Vanguard Responds That City Appears to Be Switching Back and Forth Between “Protest” and “Notice” Requirements and Definitions –
Yesterday the Vanguard reported that the city failed to notice tenants who are eligible to protest water rate increases under Government Code Section 53755 (b): “One written protest per parcel, filed by an owner or tenant of the parcel, shall be counted in calculating a majority protest to a proposed new or increased fee or charge subject to the requirements of Section 6 of Article XIII D of the California Constitution.”
We cited the recent example of the City of Dixon.
The city has now responded, arguing that such provisions do not apply because tenants in Davis are not utility customers and therefore do not directly pay utility rates.
“The City of Davis’ Proposition 218 notices were sent out to property owners, who in our case, are the City’s utility customers and who are responsible [for] paying the utility charges,” Interim City Manager Paul Navazio told the Vanguard in an email on Thursday evening. “Unlike some cities – whose customers may be either owners or tenants – only property owners are Davis utility customers.”
He continues, “Public agency utility providers across the state take different approaches on who is the customer (i.e. who receives and is responsible for the utility bills). Some, like Davis and Sacramento, only have property owner customers. Others, like Dixon, may provide that a tenant may be the customer and, therefore, directly liable for payment.”
According to the interim city manager, “Notice of fee increases for these services must go to the record owner.”
He continues, “Cal. Const. XIIID sec 6. Gov. Code section 53750(j) defines record owner as the owner of the parcel whose name and address appears on the last equalized secured property tax assessment roll. Only if the tenant is directly responsible for the bill (i.e. is the customer) does the notice also go to the tenant.”
“Tenants are only included in notice and protests rights when the tenant is “directly liable to pay the assessment, fee or charge in question”. Cal Const. Art XIIID sec. 2(g),” he adds.
“This tenant protest right only applies to the situation when, under Proposition 218, the tenant is directly liable to pay the fee,” Mr. Navazio informed the Vanguard. “That is not the case in Davis, as only property owners are directly liable to pay the water, sewer and solid waste fees.”
While we are not lawyers, and have not run this past lawyers, we are not convinced that the interpretation of the city is correct.
Cal Const. Art XIIID sec. 2(g) does state, “Property ownership” shall be deemed to include tenancies of real property where tenants are directly liable to pay the assessment, fee, or charge in question,”
However, the provision under Government Code section 53755(b) does not limit the language to “property ownership,” extending it to “tenant.”
That provision does state that it is subject to the requirements of Section 6 of Article XIII D of the California Constitution. But Section 6 makes no mention of requirements that tenants have to be utility customers.
Section 6 (1) does state: “The agency shall provide written notice by mail of the proposed fee or charge to the record owner of each identified parcel upon which the fee or charge is proposed for imposition…”
We know that Government Code Section 53750 (j) defines “Record owner” to mean “the owner of a parcel whose name and address appears on the last equalized secured property tax assessment roll, or in the case of any public entity, the State of California, or the United States, means the representative of that public entity at the address of that entity known to the agency.”
However, we have never claimed that the law states that tenants must receive a notice. As the city attorney for Dixon wrote, “While the notices were sent correctly (because oddly enough the legislature did not change to whom the notices must be sent — they still need only be sent to the owners even though tenants may protest), I advised the City Manager that the City should renotice and continue the hearing.”
Indeed, as the City Attorney for Dixon wrote, it “was correct in the past” that only owners could protest, but “the legislature has adopted new legislation (GC 53755) which now provides that “one written protest per parcel, filed by an owner or tenant of the parcel, shall be counted in calculating a majority protest.”
As we noted previously, the requirements of Section 6 of Article XIII D of the California Constitution simply lay forth the process without specifying owner or tenant or requirements for the tenant or owner to be actual rate customers.
We note, following the Dixon City Attorney, that Assembly Bill No. 1260 added Section 53755 to the Government Code.
The law, written by Assemblymember Caballero, states, “Existing law, the Proposition 218 Omnibus Implementation Act, prescribes specific procedures and parameters for local jurisdictions to comply with Article XIII C and Article XIII D of the California Constitution.”
