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HomeMy WebLinkAbout06/18/2002, BUS. 3 - CREEK AND FLOOD PROTECTION FUND AND FEE SCHEDULES council. ac,Enaa wpoRt NV2p 3 CITY OF SAN LUIS OBISPO FROM: Jeffrey G. Jorgensen Prepared By: Gilbert . Trujillo SUBJECT: CREEK AND FLOOD PROTECTION FUND AND FEE SCHEDULES CAO RECOMMENDATION Adopt a Resolution deferring the effective date of the fee schedules established in Resolution No. 9317(2002 Series) from July 1, 2002 to February 1, 2003. DISCUSSION On June 3, 2002, the court in Howard Jarvis Taxpayers Association v. City of Salinas (2002 DJDAR 6161) invalidated the City of Salinas' storm drainage fee. The City of San Luis Obispo's Creek and Flood Protection Fee is similar to Salinas' program. Deferring the effective date of the fee will give staff the opportunity to fully analyze the Salinas decision and recommend changes or revisions to the City's Creek and Flood Protection Fee as appropriate. CONCURRENCES The City Attorney, Public Works Director and Finance Director concur in this recommendation. FISCAL IMPACT The revenue stream anticipated from these fees would be delayed for a period of seven (7) months. ALTERNATIVES 1. The Council may not take any action and let the fee become effective on July 1, 2002. 2. The Council may rescind the Creek and Flood Protection Fee in its entirety. ATTACHMENTS 1. Proposed Resolution 2. Resolution 9317 3- 1 Attachment 1 RESOLUTION NO. (2002 Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO CONCERNING THE EFFECTIVE DATE OF THE CREEK AND FLOOD PROTECTION FEE WHEREAS, the City Council adopted Resolution No. 9317 (2002 Series) on May 21, 2002, which established a new Creek and Flood Protection Fund and enacted a fee schedule to become effective on July 1, 2002; and WHEREAS, on June 3, 2002, the court in Howard Jarvis Taxpayers Association v. City of Salinas (2002 DJDAR 6161) invalidated a similar fee in the City of Salinas; and WHEREAS, the City Council desires to fully review the Creek and Flood Protection Fund and fee schedule in light of the court's decision before the fee becomes effective. NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF SAN LUIS OBISPO as follows: 1. The effective date of July 1, 2002, for the fee schedule for residential and non- residential accounts adopted in Resolution No. 9317 is hereby repealed. 2. The fee schedule for residential and non-residential accounts established in Resolution No. 9317 is hereby effective February 1, 2003. 3. The establishment of the Creek and Flood Protection Fund for creek and flood protection program activities and projects and the fee schedules for residential and non-residential accounts as established by Resolution No. 9317 (2002 Series) remains unchanged. Upon motion of seconded by , and on the following roll call vote: AYES: NOES: ABSENT: The foregoing Resolution was adopted this day of 2002. Mayor Allen Settle ATTEST: City Clerk 9 Resolution No. Page 2 APP Oe qty Attorney 3-3 ATTACHMENT 2 RESOLUTION NO. 9317 (2002 Series) ti A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO ESTABLISHING A NEW CREEK AND FLOOD PROTECTION FUND AND ENACTING FEE SCHEDULES WHEREAS, the San Luis Obispo community has along history of chronic flood damage and expensive repair efforts; and WHEREAS, heavy rainstorms in 1995 and 1997 showed that the San Luis Obispo com- munity was still vulnerable to flood damage, despite implementation of many flood protection im- provements over the previous twenty years; and WHEREAS, the City will be subject to federal National Pollution Discharge Elimination System (NPDES) regulations that require significant ongoing activities to reduce the level of pol- lutants discharged from storm drainage systems into natural waterways; and WHEREAS, since 1995 the City has been actively planning for several new initiatives to correct flooding problems and comply with NPDES regulations; and WHEREAS, the environmental sensitivity of the San Luis Obispo Creek watershed and the importance of this watershed in defining the quality of life for San Luis Obispo justify an ad- vanced level of creek and flood protection; and WHEREAS, these new creek and flood protection initiatives cannot be fully imple- mented using existing City revenues because it would compromise other important program ac- tivities; and WHEREAS, new initiatives and fees for creek and flood protection should be phased in Aver a five-year period to ease the impact on ratepayers; NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo that: 1. A new Creek and Flood Protection Fund for creek and flood protection program activities and projects is hereby established. 