Steven L. Gomes v. Mendocino City Community Service District

Steven L. Gomes, a homeowner in Mendocino County, appeals an adverse

judgment rejecting his petition to invalidate an ordinance of the Mendocino City

Community Services District (the district) limiting the quantity of groundwater he may

extract from his property. He contends that the statute authorizing the district to establish

groundwater-management programs does not give it authority to impose extraction limits

but that, if it does, the district failed to adopt the present program in accordance with the

procedures specified in the statute. We conclude that the statute does authorize the

imposition of extraction limitations but that the district did not adopt its program as the

statute requires. The present ordinance therefore must be invalidated, without prejudice to

re-adoption of such a program in accordance with the statutorily mandated procedures.

Factual and Procedural History

The town of Mendocino lies on a peninsula, bounded by cliffs. It lacks a source

for a community-wide water system, so its residents depend on groundwater drawn from

wells. In 1972, the district was created under the Community Services District Law

(Gov. Code, § 61000 et seq.) for the purpose of regulating local wastewater—not

groundwater. In 1985, the California Department of Water Resources published a study

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of Mendocino’s groundwater basin. It concluded that the town’s water demands exceed

supply during dry years and some normal years, and that new wells should not be

permitted without pump tests.

In 1986, the Legislature passed Assembly Bill No. 792. That act would have

authorized any local agency providing water service in Mendocino, or any of 11 specified

groundwater basins around the state that were “subject to critical conditions of

overdraft,” to “establish . . . programs for the management of groundwater resources . . .

in accordance with prescribed procedures.” Governor Deukmejian vetoed Assembly Bill

No. 792 as “overbroad,” deeming it “more appropriate” for local agencies in such basins

to petition the Legislature for such authority “on a case-by-case basis.”

Accordingly, in 1987, the Legislature added to Division 6 of the Water Code a

new part 2.7 applying “only to the area within the existing boundaries of the Mendocino

City Community District.” (Stats. 1987, ch. 472, § 1; Wat. Code, § 10700 et seq. (the

Act).)1 The Act provides that the district “may, by ordinance, . . . establish programs for

the management of groundwater resources.” (§ 10702.)2 To do so, the district must follow a

prescribed multi-step process. The district must first hold a noticed public hearing “on the

proposed groundwater management program” at which the board may alter the program

or require more study, and after which it may “adopt a resolution of intention to adopt and

implement the program.” (§ 10703.)

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If it adopts such a resolution, it must publish the



1 All statutory references are to the Water Code.

2 Section 10702 reads: “Any local agency which is authorized by law to provide water

services may, by ordinance, or by resolution if the local agency is not authorized to act by

ordinance, establish programs for the management of groundwater resources.”

3 Section 10703 reads: “Prior to the adoption of a groundwater management program, the

governing board of the local agency shall hold a public hearing, after publication of

notice pursuant to Section 6066 of the Government Code, on the proposed groundwater

management program. At the hearing, the board may alter the program or require further

study on the program and continue the hearing. At the conclusion of the hearing, the

board may adopt a resolution of intention to adopt and implement the program.”

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proposed program in a newspaper (§ 10704)4

and hold a second hearing to “consider

protests to the implementation of the program,” at which “any eligible registered voter of

the [district] may file [or withdraw] a written protest” (§ 10705).

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If more than 50 percent

of voters file protests, “the groundwater management program shall be abandoned,” and

the board may not consider a new program for one year. If a majority does not protest,

the board “may adopt an ordinance or resolution to implement the program.” (§ 10706.)

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The Act also authorizes the district to “fix and collect rates for the extraction of

groundwater” (§ 10708) and to “levy a water replenishment assessment” (§ 10709). In

order to do either, the district must “hold an election on the proposition of whether or not

[it] shall be authorized to levy a water replenishment assessment or to fix and collect

[extraction] rates.” (§ 10710.)

In a letter urging the governor to sign Assembly Bill No. 786, its author explained

its origins and purpose: “The village of Mendocino has no central water system and

operates entirely off of private wells. In recent years, some developments have dug wells

deeper into the water table than existing wells, causing many residents to be without



4 Section 10704 reads: “After the conclusion of the hearing, and if the governing board

adopts a resolution of intention, copies of the groundwater management program shall be

published in a newspaper of general circulation. Upon written request, any interested

person shall be provided with a copy of the program.”

