Ernie Head and Pam Nieberg have submitted a letter to the city of Davis indicating their Notice of Intent to Circulate Petition for the city of Davis. The initiative would repeal Section 39.03.030 of the Davis Municipal Code which increased utility rates generated on and after May 1, as well as Section 39.03.040 of the Davis Municipal Code, which set the Schedule of Water Supply Fee for those utility bills generated on and after January 1, 2015.
The initiative also would repeal Section 39.03.045 of the Davis Municipal Code, the Schedule of Metered Rate Charges for water used beginning May 1, 2013.
While Measure I dealt only with voter approval of the surface water project itself, this would repeal the Prop 218 process setting the water rates. The target here would appear to be the CBFR structure and the accompanying rate increase.
In the fall of 2011, a petition from a successful signature-gathering effort would have placed a referendum on the ballot that would have been a simple up or down vote on the water rate hikes. Rather than an up or down vote, an initiative effectively re-writes the law – in this case, repealing the water rates put into place by the Prop 218 process.
Critics of the Prop 218 process have noted that it excludes large numbers of people who are impacted by the rate hike and many had called for an election that joined rate hikes with approval for the water project. City Attorney Harriet Steiner argued against that approach.
In their language, Ms. Nieberg and Mr. Head argue, “The City Council of the City of Davis has approved substantially increased new rates charged for water use.”
“New rates approved by the City Council this year increase annually for the next five years,” they write in their initiative statement of proposed action. “After the five year increase, the water bill paid by a typical, single-family residential customer (including new base rates and consumption fees) will have at least tripled.”
They argue, “The new, confusing Consumption Based Fixed Rate (CBFR) fee included in the new rates would base each rate payer’s monthly (January through December) water rates on the amount of water used during the 6-month peak consumption period (May through October) of the previous year.
“The resulting CBFR supply fee would significantly affect a typical water bill. One example is that Davis has an unusually high residential ‘household move rate’ per year, and the CBFR system would unfairly charge residents who recently moved into a home or apartment with last year’s occupants’ water consumption habits.
“This would: reduce current year conservation savings (why conserve now, when the rate payer is negatively impacted with last year’s households’ conduct); transfer a higher proportion of overall system costs to residential users with landscape irrigation needs; and penalize water use required during dry, hot summer months.”
“Such a large and rapid increase in water rates would have adverse financial effects on the City, schools, businesses, and individuals,” they continue arguing, “City assumptions used to set new rates did not account for large users leaving the City water system or greatly reducing system use. Several such efforts are now in the planning stage.”
“The resulting smaller volume of water delivery would require additional rate increases to regain revenue from a reduced volume of water sold, because the new surface water project has very large fixed costs and borrowing that has to be paid back no matter if water demand plummets due to conservation caused by the new rates,” they argue.
They then attack the Prop 218 process, arguing, “Voters have not been given the opportunity at a regular, direct election to approve recent water rate increases, despite the voters’ clear statement in the successful Fall 2011 water rates referendum that the voters desired to repeal or vote upon such large increases.”
They add, “The people of the City of Davis desire to establish reasonable water rates that accurately represent the cost of providing water services to residents and business. By approving this initiative, voters will repeal the confusing, unfair and onerous CBFR rates that the City Council deliberately kept away from the voters by excluding these rates from the March 5, 2013 ballot with the surface water project.”
Part of the water controversy in the Fall of 2011 was whether the water rates could be repealed by a referendum.
After a signature-gathering campaign garnered over 5000 signatures, over 3800 of which actually counted, Mayor Joe Krovoza dropped a bombshell in an email to the Vanguard as he questioned the legality of the referendum in overturning a 218 process.
“It is very clear that you can’t overturn a 218 with a referendum,” Mayor Krovoza said in November 2011.
In a now infamous legal memo dated November 15, 2011, from City Attorney Harriet Steiner to the city council, she wrote, “In our opinion, the City’s newly-adopted water rates are not subject to challenge by referendum.”
Adding fuel to the fire is the fact that she added, “We must note that there are no post-Proposition 218 cases that are directly on point.”
“The main provision in the California Constitution concerning the power of referendum provides that referendum does not apply to laws that impose taxes and also does not apply to ordinances for the usual current expenses of the city,” she added. “This has been held to apply to utility rates, as discussed below.”
“Proposition 218 expressly allows initiatives to reduce or repeal any local tax, assessment, fee or charge. However, Proposition 218 only addresses initiatives and it is silent with respect to the power of the referendum.”
