Opinion

Gluck v. City and County of San Francisco

Court
California Court of Appeal
Filed
May 30, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 35.9%

The opinion

Filed 5/30/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ROBERT GLUCK et al.,

Plaintiffs and Appellants,

v.

CITY AND COUNTY OF SAN A170087

FRANCISCO,

(City & County of San Francisco

Defendant and Respondent;

Super. Ct. No. CGC-23-609954)

San Francisco has a combined sewer system that collects and treats

both wastewater and stormwater in the same network. (City and County of

San Francisco v. Environmental Protection Agency (2025) 604 U.S. ___ [145

S.Ct. 704, 707] (Environmental Protection Agency) [detailing combined

system]; Edward Brown & Sons v. City and County of San Francisco (1950)

36 Cal.2d 272, 274 (Edward Brown & Sons) [describing “combined storm and

sanitary sewers”].)

In 1996, California voters approved Proposition 218, also known as the

“Right to Vote on Taxes Act.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of

Prop. 218, § 1, p. 108.) Proposition 218 added certain provisions to the

California Constitution for property-related charges imposed by local

government. (Ballot Pamp., § 4, pp. 108–109.) These provisions included

(1) a voter approval requirement for the imposition or increase of property-

related charges, except for “sewer, water, and refuse collection services,” and

(2) a proportionality requirement that property-related charges “shall not

1

exceed the proportional cost of the service attributable to the parcel.” (Cal.

Const., art. XIII D,1 § 6, subds. (b)–(c) (“art. XIII D, sections 6(b)–(c)”).)

Plaintiffs Robert Gluck and Adam Hertz filed this class action against

defendant City and County of San Francisco (City) challenging the

constitutionality of City’s sewer charges related to one aspect of its combined

sewer system: stormwater. The first three causes of action relied on the

premise that stormwater services funded by the City’s sewer charges were

not “sewer” services covered by the exception to Proposition 218’s voter

approval requirement. The fourth cause of action alleged that City’s charges

failed Proposition 218’s proportionality requirement because they recovered

stormwater costs through sewer rates that were based only on wastewater

cost factors. The fifth cause of action sought declaratory relief related to

these alleged violations of Proposition 218. City demurred to the complaint,

which the trial court sustained without leave to amend.

On appeal, plaintiffs argue their allegations should have survived

City’s demurrer. We affirm the judgment as to plaintiffs’ first three causes of

action, concluding City’s combined sewer system provides “sewer” services

falling within the voter approval exception of article XIII D, section 6(c). But

we reverse as to plaintiffs’ fourth and fifth causes of action, concluding City

did not establish that plaintiffs’ allegations regarding City’s sole reliance on

wastewater factors to support charges recovering costs for stormwater

services are insufficient as a matter of law to establish a violation of the

proportionality requirement of article XIII D, section 6(b)(3).

1 Further citations to “articles” refer to those in the California

Constitution.

2

FACTUAL AND PROCEDURAL BACKGROUND

A. City’s Combined Sewer System

San Francisco has a combined sewer system, which collects and treats

wastewater and stormwater in the same network. (Environmental Protection

Agency, supra, 145 S.Ct. at p. 707.) San Francisco is the only coastal city in

California with a combined sewer system, which began over a century ago.

To support development from the California Gold Rush in the 1850s, the

system was designed to carry wastewater and stormwater flows to the

shoreline. By 1899, over 300 miles of combined sewer lines had been

completed. The city’s master plan in 1935 led to the construction of the first

treatment plants as well as additional sewer lines, creating a total collection

system of approximately 900 miles.

Today, the San Francisco Public Utilities Commission (SFPUC) is the

public agency that provides sewer services to the city. The combined

wastewater and stormwater flows are carried by sewer pipes for treatment at

one of SFPUC’s treatment facilities. The final flows are then pumped for

discharge to the San Francisco Bay and Pacific Ocean. This system can

present challenges. During periods of heavy precipitation, for example, the

combination of wastewater and stormwater flows may exceed system capacity

and result in the discharge of untreated water. (Environmental Protection

Agency, supra, 145 S.Ct. at p. 707.)

To operate, maintain, and finance this combined sewer system, SFPUC

sets sewer rates charged to its users. In 2018, SFPUC conducted a cost-of-

service study to determine “appropriate” sewer rates. Its resulting report

explained, among other things, that costs attributable to certain “functional

cost categories”—“primarily related to flow, strength, and customer service”—

must be measured at the SFPUC facilities and estimated for each user.

3

These functional cost categories referenced costs incurred in treating

wastewater: handling the volume of flows “discharged to or collected by the

system”; removal and disposal of total suspended solids (“TSS”) or non-

filterable residue in wastewater; cleaning, treatment, and disposal of fats, oil,

and grease (“FOG”); the chemical oxygen demand (“COD”) of microbial

organisms as they oxidize the organic matter present in wastewater; and

customer service, such as accounting, billing, administrative, and technical

support.

The 2018 report sought to provide a “rational basis” for distributing

sewer costs to each customer class “in proportion to the demands they place

on the systems.” But because “explicit stormwater charge dollar values were

challenging to identify for most agencies,” the stormwater charges “were not

isolated from wastewater charges in the rates table.” Thus, the proposed

rates for sewer charges reflected “combined sanitary sewer and stormwater

sewer costs.”

Five years later, SFPUC conducted a new study on sewer rates in order

to “[d]evelop and introduce a stormwater charge to recover costs associated

with wet weather flows and treatment.” The ensuing 2023 report explained:

“The SFPUC has historically recovered stormwater-related costs through

wastewater rates. In this study, the stormwater-related portion of the sewer

cost of service has been calculated to enable the split of the sewer rates into

wastewater rates and stormwater charges.” By splitting these costs, the

report stated, “SFPUC will be able to enhance the equity in its rate structure

by establishing a stormwater [charge] in addition to its wastewater rates.”

