilities fee covered the costs of sewer infrastructure that directly benefited the subdivision. CMG contends that the lower court incorrectly ruled that the 120-day statute of limitations set forth in section 66022 applies to this fee.
A sewer capacity charge is a fee “for public facilities in existence at the time a charge is imposed or charges for new public facilities to be acquired or constructed in the future that are of proportional benefit to the person or property being charged.” (§ 66013, subd. (b)(3).) The fees and charges authorized by section 66013 may or may not involve development, but the fees and charges are always tied directly to a benefit conferred on the property assessed. (Utility Cost Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1189.)
CMG argues that the $9,684 subdivision facilities finance fee is not a sewer capacity charge because it is not proportionate and is a discriminatory charge. It argues that the city acknowledges that the fee was charged only to the owners in the subdivision and not to all sewer users within the city. Further, CMG asserts that when the city adopted the fee at its June 2006 hearing, the Notice, Agenda and Resolution and Minutes prepared by the city and its resolution referred to the fee as a development fee. The association argues that the 180-days statute of limitations under section 66020 governs challenges to fees imposed on development projects.
CMG complains that the city never explains “why the reasoning set forth” in Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 and Western/California, Ltd. v. Dry Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461 (Western/California, Ltd.), which apply section 66020, “should not be followed in this case....” These two cases cited by CMG are distinguishable from the facts in the present case. Branciforte involved a claim for return of the plaintiff’s money paid and the court considered whether the statute of limitations provided by the Subdivision Map Act (§ 66499.37) or the Mitigation Fee Act (§ 66020) applied. (Branciforte, supra, at p. 926.) The plaintiff claimed a right to a credit against the park and recreation fees imposed as a condition of subdivision approval. (Ibid.) Here, unlike the situation in Branciforte, CMG is not challenging the fees imposed upon a development project as a condition of obtaining governmental approval of a development or development project.
a. The Fee is Proportionate and Nondiscriminatory
Section 54999.1, subdivision (c)(2) defines “ ‘nondiscriminatory’ ” as meaning that the fee “does not exceed an amount determined on the basis of the same objective criteria and methodology applicable to comparable nonpublic users, and is not in excess of the proportionate share of the cost of the public utility facilities of benefit to the person or property being charged, based upon the proportionate share of use of those facilities.” CMG does not present any evidence contradicting the PFFP updated in 2006, which analyzed “the sewer facilities” benefiting the subdivision and calculated a specific subdivision finance fee to cover the costs specific to the subdivision. According to the analysis in the PFFP, the subdivision facilities finance fee was $9,684; this amount covered the costs of sewer infrastructure that directly benefited the subdivision. The city conducted capacity studies to ensure that the subdivision finance fee reflected only the costs of the sewer projects directly benefiting the subdivision. Thus, this amount reflected the subdivision owners’ proportionate share of sewer facilities expenses. Darrin Jenkins, the city’s engineer, testified that the fees for the subdivision related to only the sewer system improvements and that the subdivision was charged no fees unrelated to sewer service.
Here, the city presented its study that the subdivision facilities finance fee was calculated based on objective criteria applicable to all users of sewer infrastructure and CMG has not submitted any contrary evidence. CMG does not point to any deficiencies in the methodology or in the calculation of the subdivision facilities finance fee; therefore, it has not provided any evidence to contradict the city’s evidence that the fee was the subdivision’s fair share. The association has not submitted any evidence raising a triable issue of fact that the fee was discriminatory or not proportionate. Section 66023 allows any person to request an audit to determine whether any fee or charge levied by a public agency exceeds the amount reasonably necessary to cover the costs of any service provided by the public agency and CMG never requested such an audit. Thus, the undisputed evidence indicates that the fee of $9,684 was proportionate and not discriminatory.
b. The Fee Is Not a Development Charge
CMG’s argument that the $9,684 represents a development fee and therefore falls under section 66020 has no merit. “ ‘[F]ees... imposed on a development project, ’ as used in section 66020, refers to ‘fees’ and a ‘development project’ as defined in section 66000. A ‘development project’ is defined as ‘any project undertaken for the purpose of development... includ[ing] a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.’ (§ 66000, subd. (a).) A ‘fee’ is defined as ‘a monetary exaction other than a tax or special assessment... that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include... fees for processing applications for governmental regulatory actions or approvals ....’ (§ 66000, subd. (b), italics added.) Thus, section 66020, by its own terms, “applies only to ‘development fees’ that alleviate the effects of development on the community and does not include fees for specific regulations or services.” (Barratt American Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 696.) Water and sewer connection fees do not fall under section 66020. (California Psychiatric Transitions, Inc. v. Delhi County Water Dist. (2003) 111 Cal.App.4th 1156, 1161.) “ ‘[T]he mere fact that fees are imposed in a particular instance in connection with development does not make them “fees imposed on a development project” for purposes of section 66020. ’ ” (Barratt American Inc., supra, at p. 698.) Development fees are “ ‘ “imposed on development projects in order to finance public improvements or programs that bear a ‘reasonable relationship’ to the development at issue.” (Ibid.)
Here, CMG was not required to pay the subdivision facilities fee in order to obtain government approval of a development project and therefore the $9,684 subdivision facilities fee was not a development fee under section 66020. It is immaterial that the city referred to the fee as applying to a new development because a fee can be imposed on a new development and still be considered a capacity fee under section 66013 (see California Psychiatric Transitions, Inc. v. Delhi County Water Dist., supra, 111 Cal.App.4th at p. 1161), and the name the city gives the fee is not dispositive. Any action that seeks a refund of fees paid for the construction costs for capital improvements needed to supply water services to the people seeking the refund falls under section 66013 and is subject to the statute of limitations under section 66022. (Utility Cost Management v. East Bay Mun. Utility Dist. (2000) 79 Cal.App.4th 1242, 1248.) Thus, the subdivision facilities fees that represented the costs of constructing the sewer infrastructure, which directly benefited CMG, is subject to the statute of limitations set forth in section 66022.
In its reply brief, CMG claims that it was not arguing that the fees charged by the city were development fees. Rather, it maintains that it followed the protest procedures set forth under section 66020 because the city characterized these fees as development fees. CMG cites to a letter dated December 8, 2006, from the city signed by Jenkins that returned to members of the association their check in the amount of $6,800 because the city “does not accept partial payment of development fees” and told them to “[p]lease remit the full amount of $17,528.75 before January 29, 2007, or $21,866.00 on or after January 29, 2007.” The fact that Jenkins in a letter referred to the fee as a “development fee” does not make it such a fee under section 66020, and the record makes it clear that section 66020 does not apply.
