Central California Power Agency No. 1 v. County of Sonoma

19 Cal. Rptr. 3d 713, 122 Cal. App. 4th 1614, 2004 Daily Journal DAR 12630, 2004 Cal. Daily Op. Serv. 9238, 2004 Cal. App. LEXIS 1723

• Court: California Court of Appeal
• Decided: October 14, 2004
• Docket: A100714
• Status: Published

Opinions

Opinion

CORRIGAN, J.

The County of Sonoma (Sonoma) appeals from the judgment following a grant of summary adjudication in favor of the Central California Power Agency No. 1 (CCPA) on its complaint for refund of taxes. Sonoma contends both the State Board of Equalization (SBE) and the trial court employed an improper valuation method in applying section 11 of article XIII of the California Constitution (Section 11). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At issue here are the taxation rules that apply when a local governmental agency owns property outside its jurisdictional boundaries (extraterritorial property). In this case the City of Santa Clara, the Modesto Irrigation District and the Sacramento Municipal Utility District joined to form CCPA as a joint powers agency. CCPA built the Coldwater Creek Geothermal Power Plant in Sonoma County and the plant began operations in 1988.¹

Four years later CCPA acquired leasehold interests in the Coldwater Creek Geothermal Steam Field, which provided fuel for the plant.² The leases were originally granted between 1967 and 1980 and were transferred several times among private companies before their acquisition by CCPA. These interests in geothermal mineral rights, along with related personalty and improvements,³ are the property the taxation of which is contested. The County of Sonoma imposed property taxes that CCPA paid. CCPA then sought SBE review for the years 1993-1994 through 1997-1998, basing its claim for adjustment on Section 11, subdivision (g) and Revenue and Taxation Code section 1840.

Following bifurcated hearings on the 1993-1994 application, the SBE issued two separate decisions. In the first (SBE I), the Board determined that CCPA was not tax exempt but was a public agency entitled to be assessed under the provisions of Section 11. The SBE directed Sonoma to make an assessment on that basis. In SBE II, the Board decided that as a matter of law, Section 11 requires the Property to be valued at the lowest of (1) its current market value, (2) its value under article XIIIA of the California Constitution (Proposition 13) [the Proposition 13 value], or (3) its restricted value as determined by the application of “the Phillips factor” to the 1967 assessed value, according to the formula prescribed by Section 11 [the Section 11 value].⁴

Relying on a methodology that included additional values for the subsequently discovered mineral reserves at issue, Sonoma had set the Section 11 value of the property at $215 million, the market value at $54 million and the Proposition 13 value at $48 million. Thus, under Sonoma’s approach the Proposition 13 value was the lowest.

In SBE II the Board concluded that, as a matter of law, Sonoma improperly included additional value for the mineral rights in its Section 11 calculation. The rights were improperly added because a Section 11 valuation already includes all interests in land. The proper Section 11 calculation resulted in a $4.5 million figure, becoming the lowest value. The Board also applied its decision to CCPA’s pending applications for tax years 1994—1995 through 1997-1998. Based on the SBE’s decisions, CCPA filed a claim for refund of taxes. After the County failed to act on the claim within six months, CCPA filed a complaint in San Francisco Superior Court, naming Sonoma and the SBE as defendants,⁵ and moved for summary adjudication on one of its three alternative claims for relief.⁶ The court granted summary adjudication in favor of CCPA. In doing so the court noted: “Section 11 appears to balance the interests of local government agencies like CCPA with those of taxing agencies like Sonoma by valuing land at its 1967 appraised value, adjusted as necessary by the factor provided by Revenue and Taxation] Code 401, and multiplied by the SBE-determined ‘Phillips factor’ for the year in question.” The court concluded that the SBE had properly determined the Section 11 value and applied that determination to the contested tax years. The court also concluded that although Sonoma had not had an opportunity to submit evidence in support of its valuations, it was not deprived of due process because valuation was decided as a matter of law, and Sonoma’s method was legally incorrect. Finally, the court concluded its decision did not determine the obligations of, or grant any exemption from taxation to, any other party.

In September 1999, based on a joint motion and stipulation for entry of judgment among all the parties, the court entered its separate judgment, agreeing with the SBE regarding the appropriate methodology for calculating the Property’s value under Section 11. CCPA waived certain claims and rights, and agreed to dismiss all other claims if the ruling on its primary claim was upheld.

Sonoma filed a timely notice of appeal in Central California Power Agency No. 1 v. County of Sonoma (Nov. 5, 1999, A089147) (nonpub. opn.), and CCPA filed a protective cross-appeal. Having raised the issue of our jurisdiction sua sponte, and having received supplemental briefing on that issue from both parties, we dismissed the purported appeal and cross-appeal for lack of a final judgment.