The 2023 report described proposed sewer rates based on flow and

strength factors. It then identified a new stormwater charge structure, with

“Simplified” tiers for residential customers based on parcel size and the

4

average amount of permeable and impermeable area for parcels within each

tier, and “Standard” rates for non-residential customers based on actual

square footage of permeable and impermeable area. These rates were

designed to recover $301,471,528 in wastewater service costs and $87,719,197

in stormwater service costs for fiscal year 2024. Because the proposed rate

structure changes “would result in significant bill impacts on customers with

parcels that have large impermeable surface areas,” the 2023 report

indicated such changes “should take place over a few years instead of all at

once” given SFPUC’s Ratepayer Assurance Policy principles of Affordability

and Predictability.

B. Plaintiffs’ Complaint

In October 2023, plaintiffs filed a class action complaint alleging that,

starting four months prior and continuing over a seven-year period, City is

“phasing in” the new rate structure that separates stormwater charges from

wastewater charges. That is, new stormwater rates would fund one-seventh

of all stormwater costs beginning in July 2023, with the proportion increasing

each year until the new rates completely fund stormwater costs in the

seventh year. The complaint defines two prospective classes: (1) those who

paid City sewer or stormwater charges from October 2022 to June 2023, and

(2) those who paid City sewer or stormwater charges in or after July 2023.

The complaint includes five causes of action against City for purported

violations of the constitutional requirements for property-related charges

added by Proposition 218. The first cause of action alleges that City

improperly implemented this new rate structure for stormwater service

charges without submitting it for voter approval. (Art. XIII D, § 6(c).) The

second, third, and fourth causes of action appear to target the stormwater

charges City had imposed under the prior rate structure and is continuing to

5

impose while “phasing in” the new rate structure. The complaint describes

City’s “effort to eventually establish a proportionate stormwater rate” as “a

step in the right direction,” but alleges the California Constitution “does not

permit an additional 7 years of delay.”

The second and third causes of action allege that, by using sewer

charges to fund stormwater services, City had derived revenue from charges

that were excessive and used for an improper purpose. (Art. XIII D, § 6,

subds. (b)(1)–(2).) The fourth cause of action alleges that City’s charges were

disproportionate because they were based on wastewater factors (e.g., flow

and strength) but not stormwater factors (e.g., impermeable surface area).

(Art. XIII D, § 6, subd. (b)(3).)

The complaint seeks to recover refunds for “illegal charges” resulting

from City’s alleged Proposition 218 violations. It also requests various forms

of injunctive relief, as well as declaratory relief in a fifth cause of action,

regarding City’s imposition and collection of sewer and stormwater charges.

C. City’s Demurrer

City filed a demurrer to the complaint, arguing the first, second, and

third causes of action failed because City’s combined sewer system provides

“sewer” services under the exception to Proposition 218’s voter approval

requirement. To support its interpretation of the term “sewer” in article

XIII D, section 6(c), City cited Government Code section 53751.2 Section

53751 was added by Senate Bill No. 231 in 2017 and states the term “ ‘sewer’

should be interpreted to include services necessary to collect, treat, or dispose

of sewage, industrial waste, or surface or storm waters, and any entity that

2 Further undesignated statutory references are to the Government

Code.

6

collects, treats, or disposes of any of these necessarily provides sewer service.”

(§ 53751, subd. (m); Stats. 2017, ch. 536, § 2.)

City then argued the fourth cause of action was “impermissibly

uncertain” and did not allege facts showing the City’s sewer rates either

exceeded “the proportional cost of sewer services” or were unreasonable

under article XIII D, section 6(b). Finally, City asserted the fifth cause of

action for declaratory relief failed because it “depends entirely on allegations

in the other causes of action.”

Plaintiffs opposed the demurrer. As to their first three causes of action,

they argued that City had misclassified stormwater charges as “sewer”

charges and that City could not rely on Senate Bill No. 231 because it is

unconstitutional. Plaintiffs also argued they had alleged sufficient facts in

their fourth cause of action, stating: “No doubt discovery will be required in

order to complete analysis of the City’s disproportionate rate structure, but

the fact that stormwater costs continue to be recovered through sewer rates,

based on factors that are not relevant to the cost of managing storm drainage,

is sufficient to state a claim under Proposition 218.”

D. Trial Court’s Ruling

The trial court sustained the demurrer without leave to amend. In so

ruling, the court concluded the first, second, and third causes of action failed

because City’s combined sewer system provides “sewer” services not subject

to voter approval under Proposition 218. The court then found the fourth

cause of action also failed because the linchpin of the claim was the same:

that “wastewater and stormwater are distinct and stormwater management

is not a ‘sewer service.’ ” Then, having concluded all these “predicate claims”

failed, the court sustained the demurrer to the fifth cause of action for

7

declaratory relief, also without leave to amend. Judgment was entered for

City and against plaintiffs.

This appeal followed.

DISCUSSION

Plaintiffs raise two principal issues in this appeal. First, they argue

the trial court erred in sustaining the demurrer on their first three causes of

action because the stormwater services provided as part of City’s combined

sewer system are not “sewer” services excepted from the voter approval

requirement of article XIII D, section 6(c). Second, plaintiffs contend they

should have been permitted to proceed beyond the pleading stage and/or

given leave to amend their fourth cause of action on the proportionality

requirement in article XIII D, section 6(b). We begin with an overview of the

legal framework guiding our analysis: Proposition 218.

A. Legal Framework

“ ‘Proposition 218 can best be understood against its historical

background, which begins in 1978 with the adoption of Proposition 13.’ ”

(Apartment Ass’n of Los Angeles County, Inc. v. City of Los Angeles (2001) 24

Cal.4th 830, 836 (Apartment Ass’n).) Proposition 13 amended the California

Constitution by placing certain limitations on ad valorem property taxes

(taxes based on assessed value) and increases in assessed valuations.