3. The $885.75 Per Acre and the $162.50 Water/Wastewater Conservation Fees
CMG contends that the $885.75 per acre and the $162.50 water/wastewater conservation fees did not qualify as a sewer connection or a sewer capacity charge within the meaning of section 66013. CMG’s analysis amounts to little more than a declaration that these fees do not fall under section 66013 and an assertion that it made a timely objection to the imposition of these fees.
The $885.75 per acre unit fee was the “sewer portion of per acre development fee” for the subdivision and the $162.50 per unit fee was the sewer portion of the water/wastewater conservation fee. On November 28, 2006, the city adopted Resolution 2006-278, which abolished the prior capacity fee and reset it to $12,202.31 This resolution explained that the city’s “Park Sewer Capacity Charge Analysis” was the basis for assessing these charges.
Rather than challenge the city’s evidence that the above fees were sewer capacity charges, CMG complains that the fees were imposed on CMG in November of 2006, but the fees were enacted by the city in 1998. The association maintains that it did not learn about these two fees until November 15, 2006, and therefore its protests were timely. Even if CMG did not receive notice until November 15, 2006, the 120-day period to file a challenge lapsed on March 15, 2007. Since CMG did not file its lawsuit until March 28, 2007, its challenge was untimely.
C. The Fees Were Legal
Even though we conclude that the lower court properly granted summary judgment against CMG’s claim for recovery of funds based on the statute of limitations and we need not consider any other grounds for affirming, we conclude that an additional basis for granting summary judgment against CMG’s cause of action to recover funds is that CMG cannot establish that it is entitled to the funds. CMG claims that it is entitled to a refund because the fees violated Proposition 218 and that the association did not receive proper notice of the fees even under section 66013. For the reasons discussed below, we reject these arguments.
Since we have determined that the funds charged are capacity charges, all of the claims that attempt to challenge or attack this rate increase, regardless of the legal basis for these claims, are time-barred. CMG cannot avoid the statute of limitations applicable to a section 66013 action by simply focusing on other methods of invalidating the rate increase. (See Utility Cost Management v. Indian Wells Valley Water Dist., supra, 26 Cal.4th at pp. 1192-1195.)
1. Proposition 218
On November 5, 1996, California voters passed Proposition 218, which added articles XIII C and XIII D to the California Constitution. Article XIII D of the state Constitution (article XIII D) specifies various restrictions and requirements for assessments, fees, and charges that a local government imposes on real property or on persons as an incident of property ownership. (Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 415 (Richmond).) The initiative was intended to close perceived loopholes in the restrictions on property taxes imposed by Proposition 13, which was adopted by voters on June 6, 1978, and added article XIII A to the California Constitution. (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 838-839; Knox v. City of Orland (1992) 4 Cal.4th 132, 140.) “Proposition 218 limited local government’s ability to impose real property assessments in two significant ways. An assessment can be imposed only for a ‘special benefit’ conferred on real property [citation], and the assessment on any parcel must be in proportion to the special benefit conferred on the particular parcel [citation].” (Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 437, fn. omitted.)
A property-related water or sewer fee is exempt from a requirement for ballot approval by a majority of affected property owners, while an assessment requires such a vote. (See, e.g., Paland v. Brooktrails Township Community Services Dist. Bd. of Directors (2009) 179 Cal.App.4th 1358, 1366.) CMG charges that the city failed to comply with Proposition 218’s procedural and voting requirements for assessments. CMG argues that the subdivision finance fee was imposed to cover the costs of the sewer infrastructure that directly benefited the subdivision and therefore it is a special benefit and subject to Proposition 218. Additionally, CMG maintains that the subdivision facilities fee was imposed as an incident of property ownership and it points out that some courts have held that a capacity charge can be a property-related fee. (See Pajaro Valley Water Management Agency v. Amrhein (2007) 150 Cal.App.4th 1364, 1384-1394 [groundwater augmentation charge had to comply with Proposition 218].)
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).) Thus, property owners looking for a method to pay for an improvement that specifically benefits their properties typically initiate assessment districts. (See, e.g., Bonander v. Town of Tiburon (2009) 46 Cal.4th 646, 648 [assessment was levied to pay for installation of underground utilities and to pay to move overhead utility wires underground]; Dahms v. Downtown Pomona Property (2009) 174 Cal.App.4th 708, 712-713 [assessments were levied on downtown business properties to fund services such as security, streetscape maintenance, and special events because these services exceeded those already being provided].) A special assessment is unrelated to any impact created by the assessed parties’ activities and the assessment is a method to pay for special benefits for the assessed properties that are beyond those benefits provided to the general public. If the assessment is not approved, then the special benefit is not provided.
Here, the subdivision facilities fee and other fees challenged by CMG are not for services beyond those provided to the general public. The city has to provide the subdivision with sewer service under the wastewater service agreement made between the city and the county on October 11, 2001. Consequently, if the city failed to charge the subdivision the costs for providing it with sewer service, other taxpayers would have been forced to pay to improve the infrastructure because a better infrastructure was needed to provide sewer service to the subdivision. Indeed, some fees, such as sewer connection fees, capacity charges, and development impact fees, which are charged based on new impacts to the public system, are specifically excluded from Proposition 218 to prevent the beneficiaries from refusing to pay the funds and leaving the costs to be paid by others. (See Richmond, supra, 32 Cal.4th at p. 430.) These fees are not imposed as an incident of property ownership. As the city points out, CMG does not suggest that the city would have the right to deny the members of CMG any connection to the sewer system if the city decided not to charge the funds. If the fees were, in fact, a special assessment, the city would have the discretion to refuse to provide a sewer connection to the property owners in the subdivision.
The facts of the present case are similar to those in Richmond, supra, 32 Cal.4th 409. The issue in Richmond was whether water connection fees charged by the Shasta Community Services District (the District), including a charge for a fire suppression component of the connection fee, were fees imposed as an incident of property ownership and therefore within the parameters of Proposition 218. (Richmond, supra, at p. 415.) The Supreme Court held that a capacity charge imposed as a condition of a new water hookup was not a charge “on real property as such, ” but was a charge against the individual for hooking up to water service. (Id. at p. 420.) It was therefore not a special assessment, which is a levy “upon real property.” (Art. XIII D, § 2, subd. (b).) The court in Richmond concluded that a capacity charge for new water service connections did not violate the restrictions on assessments of article XIII D and was consistent with Proposition 218’s goal to enhance taxpayer consent, stating that presumably any costs imposed on customers receiving service through existing connections would be subject to Proposition 218’s voter approval requirements, and that customers who apply for new connections “give consent by the act of applying.” (Richmond, supra, at pp. 418, 420.)
