On April 16, 2010, Building Industry Association of the Bay Area, further known as Builders Association of Northern California, Inc., (Builders Association) filed a motion for either summary judgment or summary adjudication, which facially challenged the constitutionality of a local ordinance enacted by the City of Santa Rosa (the City) in late 2008—Ordinance 3902. On the same day, the City filed a cross-motion that also sought either summary judgment or summary adjudication. After the parties stipulated to the undisputed material facts, these motions were consolidated for a hearing.

On August 10, 2010, the court issued a tentative decision in favor of Builders Association. A hearing was then held on August 11th. At that hearing, the court asked both sides to provide supplemental briefing on certain issues. The briefs were submitted and have been carefully considered. A second hearing is scheduled for Friday, November 19th. This is the court’s amended tentative ruling.

Santa Rosa is a charter city. In that capacity, the municipality enjoys broad authority to raise revenue to meet its financial obligations, as well as to provide vital services. Nevertheless, the City must exercise its powers in ways that do not improperly contravene the federal constitution, the state constitution, and state statutes.

Builders Association contends that the City, when faced with economic difficulties, created an unauthorized shortcut to achieve augmented tax revenue, a shortcut that circumvents the guaranteed voting rights of some of its constituents. Under Ordinance 2902, land owners whose property lies within the boundaries of the special taxation annexation zone cannot obtain residential building permits, other than for low-income housing, without waiving their constitutional right to vote against the imposition of such taxation.

In response, the City asserts that the Builders Association cannot even mount this challenge due to a procedural mistake and that, were that not true, the City has a compelling reason to deny voting rights.

Not all government annexations involve elections. But it is crystal clear that Californians cannot be subjected to an annexation into a special taxation district without an election where at least two-thirds of the impacted voters approve of the annexation. California Constitution Article XIII A.

Clearly, the City was legally authorized to create the special tax district pursuant to state statutes. The Mello-Roos Community Facilities Act of 1982 (the Mello-Roos Act), Government Code section 53311, et seq. At the same time, every voter located inside that district is protected by the state and federal constitutions. Nothing in the Mello-Roos Act remotely suggests that constitutional rights can be bypassed in times of trouble.

STANDING: The association plaintiff does have standing to raise the allegation that the ordinance denies equal protection of law. American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 739 n.11. Some of the members of Builders Association would have standing to sue as individuals, the constitutional issues championed through this lawsuit are relevant to the purposes of the association, and the factual attack made against the ordinance and the relief being requested do not require any different kind of action.

PROCEDURE: The case is not barred by a statute of limitations or by the reverse invalidation statute. Even were the controlling statute of limitations to be 30 days based upon with the Santa Rosa Special Tax Financing Code, the action was timely initiated. Ordinance 3902 was adopted on December 2, 2008, and it became effective on December 31, 2008. Builders Association presented a pre-adoption protest letter to the City on November 14, 2008, and then filed an invalidation complaint on January 30, 2009.

This is not a reverse invalidation action within the meaning of Code of Civil Procedure section 863, mandating prompt publication of summons as a jurisdictional matter (something that was not satisfied at the very outset of the litigation). Whether or not this peculiar, strict procedure applies to a particular complaint brought against a government entity depends upon whether or not a specific statute says it does. Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 31. The only two possible statutory candidates that could mandate special procedure here are Government Code sections 50077.5 and 53359. However, neither of these laws applies to the facts of this case. Ordinance 3902 does not qualify as an enactment passed by two-thirds of the impacted voters that levies a special tax or amends another ordinance that previously did that.

Instead, after citing certain budgetary problems, Ordinance 3902 unilaterally imposes a land-use condition on non-exempt real property owners, who wish to build a home inside the special taxation district, effectively forcing these particular citizens to waive their right to vote in a meaningful election and to accede to the payment of special taxes if they wish to obtain building permits. There is no election provided by 3902, there is just a coerced waiver. No where in the Mello-Roos Act is this process condoned. And in any event, an assertion of federal rights by Builders Association cannot be precluded through the application of Section 863.

EQUAL PROTECTION: “It is beyond cavil that voting is of the most fundamental significance under our constitutional structure …” Burdick v. Takushi (1992) 504 U.S. 428, 433. There can be really no quarrel with the proposition that the land owners located inside the relevant annexation zone have a protected constitutional right to vote on the issue of special taxation. Hussey v. City of Portland (9th Cir. 1995) 64 F.3rd 1260, 1263 [that is similarly true for all other affected voters inside that district].

Like Hussey, this case involves the unequal treatment of voters in a geographically-defined electoral unit. Green v. City of Tucson (9th Cir. 2003) 340 F.3rd 891, 900. Ordinance 3902 is not a municipal law that merely streamlines or improves the voting procedure there, rather it is a government measure that by design thwarts any semblance of a real election. And it is undeniable that the issuance of desirable building permits is directly linked to an induced consent to taxation.

The standard of review for such a severe impairment of voting rights, which unequally impacts local voters, is strict scrutiny. While the City may have demonstrated a rational basis for this ordinance, it has not shown that the enactment is supported by a compelling state interest and that it is the least restrictive means of achieving such an interest.

The court will now grant Builders Association’s motion for summary judgment and will deny the City’s cross-motion. Ordinance 3902 is invalid because it denies some Santa Rosans their rights to equal protection of the law.