(Apartment Ass’n, at p. 836.) “ ‘To prevent local governments from subverting

its limitations, Proposition 13 also prohibited counties, cities, and special

districts from enacting any special tax without a two-thirds vote of the

electorate.’ ” (Ibid.) But subsequent case law held that a “ ‘special

assessment’ ” was “ ‘not a special tax within the meaning of Proposition 13’ ”

and thus “ ‘could be imposed without a two-thirds vote.’ ” (Id. at pp. 836–

837.)

8

In 1996, California voters approved Proposition 218, known as the

“Right to Vote on Taxes Act,” which amended the state Constitution to

override such case law. (Ballot Pamp., Gen. Elec., supra, text of Prop. 218,

§ 1, p. 108; see Apartment Ass’n, supra, 24 Cal.4th at p. 837.) As the ballot

materials accompanying Proposition 218 explained: “Proposition 13 was

intended to provide effective tax relief and to require voter approval of tax

increases. However, local governments have subjected taxpayers to excessive

tax, assessment, fee and charge increases that not only frustrate the

purposes of voter approval for tax increases, but also threaten the economic

security of all Californians and the California economy itself. This measure

protects taxpayers by limiting the methods by which local governments exact

revenue from taxpayers without their consent.” (Ballot Pamp., § 2, p. 108.)

Thus, as the “progeny” of Proposition 13, Proposition 218 “ ‘buttresses’ ” the

constitutional limitations on ad valorem and special taxes “ ‘by placing

analogous restrictions on assessments, fees, and charges, ” and closing

“government-devised loopholes.” (Apartment Ass’n, at p. 837.)

Specifically, Proposition 218 added articles XIII C and XIII D to the

California Constitution. Sections 4 and 5 of article XIII D relate to

assessments levied by an agency on a parcel of property for a special benefit

conferred upon that property. Section 4 sets forth requirements and

procedures for such assessments. (Art. XIII D, § 4, subd. (a).) It provides,

among other things, that “[n]o assessment shall be imposed on any parcel

which exceeds the reasonable cost of the proportional special benefit

conferred on that parcel.” (Ibid.) It also requires that the agency send notice

of the proposed assessment, with a ballot whereby owners may indicate their

support or opposition to the proposed assessment. (Id., subd. (d).) The

9

assessment cannot be imposed if, considering these ballots and all protests at

a public hearing, a majority protest exists. (Id., subd. (e).)

Section 5 of article XIII D defines the effective date of Proposition 218

as “the day after the election unless otherwise provided” and specifies that

beginning July 1, 1997, “all existing, new, or increased assessments” shall

comply with the procedures and approval process set forth in section 4 of

article XIII D, subject to certain enumerated exemptions. One such

exemption names assessments “existing on the effective date of this article”

that were “imposed exclusively to finance the capital costs or maintenance

and operation expenses for sidewalks, streets, sewers, water, flood control,

drainage systems or vector control.” (Art. XIII D, § 5, subd. (a) (“art. XIII D,

section 5(a)”).)

Unlike these preceding sections regarding assessments that confer a

special benefit on a parcel, section 6 of article XIII D sets forth requirements

and procedures for property-related fees and charges imposed by an agency

“upon any parcel or person as an incident of property ownership,” including

“user fees or charges for a property related service.” (Art. XIII D, § 6,

subd. (b)(3); see also id. § 2, subd. (e) [defining “ ‘Fee’ ” or “ ‘charge’ ”].)

Section 6(b) of article XIII D imposes a proportionality requirement: “A fee or

charge shall not be extended, imposed, or increased by any agency unless it

meets all of the following requirements: [¶] (1) Revenues derived from the fee

or charge shall not exceed the funds required to provide the property related

service. [¶] (2) Revenues derived from the fee or charge shall not be used for

any purpose other than that for which the fee or charge was imposed.

[¶] (3) The amount of a fee or charge imposed upon any parcel or person as an

incident of property ownership shall not exceed the proportional cost of the

service attributable to the parcel.”

10

And critically, section 6(c) of article XIII D imposes a voter approval

process for all new or increased property-related fees and charges, subject to

three exceptions: “Except for fees or charges for sewer, water, and refuse

collection services, no property related fee or charge shall be imposed or

increased unless and until that fee or charge is submitted and approved by a

majority vote of the property owners of the property subject to the fee or

charge or, at the option of the agency, by a two-thirds vote of the electorate

residing in the affected area.”

Proposition 218 also included an uncodified section expressly stating:

“The provisions of this act shall be liberally construed to effectuate its

purposes of limiting local government revenue and enhancing taxpayer

consent.” (Ballot Pamp., Gen. Elec., supra, text of Prop. 218, § 5, p. 109.)

With this legal framework in mind, we turn to the parties’ arguments

regarding these constitutionally-imposed voter approval and proportionality

requirements.

B. Voter Approval Requirement

Plaintiffs argue the trial court erred in sustaining the demurrer on

their first three causes of action because the stormwater services provided by

City’s combined sewer system are not “sewer” services under the exception to

Proposition 218’s voter approval requirement. The focus of this argument, in

opposition to the demurrer and on appeal, is that City cannot contend

otherwise by relying on Senate Bill No. 231’s definition of “sewer” because

that legislation is unconstitutional.

Typically, a litigant may challenge the constitutionality of a statute in

two ways: on its face or as applied. “A facial challenge to the constitutional

validity of a statute or ordinance considers only the text of the measure itself,

not its application to the particular circumstances of an individual.” (Tobe v.

11

City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) The law requires us to

examine the “facial requirements” of the statute in order to determine

whether its provisions “ ‘ “inevitably pose a present total and fatal conflict

with applicable constitutional prohibitions.” ’ ” (Ibid., citing Arcadia Unified

School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267.)

Unlike a facial challenge, an “as applied” challenge may seek “relief

from a specific application of a facially valid statute or ordinance to an

individual or class of individuals who are under allegedly impermissible

present restraint or disability as a result of the manner or circumstances in

which the statute or ordinance has been applied[.]” (Tobe, supra, 9 Cal.4th at

p. 1084.) An as applied challenge “contemplates analysis of the facts of a

particular case or cases to determine the circumstances in which the statute

or ordinance has been applied and to consider whether in those particular

circumstances the application deprived the individual to whom it was applied

of a protected right.” (Ibid.)