The Supreme Court in Richmond distinguished a connection fee from a fee or charge that could be imposed either on the property itself or upon the owner “ ‘as an incident of property ownership.’ ” (Richmond, supra, 32 Cal.4th at p. 420, fn. 2.) Once the water connection is made, “all charges for water delivery incurred thereafter are charges for a property-related service, whether the charge is calculated on the basis of consumption or is imposed as a fixed monthly fee.” (Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205, 217; see also Richmond, supra, at p. 427.)
CMG attempts to distinguish the facts of the present case from those in Richmond, supra, 32 Cal.4th 409by arguing that here, unlike in Richmond, the fees charged are mandatory. CMG maintains that a county ordinance requires all building and other structures containing plumbing or drainage fixtures within the subdivision to connect to the public sewer. The ordinance requires existing residences to connect to the public sewer system. Further, CMG stresses that the subdivision is not a new development and the homeowners did not choose to develop. Rather, they are forced to connect to the public sewer system and the enforcement provision in the ordinance permits the county to place liens on properties to pay for the cost of installation and enforcement of the ordinance if the owner of a property does not make the connection voluntarily. Since a lien can be attached to the property, CMG asserts that this is not a fee on individuals applying for new service connections. Finally, CMG points out that, contrary to the situation in Richmond, the city knows the number of parcels impacted by the connection fee.
CMG’s attempts to distinguish the facts of the present case from the facts in Richmond, supra, 32 Cal.4th 409are not persuasive. The city cannot attach a lien if the owners in the subdivision fail to pay the subdivision fee. The ordinance permits the county, under its police power and in response to a health and safety issue, to attach a lien to the properties; the city has no such power as the subdivision is not within the city’s jurisdiction. The subdivision facilities fee is not imposed until the property owner files an application for a sewer connection. As was the situation in Richmond, the city’s only recourse is to refuse to connect the homeowner’s property to the sewer system, and thus the connection fee “cannot be described as a charge upon real property, within the meaning of article XIII D.” (Richmond, supra, at p. 420.)
Furthermore, the record does not support CMG’s assertion that the homeowners in the subdivision were forced to accept the connection to the sewer system in the city. Prior to deciding to connect to the sewer system of the city, the property owners in the subdivision considered various options for dealing with the failed septic systems. The subdivision formed the assessment district to decide the best option. As early as March 10, 1998, the subdivision was informed that the property owners in the subdivision could connect to the city’s sewer system but the city engineer advised that “the sewer trunk line capacity serving the area was inadequate to serve the development of the area” and that the city was studying infrastructure needs for the area. The city engineer told the subdivision that it “could build its own well and water system if it chose to.” The record establishes that the subdivision voluntarily made the choice to connect to the city’s sewer system with the knowledge that this could result in the city having to improve the infrastructure. It was only after the subdivision voluntarily made its initial choice to hook up to the city’s water system that the homeowners became obligated to pay the costs for this connection.
The final factors stressed by CMG––the subdivision is not a new development and the city knew the number of parcels needing a sewer connection––are not materially significant. The Richmond court noted that connection fees could be imposed outside of the context of a new development (Richmond, supra, 32 Cal.4th at pp. 424-425), which is the situation in the present case. With regard to being unable to identify the property owners who would be affected by the capacity fee, the court in Richmond stressed that the significance of this factor in the case before it was that the District could not comply with the notice requirements and procedures under article XIII D because it could not know which property owners would apply for a new service connection; it could not identify to whom it must give written notice of the proposed assessment. (Richmond, supra, at p. 419.) Here, the city, too, cannot comply with the requirements under article XIII D. The city agreed to provide the subdivision with sewer service under the conditions specified in the watershed service agreement but, because the subdivision is outside the city’s jurisdiction, it could not provide the individualized notice required by Proposition 218.
CMG also relies on Pajaro Valley Water Management Agency v. Amrhein, supra, 150 Cal.App.4th 1364, but this case is unavailing. The Pajaro court held that a groundwater augmentation charge that was based on the amount of water extracted and charged monthly to the customer was a property-related charge because it was not a connection fee and was akin to a charge for water delivery service. (Id. at pp. 1388-1392.) The court rejected the argument that it was a special tax, reasoning that although the charge was intended to finance improvements, and thus to raise revenue, it was also “charged in return for the benefit of ongoing groundwater extraction and the service of securing the water supply for everyone in the basin.” (Id. at p. 1381.) The charge in Pajaro was based either on actual consumption of water or on an estimated use rate and the charges could be adjusted if a well’s estimated consumption did not accurately reflect the amount extracted. (Id. at p. 1374.) Here, unlike Pajaro, the fee is not based on actual or estimated use of water and it is not a charge for an ongoing service.
We conclude that the subdivision facilities fee and the other sewer connection fees are not a property-related fee or property-related service, and are not subject to Proposition 218’s requirement of approval by two-thirds majority vote of the electorate. Consequently, CMG’s argument that it is entitled to a refund based on the application of Proposition 218 has no merit.
2. Notice
a. Sufficient Notice Under Section 66016 and the Brown Act
Section 66016 sets forth the notice requirements when levying a new fee or increasing an existing fee. This statute requires the local agency to hold at least one open and public meeting where oral or written presentations can be made as part of a regularly scheduled meeting and to mail notice of the time and place of the meeting, including a general explanation of the matter to any person who filed a written request for mailed notice. (§ 66016, subd. (a).)
The Ralph M. Brown Act (Brown Act) also contains notice requirements. (§ 54950 et seq.) The Brown Act was adopted to ensure the public’s right to attend the meetings of public agencies. (§ 54950; see also Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 331.) Section 54954.2, subdivision (a)(1) states that, “[a]t least 72 hours before a regular meeting, the legislative body of the local agency... shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public....” “The [Brown] Act thus serves to facilitate public participation in all phases of local government decision making and to curb misuse of the democratic process by secret legislation of public bodies.” (International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293.)
Judy Hauff, the city clerk, declared that when the city proposes a utility fee increase, it posts the agenda of the city council meeting at least three days in advance of the meeting at the city hall, the department of public safety, the community center, and the public library. When a utility fee increase requires publication of the notice of public hearing, she avowed that the city publishes a notice of the public hearing in “the Community Voice, ” a local weekly newspaper, or the “Press Democrat, ” a daily newspaper, at least 10 days prior to the meeting and posts the notice of the public hearing alongside the agency. She also stated that the city mails out notices of the meeting to any individuals who have requested written notification when the city proposes a utility fee increase. With regard to any of the fees at issue on this appeal, Hauff declared that the city received no written request from any member of CMG for mailed notice of any of these fees.