5 Section 10705 reads: “After the adoption of a resolution of intention, the governing

board shall hold a second hearing and consider protests to the implementation of the

program. Any interested person may appear to be heard concerning any matter set forth

in the resolution or matters material thereto. Any time prior to the conclusion of the

hearing, any eligible registered voter of the local agency may file a written protest or

withdraw a protest previously filed.”

6 Section 10706 reads: “A majority protest shall be determined to exist if the governing

board finds that the protests filed and not withdrawn prior to the conclusion of the second

hearing represent more than 50 percent of the eligible registered voters residing within

the boundaries of the local agency. If the governing board finds that a majority protest

exists, the groundwater management program shall be abandoned and no new program

shall be considered by the board for a period of one year following the date of the second

hearing. If a majority protest has not been filed, the board, within 35 days after the

conclusion of the second hearing, may adopt an ordinance or resolution to implement the

program.”

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water for as much as two to three months a year, even in wet years . . . . [¶] AB 786

would permit [the district] to adopt a water management program through public hearings

to regulate new development relative to water availability and the impact on neighbors.”

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(Italics added.)

In 1990, in compliance with the procedures specified in sections 10703 through

10706, the district adopted Ordinance No. 90-1, the “groundwater extraction permit

ordinance,” which states that it is “the first component of a comprehensive groundwater

management program.” The ordinance requires a property owner to obtain a groundwater

extraction permit for the extraction of groundwater “for ‘new development’ or ‘change in

use’ ”or “from a well constructed or modified following the adoption of this ordinance

within the boundaries of [the district].” In most instances, and subject to detailed

specifications, the applicant must arrange a hydrological study to determine if the well

will adversely affect other wells, and must install a water meter and accept an “allotment”

defining the quantity of water that may be extracted. Extraction exceeding that amount is

a misdemeanor subject to daily fines.

Since adopting Ordinance No. 90-1, the district has enacted further groundwatermanagement

measures without following the procedure specified in sections 10703

through 10706. In January 2007, for example, the district adopted Ordinance No. 07-01,

requiring a property owner to obtain a permit and allotment after a property is sold, even

if no new construction or change in use results.

Later in 2007, the district adopted the two measures primarily at issue on appeal:

resolution No. 200, which adopted a water shortage contingency plan, and Ordinance

No. 07-04 which implements the plan.8 The plan was created “to establish criteria for



7 The letter concluded by stating incorrectly that “such a management plan would be

subject to a majority vote of the residents of the district,” whereas, as noted, the Act

subjects a proposed groundwater management program to a majority-protest procedure

(§ 10706).

8 Gomes also seeks to challenge Ordinance No. 2018-002, which the district adopted after

entry of the judgment. Consideration of this ordinance is beyond the scope of this appeal.

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when to declare a water shortage through four (4) stages of alert and action, and to identify

appropriate conservation measures and response actions for each water shortage stage to

protect the water resources of the district.” The plan describes four levels of water

shortage criteria and the resulting measures that are to be taken at each level of water

shortage. If the district declares a stage 4 “water shortage emergency,” “all property

owners within the district with developed parcels shall be required to obtain a

groundwater extraction permit with an allotment.” 9 As Gomes notes, a stage 4 declaration

acts as a “one-way ratchet”: It triggers the requirement that all property owners obtain

permits and allotments, and that requirement remains in effect in perpetuity, even after the

drought ends.

The district’s brief advises that the water shortage contingency plan “was the

subject of a number of public hearings where testimony was received by the board of

directors of the [district] that promoted the idea that in a truly historic drought (Stage 4)

every developed property in the district should share the burden associated with reduced

availability of groundwater.” Nonetheless, the district acknowledges that “[i]t is

undisputed the district did not follow the procedure set forth in Water Code §§ 10703-

10706 when adopting Ordinances 07-1 and 07-04, and Resolution No. 200.”

From February 2012 through December 2013, the district successively declared

stage 1 through stage 3 water shortages. On February 24, 2014, the district’s board of

directors adopted resolution No. 2014-231 declaring that “under the current water

shortage conditions,” a stage 4 water shortage emergency condition “exists within the

area served by the [district]” and directing implementation of “demand management as



We therefore deny his request that we take judicial notice of the subsequent ordinance,

and of other documents, on the ground of irrelevance.

9 Further, during the stage 4 water shortage emergency, “all allotments shall be reduced

by 40 percent. The notification [to the property owner] shall also include a listing of

potential water conservation and water use reduction measures, and an advisory that [the

district] staff is available upon the written request of the property owner to conduct an

audit of water usage and to make specific recommendations and additional conservation

measures.”