Following issuance of the remittitur, and pursuant to the parties’ subsequent joint motion and stipulation for entry of judgment in the trial court, judgment was entered against CCPA on the remaining claims in its complaint. This timely appeal followed.⁷

DISCUSSION

Sonoma contends the SEE and the trial court misinterpreted Section 11, and failed to properly value the mineral rights at issue here. Sonoma also argues the SEE procedure deprived Sonoma of a proper evidentiary hearing, and resulted in an improper exemption from taxation for private holders of royalty rights.

I. Section 11 and Its History

“Before 1914, land owned by a local government and located outside of its jurisdictional boundaries was constitutionally exempt from taxation by the local government within whose boundaries the land was located. (Former art. XIII, § 1.)” (San Francisco, supra, 10 Cal.4th at p. 559.) “The adverse effect on the tax bases of [counties in which urban governments had acquired lands for their water rights] led in 1914 to the amendment of article XIII, section 1 ... to permit the taxation of land owned by local governments and located outside their jurisdictional boundaries.” (Ibid.)

“In 1968, the California Constitution was amended by the voters to limit the maximum valuation by the taxing counties of taxable land owned by a local government and located outside of its boundaries. (Former article XIII, §§ 1.60 to 1.69.)[⁸] In 1974, these valuation limitations were moved to article XIII, section 11. Section 11 limits the taxation of [extraterritorial land] by restricting the maximum valuation of that land. (Art. XIII, § 11, subd. (b).)” (San Francisco, supra, 10 Cal.4th at p. 560.) “[Former section] 1.60 imposed valuation limitations on extraterritorial lands to prevent the taxing county from manipulating fair market value while insuring that the valuation of extraterritorial lands would continue to grow in line with the general statewide appreciation of land values in California, [f] Section 11, adopted by the voters in 1974, continued these principles unchanged.”⁹ (San Fransico, supra, at p. 569.)

Section 11 provides, in pertinent part: “(a) Lands owned by a local government that are outside its boundaries, including rights to use or divert water from surface or underground sources and any other interests in lands, are taxable if . . . (2) they are located outside Inyo or Mono County and were taxable when acquired by the local government. . . . [][] (b) . . . Taxable land belonging to a local government and located outside of Inyo and Mono counties shall be assessed at the place where located and in an amount that does not exceed the lower of (1) its fair market value times the prevailing percentage of fair market value at which other lands are assessed and (2) a figure derived [by multiplying the 1967 assessed value by the ratio of the statewide per capita assessed value of land as of the last lien date prior to the current lien date to $856].” (Italics added.)

The ratio prescribed by the statute is known as “the Phillips factor,” that reflects the statewide increase in land values since 1967. (San Francisco, supra, 10 Cal.4th at p. 561.) Justice Mosk noted in his concurrence: “As the language of the ballot argument suggests, section 11 represents an effort to reconcile the competing needs of taxed and taxing local jurisdictions.” (Id. at p. 575.) “Section 11 represents a constitutional compromise based on the then-existent property tax scheme; it was, in effect, a form of tax relief for local government entities that owned extraterritorial property. [Citation.]” (Id. at p. 576, italics added.)

The superior court concluded the SEE had correctly determined the Section 11 value of the Property by multiplying the 1967 assessment by the Phillips factor, and adding the value of improvements.¹⁰ Sonoma protests that this interpretation “effectively exempts the entirety of [CCPA’s] interest from taxation” because only surface grazing rights, but not the mineral rights were assessed in 1967. The argument fails. The use to which the Property may have been put in 1967 does not affect the Section 11 valuation, because that section specifically applies to all interests in property.

The legislative history of Section 11 and its predecessors supports the conclusions of the SEE and the superior court.¹¹ Proponents of Proposition 2, which implemented the Phillips factor calculation, argued: “This amendment continues the taxation of these publicly-owned lands, but sets up a state-wide formula so their assessed valuation will increase at a similar rate to the general increase in property values throughout the State—an estimated 5 per cent each year.” (Ballot Pamp., Proposed Amends, to Const, with arguments to the voters, Gen. Elec. (Nov. 5, 1968) p. 7 (hereafter 1968 Ballot Pamphlet).) Proponents also noted: “Disagreement on the amount of the assessed value of such lands and water rights, against which taxes ap. 7re levied, has resulted in prolonged and costly court battles between public agencies. This situation should not continue, [f] The Legislature, representing all areas, has developed a reasonable assessment formula which they feel will be fair to everyone.” (Ibid.) Opponents of Proposition 2, on the other hand, warned: “It provides for an assessment formula which greatly benefits the large governmental agencies while it discriminates against the local taxpayer, [f] Lands owned by public agencies and held in another county, would be assessed at a lower value than similar properties in that other county.” (Ibid.) The tax rate “will be locked into the Constitution and cannot be more than the assessed value for 196 [7] lien date, factored upwards by a very conservative formula which strongly favors big city utilities.” (Id. at p. 8.)

