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HomeMy WebLinkAbout; ; CRMWD Subsidiary District; 1981-03-01RE PORT ON THE CITY OF CARLSBAD'S APPLICATION TO FORM A SUBSIDIARY DISTRICT Prepared For The . VI* F,, t, \ .-*i!i; Jfl IWk By The :OSTi\ RE/1L MUNICIPAL 14/ATER DSTRICT MARCH 1981 REPORT ON THE CITY OF CARLSBAD'S APPLICATION TO FORM A SUBSIDIARY DISTRICT PREPARED BY COSTA REAL MUNICIPAL WATER DISTRICT BOARD OF DIRECTORS *"* . DONALD A, MAC LEOD MARGARET J, BONAS FRED W, MAERKLE ALLAN 0, KELLY WILLIAM M, SMITH STAFF WILLIAM C, MEADOWS/ GENERAL MANAGER PAUL S, SWIRSKY, LEGAL COUNSEL JACK Y, KUBOTA, DISTRICT ENGINEER COMPILED AND EDITED BY S, M, SCHMIDT . SPECIAL CONSULTANT CARLSBAD CITY BOUNDARIES NOT PART OF CITY COSTA REAL MWD i f ', CITY OF CARLSBAD BUENO COLORADO MWD SAN MARCOS CWD OLIVENHAIN MWD i i H?' i ;i?-i 0 U T.L I N E 1,0 INTRODUCTION 1,1. POSITION OF COSTA REAL WATER DISTRICT 1,2 WHAT IS A SUBSIDIARY DISTRICT? 2,0 ANALYSIS OF CITY'S JUSTIFICATION 2.1 DUPLICATION OF EFF.ORT 2.2 IMPROVED PLANNING, COORDINATION AND CONTROL 2.3 CONFUSION FOR THE WATER USER 2,*t IMPROVED POLITICAL ACCOUNTABILITY 2.5 INTEGRATION ON LAND USE AND WATER FACILITIES PLANNING 2.6 PREMATURE DEVELOPMENT/CONVERSION OF AGRICULTURAL LANDS 3,0 CRITIQUE OF ANDERSEN REPORT 3.1 CITY COMMISSIONS REPORT TO JUSTIFY APPLICATIONS 3.2 SUBSIDIARY DISTRICT VERSUS MERGER 3.3 LAFCO FACTORS 3.4 CONFLICT BETWEEN ANDERSEN REPORT AND CITY'S APPLICATION 3.5 COST OF OPERATIONS 4,0 LEGAL ISSUES 4.1 DISENFRANCHISEMENT OF VOTERS 4.2 USE OF WATER UTILITY AS LAND USE CONTROL DEVICE 4.3 INCOMPABILITY OF OFFICES 5,0 CONCLUSIONS 5.1 PROPOSAL IS UNSUBSTANTIATED AND UNJUSTIFIED 5.2 PROPOSAL RAISES SIGNIFICANT LEGAL ISSUE 5.3 REALISTIC ALTERNATIVE NOT CONSIDERED 1,0 INTRODUCTION 1.1 POSITION OF THE COSTA REAL MUNICIPAL WATER DISTRICT The City of Carlsbad's application to LAPCO to establish the Costa Real Municipal Water District as a subsidiary district of the City was filed over a year ago with the LAPCO staff.1 \ Immediately following the City's action, the Costa Real Municipal Water District (CMWD) filed a resolution with the LAFCO staff opposing the proposed subsidiary 2district proposal. The District's objections to the proposal are numerous and will be discussed in greater detail in the body of this report. The following is a summary of the District''s reason for opposing the proposal: . The filing of the proposal was designed ® to create a political confrontation be- tween the District and the City. .The City has failed to justify the pro- 9 posal on the basis that water service would improve or costs would be reduced. . The proposal fails to discuss any other © alternatives or provide a comparison of alternatives. . . No substantial benefit to water users will' result from the proposal. On the • contrary, a portion of those users will be deprived of voting rights which they now enjoy. No evidence has been offered to show any significant public support on the part of either individuals, interest groups or classes of water users within CMWD. The proposal will not result in a less 9 complex structure of local government nor reduce the number of public agencies. The legal issues raised by the proposal $ should be resolved by a competent author- ity before the proposal proceeds further. ***X***X*XXXX*K The purpose of this report is to critically analyze the proposal, provide information and data that are lack- ing in the proposal and raise issues of significant public interest that are ignored by the proposal. The burden of proof that this proposal does or does not have merit rests with the City, not with the District. The District however, feels a responsibility to reveal the specious nature of the arguments made by the City in support of the proposal - 2 - and to disclose the faulty information upon which it is based. - 3 - I 1,2 WHAT IS A SUBSIDIARY DISTRICT? By law, a subsidiary district is a special dis- trict (or "district of limited powers"), for which a City Council serves as a Board of Directors. The Government Code defines a subsidiary district as "a district of limited powers in which the city council of a city shall be designated, and empowered to act as, ex officio the board of directors of such a district." The Code states further: "Such district shall continue in existence witfr all of the powers, rights, duties, obligations and functions provided for by the principle act, except for the provisions relating to the selection and removal of the" board of directors h ' 'of such district." In order to clearly understand the operation of the Costa Real Municipal Water District as a subsidi- ary district of the City of.Carlsbad, it is necessary to examine the "principle act" under which the District was formed and the statute that would have to be fol- lowed by the City Council in governing the District. It is essential to realize, at this point, that the City would not govern the District under the laws affecting general law cities, but under the Municipal ?