Critically, she argued, “In our opinion, this silence leads to the conclusion that prior case law is still valid and that water and other utility rates adopted pursuant to Proposition 218 are not subject to challenge by referendum.”
The legal showdown never happened at that time, as the council wisely decided to adhere to the will of the people and repealed the rate hikes on their own, formed the WAC to develop, among other things, a new water rate structure, and put the matter on the ballot in March 2013.
Even when it was decided to go forward with a vote, City Attorney Harriet Steiner questioned whether it would or could be binding.
Iris Yang of Best, Best and Krieger, the city attorney for Paso Robles, told the council, “The problem with a binding measure is, one, it’s difficult to know what the scope of that would be.”
She argued it was difficult in a yes or no question for the council to know what it meant if the voters said the council shall not participate in the water project. She argued the converse was also true, if the voters said the city shall participate, “does that mean under any circumstance?”
She argued that that the council has to consider many factors beyond the yes or no. Some of these are known, some are not known.
“Having a measure that purports to be binding really confuses the issue because it really doesn’t tell you what your limitations are,” she argued.
However, under pressure from the community, the council went ahead with a binding vote.
The language read: “Shall Ordinance … be adopted which grants permission to the City of Davis to proceed with the Davis Woodland Water Supply Project, to provide surface water to Davis water customers subject to the adoption of water rates in accordance with the California Constitution (Prop 218).”
The problem, as critics noted, is that, while the water rates were available to the voters and CBFR was among the most scrutinized portions of the process, the voters did not directly get to vote on the water rates. Measure I was a vote on the water project.
The water rates would be set through a separate Prop 218 process.
That said, the Prop 218 process, unlike in September 2011, generated not even 1000 protests.
In the meantime, as the city must navigate this hurdle, the city remains tied up in legal litigation that some are estimating will end up costing the city more than $50 million in increased bond costs – a cost that will ultimately be borne by the ratepayers.
Unlike a refendum that required over 3500 signatures, the initiative has a much lower threshold of 5% of the voters who voted in the last Governor’s election or 1163, a number that makes it far more likely that this effort will succeed. City officials told the Vanguard that if it ends up triggering a special election, that election would cost taxpayers over $100,000, even for an all-mail ballot.
—David M. Greenwald reporting
Water is my cheapest utility, by far. Fund more police with that $100,000 so we can make a dent in the property crime that is impacting citizens. Fix our roads and bike paths. I can name multiple things that these people could work for than wasting our money on this battle solely waged to prevent the capability for growth.
The conservatives ride again. do ta do ta do, do do tu. “Go ahead make my day.” Talk about “The Good, The Bad and The Ugly.” These people are going to spend more on this than years worth of their water bills and my guess is they will lose due to voter fatigue even if they make the ballot.
Complaints about how hard it is to impose a contract on workers and initiatives to undermine clean water. I thought Davis was a progressive or liberal town not a reactionary or conservative place. I though the Vanguard was a blog for the under represented instead of a place where landed reactionaries are given voice to whine about how expensive it is to live here while benefitting from Prop 13 and having lower tax rates than young families that moved here for the quality of life and to educate their kids in decent public schools.
[quote]While Measure I dealt only with voter approval of the surface water project itself,[/quote]
This is incorrect.
Measure I: [quote]“Shall Ordinance No. 2399 – be adopted, which grants permission to the City of Davis to proceed with the Davis Woodland Water Supply Project, to provide surface water as an additional supply of water, subject to the adoption of water rates in accordance with the California Constitution (Proposition 218)?”[/quote]
The voters approved the water project and approved the rate-setting process.
[i]I thought Davis was a progressive or liberal town not a reactionary or conservative place.[/I]
A liberal reactionary place. You got it half right and half wrong.
[I]I though the Vanguard was a blog for the under represented[/i]
That being the case it would be a place for progressive conservatives. I’m sure you know that Teddy Roosevelt’s Bull Moose party was the first true progressive party. Somewhere along the way liberals falsely adopted the label of progressive. They are much more regressive these days.
But back to the topic at hand.
What is the outcome of the fluoride decision by the city? I am signing the petition and putting money into the campaign to repeal the rate increase unless there is a definitive decision by the city to eliminate fluoridation of our water.
Mr. Toad, I find your comments odd. Are you suggesting I ignore a news story? Are you suggesting I restrict who can comment here?
