HomeMy WebLinkAbout06/18/2002, BUS. 3 - CREEK AND FLOOD PROTECTION FUND AND FEE SCHEDULES council.
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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residential accounts adopted in Resolution No. 9317 is hereby repealed.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
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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:
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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.
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RECEIVED
JUN 17 2001;
SLO CITY CLERK
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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.