^!?!!??!?ZZl^^ Water District Act of 1911. Thus, if there were any conflict between the two statutes, the Council would be required to follow the water law whenever water district operations were involved. The Municipal Water District Law of 1911 is a c lengthy and complex document. It is interesting to note, in reviewing this statute, that it is intended to establish a legal framework for a particular type of special district designed to provide water to city residents. As its very name implies, it is intended to govern water districts which serve municipalities. Without going into greater detail over its many provisions, it will help to point out several that are particularly significant in relation to the Carlsbad proposal. For example, there is a provision that the Dis- trict's General Manager, a position required by the Code, shall have full charge and control over opera- tions and management, and further, shall have "full power and authority to employ and discharge all em- ployees, . . . prescribe their duties, and fix their •7 compensation.11 . The power and authority of the City Council would be highly restricted by the provisions of the principle Q act. Certain assumptions made in a 1977 City Report - 5 - 10 and other City statements regarding fiscal, operational or management flexibility may have to be considered. For example, the 1977 Report states that forma- tion of a subsidiary district would enable the City to "integrate water requirements with other social needs priorities." While the Report is not specific as to the meaning of "social needs priorities", the fact is that such "integration" would be impossible, given the restrictions of the water law. There is no authority to inter-mingle tax base and funding. There may even be a question as to the comingling of personnel, since District employees would cfontinue to be District em- ployees, governed by the provisions of the Water Code, while City employees would be governed by Council poli- cies under its General Law authority. ************** The issue of "control over water rates" is clouded by the principle act. Unless the City feels the exist- ing rates are inequitable for like classes and conditions of service, the law' would appear to limit City policy control to uniform increases and decreases! In this re- gard, it would appear incumbent upon the City to indicate before it acts on this proposal whether this statement in the 1977 Report (regarding control over water rates), is intended to mean that rates would be used as incentives - 6 - - 7 towards annexation of territory, or whether a system of connection fees promoting annexation would be pro- posed. It is apparent that the City did not carefully | study the Municipal Water District Law before proceed- ing, to assure itself that any intended actions are in accordance with the Law. 2,0 ANALYSIS OF CITY'S JUSTIFICATIONS The City's application to LAFCO lists a number of "justifications" for the proposal. On the surface, these appear to be worthwhile .and appealing objectives. Closer examination, however, indicates that they are either pro- prosed solutions to non-existent problems or simply lack in sufficient substance to warrant a change as monumental as the one proposed. ****** *'#**•**»«. 2.1 "DUPLICATION OF EFFORT" The City's application states that establishment of Costa Real (CMWD) as a subsidiary district ". . . will, avoid duplication of effort by the City and District."11 Neither the application documents nor the Andersen 12Report identifies where efforts are currently being duplicated nor where they might be duplicated in the future so as to be avoided. The. City has certain retail water customers to which it provides water through a City-operated water . system. The District also has a District operated water system and retail water customers. If the Disrict were to be made a subsidiary District of the City, there would still be two separate water systems and two - 8 - separate sets of water users. The same number of meters would have to be read, the same number of miles of water lines maintained, the same number of reservoirs, pumps and other appurtenances operated after the proposed change as before. Consequently, the amount of effort it takes to operate the water systems currently would not in any way be al.tered. Establishing Costa Real as a subsidiary district does not mean dissolution of the District; nor does it mean a lessening or elimination of the responsibilities that the District has to its customers. In fact, so far as the delivery of water is concerned, nothing will change. ************** 2.2 "IMPROVED PLANNING, COORDINATION AND CONTROL" The City's application states "... the City Council, acting as the District Board and City staff, acting as Board staff, will result in improved plan- ning, coordination and control of development of the water utility system to serve patterns of urban devel- opment. . . . " Like the statement on avoiding dupli- cation of effort, this sounds impressive. However,, neither the City's application documents nor the Andersen Report indicate