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defined in the [district] water shortage contingency plan under stage 4.” In April 2014,

the district sent a letter to Gomes requiring him, for the first time, to obtain a permit. He

objected and demanded a hearing, and the board held one in November 2014, at which it

concluded that he was obliged to obtain a permit. It promptly sent him a notice of

violation demanding that he get a permit or face enforcement action and a $100 per day

charge.

The district lowered the drought level to stage 1 in December 2014 and to “No

Water Shortage Condition” in February 2015. But since the stage 4 declaration had

triggered the permit and allotment requirements, the district sent Gomes a second notice of

violation in January 2015. He again requested a hearing, and the district again affirmed

its position. The district sent a third notice of violation subjecting Gomes to daily fines of

$350. The district then began to impose such fines, which eventually mounted to a total

of $35,300.

Gomes filed this action in June 2015, seeking a writ of mandate, declaratory relief,

and damages. He alleged that the district “seeks to force Gomes to put a meter on a

groundwater well, which is nearly 100 years old and has been in Gomes’s family that

entire time, and submit to the district’s regulatory authority to limit the amount of water

Gomes can withdraw from his well regardless of either of the supply of water available or

Gomes’s need for the water.” In addition to alleging that the district had not complied

with its own contingency plan and had violated state and federal constitutional

requirements, Gomes’s first amended complaint alleges that the district “did not follow

the notice, hearing and publication requirements set forth in . . . §§ 10703 and 10704 in

adopting the contingency plan or resolution 2014-231.”

After requesting briefing on “whether the Legislature intended the enhanced

enactment procedures to apply to the enactment of all ordinances relating to a

groundwater management plan or only to the enactment of the initial ordinance,” the court

held that the Act required the district to use the “enhanced enactment procedures” only

once, in adopting its first groundwater management program. Following a bench trial in

which the court rejected Gomes’s causes of action for declaratory relief and damages, the

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court issued a statement of decision holding that the adoptions of the water shortage

contingency plan and of Ordinance No. 07-04 were “authorized by [section] 10700

et seq. The district provided appropriate notice and opportunities for citizen participation

prior to adopting the plan and Ordinance No. 07-4, and its decision was based upon

substantial, reliable scientific evidence. The district’s decision to require all landowners

within the district to obtain a groundwater extraction permit and abide by water

allotments was rationally related to a legitimate governmental purpose.”10 The court

entered a judgment holding that the adoption of Ordinance Nos. 07-01 and 07-04 was

valid, and Gomes timely appealed.

Discussion

1. The district may limit groundwater extraction within its groundwater management

program

Gomes first argues that the Act cannot be read to give the district authority to

impose limits on property owners’ right to extract groundwater from their own land.

Although the district correctly argues that Gomes failed to make this argument in the trial

court, both parties have briefed the issue, it raises a pure question of law, and we deem it

advisable to address the issue on the merits.11



10 The court also held that the permit and allotment requirements do not violate a

constitutional provision requiring that water be put to beneficial use (Cal. Const., art. X,

§ 2) and did not effect a regulatory taking. On appeal, Gomes does not challenge these

rulings.

11 The district argues that the judgment should be affirmed on the ground that Gomes did

not exhaust his administrative remedies by applying for an expanded allotment for his

land. While the trial court held that Gomes failed to exhaust administrative remedies with

respect to his claim that the district “violated his due process right to a hearing regarding

[his] request for a water allotment that would support agricultural use,” it did not hold the

same with respect to his attack on the validity of the district’s regulations. In all events,

the district waived the defense of exhaustion in its answer, in which it “admits that

Gomes has exhausted all available administrative remedies.” “The defense of failure to

exhaust administrative remedies may be waived.” (Mission Housing Development Co. v.

City and County of San Francisco (1997) 59 Cal.App.4th 55, 63; accord, Cummings v.

Stanley (2009) 177 Cal.App.4th 493, 505–506; O.W.L. Foundation v. City of Rohnert Park

(2008) 168 Cal.App.4th 568, 584; but see Hood v. Hacienda La Puente Unified School

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Several statutes conferring groundwater management authority on different local

agencies expressly confer the power to impose extraction limits (e.g., Wat. Code Appen.,

§§ 121-701, 128-708, 129-708), and some confer that power subject to explicit

preconditions for its exercise (e.g., § 10753.9, subd. (c)). The Act before us does not

specifically authorize the district to impose extraction limits, leading Gomes to argue that

we should infer from the absence of such a provision that the district was not granted

such authority. The district, on the other hand, argues that the express authorization of

such limits in these other statutes confirms the Legislature’s view that such limits are

inherently among the permissible components of a groundwater management program.