The Legislative Counsel’s analysis states that Proposition 2 “would establish, with respect to property assessed under the formula, a conclusive presumption that the land is assessable and taxable at the same situs and that no other interests in such lands shall thereafter be assessed to the governmental owner.” (1968 Ballot Pamp., supra, at p. 6, italics added.) As these references reflect, the voters had before them the essence of Sonoma’s position here. Passage of the initiative reflects a rejection of the County’s argument. While we may or may not disagree with the wisdom of the People’s decision, we are not empowered to disregard it. Sonoma contends Sections 1.60 through 1.69 are no longer applicable because they were replaced by Section 11. However, our Supreme Court has noted that “Section 11 . . . continued the[] principles [enunciated by those former sections] unchanged.” (San Francisco, supra, 10 Cal.4th at p. 569.) The conclusions of the SEE and the superior court are also consistent with the general principle that “[t]he exemption for public property is liberally construed because taxing such property is the exception rather than the rule; public property is taxed only if diere is express authority to do so. [Citations.]” (Sacramento Mun. Utility Dist. v. County of Sonoma (1991) 235 Cal.App.3d 726, 732 [1 Cal.Rptr.2d 99].)

Sonoma argues that the purpose and intent of Section 11 is to protect host counties from the loss of tax revenues caused by the acquisition of property by other governmental entities, such as CCPA. The older cases cited by Sonoma interpreted the purpose of the 1914 amendment, however, which had replaced a policy of complete exemption of such property. (See City & Co. of S.F. v. County of San Mateo (1950) 36 Cal.2d 196, 200 [222 P.2d 860] [fill that raised level of land for use as an airport constituted improvement exempt from tax under 1914 amendment]; San Francisco v. County of Alameda (1936) 5 Cal.2d 243, 247 [54 P.2d 462] [water rights included in lands taxable under 1914 amendment].) Those cases were decided before the 1968 amendment effected by the passage of Proposition 2, which altered extraterritorial taxation by adding a specific formula to limit the value of such land, tied to its 1967 value, while balancing the interests of the governmental landowner and the taxing county. As Ehrman and Flavin point out, the result of the 1968 amendment limits the amount of increases permitted in county assessments: “Land value assessment increases are permitted only in the ratio that the per capita value of land, statewide, has increased over the 1967 value.” (1 Ehrman & Flavin, Taxing Cal. Property (3d ed. 1997) § 6:11, pp. 19-20, fn. omitted.)

II. Proposition 13 and Section 11

In San Francisco, supra, 10 Cal.4th at page 568, the court considered the separate question of whether an irreconcilable conflict between the valuation limitations imposed by Proposition 13 and Section 11 precluded their concurrent operation. In reviewing the history of Section 11, the court noted: “Section 1.60 imposed valuation limitations on extraterritorial lands to prevent the taxing county from manipulating fair market value while insuring that the valuation of extraterritorial lands would continue to grow in line with the general statewide appreciation of land values in California, [f] Section 11, adopted by the voters in 1974, continued these principles unchanged.” (Id. at p. 569.) The court further reasoned: “Section 11 continued the purpose of ensuring comparable taxation of extraterritorial lands and privately owned real property. Significantly, a local government’s extraterritorial lands could never be valued higher under [S]ection 11 than those same lands would be valued if owned by a private landowner.” (Ibid.) The court concluded it was consistent with the purposes of both Proposition 13 and Section 11 to apply Proposition 13 to extraterritorial lands owned by local governments, and that a refusal to do so “would be contrary to [SJection 11 ’s purpose of ensuring that a local government’s extraterritorial lands not be valued greater than the same lands would be valued if owned by a private landowner.” (Id. at p. 570.) The San Francisco case did not address the issue before us here, namely, the effect of subsequently established mineral reserves on a Section 11 valuation. The decision did, however, clearly contemplate that the Section 11 value could be lower than the Proposition 13 value.