“This bill would authorize the agency providing the property-related service to a parcel to provide the required notice of a proposed increase of an existing fee or charge in the agency’s regular billing statement or any other mailing by the agency to the address at which the agency customarily mails the billing statement for the fee or charge,” the Bill summary states.
“The bill would allow one written protest per parcel, as specified, to be counted in calculating a majority protest to a proposed new or increased fee or charge subject to Section 6 of Article XIIID of the California Constitution,” the summary states.
Nowhere in this language which was approved on October 5, 2007 by the Governor does it specify any stipulations or requirements for tenants.
The city can, in fact, hang its hat on the portion of Section 6 of Article XIIID which requires notices to be sent to “record owners” – but we never claimed that the city was required under the provisions of the law to notice tenants.
However, from what we see, a tenant in the City of Davis, under Government Code Section 53755, is still entitled to protest.
In summary, the city appears to rely on noticing laws to claim that tenants are not allowed to protest. However, this is not about noticing. Nowhere does the law state that the city must notice anyone but property owners.
However, the law seems clear that when it comes to protest, that owner and tenant are permitted to do so, and there is no stipulation in that law that defines tenant as the city does.
If a tenant, such as myself, decided to bring suit because of lack of ability to protest, I would have a valid case and the courts would likely have to change the noticing requirement as well, because it was not updated along with 53755 in AB 1260.
The city needs to do this right.
Again, I am not a lawyer and a lawyer should look at this.
—David M. Greenwald reporting
Again, protest form is for three “utilities”. Would your/the city’s reasoning about tenets apply to sanitation and sewer. I would think some renters might pay these separately themselves, eg single family house rental.
“Again, I am not a lawyer and a lawyer should look at this”
Unless there would be an immediate court injunction halting all further activities with regard to developing this surface water project(an unlikely prospect), a drawn-out legal challenge may have the undesirable consequence of delaying the signature-gathering effort for a citizen referendum while allowing this surface water project to proceed and gather further momentum. A signature-gathering effort should be organized and launched the day after the Sept. 6 Council meeting if the Prop 18 results do not halt the surface water project regardless of the status of any pending legal challenge.
I am really confused by this article and what you are trying to say. So let me lay out my confusion:
[quote]…the city appears to rely on noticing laws to claim that tenants are not allowed to protest. However, this is not about noticing…
…Yesterday the Vanguard reported that the city failed to notice tenants who are eligible to protest water rate increases…[/quote]
So are you, or are you not, complaining about a perceived failure to notice? You concede “The city can, in fact, hang its hat on the portion of Section 6 of Article XIIID which requires notices to be sent to “record owners” – but we never claimed that the city was required under the provisions of the law to notice tenants.” But then you turn around and say “If a tenant, such as myself, decided to bring suit because of lack of ability to protest, I would have a valid case and the courts would likely have to change the noticing requirement”. You keep contradicting yourself that this is or is not a noticing issue…
[quote]“Tenants are only included in notice and protests rights when the tenant is “directly liable to pay the assessment, fee or charge in question”. Cal Const. Art XIIID sec. 2(g),” he adds…
…If a tenant, such as myself, decided to bring suit because of lack of ability to protest, I would have a valid case and the courts would likely have to change the noticing requirement as well, because it was not updated along with 53755 in AB 1260…[/quote]
But I thought you said it wasn’t about noticing? Which is it?
Secondly, what you are asking for is prospective legislative change, based on what YOU THINK THE LAW SHOULD BE.
If this were to end up in court, what normally happens is the court looks to the legislative notes from when the statute in question was approved by the legislature, to determine legislative intent – if the statute is not clear/there is some ambiguity.
Is there ambiguity?
The problem here is Cal Const. Art XIIID sec. 2(g) “Tenants are only included in notice and protests rights when the tenant is “directly liable to pay the assessment, fee or charge in question” seems pretty unambiguous to me; whereas Government Code Section 53755 (b): “One written protest per parcel, filed by an owner or tenant of the parcel, shall be counted in calculating a majority protest…”seems murky because of the words “or tenant”.