The capacity fee includes the per acre, sewer connection, and water/wastewater conservation fees. The city held a hearing on the $887.75 per acre and the $162.50 water/wastewater conservation fees on January 27, 1998. The city council posted its agenda for the meeting three days prior to the scheduled meeting at the city hall, the department of public safety, the community center, and the public library. The posted agenda indicated that, at 8:15 p.m., there would be resolutions for adoption regarding the amendment of the per acre fee and for establishing the water/wastewater conservation fee. At the hearing on January 27, 1998, Resolution 98-22 raised the per acre fee to the current amount, and Resolution 98-26 updated the water/wastewater conservation fee. The city adopted the sewer connection fee on December 11, 2001, after a public hearing on November 27, 2001. The city posted the agenda for the meeting three days prior to the scheduled meeting and published notice of the hearing in the local newspaper. On December 11, 2001, the city council by resolution increased its sewer connection fee to $6,796.50.
CMG does not object to the notice regarding the sewer connection fee, but argues that the city imposed the $885.75 per acre and the $162.50 water/wastewater conservation fees without providing notice to the county or CMG. The record establishes that the city provided the notice required under the law and therefore CMG cannot establish any due process violation with regard to these fees.
The other fee challenged is the $9,684 subdivision facilities fee. On June 13, 2006, the city council held a public hearing and adopted Resolution 2006-165, which established the $9,684 subdivision facilities fee. The notice of the June 13 public hearing provided that the purpose of the hearing was “[t]o solicit input regarding the update of the City’s Public Facilities (PF) Fees[.]” It stated that “[r]epresentatives of this proposal will be available to respond to questions. Related documents are available for review at City Hall upon request.” The description in the agenda stated the following: “Public Facilities (PF) Fees Update – Consideration of Resolution Establishing Updated Public Facilities Fees for All Development within the City of Rohnert Park.”
CMG mounts a more substantive challenge to the notice regarding the public hearing for June 13, 2006, and the $9,684 subdivision facilities fee. The association does not dispute that the notice and posting requirements of section 66016 were satisfied, but maintains that the description required under the Brown Act was insufficient because it did not specify that the $9,684 fee was a subdivision facilities fee. Additionally, CMG asserts that the words “solicit input” are inadequate because they do not notify interested parties that the city will be taking affirmative action on the issue of the public facilities fee. The association insists that the word “update” disguises the city’s real purpose, which was to increase the sewer connection fee. CMG maintains that the subdivision had not been charged any fees under the 2004 public facilities finance plan and there were no fees to update. The association further contends that the plain words of the notice establish that the city’s notice was designed to disguise its purpose from any interested party. Moreover, the city’s agenda item stated that the fee was within the city and CMG argues this did not provide property owners in the subdivision with notice since the subdivision is not within the city’s limits.
In arguing that the lower court erred in finding no due process violation, CMG asserts that the question whether the city’s “notice adequately informed interested parties is one of material fact.” Here, there is no dispute about what notice was provided and the agenda description. Thus, contrary to CMG’s assertion, the question before us is not an issue of fact. The application of a statute to undisputed facts is subject to our independent determination. (Harbor Fumigation, Inc. v. County of San Diego Air Pollution Control Dist. (1996) 43 Cal.App.4th 854, 859.)
Moreno v. City of King (2005) 127 Cal.App.4th 17 (Moreno) is the only published decision of which we are aware that has considered whether the description under section 54954.2, subdivision (a) was sufficient. In Moreno, the court held that the municipality’s description of the agenda of a special meeting as “Public Employee (employment contract)” provided “no clue” that a quarter of the meeting would be devoted to a discussion of the finance director and a decision whether to discharge him. (Id. at pp. 26-27.) The court explained that the description could simply have said, “ ‘Public Employee Dismissal, ’ ” and that would have satisfied the Brown Act. (Moreno, supra, at p. 27.) However, the description actually given violated the Brown Act. (Ibid.)
The city also discusses Carlson v. Paradise Unified Sch. Dist. (1971) 18 Cal.App.3d 196, which considered whether the school board complied with the agenda-posting requirements of Education Code section 966. The court in Carlson held that the notice requirements under the statute were mandatory and that the notice provided was misleading because the agenda entitled “ ‘Continuation school site change’ ” did not provide proper notice that action would be taken to close a particular elementary school. (Carlson, supra, at pp. 198-200.) Carlson concerns the adequacy of notice under a different statute and therefore has limited applicability. However, the posted notice in Carlson, unlike the present case, left out any reference to the action’s actually being considered.
Here, unlike the situation in Moreno, the description was not so inadequate as to provide no clue about what was to be discussed. The posted agenda in the present case stated that the purpose of the hearing was to “solicit input regarding the update of the City’s Public Facilities (PF) Fees” and to let the public know that the city would be considering legislation that would update the public facilities fee to reflect the current costs for construction of the public infrastructure. Although there is no specific reference to the subdivision and the subdivision is not within the city’s jurisdiction, we agree with the city that CMG knew when the subdivision connected to the city’s sewer system that the subdivision was accessing public facilities within the city. The county sent the subdivision owners, including the members of CMG, the August 1, 2001 document, which provided the following: “This fee is established by the City of Rohnert Park and is levied to reimburse the City of Rohnert Park for its contribution towards construction of pump stations, trunk lines and the treatment plant. Currently Rohnert Park has set this fee at $5,910. This fee is subject to change. The actual fee will be the fee that is in effect at the time connection to the system is formally secured by each parcel.” Thus, the description setting forth the agenda item as the “Public Facilities (PF) Fees Update––Consideration of Resolution Establishing Updated Public Facilities Fees for All Development within the City of Rohnert Park” was sufficient to provide CMG with notice that the council was considering the imposition of fees to cover the costs of needed public facilities, which impacted the subdivision.
We do not interpret section 54954.2, subdivision (a) to require that the agenda specify all developments impacted by the public facilities finance fee that are outside of the city but within the city’s service area. Rather, this statute’s purpose is simply to provide sufficient notice to members of the public of the general nature of the items of business scheduled for discussion to allow interested parties to attend and participate in the public discussion.
Finally, we conclude there is little merit to CMG’s complaint that using the word “update” in the notice was deceptive. CMG had received notice that additional costs, which could include any updated fee, would be charged to those homeowners in the subdivision failing to pay the $5,910 by the due date.
b. Exhaustion of Administration Remedies
CMG’s claim also must fail because the association failed to exhaust all its administrative remedies. In general, a party must exhaust available administrative remedies before resorting to the courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) Absent such exhaustion, the courts have no subject-matter jurisdiction to proceed. (Id. at p. 293.) Before pursuing judicial determination that an action in violation of the Brown Act is null and void, an interested party must first demand that the legislative body cure or correct its mistake. (§ 54960.1, subd. (b); County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 978; Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 684.) “The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken.” (§ 54960.1, subd. (c)(1).) The legislative body shall cure or correct the challenged action or inform the demanding party of its decision not to cure or correct the challenged action within 30 days of receipt of the demand. (§ 54960.1, subd. (c)(2).) If the legislative body takes no action within the 30-day period, the inaction is deemed a decision not to cure or correct. (§ 54960.1, subd. (c)(3).) “Within 15 days of receipt of the written notice of the legislative body’s decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision (a) or thereafter be barred from commencing the action.” (§ 54960.1, subd. (c)(4).)