(3) The other cases on which Sonoma relies involve the validity and application of administrative rules governing the valuation of mineral interests for purposes of Proposition 13, and are, thus, distinguishable. (See Lynch v. State Bd. of Equalization (1985) 164 Cal.App.3d 94 [210 Cal.Rptr. 335] (Lynch); Tenneco West, Inc. v. County of Kern (1987) 194 Cal.App.3d 596 [239 Cal.Rptr. 612]; Phillips Petroleum Co. v. County of Lake (1993) 15 Cal.App.4th 180 [18 Cal.Rptr.2d 765].) None of these cases involved a local governmental entity as the taxpayer; therefore, none triggered the provisions of Section 11. In contending these cases are nevertheless analogous, and that mineral rights should be taxed when they are discovered or attain value under Section 11 just as they are under Proposition 13, Sonoma fails to acknowledge important differences between the underlying purposes and approaches of the two separate taxation systems. Under Proposition 13, property is valued when it is acquired, and the SBE has established rules to determine when an interest is deemed “acquired” for purposes of assessment and taxation.¹² (See Lynch, supra, 164 Cal.App.3d at pp. 113-115.) But Section 11 takes a different approach to property owned by local governmental agencies, valuing all interests in land as of 1967 and adjusting their assessed value for each subsequent year by the Phillips factor. The legislation implementing Proposition 13 provides: “Notwithstanding the provisions of this division, property subject to valuation pursuant to Section 11 . . . shall be valued for property tax purposes in accordance with such section.” (Rev. & Tax. Code, § 52, subd. (d), italics added.)¹³ The implementing legislation itself distinguishes Proposition 13 from Section 11. This express distinction eliminates the Proposition 13 analysis urged by the dissent. The application of administrative rules promulgated pursuant to Proposition 13 would be inappropriate in determining the proper valuation because such an application would result in Proposition 13 effectively repealing Section 11. This result is clearly inimical to Proposition 13’s own implementing legislation.

The dissent reviews the Phillips and Lynch discussions of geothermal interests in some detail. It fails to note a critical distinction, however. Neither of those cases involved a governmental entity and, thus, Section 11 was in no way implicated in them. As the dissent points out, the Supreme Court acknowledged at least as early as 1909 that oil and gas rights may justifiably be treated differently from other leasehold interests. Thus, that principle was firmly established by 1974 when the electorate enacted Section 11. The particular taxation system then enacted could have made an exception for subsequently emerging value based on oil, gas or geothermal discovery or production, but it did not. Instead, the clear language of Section 11 refers to the right to use or divert water or “any other interests in lands.”¹⁴

Sonoma, dissatisfied with the system that was adopted to balance the competing needs of government tax recipients and taxpayers, seeks to have us rewrite the law to invalidate the compromise enacted by the People. The People are free to do so. In the absence of authority or necessity not present here, we will not.

The essence of the dissent’s position is that the electorate could have adopted a system that is both different and “better.” The first premise is certainly true and the second may be. But that choice belongs to, and remains with, the electorate. As judges we are not empowered to substitute our views of what the law should be for the People’s pronouncement of what the law is. When subordinate laws violate the Constitution, or when the People’s disparate legal articulations require reconciliation, we may intervene to harmonize various of the People’s enactments. Neither situation is present here.

III. Other Issues

Sonoma also contends the SBE erred in applying its decision to subsequent tax years without holding separate hearings for each year. As the superior court observed, Sonoma has failed to point to any injury resulting from the Board’s approach, or to any factual or legal distinction among the years at issue.¹⁵ Sonoma’s argument that it was deprived of a proper evidentiary hearing is similarly unpersuasive. The questions at issue were matters of law involving the proper application of Section 11 to Sonoma’s own valuation data. Because CCPA met its burden to show that valuation could be established as a matter of law, the full evidentiary hearing Sonoma sought was unnecessary. Nor did the litigation establish the tax liability of any public or private entity not a party to the proceedings.¹⁶

In its opening brief, Sonoma also asserts in passing that the first installment of CCPA’s 1993-1994 taxes was paid more than four years before its claim for refund was filed, and that payment is therefore not subject to refund under Revenue and Taxation Code sections 5097, subdivision (a)(2) and 5142. CCPA responds that the payment in question was for unsecured taxes on personal property for which no refund was sought under the claim here at issue.¹⁷ CCPA’s position was accepted by the trial court, and Sonoma has not demonstrated error in this regard.¹⁸

DISPOSITION

The judgment is affirmed.

McGuiness, P. J., concurred.