Here, plaintiffs present an as applied challenge to Senate Bill No. 231:

they argue its definition of “sewer” cannot be relied upon to interpret article

XIII D, section 6(c)’s voter approval exception as inclusive of stormwater

services provided by City’s combined sewer system. But City contends that,

even without application of Senate Bill No. 231, the constitutional exception

for “sewer” services is properly interpreted to include the stormwater services

at issue here.

Given the as applied nature of plaintiffs’ challenge and City’s response

to that challenge, we need not and do not address the general

constitutionality of Senate Bill No. 231.3 Instead, the question before us is

3 We therefore deny plaintiffs’ request for judicial notice of legislative

history materials on Senate Bill No. 231 as not necessary or helpful to our

12

whether City’s combined sewer system provides “sewer” services excepted

from Proposition 218’s voter approval requirement.

“When construing a constitutional provision enacted by initiative, the

intent of the voters is the paramount consideration.” (Davis v. City of

Berkeley (1990) 51 Cal.3d 227, 234.) We begin with the plain language of the

provision, “which is typically the best and most reliable indicator of purpose.”

(California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933.)

“We start by ascribing to words their ordinary meaning, while taking account

of related provisions and the structure of the relevant statutory and

constitutional scheme.” (Ibid.) Where possible, we avoid “ ‘literalism that

effects absurd, arbitrary, or unintended results.’ ” (Richmond v. Shasta

Community Services Dist. (2004) 32 Cal.4th 409, 419 (Richmond).) “Terms

used in a constitutional amendment ‘must be construed in the light of their

meaning at the time of the adoption of the amendment.’ ” (Forster

Shipbuilding Co. v. County of Los Angeles (1960) 54 Cal.2d 450, 456.) “If the

provisions’ intended purpose nonetheless remains opaque, we may consider

extrinsic sources, such as an initiative’s ballot materials.” (California

Cannabis Coalition, at pp. 933–934.)

1. Meaning of “Sewer”

The term “sewer” is not defined in article XIII D, section 6(c), or in any

other constitutional provision added by Proposition 218. Indeed, none of the

three voter approval exceptions (“sewer, water, and refuse collection

analysis. (Cal. Rules of Court, rule 8.252; Jordache Enterprises, Inc. v.

Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) For the same

reasons, we also deny the request by various amici curiae for judicial notice of

California Regional Water Quality Control Board San Francisco Bay Region

order excerpts, Executive Order No. N-10-19, and California Water Resilience

Portfolio excerpts, which were offered to illustrate public policy

considerations relevant to Senate Bill No. 231.

13

services”) was defined by the measure. (Ballot Pamp., Gen. Elec., supra, text

of Prop. 218, § 5, p. 109.)

Given the absence of such constitutional definitions, California courts

have looked to statutory definitions existing at the time Proposition 218 was

passed to interpret the terms in article XIII D, section 6(c). In Crawley v.

Alameda County Waste Management Authority (2015) 243 Cal.App.4th 396

(Crawley), for example, the plaintiff had challenged a property charge for the

disposal of household hazardous waste. (Id. at p. 400.) The plaintiff argued

that such waste was not “refuse” covered by the “refuse collection” services

exception to voter approval under Proposition 218. (Id. at p. 409.) The

appellate court disagreed, citing the definition of “refuse” in Health and

Safety Code section 4740 that included “ ‘anything thrown away as

worthless.’ ” (Crawley, at p. 410.) Crawley explained: “It is inherent in the

act of disposing of or depositing household hazardous waste for collection that

the household hazardous waste is no longer of value to the property owner.”

(Ibid.) The court also noted its interpretation was consistent with the plain

meaning of the terms “refuse” and “garbage” in other statutes and

dictionaries. (Ibid.)

Adopting this approach, we find Public Utilities Code section 230.5

instructive here. Enacted in 1970, this section defines the term “sewer

system” expansively to include “all real estate, fixtures, and personal

property owned, controlled, operated, or managed in connection with or to

facilitate sewage collection, treatment, or disposition for sanitary or drainage

purposes, including any and all lateral and connecting sewers, interceptors,

trunk and outfall lines and sanitary sewage treatment or disposal plants or

works, and any and all drains, conduits, and outlets for surface or storm

waters, and any and all other works, property or structures necessary or

14

convenient for the collection or disposal of sewage, industrial waste, or

surface or storm waters.” (Pub. Util. Code, § 230.5, added by Stats. 1970,

ch. 1109, § 2.) Under this longstanding definition, City’s combined

wastewater and stormwater system is clearly a “sewer.”4

We acknowledge there are other statutes that appear to address

wastewater (sewerage) and stormwater systems as separate systems. But

viewed in context, such statutes do not suggest that a combined system is not

a sewer system. Health and Safety Code section 5471, for example, initially

provided authority for an entity to prescribe, revise, and collect fees for

services and facilities furnished in connection with its sewerage system. (Id.,

subd. (a).) Five years before Proposition 218 was adopted, the final phrase of

that provision was amended to authorize such fees “in connection with its

water, sanitation, storm drainage, or sewerage system.” (Stats. 1991,

ch. 1110, § 35.) Legislative history materials explain the purpose of this

amendment was to ensure that newer cities could impose such fees for their

“storm drainage systems.” (Sen. L. Gov. Com., Off. of Sen. Floor Analyses, 3d

4 The Association of California Water Agencies, California State

Association of Counties, and League of California Cities jointly filed an

amicus curiae brief pointing to the way sewer systems are defined under

regulations implementing the Clean Water Act (33 U.S.C. § 1251 et seq.).