CMG never made a demand to the city. Accordingly, CMG’s failure to exhaust its administrative remedy bars its claim of a violation of the Brown Act.
3. Equitable Tolling
In its reply brief, CMG improperly argues for the first time that the statute of limitations under section 66022 should be equitably tolled because the association received inadequate notice of the fees. Conduct invoking an estoppel must be such as induced the plaintiffs not to file their claim within the time prescribed. (Carruth v. Fritch (1950) 36 Cal.2d 426.) For the reasons already discussed, the notice provided by the city was adequate and cannot be the basis for an equitable tolling argument. In any event, we deem the tolling argument waived by CMG’s failure to raise this issue in its opening brief (or the in the lower court). (See, e.g., Granite Construction Co. v. American Motorists Ins. Co. (1994) 29 Cal.App.4th 658, 667, fn. 8.)
4. The Fees Were Reasonable
Even if CMG’s claims were not time barred, the connection fee is legal under section 66013 as long as the fee does not exceed the reasonable cost of providing the service for which the fee was imposed. A city imposing a sewer fee must comply with the notice provisions of section 66016 and the fees must be accompanied by a factual determination that it does not exceed the estimated reasonable cost of providing the service for which the fee or charge was imposed.
As already discussed, the city complied with the notice requirements of section 66016. CMG does not assert that the fees charged by the city exceeded the city’s costs to provide the subdivision with sewer service. Section 66023 allows any person to request an audit to determine whether any fee or charge levied by a public agency exceeds the amount reasonably necessary to cover the costs of any service provided by the public agency and, as already mentioned, CMG never requested such an audit.
Rates fixed by a lawful rate-fixing body are presumed to be reasonable, fair and lawful, and the burden of overcoming this presumption is on the party challenging the rate or fee charged. (See Winnaman v. Cambria Community Services Dist. (1989) 208 Cal.App.3d 49, 54.) Having failed to make any showing in the trial court that the fee is unreasonable, CMG cannot prevail on appeal. (See, e.g., Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 421-422.)
Furthermore, the record contains evidence supporting the reasonableness of the fees. The $887.75 per acre fee was based on the analysis of a consultant retained by the city to “evaluate the acreage assessment required by the [City] to construct the major facilities” the city was required to serve. In January 1998, the fee was adjusted to pay for the city’s capital improvement program. The increase in the water/wastewater conservation fee to $162.50 was based on the cost index in 1997 and on the sewer ratepayers’ study that had been conducted by the city. The $9,684 subdivision facilities fee was based on an analysis of the impact of the subdivision on the sewer system. The subdivision facilities fee includes only sewer projects that affect the subdivision. Thus, the record contains evidence to satisfy the reasonable relationship test. (See, e.g., Sea & Sage Audubon Society, Inc. v. Planning Com., supra, 34 Cal.3d at p. 422.)
CMG asserts that the subdivision public facilities fee was not reasonable. CMG cites to a document indicating that the construction of the improvements for the subdivision was delayed for two years because of the need for an environmental impact report and claims that this document shows that the subdivision facilities fee was an attempt to defray the costs for facilities to accommodate other developers. CMG points to evidence that the city later decided to develop new facilities not related to the subdivision and CMG claims that the subdivision should not be charged to serve this new development south and east of the city. The fact that the city had other demands on its infrastructure does not indicate that it did not charge the subdivision its fair share of the cost to improve this infrastructure. CMG has offered no evidence contradicting the city’s 2004 PFFP that indicates the subdivision was charged only its fair share.
In its reply brief, CMG argues that it had no opportunity prove the fee was not reasonable because the lower court granted summary judgment. This argument has no merit because CMG could and did conduct discovery and never requested the trial court to continue the motion for summary judgment in order for it to obtain necessary discovery (Code of Civ. Proc., § 437c, subd. (h)).
D. CMG’s Second Cause of Action for Declaratory Relief
In its second amended complaint, CMG’s second cause of action for declaratory relief was based on the allegations underlying its first cause of action for recovery of funds. The association alleged that the parties required a judicial determination of rights regarding the city’s charge of the sewer connection fee.
CMG argues that the lower court erred in granting summary judgment against its cause of action for declaratory relief because there is a present controversy regarding the legality of the fees charged by the city in November of 2006. It is not entirely clear what CMG is arguing but to the extent it is asserting an argument not raised and supported with evidence in the lower court, it is not properly before us. Since the time to challenge the fees charged at the end of November has expired, there is no actual controversy, and CMG’s claim for declaratory relief must fail.
E. CMG’s Promissory Estoppel Claim
1. Elements of Promissory Estoppel and the Lower Court’s Ruling
In its second amended complaint, CMG alleged that the city induced the property owners of the subdivision to form an assessment district by promising them that it would charge a sewer connection fee in the amount of $5,910 and that this fee, if increased, “would be no more tha[n] the amount charged for a sewer connection to other Rohnert Park residents and they would receive notice of any such increases.” CMG asserts that the property owners in the subdivision were told of no other per acre or sewer capacity charges and those property owners paying $5,910.00 were not charged any other fees for the sewer connection. CMG claims that the city breached this promise and charged additional fees not disclosed at the time the subdivision formed the assessment district. CMG maintains that it was damaged in the amount of fees charged above $6,796.50.
“Promissory estoppel applies whenever a ‘promise which the promissor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance’ would result in an ‘injustice’ if the promise were not enforced.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) “ ‘The remedy granted for breach may be limited as justice requires.’ ” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310 (Kajima).) A promise must be clear and unambiguous to be binding under the doctrine. (Lange, supra, at p. 1185.) “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ ” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)
The superior court determined that CMG’s third cause of action for promissory estoppel failed as a matter of law because CMG could not establish that it was reasonable and foreseeable for it to rely on promises of the city or “that a grave injustice would be done if estoppel were not applied.” CMG contends that it can establish reliance upon a promise and that it need not make a showing of a grave injustice.