1 Taxation of the plant itself is not at issue here.

2 These interests were purchased in 1992 at a bankruptcy sale.

3 The value of the improvements is not contested.

4 See City and County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 559, 572 [41 Cal.Rptr.2d 888, 896 P.2d 181] (San Francisco) (wherein the court held that local governmental owners of extraterritorial lands are entitled to the protections of Proposition 13 when those protections support a lower value than Section 11.)

5 Together with its answer, Sonoma filed a cross-petition for peremptory writ of administrative mandamus, contending the SBE’s decisions were invalid and unenforceable.

6 CCPA’s cause of action for refund of taxes was based on three alleged grounds: (1) that the property was entirely exempt from property taxation by Sonoma County; (2) that CCPA was entitled to be assessed at the lowest of three specified values; and (3) that CCPA’s purchase price for the property represented its base year value as of the date of purchase. The superior court granted summary adjudication for CCPA on the second theory.

7 No cross-appeal has been filed, nor is the SBE a participant in the current appeal.

8 These lands had been “difficult to value because of their uniqueness (e.g., water rights and watershed land in the Sierra) and the lack of transactions for comparable land in the open market. [Citation].” (San Francisco, supra, 10 Cal.4th at p. 568.) “Moreover, populous urban local governments owning property outside their boundaries in some cases apparently came to believe that the taxing counties were overvaluing that land in order to exploit a distant deep-pocket taxpayer which had no vote in the county and which, because of the uniqueness of its land, was unlikely to sell its land and relocate. [Citation.]” (Ibid.) “The purpose of former article XIII, section 1.60 et seq. was to ensure that land owned by local governments and located outside their boundaries would be taxed comparably to privately owned land, both from the perspective of the local government that owned the land and from the perspective of the local government in whose taxing jurisdiction the land was located.” (Ibid.)

9 In 1974, Proposition 8 revised article Xm to “clarif[y] wording, eliminate]] excess verbiage, and establish]] a logical order for the article’s provisions.” (Ballot. Pamp., Gen. Elec. (Nov. 5, 1974), analysis by Legis. Analyst of Prop. 8, p. 30.) The Legislative Analyst further stated: “The proposed amendment will have a minor effect, if any, on state and local costs and revenues.” (Ibid.) The argument in favor of Proposition 8 stated: “The purpose of this amendment is not to make a change in our present tax structure, but to make the Constitution more readable and workable.” (Id. at p. 31.) No argument against the proposition was submitted.

10 The SBE noted CCPA “used the 1967-68 cash value of $63,409 as set forth on the assessor’s roll, multiplied that value by .25 (the assessment ratio then in effect) to obtain the 1967 assessed value, and multiplied that value by the Phillips factor to obtain a Section 11 restricted value of land in the amount of $404,025. The value of the improvements was then added to the value of land for a total value of $4,499,370.” (Fns. omitted.)

11 See Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 772 [35 Cal.Rptr.2d 814, 884 P.2d 645], which confirms that courts may consult ballot arguments of constitutional amendments for indicia of voter intent.

12 Under Proposition 13, “[a]ll real property is valued when it is purchased, newly constructed, or a change of ownership occurs.” (Lynch, supra, 164 Cal.App.3d at p. 113.)

13 We note that unlike Proposition 13, Section 11 makes no provision for adjusting assessed values when property “is purchased, newly constructed, or a change of ownership occurs.” (Cf. Lynch, supra, 164 Cal.App.3d at p. 113.)

14 We note that when the predecessor to Section 11 was passed in 1968, the similar language “any interest in lands” was used.

15 Sonoma’s reliance on International Medication Systems, Inc. v. Assessment Appeals Bd. (1997) 57 Cal.App.4th 761, 767 [67 Cal.Rptr.2d 394], is misplaced. That case involved a failure to give proper notice under Revenue and Taxation Code section 1605.6 to a taxpayer whose application for reduction of tax assessment had been denied.

16 In fact, SBE may have marginally overvalued CCPA’s interests by including all property interests associated with the Property. CCPA has agreed not to dispute that matter, however, and Sonoma is the beneficiary of any overvaluation in that regard. The allocation of taxable interests to other owners who may be separately assessed by Sonoma is not at issue here.

17 The record indicates the payment in question, for approximately $4000, was made on August 25, 1993.

18 Sonoma does not mention the issue again in its reply brief. Further, the record indicates the first installment on the secured assessments of the Property, totaling approximately $275,000, was paid in December 1993, less than four years before the claim for refund was filed. We do not address Sonoma’s argument, raised for the first time in its reply brief, that the SBE erred in including in its calculation of the Section 11 value of the Property a factor of .25 under former Revenue and Taxation Code section 401.