the method by which any of these activities will be improved; nor do they substantiate a need for improvement. _ Q _ During the decade of the '70's, the City of Carls- bad experienced substantial growth. None of this growth was impeded by the alleged absence of coordinated plan- ning of water delivery systems between the District and City. Furthermore, much of that growth, especially the residential growth, occurred in areas that are provided retail water service by neither the City nor Costa Real Municipal Water District. Over the 18-month period when the Andersen Report was being prepared, 13% of all authorized water service connections for new units within the City of Carlsbad v were outside of either the City's or Costa Real's re- tail water service area: 51$ in Olivenhain Municipal Water District and 22% in San Marcos County Water Dis- trict. The present application by the City would have no effect upon either San Marcos County Water District or the Olivenhain Municipal Water District; nor, would it "improve planning, coordination and control. . ."of water systems within these two agencies. Within the Costa Real service area, land use planning has never been hindered by the District. The District has expanded its urban water service as needed by City approved development, and the District has never been unable to carry out its function because of City projects. Within the City of Carlsbad, development - 10 - has never been impeded by the lack of wholesale water service by Costa Real Municipal Water District. As for water resource planning - which means as- suring adequate water for all needs - the District has clearly performed successfully. Pipeline interconnec- tions with neighboring districts and the City Water Department provide mutual emergency water availability, and excellent interagency coordination exists. Similar interagency planning and operational coordination exists on a regional level via the San Diego County Water Authority. As a member of the SDCWA, Costa Real is involved in regional planning which benefits the Carlsbad area. One example is the recently completed Tri-Agency Pipe- line, a SDCWA sponsored project shared by Costa Real and two other SDCWA members: the City of Oceanside and the Vista Irrigation District. Significant econo- mies of scale and necessary additional water availability has benefited all participants, as well as the City of Carlsbad, on whose behalf Costa Real acted. Once again, it is difficult to see how establishment of Costa Real as a subsidiary district "will result in improved planning "coordination and c-ontrol of development of the water utility system to serve patterns of urban development. ..." »### «'«*«**«*•«* 2.3 "CONFUSION FOR THE WATER USER" The City's application to LAPCO states that it is justified because it will result in a reduction in the ". . . confusion and difficulty for a large segment of the City's population when seeking to affix responsi- 1*4bility for the provision of water utility services." It is conceivable that City residents who are pro- vided water service by.Costa Real could get confused i over which of the two agencies is responsible for water service. Unfortunately, the present proposal would not substantially change that situation. As stated before, even with Costa Real as1 a subsidiary district of the City, the District will remain intact and the City will have a separate set of customers. If there is confusion over this, it will remain even if the City's proposal is implemented. So long as water is provided in suf- ficient quantity, is of adequate quality and reasonably priced, the majority of water users will not really be concerned whether the responsibility rests with the City or a water district. However, when problems arise or when there is a need for a turn-on or turn-off, it is important to be able to "affix responsibility". Under existing circum- stances, the "difficulty" a resident might have would be, for example, when calling the City staff to take care of - 12 - a water-related problem which Is the responsibility of Costa Real, Olivenhain MWD or San Marcos CWD. At worst, the resident would be informed of the other agency hav- ing responsibility and have to make a second telephone call. A better solution would be for the agency get- ting the initial call to assume responsibility for re- laying the message to -the agency having jurisdiction. If this situation is as severe a problem as is implied by the City's application, the agencies involved could, through bilateral agreement, establish a relatively simple referral system. ************** 2.4 "IMPROVED POLITICAL ACCOUNTABILITY" The City's resolution of application to LAPCO states that one of the reasons the proposal is being 15made is to ". . . improve political accountability." J This statement implies that the City Council is more accountable to the electorate than is the District's Board of Directors. However, the City has provided no information to substantiate this statement, which gives support to the position that the