2. No Evidence of a Promise Upon Which CMG Could Rely
Promissory estoppel may not be invoked against a governmental entity if “ ‘it would operate to defeat the effective operation of a policy adopted to protect the public.’ ” (Kajima, supra, 23 Cal.4th at p. 316.) “ ‘The courts of this state have been careful to apply the rules of estoppel against a public agency only in those special cases where the interests of justice clearly require it.’ ” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 495, fn. 30.) The “ ‘facts upon which such an estoppel must rest go beyond the ordinary principles of estoppel and each case must be examined carefully and rigidly to be sure that a precedent is not established through which, by favoritism or otherwise, the public interest may be mulcted or public policy defeated.’ ” (Ibid.) Promissory estoppel is an equitable doctrine and courts have significant discretion in its application, and “ ‘[t]he remedy granted for breach may be limited as justice requires.’ ” (Kajima, supra, 23 Cal.4th at p. 310.)
Further, “ ‘[a] contract entered into by a local government without legal authority is ‘wholly void, ’ ultra vires, and unenforceable.’ ” (G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 Cal.App.4th 1087, 1092.) “ ‘[O]ne who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract.’ ” (Id. at p. 1094, fn. 4.) The statutory scheme must grant express authority to enter into the disputed agreement or the statutory scheme must implicitly grant authority to the public agency to enter into the disputed agreement. (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 132-135 (US Ecology I).)
Under the city’s code, fees such as the charges at issue in this appeal are to be set by the city council via resolution. The city’s Municipal Code section 3.32.040 provides the following: “A.... Cost recovery fees are to be established by resolution and are applicable to all requests for any service to support the cost of providing the service or services requested. [¶] B.... The city council shall, by resolution, set forth (1) the list of services for which cost recovery fees are established, (2) the portion of the actual cost that is to be recovered through each cost recovery fee, and (3) the specific amount of the cost recovery fee. [¶] The cost recovery fees shall not exceed the reasonable costs incurred by the city in providing the services nor shall the cost recovery fees exceed any maximum limit prescribed by State law.” Health and Safety Code section 5471, subdivision (a) provides that the only entity capable of setting sewer connection fees is the municipality, acting through its legislative body.
Health and Safety Code section 5471, subdivision (a) reads: “[A]ny entity shall have power, by an ordinance approved by a two-thirds vote of the members of the legislative body thereof, to prescribe, revise and collect, fees, tolls, rates, rentals, or other charges for services and facilities furnished by it, either within or without its territorial limits, in connection with its water, sanitation, storm drainage, or sewerage system.”
Here, CMG fails to set forth a clear promise by the city upon which the association justifiably relied. In its brief in this court, CMG fails to set forth the exact promises allegedly made to it. In its opposition to summary judgment in the trial court, CMG argued that a promise to connect the subdivision in exchange for payment of only the sewer connection fee “can reasonably be inferred” from the declaration of Robert Fleischman, a CMG member, materials presented to CMG prior to the formation of the assessment district, the terms of the 2001 watershed service agreement between the city and county, and 69 separate instances where the city accepted a sewer connection fee of $5,910 from the subdivision property owners as payment in full for connection to the city’s sewer system. CMG further asserted in the lower court that the county made promises about the fee and that the city gave the county apparent or ostensible authority to make these promises on the city’s behalf because the city officials participated in meetings where representations about the fees to be charged were made.
Firstly, CMG has to set forth evidence of a clear promise, which it has failed to do. Secondly, it is immaterial that 69 property owners in the subdivision had to pay only $5,910 for the sewer connection fee, as the subdivision property owners were apprised by the county that the fee of $5,910 was subject to change when it sent the property owners in the subdivision the August 1, 2001 document. This document advised that the city would charge a sewer connection fee of $5,910 but it admonished that “[t]his fee is subject to change. The actual fee will be the fee that is in effect at the time connection to the system is formally secured by each parcel.” The 2001 wastewater service agreement between the city and county specified that the sewer connection fee of $5,910 would be for a specific period and, once that period ended, the subdivision owners would be required to pay the connection fee “in effect on the date application for connection is submitted to” the city.
CMG provided the declaration of Fleischman, a member of CMG, in support of its argument that the city promised not to raise the fees above the sewer connection charge of $6,796.50. Fleischman stated that at the time the assessment district was formed, he and others were told that the sewer connection was $5,910 and that the fee could be increased and that the subdivision property owners would be charged the sewer connection fee at the time they applied for a sewer connection. He stated that they were advised there would be no other connection fees other than the sewer connection fee to be paid. Additionally, Fleischman stated the following: “Representatives of the City of Rohnert Park, including Joseph Netter, the then City Manager, and Joseph Gaffney, the City Engineer, were in attendance at the informational meetings held in advance of the vote for the Assessment District. Mr. Netter and Mr. Gaffney represented themselves as City of Rohnert Park officials. Mr. Netter and/or Mr. Gaffney were present and either represented or remained silent when County officials represented that a sewer connection fee would be required to be paid to the City and the amount at that time was $5,910.00.”
Nothing in the above mentioned statement by Fleischman supports a claim for promissory estoppel. The city did charge $5,910.00 for a specified period of time and then increased the fee, which was disclosed as a possibility in all of the written documents, after the time to pay this original connection fee expired. Fleischman’s declaration does not establish that any promise was made that the sewer connection fee would remain at $5,910 or not increase any more than the later charge of $6,796.50.
In its reply brief, CMG asserts that it does not dispute that it was advised that the sewer connection fee might increase, but contends that the fees above $6,796.50 were not sewer connection charges. It claims that the statement that the fee might change indicated that no other charges, such as subdivision facilities fee, would be added. The association claims that there is a triable issue of fact as to what was actually promised.
The August 1, 2001 document provided to property owners in the subdivision made it clear that the fees to be charged would include infrastructure costs. Under the heading of “Rohnert Park Sewer Connection Fee, ” the document provided: “This fee is established by the City of Rohnert Park and is levied to reimburse the City of Rohnert Park for its contribution towards construction of pump stations, trunk lines and the treatment plant. Currently Rohnert Park has set this fee at $5,910. This fee is subject to change. The actual fee will be the fee that is in effect at the time connection to the system is formally secured by each parcel.” (Italics added.)
Additionally, the undisputed evidence shows that the county sent all of the owners in the subdivision, including the homeowners comprising CMG, the August 1, 2001 document, which made it clear that the $5,910 fee was subject to change and that “[t]he actual fee” would “be the fee... in effect at the time connection to the system [was] formally secured by each parcel.” Thus, CMG was told that the charge would be the actual cost of providing sewer services if the $5,910 fee was not paid by a specific date.