We agree that the authority to manage groundwater necessarily includes the ability

to limit the quantity of water that individual users may extract. The authority to issue

extraction permits and to include conditions in those permits—which unquestionably are

encompassed within the authority to manage the groundwater—would be ineffectual, if

not entirely meaningless, without the authority to impose limits. The Act in question is

relatively brief and concise; it does not specify many of the powers that other

groundwater management statutes do spell out. (E.g., Wat. Code Appen., § 121-701

[conferring powers to require conservation practices; regulate, limit, or suspend

extractions and construction or enlargement of extraction facilities; prosecute legal

actions; impose spacing requirements on new extraction facility construction; and impose

reasonable operating regulations].) All such powers are presumably included within the

authority to manage groundwater. The fact that the Act does not specify the power to

limit extraction is no more an indication that the district lacks such power than that it

lacks authority to use any of the other management tools that are articulated in other

statutes. Gomes cites no judicial decision or other authority suggesting that when the

Legislature grants authority to manage groundwater, it must specify precisely what



Dist. (1998) 65 Cal. App. 4th 435, 440–441 [noting traditional view that exhaustion may be

raised at any time].)

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powers are included or the power does not exist.12 Nor does he cite any legislative history

or other material suggesting that the Legislature intended to withhold the power to limit

extractions from the general grant of authority to manage the groundwater resources

within the boundaries of the district.

We thus conclude that the authority to manage the district’s groundwater resources

includes the authority to impose extraction limitations on users of the groundwater.

2. The district’s groundwater management program was not adopted in compliance

with the requirements of the Act.

Although the Act authorizes the district to “establish programs for the management

of groundwater resources” (§ 10702) that may include extraction limitations, it may do so

only if the programs are adopted pursuant to the notice, hearing and protest procedures

specified in the Act. As noted above, the district acknowledges that the water shortage

contingency plan, resolution No. 200 and Ordinance No. 07-04, were not adopted

pursuant to the procedures specified in section 10703 through 10706. The district

contends, and the trial court agreed, that adoption of Ordinance No. 90-1 in 1990 in

compliance with those procedures was sufficient, and that the subsequent enactments

were merely amendments of the original program that need not have been adopted in

conformity with those procedures.

The trial court concluded that “the Legislature intended the enhanced ordinance

adoption procedures of [sections] 10703-10706 to apply only to the enactment of the

ordinance adopting the initial water management program, representing the assumption



12 At oral argument, Gomes’s counsel highlighted his citation to G. L. Mezzetta, Inc. v.

City of American Canyon (2000) 78 Cal.App.4th 1087, 1092, which stated that “[t]he

powers of a general law city include ‘ “only those powers expressly conferred upon it by

the Legislature,” ’ ” with certain exceptions, and that such powers “ ‘ “are strictly

construed, so that ‘any fair, reasonable doubt concerning the exercise of a power is

resolved against the corporation.’ ” ’ ” Assuming that this principle applies to the district,

the statute in question does not confer specific powers that allegedly have been exceeded.

The Act confers authority on the district to “establish programs for the management of

groundwater resources” (§ 10702) and the question is whether a limit on extraction is a

component of such a program.

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by the Community Service District of power not otherwise within its authority. The court

finds that the Legislature did not intend the same enhanced ordinance adoption

procedures to apply to the subsequent adoption of ordinances amending that initial

ordinance. The court cannot find any stated intent, rationale or public policy to support

the argument that the Legislature intended the enhanced ordinance adoption procedures

to apply to all ordinances implementing changes in the initially adopted water

management plan.” According to the court, “To construe the language to require the

enhanced procedures for any ordinance subsequently amending and modifying the initial

adopted program would render the operation of a management plan unnecessarily and

unreasonably unwieldy. A district would have to comply with the enhanced adoption

procedure for even the most minor amendment, regardless of how insubstantial. It is

extremely unlikely that the Legislature intended any amending ordinance, however

inconsequential, to be subject to the majority protest process and the mandatory one year

delay.”13

The trial court’s interpretation disregards the text of the Act. Nothing in the statute

limits its mandatory procedures to the enactment of an “initial” water management

program. To the contrary, section 10702 states that the district “may . . . establish

programs for the management of groundwater resources,” (emphasis added) and

sections 10707 and 10709 repeat that the district may be authorized to establish multiple