2. The following fee schedule for residential accounts is hereby effective July 1, 2002: Flat Fee per Month 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 Single-Family Residential $1.00 $1.75 $2.50 $3.25 $4.00 $4.50 Multi Family Residential* $0.23 $0.41 $0.59 $0.76 $0.94 $1.05 R 9317 ti. Resolution No. 9317 (2002 Series) Page 2 3. The following fee schedule for non-residential accounts is hereby effective July 1, 2002: Fee per Month per 1,000 Square Feet of Parcel Area 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 Educational $0.03 $0.05 $0.08 $0.10 $0.12 $0.14 Other Non-Residential $0.15 $0.26 $0.38 $0.49 $0.60 $0.68 Upon motion of Vice Mayor Marx, seconded by Council Member Ewan, and on the fol- lowing roll call vote: AYES: Council Members Ewan, Schwartz, and Vice Mayor Marx NOES: Council Member Mulholland and Mayor Settle ABSENT: None The foregoing resolution was adopted this 21"day of May, 2002. Mayor Allen Settle ATTEST: Lee Price, City Clerk APPROVED AS TO FORM: *yG. g •en ty Attorney lop— I � ri Owe Moo rA m �' ° W rAMod 0 a m cri MWO M• ' l�_1 I�TI M a' w m o fll Imo• �' wow m M MEETING AGENDA. HATC11 un V mem.oRAnaum June 2002 COUNCIL ❑ CDD DIR p'CAO ❑ FIN DIR TO: Mayor and Council Members VACAC ❑ FIRE CHIEF 90A71-ORNEY 0 PW DIR &tLERK/ORIG ❑ POLICE CHF FROM: Jan Howell Marx ❑ DEPT HEADS ❑ REC DIR [if IrRIBWMF ❑ UTIL DIR SUBJECT: Creek and Flood Fund and Vee Schedules 7 BDWeg— ❑ HR DIR Agenda Item 3 at the 6/18/02 Council Meeting Since I voted to pass our Creek and Storm Protection Fund, I have learned that such funds are on rocky legal ground. An appellate court ruled against such a fund in Salinas, and this decision will likely be appealed to the California Supreme Court, and possibly on to the U.S. Supreme Court(see attachment). Until the underlying legal issues are resolved, and our ordinance is retooled accordingly, I cannot support our Creek and Storm Protection. My support for enhanced, environmentally sound watershed protection continues,but not for this particular fund under these circumstances. To keep the fund on the books,but delay implementation would still expose the City to potential litigation. Therefore, I will move to rescind the Fund at our meeting June 18th. �@TJNCIC ❑ CDD DIR LA0 ❑ FIN DIR p' 0 ❑ FIRE CHIEF ORNEY ❑ PW DIR CLERK/ORIG O'POLICE CHF HEADS ❑ REC DIR L�72 �Yyl u vZ ❑ UTIL DIR C HR DIR RECEIVED JUN 17 2001; SLO CITY CLERK i Sturm Drainage Fees Require Voter Appr®va6 A recent decision by the California Court of Appeal states that Proposition 218 requires voter approval of the storm drainage fee imposed by the City of Salinas. In Howard Jarvis Taxpayer's Association v. City of Salinas,the court declared that the city's storm drainage fee is a property- related flee that:is not exempt from the voter approval requirements of Proposition 218 since it is neither a"sewer°nor a`tivaber"fee. However,the outcome of the case may not be final. The city may ask the California Supreme Court to review the decision or dedare that it cannot be abed as precedent in future cases. On June 28,the League's Legal Advocacy Committee will consider whether to submit a friend-of-the-court brief in support of the city. Case Background In 1999,the city council enacted two ordinances that imposed a fee to finance the improvement of storm and surface water management facilities. These improvements were needed in order to comply with the federal Clean Water Act.The fee was imposed on"each and every developed parcel of land"as well as the owners and ooaipiers of that land.The fee was calculated based on the runoff the property contributed to the city's drainage facilities. Property owns who maintained their own storm water management facilities or only partially contributed to the city's storm drainage facilities paid a fee proportional to their use of the city service. Undeveloped parcels were not subject to the storm drainage fee. The Court's Anatysis Proposition 218 provides that,except for fees or charges for sewer,water,and refuse collection services, no property-related fee or charge can be imposed or increased without approval by a majority vote of the property owners of the property subject to the fee or charge. The city argued that the fee was a user fee,not properly-related fee, because it is possible to own property without being subject to the fee and because the amount of the fee was based on the use of the storm drainage system..The court disagreed.The court said that the fee was imposed on property,and that a property owner did not have the ability to avoid,or"opt-out"of the fee by dedining the service.The court also said that the storm drainage fees did not fall under the definition of sewer or water fees that are exempt from Proposition 218's voter approval requirement. WhatthisMeaksforCkies While the decision is being considered for review,cities should carefully draft,or re-draft their ordinances or resolutions imposing storm drainage fees to reflect that the fees are not property-related,and are imposed on those who use storm water systems, rather than those who own improved property. Both a user fee and regulatory fee are distinguishable from a property-related fee and,therefore, not subject to proposition 218. To view updates on this case visit the"Hot Topics"section of the League's Website at http://www.eacides.org&ottopics. To access a recent paper on storm drainage fees and Proposition 218 authored by League Special Counsel,Betsy Strauss,visit the League's city attorney Web page at www.eacides.org/attomeys under the Proposition 218 section.