Even if we were to presume that some person promised that the only fees charged would be fees specifically named sewer connection fees, this would be insufficient to establish a clear promise. CMG has presented no evidence of the exact person or persons making this promise and has failed to establish that this person had express or implicit authority under the statutes to make an enforceable promise regarding the fees charged for connecting the subdivision to the city’s sewer system. (See US Ecology I, supra, 92 Cal.App.4th at p. 132 [implicit authority exists when the power to make such promises is necessary to perform other statutory duties]; Air Quality Products, Inc. v. State of California (1979) 96 Cal.App.3d 340, 350 [even if the complaint pleads all elements necessary for a claim based on implied contract or promissory estoppel, an administrative agency will not be liable when the contract that is the basis for the claim is not statutorily or constitutionally authorized].)
CMG argues that there was an ostensible agency relationship between the city and the county, and the county made representations that the only fee charged would be the sewer connection fee. “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300; see also Van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 562.) CMG claims that property owners were unaware of the contract between the city and county and the county acted as an apparent agent of the city when it notified CMG regarding the amount of the fee, how to pay the fee, and when the fee would change. Further, representatives from both the city and county met with members of the subdivision at meetings and the city did not challenge any of the statements made by the county officials about the costs for connecting to the city’s sewer system.
None of the foregoing evidence raises a triable issue of fact that the county was the ostensible agent of the city. As already discussed, the county could not make binding promises on behalf of the city when the city did not have the authority to make such an agreement. (See G.L. Mezzetta, Inc. v. City of American Canyon, supra, 78 Cal.App.4th at p. 1092.) Moreover, there is no evidence that the city made any representations that the county had authority to act on its behalf. (See Boren v. State Personnel Board (1951) 37 Cal.2d 634, 643 [the doctrine of ostensible agency is “not based upon the representations of the agent but upon the representations of the principal”].)
CMG relies on Kajima, supra, 23 Cal.4th 305, but the facts of that case are clearly distinguishable. In Kajima, the public official failed to comply with a statute requiring it to award the contract to the lowest bidder. (Id. at pp. 309-310.) The court held that the plaintiff contractor could not state a breach of contract action against the city, but could recover preparation costs under a promissory estoppel theory. (Id. at pp. 313-321.) The court stated that it was using promissory estoppel “primarily to further certain public policies by creating a damages remedy for a public entity’s statutory violation.” (Id. at p. 315.) The court noted that the competitive bidding statutes were enacted for the benefit of property holders and taxpayers (id. at pp. 316-317) and the court stressed that promissory estoppel may not be invoked against a governmental entity if “ ‘it would operate to defeat the effective operation of a policy adopted to protect the public.’ ” (Id. at p. 316.)
In contrast, here, there is no statutory basis for holding the city to any alleged promise regarding the fees for the sewer connection for the property owners of the subdivision and, as explained more fully below, estoppel would not further an important public policy. Further, unlike the situation in Kajima, where the plaintiff incurred an expense without receiving any benefit, here, as explained more fully below, not only did CMG receive a benefit, the record contains evidence that the fees being charged to the members of CMG reflect their fair share of the cost to the city to provide the requested service.
3. No Exceptional Circumstances
Even if we were to presume the city made a clear promise on which the owners could reasonably rely, CMG cannot prevail on its promissory estoppel claim because it has presented no evidence showing the existence of exceptional circumstances. The undisputed facts show that no injustice resulted from the fee paid by CMG.
CMG argues that the lower court incorrectly found that it had to show a grave injustice; it asserts that it only has to show damages or actual detriment. The association claims that it did show damages as members of CMG stated that, had they known that other fees would be added to the sewer connection fee of either $5,910.00 or $6,796.50, they would have paid the fee at the time the charges were limited to either of these amounts.
CMG, however, has not correctly stated the burden it has when asserting promissory estoppel against a public agency. CMG must establish the existence of exceptional circumstances necessary to justify application of the promissory estoppel doctrine against the city. (See, e.g., Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471 [holding that promissory estoppel could not be applied to enforce an oral contract against a public entity that statutorily required contracts to be in writing].)
Here, the property owners in the subdivision had the choice of paying the lower fee of $5,910.00 or waiting and paying the actual cost of connecting to the sewer. The property owners comprising CMG chose to wait. CMG has presented no evidence that the fees charged did not represent the actual costs to the city to provide this service to the subdivision. If the property owners in the association do not pay the cost to connect their properties to the city’s sewer system, other citizens will have to bear these costs, which would result in an injustice to the public.
Additionally, the record contains evidence that the availability of the public sewer connections significantly increased the value of the properties in the subdivision. The newsletter of the subdivision dated July 28, 2000, stated that the septic systems in the subdivision were failing and that the nitrate levels were above safe limits. The newsletter stated the following: “Water, sewer line, fire hydrant, and road improvements will increase the value of your property significantly....”
We therefore conclude that the property owners comprising CMG are not in a materially worse position than they were prior to paying the fees and promissory estoppel should not be applied.
F. The Due Process Claim
CMG argues that the city did not comply with proper notice requirements and the city violated its due process rights. As already extensively discussed, the city provided sufficient notice under section 66016 and did not violate the Brown Act. The only remaining issue is whether the city’s actions violated CMG’s constitutional substantive or procedural due process rights. In its argument regarding a constitutional violation of due process, CMG merely asserts that the notice was insufficient and that the imposition of the fees was essentially a taking.
The Fourteenth Amendment due process clause states that no state may “deprive any person of life, liberty, or property without due process of law.” “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” (Board of Regents v. Roth (1972) 408 U.S. 564, 569.) The range of interests protected by procedural due process is limited. (Id. at p. 570.)
“Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612.) “It is equally well settled, however, that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements.” (Ibid.) “Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2.) Here, CMG’s attack on the fees charged was based on alleged promises made by the city and not based on an adjudicatory determination. (See California Psychiatric Transitions, Inc. v. Delhi County Water Dist., supra, 111 Cal.App.4th at p. 1163.) Further, reliance on the representations of a government official does not constitute a property interest protected by the Constitution. “A person seeking a benefit provided by the government has a property interest in the benefit for the purposes of procedural due process only if the person has ‘a legitimate claim of entitlement to it.’ ” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 853, fn. omitted.) CMG does not have statutorily created rights or vested property rights and, thus, has no constitutional procedural due process claim.
CMG writes in its brief in this court that it had a “vested right to obtain a sewer connection from Rohnert Park in exchange for a Sewer Connection Fee and only a Sewer Connection Fee the terms of the Assessment District documents. That right became choate under once the Assessment District was formed and assessment payments had been made.” CMG then cites Kaufman & Broad Central Valley, Inc. v. City of Modesto (1994) 25 Cal.App.4th 1577. CMG’s argument is somewhat incomprehensible and its reliance on Kaufman is misplaced. Kaufman involved the increase of fees but it involved the vesting of rights based on the vesting tentative map statutes. The court held, “the due process notice requirements implicit in the vesting tentative map statutes limit increases in developer’s fees to those for which adequate standards for determining the scope and extent of the fee increases are in place at the time the vesting tentative map is deemed complete.” (Id. at pp. 1579-1580.) Unlike the plaintiff in Kaufman, CMG has not set forth any rights protected by statute.