[quote]Water is my cheapest utility, by far.[/quote]300% of a small number is still a small number. Ryan has the concept right. If you look at your total City services bill, even with the increases in water rates, the TOTAL increase in the utility bills will not be terribly significant.
[quote]The conservatives ride again. do ta do ta do, do do tu. [/quote][quote]I thought Davis was a progressive or liberal town not a reactionary or conservative place.[/quote]Pam Nieburg a “conservative”? I think not. Ernie Head’s main source of retirement income (other than the rip-off related to the City well site, and the non-payment of contractual costs for the freeway sign) is a pension from UC (a public pensioner regaling against public employee benefits? Go figure.).
What is “progressive”, “conservative”, “liberal”, or “libertarian”? Davis has a lot of out-spoken folks who want to have government serve them, and require others to either sacrifice and/or pay ‘their things’ (at no cost to themselves).
My position is hated by conservatives and liberals alike… I think, and judge (mostly) things on their merits, rather than an ideology that I am a slave (not meant as ‘racist’, but that is another topic) to.
Many “progressives” in Davis want to have someone else pay for affordable housing, thwart development at every turn, and complain about the ‘lack of affordable housing’. But they own their houses, contribute little or nothing to charities or organizations like habitat for humanity. Many are as much selfish misers as are the ‘conservatives’.
hpierce: I’m not sure whether I will support this, although I think it was predictable given the structure of the ballot.
It seems to me that Ernie Head is not progressive, I don’t know his politics, but I’ve always thought him more on the right with Pam Nieberg and Michael Harrington being more on the left.
But at the end of day, does the fact that Davis progressives own homes in this community negate their ability to determine things like water and growth?
It just seems like you dumped a bunch of frustration here without adding a whole lot of light.
I would say that Mike Harrington has drifted more and more to the right and no longer could be identified as a progressive. I think his alignment right-wing politics in local issues demonstrates this clearly. Gone are progressive ideals such as sustainability and innovation. It’s all about no growth, no taxes, no government, it seems.
Mr. Harrington a conservative? Ha!
I would agree that he does not exhibit the tendencies of a progressive, but then I think the majority of Davis liberals are much more reactionary and statist. I think some of that has to do with age… (e.g., older folk welcome change less). However, Davis is not unlike many other areas in the US where affluent, educated white liberals dominate the politics.. In these places they like netting out social justice and environmental dictates from their lofty gated and safe communities… as long as those policies don’t impact them personally. Doing so they are successful in keeping their communities attractive to the affluent, but at the expense of the lower-income folk. And with this outcome, it creates a very glaring conflict with the liberal progressive principles they claim as their identity.
It’s so funny that Davis liberals are now trying label other Davis liberals as being conservative because they don’t like some of their fellow liberal’s policies.
GI. Ha. Good point.
It is probably one of the biggest slights in the liberal lexicon… calling someone that identifies as a liberal a conservative. Oh yuk!
It is a crackup though. I’m sure you know a few faux liberals in this town. They opine for most of the same social and fiscal things that conservatives opine for, but hate that nagging feeling that they are wrong about their puffed up posture of anti-Christian superiority… that God may actually exist and may block their entry into the kingdom of heaven. And they also want to be associated with the people they think are more cool and hip.
It is identity politics… does not matter what they really believe.
David wrote:
> Mr. Toad, I find your comments odd. Are you suggesting
> I ignore a news story? Are you suggesting I restrict
> who can comment here?
I wonder if David really finds the comments “odd” since most (but not all) people want to cover up the fact that there is any real disagreement with “their side”. If you read liberal publications you would thing that only a handful of “evil racists” don’t want to make “undocumented workers” legal, while the conservative press writes that a “few in the liberal media” are trying to give “amnesty” to “illegal aliens”…
Mr. Toad wrote:
> I though the Vanguard was a blog for the under
> represented instead of a place where landed
> reactionaries are given voice to whine about how
> expensive it is to live here while benefitting
> from Prop 13
I’m wondering how much “land” a person has to own before Mr. Toad calls them “landed” (would a dumpy storage lot with less square footage than a typical Safeway or Save Mart do it)?
I’m also wondering if Mr. Toad (or even a single other person in town) is going to send in an extra 30% to the Yolo County tax assessor this year so they are not “benefitting” from Prop 13?
I would be curious what outcome Ernie and Pam really want. Do they want new rates, or do they actually just want to block the project?