If it is determined there is ambiguity enough for a case:
If the court determines there is enough ambiguity to even take the case, then the court would look to the legislative notes for legislative intent. I don’t know offhand what the notes say, or if there would be anything in there making it clear the legislature INTENDED THAT TENANTS BE ABLE TO PROTEST. dmg, why don’t you take a look at the legislative notes on the Prop 218 legislation, and see if you can find any language that would indicate there was an intention to include tenants in the right to protest…
Lastly, you have another problem. Tenants represent say 100 protest votes in an apartment building of 100 units. If the landlord “shares” the rate increases w the tenants, then tenants would be getting one protest vote on only partial payment of any rate increase. That means a tenant’s vote would be disproportional. This could be problematic… don’t know… I’d have to think about it some more…
Around 2/3 of the residents of Davis rent so this smacks of disenfranchisement whatever the legalities. I have no idea if renters would be more inclined to protest or not or if they would bother to respond in larger or smaller numbers. It just seems as if the city is continuing its long history of exploiting students, most of whom rent and the poor.
Shameful.
The law seems pretty clear to me from the Proposition language presented and Elaine’s clarifications…
[quote]Again, I am not a lawyer and a lawyer should look at this.[/quote]
Perhaps you should, you know, ask one for some clarification before getting everyone all worked up over this then?
To Justin Kudo: I am an attorney! However, I have not practiced municipal law, and this type of material gets pretty technical. I would also assume the City’s attorney has pretty carefully vetted this issue, since it has become so controversial, but you never know. I tend to agree w you that on the face of it, the law doesn’t seem all that ambiguous. And even if it were determined ambiguous, there would have to be proof of legislative intent tenants have the right to protest. I haven’t looked at the legislative notes, so that is why I advised dmg to do so…
QUESTION: , If one protest may be filed “per parcel”, is each individual apartment in a complex of many apartments considered a parcel, or is the entire complex considered one parcel?
Oh Elaine, I know you are. Your comments in this and the previous post have been helpful and clear, and I appreciate that you’ve taken the time to look at this and bring more clarity to the laws and process. I just think these last couple posts would have turned out quite differently if David had at least run this by you, if not a municipal law attorney beforehand.
Maybe some “facts” are in order:
City utility bills (in Davis) are the responsibility of the property owner, whether owner-occupied or not. Once billed, it can easily become a lien on the property owner. If unpaid, the water may be shut off, and by public health and safety criteria, the residence is uninhabitable. Tenant would have to move out, and most leases provide that if the property becomes uninhabitable due to action/inaction of the owner, the lease can be voided, or at a minimum, no rent would be due.
Some landlords build the expected average utility bills into the rental rate. Some of these do annual reviews, and based on actual consumption (which affects water and sewer), either credits the tenant or bills for the difference. Others just absorb the difference (loss or profit). Others may have some other provisions in the lease where the tenant is credited/paid on bi-monthly basis.
If the increased rates are implemented, owners of rental properties can do any of the above.
If the tenants have a problem with the amount they are charged, whether via rent or separately, they can negotiate with their landlords or not renew the lease.
Because the owner is ultimately responsible for the bills, despite their tenant’s consumption, IN MY OPINION, only the property owner should have the right to “protest” the City’;s setting of rates.
Does anyone know the answers to SODA’s and Elaine’s comments re. the form? What happens if people protest only one or two? Since there’s some tie-ins, would a parcel owner have to check all three to have the water category vote count?
Is the impact of this “vote” adequately explained in the letter? Does anyone believe that the estimates of the future water costs bear any relationship to their own parcel increases?
Could it have been made any more confusing?
PS–David, what if you’re correct about tenants (something on which I wouldn’t give good odds at this time)? Would that change the total protest population to include every tenant in the city, many of whom are nowhere to be found at this time?
“Again, I am not a lawyer and a lawyer should look at this.”
You seem to be under some impression that lawyers have particular insight or intelligence.
The fact that so many congressional and legislative representatives are lawyers should be a tip that this assumption may be mistaken.
While lawyers work hard to make law hard to understand and to give their own profession an exalted and protected status, the founders intended the constitution and the law to be clear to any citizen.
You could easily hire a lawyer to say that this kind of statute clearly means whatever you want it to. In fact, having a lawyer look at it is a complete waste of time.