(E.g., 40 C.F.R. § 35.2005(11) [defining “combined sewer” as “[a] sewer that is

designed as a sanitary sewer and a storm sewer”]; id., § 35.2005(37) [defining

“Sanitary sewer” as “[a] conduit intended to carry liquid and water-carried

wastes from residences, commercial buildings, industrial plants and

institutions together with minor quantities of ground, storm and surface

waters that are not admitted intentionally”]; id., § 35.2005(48) [defining

“Storm sewer” as “[a] sewer designed to carry only storm waters, surface run-

off, street wash waters, and drainage”].) These federal regulations, which

were issued in 1984 (49 Fed.Reg. 6234 (Feb. 17, 1984)), recognize that a

single sewer system—i.e., a “combined sewer”—can handle both wastewater

and stormwater.

15

reading analysis of Sen. Bill No. 682 (1991–1992 Reg. Sess.) as amended

Sept. 9, 1991, p. 2.) Accordingly, we do not view Health and Safety Code

section 5471 as reflecting a general understanding that a sewer system can

never combine sewerage and storm drainage functions; rather, it seems to

reflect the apparent reality in 1991 that public entities often constructed and

maintained separate sewerage and storm drainage systems.

Similarly, Government Code section 63010 provides a definition of

“Public development facilities” under the Bergeson-Peace Infrastructure and

Economic Development Bank Act (§§ 63000 et seq.). This definition specifies

various services provided by such facilities, including “Drainage, water

supply, and flood control” and “Sewage collection and treatment.” (§ 63010,

subds. (q)(3), (10).) Though section 63010 does not purport to provide a

statutory definition for either phrase, it states “Drainage, water supply, and

flood control” includes “storm sewers.” (Id., subds. (q)(3).) Like Health and

Safety Code section 5471, the reference to “storm sewers” appears directed at

separate stormwater systems. And again, neither statute negates the

definition in Public Utilities Code section 230.5 that a combined wastewater

and stormwater system, like the one at issue here, is a “sewer” system.

2. Dictionary Definitions

Dictionary definitions of the term “sewer” around the time of

Proposition 218 also recognize and include combined sewer systems.

Webster’s dictionary defined “sewer” as “a ditch or surface drain” or “an

artificial usually subterranean conduit to carry off water and waste matter

(as surface water from rainfall, household waste from sinks or baths, or waste

water from industrial works).” (Webster’s Third New International

Dictionary (1993) p. 2081.) And the Oxford English dictionary defined

“sewer” as an “artificial watercourse for draining marshy land and carrying

16

off surface water into a river or the sea” and an “artificial channel or conduit,

now usually covered and underground, for carrying off and discharging waste

water and the refuse from houses and towns.” (Oxford English Dict. (2d ed.

1989, vol. XV) p. 105.) Under these definitions, the term “sewer” includes a

combined wastewater and stormwater sewer.

Though general dictionaries may be helpful to consult, we are mindful

that “ ‘great caution’ ” must be exercised when consulting a dictionary

definition of a common term to determine the meaning of a constitutional or

statutory provision. (A.S. v. Miller (2019) 34 Cal.App.5th 284, 293, fn. 4.)

Indeed, a dictionary “ ‘ “is a museum of words, an historical catalog rather

than a means to decode the work of legislatures” ’ ” and voters. (Ibid.; see De

Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, 591.)

Here, we simply note that construing the term “sewer” in article XIII D,

section 6(c) as inclusive of combined sewer systems is both reasonable and

justifiable.

3. Decisional Law

Our interpretation is also consistent with other California appellate

court decisions addressing Proposition 218. In Griffith v. Pajaro Valley Water

Management Agency (2013) 220 Cal.App.4th 586 (Griffith), for example, the

agency was tasked with resolving issues related to water in its jurisdiction

being extracted faster than it was replenished naturally, leading to saltwater

intrusion from the coast into the groundwater. (Id. at p. 590, disapproved on

other grounds in City of San Buenaventura v. United Water Conservation

Dist. (2017) 3 Cal. 5th 1191, 1211, fn. 6.) The agency sought to reduce the

amount of water taken from the groundwater basin (e.g., from wells), by

supplying supplemental water to some users. (Griffith, at p. 590.) To do so,

it enacted an ordinance increasing groundwater augmentation charges for

17

the operation of wells and the “ ‘purchase/acquisition, capture, storage and

distribution of supplemental water.’ ” (Id. at pp. 589–591.)

The plaintiffs challenged the ordinance as violating Proposition 218.

(Griffith, supra, 220 Cal.App.4th at p. 591.) As relevant here, the plaintiffs

argued the agency’s ordinance did not implicate “water” services covered by

the voter approval exception in article XIII D, section 6(c). (Griffith, at

p. 595.) In rejecting that argument, the Griffith court reached a conclusion

somewhat analogous to ours, i.e., that charges for water delivery and water

extraction are “akin” to each other, and that both services fall within the

broader concept of a “water” system. (Ibid.)

Similarly, in Capistrano Taxpayers Assn., Inc. v. City of San Juan

Capistrano (2015) 235 Cal.App.4th 1493 (Capistrano), the city had set a rate

structure imposing charges for recycling water. (Id. at p. 1501.) But while

some users could receive the non-potable recycled water, others including

private residences could not because they were not plumbed for such use.

(Ibid.) The trial court determined the city had violated the requirement in

article XIII D, section 6(b)(4) that charges be imposed for services “ ‘actually

used by, or immediately available to, the owner of the property in question.’ ”

(Capistrano, at p. 1501.) The appellate court disagreed, rejecting the

assumption that “providing recycled water is a fundamentally different kind

of service from providing traditional potable water.” (Id. at p. 1502.) It

explained: “When each kind of water is provided by a single local agency that

provides water to different kinds of users, some of whom can make use of

recycled water (for example, cities irrigating park land) while others, such as

private residences, can only make use of traditional potable water, providing

each kind of water is providing the same service.” (Ibid.) The appellate court

18

further reasoned that water is “part of a holistic distribution system that

does not distinguish between potable and nonpotable water.” (Ibid.)