I have had difficulty, over the years, figuring out exactly what Pam Nieberg feels the city of Davis should to to provide water for its citizens. When the city wanted to go to the deep wells, she wrote a detailed letter that outlined her objections to that. Now she has led the charge against the surface water project. So it seems that, at least in her case, the position is that Davis should continue to use only the shallower wells and somehow deal with the regulatory issues those cause.
Most of their arguments summarized above were put forward as the voters considered Measure I. The rate structure was discussed. The increase, including frequent references to ‘tripling’ of the water rates, was discussed. The ‘fairness’ of the rate structure was the subject of numerous columns by Bob Dunning. The only thing new here is that the voters didn’t get to vote on the specific actual rates. But the Measure said “subject to the adoption of water rates in accordance with the California Constitution (Proposition 218)” and the actual rates were readily available for voters to inform themselves.
So I see no merit to their arguments. Thus I have to conclude their goal is simply to delay the implementation of the rates in order to make it impossible for Davis to sign contracts, thereby delaying and perhaps blocking the project. Perhaps I’m being overly cynical, and Pam would like to explain her position here on the Vanguard.
The mayor and city attorney are incorrect – local initiatives and referenda can be used to overturn 218 water and wastewater rates. The case on point is Bighorn-Desert View Water District v. Verjil (2006), 39 Cal.4th 205.
Here’s a paper about it: http://blogs.mcgeorge.edu/waterlawjournal/california-wastewater-rates-life-after-bighorn-v-verjil/
This referendum/initiative is doomed to be an expensive failure for those of us that have to finance the elections. Nothing prevents relevant authorities from re-introducing water hikes – that’s THEIR right under 218. Voters can lower the rates, politicians can raise them again. See Petaluma and Foresthill (briefly mentioned in the article above) for examples of similar actions.
Frankly:
[quote]It is probably one of the biggest slights in the liberal lexicon… calling someone that identifies as a liberal a conservative. Oh yuk!
[/quote]
From now on Frankly when I don’t agree with you I’m going to call you a liberal.
[i]From now on Frankly when I don’t agree with you I’m going to call you a liberal. [/i]
LOL.
GI, when I go back to see my family in the Midwest, they call me a California Liberal just to get me stirred up.
Don Shor said . . .
[i]”Most of their arguments summarized above were put forward as the voters considered Measure I. The rate structure was discussed. The increase, including frequent references to ‘tripling’ of the water rates, was discussed. The ‘fairness’ of the rate structure was the subject of numerous columns by Bob Dunning. The only thing new here is that the voters didn’t get to vote on the specific actual rates. But the Measure said “subject to the adoption of water rates in accordance with the California Constitution (Proposition 218)” and the actual rates were readily available for voters to inform themselves.”[/i]
Don, I’m going to stay away from discussing the merits of their arguments, because one of the causes of action in the YRAPUS legal case has to do with CBFR. However, (as a non-lawyer) I’m not sure that the City has actually completed (satisfied) the conditions set out by the words you quoted from Measure I, “subject to the adoption of water rates in accordance with the California Constitution (Proposition 218).” I have no trouble arguing that there is a [u]conditional[/u] adoption of the water rates, but until the water causes of action of the YRAPUS case are resolved by Judge McGuire, then the legality of both the rates and their adoption is subject to conditions, and those conditions could indeed result in the the rates never being fully adopted.
20/20 hindsight tells me one thing. Given the way the WDCWA DBO bidding process has unfolded, there always was sufficient “slop time” in the WDCWA schedule to allow the moving of the Measure I vote from March to May. If we had had the vote in May rather than March, then this whole issue of “voting on the rates” would be moot. We would have voted on the rates at the same time as we voted on the project.
EastCoastTransplant said . . .
[i]”The mayor and city attorney are incorrect – local initiatives and referenda can be used to overturn 218 water and wastewater rates. The case on point is Bighorn-Desert View Water District v. Verjil (2006), 39 Cal.4th 205.
Here’s a paper about it: http://blogs.mcgeorge.edu/wate…-v-verjil/
This referendum/initiative is doomed to be an [b]expensive failure for those of us that have to finance the elections[/b]. Nothing prevents relevant authorities from re-introducing water hikes – that’s THEIR right under 218. Voters can lower the rates, politicians can raise them again. See Petaluma and Foresthill (briefly mentioned in the article above) for examples of similar actions.”[/i]
The election does not need to be expensive. If it is conducted as a special election, like Measure I was, then it is indeed expensive. However, if it is just one more question being decided in a regular election, the cost should be very minimal.