There’s an old story about the financier JP Morgan, who asked a lawyer (or accountant, but the point is the same) a question and was told “On the one hand bleh bleh bleh and on the other hand blah blah blah”.
His response was to advertise for a lawyer with one arm.
Yeah, just burn the whole establishment down, right J.R.? Crazies…
@ J.R.: this statute was written by citizens, the Howard Jarvis Taxpayer Association. I’m guessing their lawyers vetted it, though.
I am unsure what the confusion is here.
As I see it in the case law, tenants have the right to protest. There is one protest per parcel whether it is owner or tenant, and an apartment complex for instance is a single parcel.
There is no law that requires the city to notice tenants. There is a tension there and probably an oversight. Dixon chose to resolve that tension by re-noticing everyone.
Davis is arguing that tenants in Davis do not have the right to protest. I don’t see anywhere in the statute where that is the case. Instead, it appears that Davis moves back and forth between “protest” and “notice” requirements to make their case.
What Navazio sent out via Harriet Steiner was supposed to be case law regarding protests for tenants. Instead he has simply repeated the city’s position.
He does not address 53755 or why the legislature included the word “tenants” there with no reference point to define “tenants” as the city has constructed the meaning.
In short, I remain convinced that tenants have a right to protest, and at the very least the notices the city sent out are false and misleading because they say only property owners will have their protests counted. Which does not appear to be true under 53755.
To dmg: Have you taken a look at the legislative notes, to determine if there is any intent to include tenants in the right to protest utility rates? Simple question…
[quote]As I see it in the case law, tenants have the right to protest. There is one protest per parcel whether it is owner or tenant, and an apartment complex for instance is a single parcel. [/quote]Then cite the case. “Case law” is not a true precedent unless an appellate court affirms it, AND the appellant decision is ‘certified’, as I understand it. If a property owner should wish to NOT protest, for the reasons I gave earlier, the tenant DOES NOT DESERVE the right to protest, UNLESS the owner delegates their right to the tenant.
Does anyone know if hpierce is correct and there is a hierarchy in which the landlord has the right to essential delegate or not delegate their protest right ?
That’s not what the law says, at least the statute.
[quote]Does anyone know if hpierce is correct and there is a hierarchy in which the landlord has the right to essential delegate or not delegate their protest right ? [/quote]The ‘delegation comment was an opinion… the facts were at the beginning of my post.
[quote][i]”I am unsure what the confusion is here.”[/i][/quote]Here’s some: “Does anyone know the answers to SODA’s and Elaine’s comments re. the form? What happens if people protest only one or two? Since there’s some tie-ins, would a parcel owner have to check all three to have the water category vote count?”
Here’s another: “Would that (allowing tenants to protest) change the total protest population to include every tenant in the city, many of whom are nowhere to be found at this time? On the other hand, whose protest counts if you’re correct that the parcel owner and all her tenants have a right to protest?”
And, some more: If you agree that the city is not obliged to notify anyone but parcel holders, how can be called an “oversight” for the city to follow the law? And, what does “there is a tension there” mean, anyway?”
[quote]Does anyone know if hpierce is correct and there is a hierarchy in which the landlord has the right to essential delegate or not delegate their protest right ?[/quote]
I know it works this way in regard to homeowners association law. In an HOA, the tenant cannot vote in an HOA election unless the tenant is given the right to do so by the landlord. So I suspect hpierce is correct, but I’d have to do more research to be sure.
[quote]Then cite the case. “Case law” is not a true precedent unless an appellate court affirms it, AND the appellant decision is ‘certified’, as I understand it. [/quote]
That is my understanding as well.
[quote]Here’s some: “Does anyone know the answers to SODA’s and Elaine’s comments re. the form? What happens if people protest only one or two? Since there’s some tie-ins, would a parcel owner have to check all three to have the water category vote count?”
Here’s another: “Would that (allowing tenants to protest) change the total protest population to include every tenant in the city, many of whom are nowhere to be found at this time? On the other hand, whose protest counts if you’re correct that the parcel owner and all her tenants have a right to protest?”
And, some more: If you agree that the city is not obliged to notify anyone but parcel holders, how can be called an “oversight” for the city to follow the law? And, what does “there is a tension there” mean, anyway?”[/quote]
All good questions…