The lesson we draw from Griffith and Capistrano is that the terms used

in article XIII D do not represent rigidly defined services and functions that

cannot overlap or be combined with others. Here, City provides wastewater

and stormwater services within the same sewer system. Once the flows enter

that system, there appears no indication they are treated differently.

Plaintiffs offer no legal or logical basis for interpreting the term “sewer” in

article XIII D, section 6(c) as applicable to only one part of this “holistic”

sewer system.5 (Capistrano, supra, 235 Cal.App.4th at p. 1502.)

Plaintiffs rely on Howard Jarvis Taxpayers Association v. City of

Salinas (2002) 98 Cal.App.4th 1351 (City of Salinas) and Department of

Finance v. Commission on State Mandates (2022) 85 Cal.App.5th 535

(Department of Finance) to argue otherwise. But both cases are

distinguishable because, unlike City’s combined sewer system here, separate

stormwater systems were at issue.

In City of Salinas, the plaintiffs challenged a property-related fee

imposed by the city council to reduce or eliminate pollutants in stormwater.

5 At oral argument, plaintiffs seemed to suggest that, under Griffith and

Capistrano, City’s stormwater services must provide a common benefit to its

sewer users and/or its wastewater services in order to qualify for the voter

approval exception under article XIII D, section 6(c). True, both courts cited

the common benefit to users in determining that supplemental and recycled

water services are “immediately available” to owners paying the respective

charges under article XIII D, section 6(b)(4). (Griffith, supra, 220

Cal.App.4th at p. 602; Capistrano, supra, 235 Cal.App.4th at p. 1502.) But

plaintiffs offer nothing to support the questionable proposition that

stormwater services do not benefit sewer users, and neither Griffith nor

Capistrano imposed a benefit requirement between services within a

combined system for purposes of article XIII D, section 6(c).

19

(City of Salinas, supra, 98 Cal.App.4th at p. 1353.) There, as here, the

plaintiffs argued the fee violated article XIII D, section 6(c) because it had not

been approved by a majority vote of affected property owners. (City of

Salinas, at p. 1354.) But Salinas had a stormwater drainage system that was

separate and distinct from its sanitary and industrial waste systems (id. at

p. 1353), so the question in City of Salinas was whether the voter approval

exception for “sewer” services extended to Salinas’s separate stormwater

drainage system. (Id. at p. 1356.)

City of Salinas concluded “the term ‘sewer services’ is ambiguous in the

context of both section 6(c) and Proposition 218 as a whole.” (City of Salinas,

supra, 98 Cal.App.4th at p. 1357.) After reviewing statutory and dictionary

references to sewer services, the court ultimately determined that “[t]he

popular, nontechnical sense of sewer service, particularly when placed next to

‘water’ and ‘refuse collection’ services, suggests the service familiar to most

households and businesses, the sanitary sewerage system.” (Ibid.) Mindful

of “the voters’ intent that the constitutional provision be construed liberally

to curb the rise in ‘excessive’ taxes, assessments, and fees exacted by local

governments without taxpayer consent [citation],” the court felt “compelled to

resort to the principle that exceptions to a general rule of an enactment must

be strictly construed” and to thus interpret “sewer” services as not inclusive

of Salinas’s separate storm drainage system. (Id. at pp. 1357–1358.)

Accordingly, the court held that article XIII D, section 6(c) required Salinas to

subject its stormwater drainage system fee to a vote by the property owners

or the voting residents of the affected area. (City of Salinas, at pp. 1358–

1359.)

Importantly, however, the City of Salinas court emphasized the

separate nature and purpose of the storm drainage system at issue there. In

20

concluding that voter approval was required for that system, the court

reasoned: “The City itself treats storm drainage differently from its other

sewer systems. The stated purpose of ordinance No. 2350 was to comply with

federal law by reducing the amount of pollutants discharged into the storm

water, and by preventing the discharge of ‘non-storm water’ into the storm

drainage system, which channels storm water into state waterways.

According to John Fair, the public works director, the City’s storm drainage

fee was to be used not just to provide drainage service to property owners, but

to monitor and control pollutants that might enter the storm water before it

is discharged into natural bodies of water. The Salinas City Code contains

requirements addressed specifically to the management of storm water

runoff.” (City of Salinas, supra, 98 Cal.App.4th at p. 1358.)

City of Salinas’s conclusion that voter approval was necessary for the

separate stormwater system charges in that case does not compel the same

conclusion for City’s combined sewer system. Plaintiffs offer no authority

suggesting the principle regarding the strict construction of exceptions or

Proposition 218’s liberal construction clause are properly invoked to exclude

part of the combined sewer system that City employs to collect and treat both

wastewater and stormwater. Put another way, the voter approval exception

in article XIII D, section 6(c) is properly applied to “those circumstances

which are within the words and reason of the exception.” (City of Lafayette v.

East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1017.) That City’s

sewer service is combined does not mean it is not a sewer service.

Department of Finance, supra, 85 Cal.App.5th 535, also involved a

separate storm sewer system. In that case, the San Diego regional board of

the California Regional Water Quality Control Board had issued permits to

local governments for the operation of this separate system. (Id. at p. 551.)

21

The permittees filed a test claim with the Commission on State Mandates

(Commission) seeking subvention of funds to compensate for the costs of

complying with new permit requirements. (Id. at p. 552; see art. XIII B, § 6,

subd. (a) [allowing reimbursement of local governments for costs of a “new

program or higher level of service” mandated by a state agency, except where

such costs are recoverable from sources other than taxes].)

Relying on the holding in City of Salinas regarding its stormwater

drainage system fee, the Commission concluded the majority of the new

permit requirements were reimbursable mandates because permittees had no

authority to levy fees for stormwater drainage systems without voter

approval under Proposition 218. (Department of Finance, supra, 85

Cal.App.5th at pp. 560–561.) In determining that reimbursement was

appropriate, the Commission reasoned that a contrary holding would defeat

the purpose of subvention because the voters might never approve the

proposed stormwater fees. (Id. at pp. 562–563.) The Commission issued its

ruling in 2010. (Id. at p. 552.)