“programs.” Section 10703, on the other hand, states that, “[p]rior to the adoption of a

groundwater management program,” (emphasis added) the agency shall follow the

process specified. Similarly, sections 10704, 10705, and 10706 all refer to procedures for



13 The court also stated that the district “is not authorized to assume the additional

authority offered by the Legislature in Stats. 1987, ch. 472, sec. 1, until the voters have

agreed to become subject to that new authority as expressed in the initial management

plan.” However, the court appears to have conflated two provisions. Voter approval is not

required for adoption of a groundwater management program; rather, compliance with

the “enhanced adoption procedure” specified in sections 10703 through 10706 is

required. Voter approval is necessary only to assume the power to levy a water

replenishment assessment or to assume the power to fix and collect payment rates under

sections 10708 or 10709. (See § 10710.)

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consideration and adoption of a “program,” in the singular. The reference to “programs”

indicates that the district may establish more than one such program, and that each is not

to be considered an amendment of the initial program. The reference to the procedures

for adopting “a groundwater-management program ” (rather than “the groundwatermanagement

program”) indicates that each such program must comply with the specified

procedures.

Moreover, the obvious policy underlying the Act is to permit the property owners

who will be affected by a groundwater management program to participate meaningfully

in the development of the program and to reject the program unless more than half

approve. Whether or not the hearings before adoption of the water shortage contingency

plan provided property owners the same opportunity to comment as the procedures

required by the Act, which is questionable, the plan was adopted without giving the

majority of the eligible residents the opportunity to reject the plan, as the statute requires.

Even if the trial court is correct that inconsequential amendments may be made to

a program without complying with the procedural requirements of the Act, the water

shortage contingency plan adopted by the district is hardly such an inconsequential

amendment. However minor amendments may be defined, and we need not articulate a

universal definition here, the water shortage contingency plan cannot possibly be

regarded as a minor amendment of Ordinance No. 90-1. The 1990 ordinance simply

required an extraction permit for a new development or change in use of land, or the

construction of a new well or modification of an existing well. The 2007 water shortage

contingency plan created an entirely new program, involving, among other things, criteria

for stages of water shortage, implementation of various water demand reduction methods,

prohibitions and penalties depending on the stage of water shortage, the requirement that

at stage 4 owners of wells previously operated without permits or water allotments obtain

permits and be subject to allotments, and that those owners remain subject to those

requirements even after termination of the water shortage. None of these significant and

far-reaching measures was considered or approved, explicitly or implicitly, with the

adoption of the modest 1990 program. Before enactment of the entirely new water

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shortage contingency program, the Act requires what the trial court appropriately termed

an “enhanced adoption procedure.” Affected property owners are entitled to prior notice

of the proposed program, a public hearing offering the possibility for alteration or further

study of the program, a second hearing and consideration of protests to the program, and

abandonment of the program if more than 50 percent of the eligible residents oppose the

program. Had the district observed these procedures before adopting resolution No. 200

and Ordinance No. 07-04, we cannot say whether changes would have been made in the

program or that the program would not have been entirely abandoned. Therefore, the

adoption of those measures was invalid, and the measures are void.

Gomes also challenges the validity of Ordinance No. 07-01. Whether this

ordinance should be regarded as simply a minor modification of the program adopted by

Ordinance No. 90-1, or a new program requiring compliance with the procedures

specified in the Act, presents a closer question. Ordinance No. 07-01 added to the

requirement that an extraction permit be obtained for new development or a change in use

of property, or for construction or modification of a well, the requirement that a permit be

obtained “following the sale of real property within the boundaries of the [district].”

Because this ordinance for the first time extended the permit process to existing wells that

were not being modified, we conclude that the enhanced procedures of the Act should

have been observed. Moreover, since our invalidation of resolution No. 200 and

Ordinance No. 07-04 presumably will instigate the process specified in the Act for the readoption

of a water shortage contingency plan, inclusion of the Ordinance No. 07-01

provisions should be easily accomplished.

In view of these determinations, we need not consider additional issues raised by

the parties. On remand, however, we do not preclude reconsideration of other rulings

made by the trial court on the erroneous premise that resolution No. 200 and Ordinance

No. 07-04 had been validly adopted, including Gomes’ motion for attorney fees.

The judgment is reversed with directions to issue a declaratory judgment declaring

that Ordinance No. 07-01, resolution No. 200, and Ordinance No. 07-04 are void because they were not adopted in the manner prescribed by Water Code sections 10703 through 10706, and for further proceedings consistent with this opinion. Gomes shall recover his costs incurred on appeal.