Well, I was trying to say that the voters approved the [i]project[/i] and the [i]process[/i] for setting the rates, not the [i]actual[/i] rates. We may be saying the same thing.
With re: the off-topic conversation, I would happily join the Bull Moose Party. But much of their platform was ultimately adopted by the Democratic Party [url]http://en.wikipedia.org/wiki/Progressive_Party_(United_States,_1912)#The_Progressive_convention_and_platform[/url]
“I wonder if David really finds the comments “odd” since most (but not all) people want to cover up the fact that there is any real disagreement with “their side”. If you read liberal publications you would thing that only a handful of “evil racists” don’t want to make “undocumented workers” legal, while the conservative press writes that a “few in the liberal media” are trying to give “amnesty” to “illegal aliens”…”
I’m not really seeing this as ideological in the liberal-conservative spectrum.
“They argue, “The new, confusing Consumption Based Fixed Rate (CBFR) fee included in the new rates would base each rate payer’s monthly (January through December) water rates on the amount of water used during the 6-month peak consumption period (May through October) of the previous year.”
I’m going to show my ignorance of the situation here: Why doesn’t the city charge people for the water they currently use (like PG&E does for electricity) instead of what they have used in the past?
The basic answer is that there are two costs in the water system – one is water and one is infrastructure. You have to build your system in order to be able to provide water at peak times. You don’t want to be taking a shower getting ready for work and have the water system fail on you.
Since you cannot directly measure the individual’s impact on peak capacity, you have to create a way to estimate it. Traditionally we have strictly used water meter size as a proxy for contribution to peak capacity. But that turns out to be very crude and ends up punishing people at the low end of usage by charging them for a whole bunch of capacity that they aren’t really impacting with their usage.
So the idea behind CBFR is to create a better measure by looking at water usage during peak months and using that as the consumption-based portion of the fix rate.
Is it perfect? No. But it gets it a lot closer to an equitable distribution of the fixed charges.
DAVID WROTE: “I’m not really seeing this as ideological in the liberal-conservative spectrum.”
Correct.
David:
[quote]“I’m not really seeing this as ideological in the liberal-conservative spectrum.”
[/quote]
Well tell that to your liberal friends.
This has nothing to do with liberal/conservative nonsense; it is all about selfishness.
“So the idea behind CBFR is to create a better measure by looking at water usage during peak months and using that as the consumption-based portion of the fix rate. “
So everyone will have a different “base” rate, determined by usage during peaks month of the previous year?
B. Nice, the simplest answer to your collective question is that there are significant brick-and-mortar costs associated with building a water system, costs that are specifically incurred to meet summer peak demand. In a Davis summer, we use more than three times as much water as we do in the winter. If engineers designed a water supply system that only delivered our average use, we would have a much cheaper system, but it would not provide enough water when we needed it. Because we want a reliable system that meets year-round water needs, engineers must design a water system that meets the summer peak, not the yearly average need Mr. Dunning uses as the benchmark of fairness. Meeting peak demand means significantly greater capital construction costs and significantly greater debt and debt service costs to finance them.
Allocating the costs incurred to build a reliable system to meet summer peak demand under CBFR follows the same method engineers use to decide how big the system should be: all the individual peak-period use is added together; then that aggregate total use is divided into individual proportional shares by account. If a customer incurs a large share of costs because they irrigate heavily in the summer, their share of the construction costs are proportionally large. If another customer has no summer irrigation needs, their share of the construction costs are proportionally small.
” all the individual peak-period use is added together; then that aggregate total use is divided into individual proportional shares by account. If a customer incurs a large share of costs because they irrigate heavily in the summer, their share of the construction costs are proportionally large. If another customer has no summer irrigation needs, their share of the construction costs are proportionally small.”
Is summer water use assessed annually and a customers rate changed accordingly.
Yes. Therefore if you institute conservation measures during a particular summer, your contribution to the bricks and mortar costs goes down, and the Supply Charge for the next January 1 through December 31 period goes down.
Thanks for clarifying that for me Matt.
I don’t have a problem with people who use more water for landscaping purposes paying more for it.
Or I guess another way of stating it is why should people who use less water for irrigation be forced to subsidize those who choose to use more.