After the trial court upheld the Commission’s decision, the appellate

court was tasked with interpreting the term “sewer” in article XIII D, section

6(c), at the time of the Commission’s decision before Senate Bill 231 was

passed, and whether it encompassed a separate stormwater drainage system.

(Department of Finance, supra, 85 Cal.App.5th at p. 565.) Acknowledging

that dictionary definitions of the term sewer “indicate the word can refer to

both sanitary sewers and storm drainage systems,” the court nonetheless

found they were not dispositive of the issue. (Id. at p. 567.) But unlike the

court in City of Salinas, the Department of Finance court looked to article

XIII D, section 5(a), “in which the voters distinguished the word ‘sewer’ from

a drainage system” for purposes of exempting assessments from certain

22

procedures and approval requirements if they were in existence on July 1,

1997 and had been imposed exclusively to finance the capital or operational

costs for “ ‘sidewalks, streets, sewers, water, flood control, drainage systems or

vector control.’ ” (Department of Finance, at pp. 567–568.)

The Department of Finance court viewed article XIII D, section 5(a)’s

separate references to “sewers” and “drainage systems” as evidence that

California voters “intended the words to have different meanings.”

(Department of Finance, supra, 85 Cal.App.5th at p. 568.) “Were it not so,”

reasoned the court, “the use of the terms to convey the same meaning would

render them superfluous, an interpretation courts are to avoid.” (Ibid.) In

light of the separate references used in article XIII D, section 5(a), the court

concluded the voters did not intend the “sewer” exception in article XIII D,

section 6(c), to include fees for separate stormwater drainage systems.

(Department of Finance, at p. 568.)

Like City of Salinas, Department of Finance is distinguishable because

it involved a separate stormwater drainage system.6 And like Health and

Safety Code section 5471 and Government Code section 63010, the inclusion

of the term “drainage systems” in article XIII D, section 5(a)’s exemption for

existing assessments does nothing to define section 6(c)’s exception for sewer

services as excluding a combined sewer system like the one City operates

here.

4. Avoiding an Unintended Result

Finally, we are not persuaded that voters intended the term “sewer” in

article XIII D, section 6(c) to apply to only part of a combined sewer system.

6 We need not and do not express an opinion on the holdings of City of

Salinas and Department of Finance as they relate to separate stormwater

systems.

23

The existence of combined sewer systems—in San Francisco and elsewhere—

appeared in case law long before Proposition 218. (See, e.g., Edward Brown

& Sons, supra, 36 Cal.2d at p. 274; County of Riverside v. Whitlock (1972) 22

Cal.App.3d 863, 874, fn. 9 [referencing public improvements to “storm and

sanitary sewers”], Ramseier v. Oakley Sanitary Dist. (1961) 197 Cal.App.2d

722, 723 [discussing district’s “storm and sanitary sewer system”].)

As indicated, plaintiffs are in full agreement that charges for

wastewater sewer services are not subject to voter approval under article

XIII D, section 6(c). But they offer no legal or logical basis for supposing that

the voters who approved Proposition 218 intended to force every public entity

operating a combined sewer system in California to segregate charges for

services attributable to wastewater from those attributable to stormwater.

Nor do plaintiffs point to anything suggesting segregation was reasonable or

even possible at that time. Indeed, even assuming currently-developing

technology is making it possible to calculate the charges separately

attributable to wastewater and stormwater, subjecting stormwater charges to

voter approval may result in the degradation of a combined sewer system as

a whole when approval is withheld. We are reluctant to construe the voter

approval exception in article XIII, section 6(c), as excluding a system

providing combined sewer services when indulging in such an interpretation

finds no support in the constitutional language and may potentially effect

such an unintended result. (Richmond, supra, 32 Cal.4th at p. 419

[construing article XIII D’s definition of assessment as applying to only

certain charges because of the inherent impossibility of identifying in

advance all charges which might apply].)

Because the City’s combined sewer system provides “sewer” services

excepted from the voter approval requirement in article XIII D, section 6(c),

24

the trial court did not err in sustaining City’s demurrer on plaintiffs’ first,

second, and third causes of action.

Nor did the court err in denying leave to amend these three claims.

When a demurrer is sustained without leave, “we decide whether there is a

reasonable possibility that the defect can be cured by amendment: if it can be,

the trial court has abused its discretion and we reverse; if not, there has been

no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311,

318.) “The burden of proving such reasonable possibility is squarely on the

plaintiff.” (Ibid.) Here, the only amendment plaintiffs propose to add are

allegations that Senate Bill No. 231 is unconstitutional. Because the defect

in the first, second, and third causes of action is apparent without addressing

the perceived unconstitutionality of that legislation, leave to amend these

claims was properly denied.

C. Proportionality Requirement

Plaintiffs’ fourth cause of action alleges City’s charges—under the prior

rate structure and while the new structure is being “phased in”—violate the

proportionality requirement of Proposition 218. To reiterate, article XIII D,

section 6(b)(3) requires that property-based charges “imposed upon any

parcel or person as an incident of property ownership shall not exceed the

proportional cost of the service attributable to the parcel.” Plaintiffs allege

City violated this requirement because its charges were based only on

wastewater cost factors (e.g., flow and strength), and not also on stormwater

cost factors (e.g., impermeable surface area).

Plaintiffs argue the trial court erred in sustaining City’s demurrer on

this claim because it is sufficiently stated to proceed beyond the pleading

stage. In making such a determination, we accept as true all material facts

properly pleaded, but “not contentions, deductions or conclusions of fact or

25

law.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Further,

we give the complaint a reasonable interpretation, reading it as a whole and

its parts in their context. (Ibid.)

The premise of City’s demurrer on this fourth cause of action is the

same as the preceding three claims: that because stormwater services are

“sewer” services within City’s combined system under article XIII D,

section 6(c), it had no obligation to apportion stormwater costs and

wastewater costs. City argues that this “dooms” the fourth cause of action

because plaintiffs have not challenged City’s overall sewer rates, but instead

only its stormwater charges.

