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CITY COUNCIL AGENDA ITEM NO. 14

Meeting Date: August 14, 2007

Subject/Title: Adopt a Resolution of the City Council of the City of Brentwood Adopting Guidelines for the Submission and Tabulation of Protests in Connection with Rate Hearings Conducted Pursuant to Article XIIID, Section 6 of the California Constitution

Prepared by: Denise Davies, Chief Financial Operations Officer
Marna Huber, Management Analyst

Submitted by: Pamela Ehler, Director of Finance and Information Systems

RECOMMENDATION
Adopt a Resolution of the City Council of the City of Brentwood Adopting Guidelines for the Submission and Tabulation of Protests in Connection with Rate Hearings Conducted Pursuant to Article XIIID, Section 6 of the California Constitution.

PREVIOUS ACTION
None.

BACKGROUND
A recent California Supreme Court decision (Bighorn-Desert View Water Agency v. Verjil) held that certain utility consumption charges are property-related fees subject to the requirements of Article XIIID, Section 6 of the California Constitution. That constitutional provision, which was adopted by the voters in 1996 as part of Proposition 218, requires that local governments give a special form of mailed notice at least 45 days before holding the public hearing on the increase of a property-related fee. The provision also provides that certain affected persons may submit protests with respect to proposed rate increases.

The requirements of the applicable notice and protest provisions are relatively brief, and do not make it absolutely clear how, for example, local agencies should count protests they receive. Consequently legal counsel has advised that the City adopt guidelines that interpret Proposition 218 and will govern how the City will conduct protest proceedings. These guidelines are consistent with those adopted by other California Cities.

FISCAL IMPACT
There is no fiscal impact associated with the adoption of this Resolution for directing staff to follow guidelines for the submission and tabulation of protests.

Attachments: Resolution
Attachment A - Guidelines

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING GUIDELINES FOR THE SUBMISSION AND TABULATION OF PROTESTS IN CONNECTION WITH RATE HEARINGS CONDUCTED PURSUANT TO ARTICLE XIIID, SECTION 6 OF THE CALIFORNIA CONSTITUTION

WHEREAS, Article XIIID, Section 6 of the California Constitution requires the City to consider written protests to certain proposed increases to utility rates; and

WHEREAS, the California Constitution does not offer specific guidance as to who is allowed to submit protests, how written protests are to be submitted, or how the City is to tabulate the protests.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood that the Council hereby adopts the guidelines for the submission and tabulation of protest attached hereto as Exhibit “A” and incorporated herein by reference.

PASSED, APPROVED AND ADOPTED by the Council of the City of Brentwood at a regular meeting held on the 14th day of August 2007 by the following vote:

Attachment A

City of Brentwood, California

GUIDELINES FOR THE SUBMISSION AND TABULATION OF PROTESTS

Where notice of a public hearing with respect to a utility rate increase has been given by the City pursuant to Article XIIID, Section 6 of the California Constitution, the following shall apply:

Submission of Protests

1. Any property owner or utility customer may submit a written protest to the City Clerk, either by delivery to the office of the City Clerk or by submitting the protest at the public hearing. Protests must be received by the end of the public hearing. No postmarks will be accepted.
2. Each protest must identify the affected property (by assessor’s parcel number or street address) and include the signature of the record property owner or utility customer. Email protests cannot be accepted. Although oral comments at the public hearing will not qualify as a formal protest unless accompanied by a written protest, the City Council welcomes input from the community during the public hearing on the proposed fees.
3. If a parcel served by the City is owned by more than a single record owner or more than one name appears on the City’s records as the customer for the property, or the customer is not the record owner, each owner or customer may submit a protest, but only one protest will be counted per parcel and any one protest submitted in accordance with these rules will be sufficient to count as a protest for that property.
4. In order to be valid a protest must bear the original signature of the record owner or customer of record with respect to the property identified on the protest. Protests not bearing the original signature of a record owner or customer shall not be counted.
5. If more than one type of fee (ie water, wastewater) is proposed for increase on the notice of public hearing, then a person submitting a protest may indicate whether the protest is submitted with respect to all fees proposed for increase or only some of the fees proposed for increase.
6. Any person who submits a protest may withdraw it by submitting to the City Clerk a written request that the protest be withdrawn. The withdrawal of a protest shall contain sufficient information to identify the affected parcel and the name of the record owner or record customer who submitted both the protest and the request that it be withdrawn.
7. A fee protest proceeding is not an election.
8. To ensure transparency and accountability in the fee protest tabulation, protests shall constitute disclosable public records from and after the time they are received.

Tabulation of Protests

1. The City Clerk shall determine the validity of all protests. The City Clerk shall not accept as valid any protest if the City Clerk determines that any of the following conditions exist:
a. The protest does not identify a property served with wastewater (sewer) and/or water service by the City.
b. The protest does not bear an original signature of a record owner of the parcel identified on the protest or a record customer with respect to the parcel identified on the protest.
c. The protest does not state its opposition to the proposed fees.
d. The protest was not received by the City Clerk before the close of the public hearing on the proposed fees.
e. A request to withdraw the protest is received prior to the close of the public hearing on the proposed fees.
2. If a protest does not state that it is limited to a specific fee, then the City Clerk shall consider it to be a protest with respect to all fee increases set forth on the notice of public hearing.
3. The City Clerk’s decision that a protest is not valid or does not apply to a specific fee shall constitute a final action of the City and shall not be subject to any internal appeal.
4. A majority protest exists (50% plus one) if written protests are timely submitted and not withdrawn by the record owners of, or customers with respect to, a majority of the properties subject to the proposed fee.
5. At the conclusion of the public hearing, the City Clerk shall complete the tabulation of all protests received, including those received during the public hearing and shall report the results of the tabulation to the City Council upon completion. If review of the protests received demonstrates that the number received is manifestly less than one-half of the parcels served by the City with respect to the fee which is the subject of the protest, then the Clerk may advise the City Council of the absence of a majority protest without determining the validity of all protests.
 

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