In its reply brief, CMG clarifies that it is also asserting a violation of its substantive due process rights. CMG, however, has failed to provide any facts demonstrating any substantive due process violations. Courts have been reluctant to expand the reach of the protections of substantive due process and have limited its scope. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1184.) “The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” (Albright v. Oliver (1994) 510 U.S. 266, 272.) To establish a violation of substantive due process, a plaintiff must establish that the government’s infringement of a constitutionally protected property interest constituted an abuse of government power that shocks the conscience, was irrationally related to any legitimate state interests, or was arbitrary or oppressive. (Clark, supra, at pp. 1184-1186.) In the present case, as already stressed, CMG does not have a constitutionally protected property interest and the record contains no evidence to support the conclusion that the imposition by the city of sewer connection fees that included costs related to improving the infrastructure shocks the conscience, was irrationally related to any legitimate state interest, or was arbitrary or oppressive.
Accordingly, the lower court properly granted summary judgment against CMG’s claim of a constitutional due process violation.
II. Granting the City’s Motion to Strike
The city filed its motion for summary judgment and CMG filed its opposition. Subsequently, the city filed its reply and filed declarations and a supplemental compendium of evidence and other authorities. CMG objected to the filing of documents with the reply brief, and the court ruled that CMG should have an opportunity to respond to the material filed with the reply brief. After CMG filed its further opposition, the city moved to strike “unauthorized pleadings” that went beyond the scope of the court’s ruling. The court granted the city’s motion to strike that portion of the supplemental opposition and evidence that exceeded the authorized scope. CMG challenges this ruling.
In the present case, the court did not actually strike any pleading and the city moved to strike under the wrong statute. The court’s ruling was essentially a ruling on objections to evidence (see Code of Civ. Proc., § 437c, subd. (c)), and the court did not consider 15 declarations from members of CMG and two supplemental declarations from Fleishman and from a CMG attorney.
Even if the court made this evidentiary ruling in error, we will not reverse if the error was harmless. (Code of Civ. Proc., § 475 [“[n]o judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed”]; see also Evid. Code, § 353, subd. (b) [evidentiary ruling will not be reversed if there is no showing that excluding the evidence resulted in a miscarriage of justice].) CMG has failed to meet its burden of showing that the error was prejudicial.
In its opening brief in this court, CMG does not address the issue of prejudice. In its reply brief, it does not set forth what evidence the court should have considered that would have any evidence that would have resulted in the court’s denying the city’s motion for summary judgment. CMG’s entire argument of no harmless error is the following: “Respondent erroneously takes the position that CMG is not prejudiced. CMG was harmed because in absence of the record demonstrating that the trial court viewed the evidence in the light most favorable to CMG, the discretionary standard of review invokes this Court’s abuse of discretion standard rather than using a de novo review required in a summary judgment. [Citation.] Nonetheless, by conceding that the declarations Respondent challenged were ‘predominately’ the same as other declarations filed by CMG, the City concedes that the court’s ruling striking CMG’s Further opposition had predominately no effect, and by implication, neither did its motion.” (Fn. omitted.)
Our review of the record indicates that the court did not consider declarations by CMG members. These declarations, however, did not provide any material information that was not contained in other declarations submitted in opposition to the summary judgment motion and considered by the court or that would have resulted in a different ruling on the summary judgment motion. Thus, excluding these declarations was not prejudicial.
Accordingly, we conclude that CMG has not established that the trial court’s refusal to consider any of its argument or evidence set forth in its “further opposition” was prejudicial.
III. Request for Attorney Fees
CMG requests this court to award it attorney fees under Code of Civil Procedure section 1021.5. Obviously, CMG is not entitled to attorney fees as it has not prevailed in the trial court or on appeal. Even if we were to reverse the trial court’s grant of summary judgment, CMG’s request for attorney fees from this court would be improper. Attorney fees are not awarded under Code of Civil Procedure section 1021.5 at the time the plaintiff secures the reversal of a summary judgment on appeal. (See, e.g., Liu v. Moore (1999) 69 Cal.App.4th 745, 755.) Rather, the issue of the right to attorney fees is deferred until the final resolution of the merits of the case. (Ibid.)
IV. The City’s Jurisdiction or Authority to Assess the Fees
In its reply brief in this court, CMG asserts for the first time that the city lacked jurisdiction or authority to assess any fees against the subdivision. The association claims that it can make this new argument because the city claimed it could not provide notice under the Brown Act based on the subdivision’s being outside its jurisdiction. The city’s response to CMG’s claim that it violated the Brown Act does not give CMG the right to raise issues in its reply brief that were never alleged in its second amended complaint or raised in the lower court. (See, e.g., Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) We will not consider the merits of this argument.
DISPOSITION
The judgment is affirmed. CMG is to pay the costs of appeal.
We concur: Kline, P.J., Haerle, J.
In Western/California, Ltd., the developers filed an action against a school district and asserted that a fee on the residential development for purposes of construction or reconstruction of school facilities exceeded a statutory restriction on development fees and requirements. (Western/California, Ltd., supra, 50 Cal.App.4th at pp. 1467-1468.) The court held that the 120-day limitations period under section 66022 for attacking a resolution that adopts a new fee and the 180-day limitations period under section 66020 for an action protesting imposition of a fee on a specific development and seeking a refund of fees paid under protest both applied. (Western/California, Ltd., supra, at p. 1476.) When the action falls under both section 66022 and 66020, the court held that the more specific provision under section 66020 applies. In Western/California, Ltd., the defendant did not dispute that the action fell under section 66020, but maintained that the shorter statute of limitations under section 66022 applied. Here, the parties dispute whether the action is governed by the shorter statute of limitations under section 66022 and, as we discuss more fully, this action does not fall under the longer statute of limitations of section 66020. Thus, the issue in the present case is not what statute of limitations applies when the action falls under two different ones.
In its reply brief, CMG cites the following quote in Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839: “ ‘It has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit. [Citations.] Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied.’ [Citations.] ‘ “The rule is grounded upon the constitutional principle that property may not be taken without due process of law.’ ” [Citations.] The vested rights doctrine protects the developer’s right not only to construct, but also to use the premises as authorized by the permit. [Citation.]” (Id. at pp. 845-846.) CMG then claims, with no analysis, that its situation is similar to the “permit” referred to in the quote. This assertion is baseless. Here, there is no taking as CMG has no vested right. Further, CMG has not performed substantial work and the property owners could have avoided any additional cost or liability by paying the sewer connection fee when it was frozen at $5,910.