We reject this characterization of plaintiffs’ proportionality claim. The

complaint alleges that City’s sewer rates violate article XIII D, section 6(c)

because the rates under the prior structure and phasing in of the new

structure are based only on wastewater cost factors with no consideration of

costs attributable to stormwater factors. Because plaintiffs allege that the

costs attributable to wastewater factors and to stormwater factors differ in

criteria and calculation, which is consistent with SFPUC’s 2018 and 2023

reports submitted on demurrer, we conclude the complaint adequately alleges

disproportionality of City’s sewer rates.

Nor are we persuaded that City’s argument defeats this proportionality

claim as a matter of law. City assumes that its stormwater charges are

proportional because they were calculated using wastewater factors and, as

explained above, City’s combined system provides “sewer” services under

Proposition 218’s voter approval exception. But City offers no authority

supporting its position that if services fall within the same exception of

article XIII D, section 6(c), they can be used interchangeably to satisfy the

26

proportionality requirement in article XIII D, section 6(b)(3). And the cases

they do cite are inapposite.

In Morgan v. Imperial Irrigation District (2014) 223 Cal.App.4th 892

(Morgan), the plaintiffs alleged the district’s cost of service study for new

water rates did not prove proportionality because the underlying data was

poor and not reviewed or audited. (Id. at p. 915.) Morgan determined article

XIII D, section 6 “does not require perfection” in data, and it found sufficient

evidence of data reliability to support judgment for the district. (Morgan, at

p. 918.) And in Capistrano, the plaintiffs challenged a new water rate

structure that used four distinct “tiers” of pricing. (Capistrano, supra, 235

Cal.App.4th at p. 1499.) Though concluding that tiered rates are generally

consistent with the proportionality requirement of article XIII D, section

6(b)(3), Capistrano determined the city had failed to satisfy this requirement.

Specifically, the city “did not try to calculate the incremental cost of providing

water at the level of use represented by each tier,” and “tiers must still

correspond to the actual cost of providing service at a given level of usage.”

(Capistrano, at pp. 1498–1499; cf. Griffith, supra, 220 Cal.App.4th at p. 601

[rejecting contention that Proposition 218 “compels a parcel-by-parcel

proportionality analysis” instead of “grouping similar users together”].)

Unlike the situations in Morgan, Capistrano, and Griffith, plaintiffs

here do not challenge the reliability of City’s data or its use of customer tiers

or grouping. Instead, plaintiffs allege that City’s reliance on wastewater

factors alone to support sewer rates that recover costs for stormwater services

violates the proportionality requirement.

Coziahr v. Otay Water Dist. (2024) 103 Cal.App.5th 785 (Coziahr) is

instructive. In that case, the plaintiff alleged the district’s water rates were

not proportional because they did not correspond to the actual cost of water

27

service to customer parcels. (Id. at p. 792.) The trial court ruled in the

plaintiff’s favor after determining the district’s rate structure relied on “ ‘non-

cost’ ” factors to promote water conservation that resulted in differential

treatment of customers. (Id. at p. 807.) The appellate court affirmed,

concluding the rate structure rested on “nonspecific data,” assumptions, and

industry standards, rather than “the actual cost of providing water service to

the parcel.” (Id. at pp. 808, 812.) In a passage that speaks to the matter

here, Coziahr explained: “[T]he California Supreme Court has made clear

the proportionality requirement under section 6(b)(3) demands something

more than the reasonable basis standard under article XIII A. To satisfy

Section 6(b)(3), then, it is not enough for a water agency to show it uses a

reasonable allocation method. Rather, an agency must show that the method

produces rates that are proportional to costs.” (Coziahr, at p. 801.)

The question presented by plaintiffs’ fourth cause of action is whether

City’s sole reliance on wastewater factors to support sewer rates that recover

costs for both wastewater and stormwater services satisfies this threshold.

This presents a factual question that is inappropriate for resolution on

demurrer. (See KCSFV I, LLC v. Florin County Water Dist. (2021) 64

Cal.App.5th 1015, 1030 [“agency must generally provide evidence identifying

the data used, analyzing the cost of service, and demonstrating the

proportionality” of a challenged rate increase].) At the very least, SFPUC’s

2018 and 2023 reports suggest it had historically recovered sewer charges

based on wastewater cost factors because of difficult challenges in identifying

and/or isolating stormwater costs, not because of any conclusive authority

that such practices satisfied Proposition 218’s proportionality requirement.

Now having the ability to do so, SFPUC has proposed that separate

stormwater charges will “enhance the equity in its rate structure.” Indeed,

28

SFPUC anticipated that separate stormwater charges would have

“significant bill impacts” for certain customers, and thus decided that

implementation of the new rate structure “should take place over a few years

instead of all at once.”

In sum, we conclude the trial court erred in sustaining City’s demurrer

to plaintiffs’ fourth cause of action. Having so concluded, we need not and do

not address the parties’ arguments regarding leave to amend the fourth cause

of action. And because the demurrer and the trial court’s ruling on plaintiffs’

fifth cause of action for declaratory relief were based entirely on the perceived

failures of the preceding four causes of action, we conclude the court also

erred in sustaining the demurrer on this cause of action to the extent it seeks

declaratory relief related to plaintiffs’ proportionality claim.

DISPOSITION

The judgment is reversed as to plaintiff’s fourth and fifth causes of

action. In all other respects, it is affirmed. The parties shall bear their own

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez, J.

29

Trial Court: City & County San Francisco Superior Court

Trial Judge: Hon. Rochelle C. East

Counsel: Law Office of Amy Sparrow, Amy C. Sparrow; COHELAN

KHOURY & SINGER, and Michael D. Singer for

Plaintiffs and Appellants

David Chiu, City Attorney, Alexander J. Holtzman and

Sara J. Eisenberg, Deputy City Attorneys for Defendant

and Respondent.

Gluck v. City and County of San Francisco (A170087)

30

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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