statement is pure fiction, irresponsible, destructive and demon- strates a lack of integrity and discretion on the part of the proponents. - 13 - Were Costa Real to become a subsidiary district of the City, the City Council sitting as the District Board would still have to operate the District under the pro- visions of the same Municipal Water Distr.ict Act. The same grant of powers would apply to the Council as it does to the present Board where the operations of the District are concerned. In fact, the issue of "political accountability" raises two legal issues that neither the City applica- tion documents nor the "Andersen Report" mentions or attempts to resolve. »• First, the Municipal Water District Act requires that each of the members of the District Board shall be electee by division, each division having approxi- mately the same population. Prom time to time the boundaries of these electoral divisions must be altered to assure that the population of the District is divided equally between each of the five divisions. Under these provisions, each of the District's Directors has a separate constituency to which each is directly accountable. Members of the Carlsbad City Council, on the other hand, are elected at-large, not by electoral division. Thus, there is a basic Incompatibility in the way the two bodies are elected. '1'?'^^ - - ~"" -«-*«BMBW«I A second legal question arises from the fact that the City includes a portion of the District, but not all of it. There are currently 58 registered voters that reside within the District, but not within the City. In the event the application were approved and the City Council became the District Board of Direct- *ors, these 58 registered voters would not be qualified to vote for members of the Council. They would be dis- enfranchised of their right to vote on the' selection of the District's Board of Directors. These legal questions will be discussed in greater detail in another part of this report. ************* 2.5 "INTEGRATION OF LAND USE AND WATER FACILITIES PLANNING" Another "reason" for the City's proposal, as stated in the Resolution of Application, is to ". . . provide for improved integration of land use planning and control with the planning and development of water service ..16systems. This statement is another example of the type of ill-defined, intangible and misleading concepts which . fail to fitand up to critical examination. *Source: Registrar of Voters, January, 1980. - 15 Of the 16 cities In San Diego County, 12 of them 'have water services provided by.one or more water dis- tricts. Interagency coordination between land use plan- ning and water utilities planning exists. If the City of Carlsbad and the Costa Real Municipal Water District have a coordination problem, it can be resolved in a much more expeditious manner than the present proposal anticipates. i In addition, this proposal will not facilitate coordination with other agencies that provide utility- type services to the area of the City, such as theff Vista Irrigation District, the San Marcos CWD, the Leucadia County Water District, the Olivenhain MWD and the San Diego Gas and Electric Co. The City will have to continue to coordinate its land use .planning function with these agencies through other means. ************* Tho City of Carlr.bad had adequate author.! ly to exercise control over land use within its jurisdic- tion. Changing Costa Real to a subsidiary district will in no way alter the City's statutory grant of power in this area. Further, Costa Real as a subsidiary district of the City would still have to be'operated under the provision of the Municipal Water District Act of 19Hj - 16 - not under the laws affecting general law cities. Thus, if there were any conflict between the two statutes, the Council would be required to follow the Water Code Provision whenever District operation were involved. ************* 2.6 "PREMATURE DEVELOPMENT/CONVERSION 'OF AGRICULTURAL LAND" In its resolution to LAPCO, the City gives as a reason for the proposal that it would result in the better control of ". . . the premature development of undeveloped land or the premature conversion of econo- mically productive agricultural land by the extension 17of the water service infrastructure prior to need." Like the former argument for "integrating land use", the reasons stated above provide little in the way of substantive justification. On the contrary, the implications of this justification is that the City intends to use the water utility to regulate land use. This statement also raises an important legal issue which is discussed in another part of this report. The statement also reveals a basic Ignorance about the water industry in. Southern California. First, water service is a basic need for all types of land - 17 - use. If agriculturally productive lands are to be converted to other uses, water supply will be a factor only if there is a diminished supply of water. All of the water distributed by CMWD is imported through the County Water Authority (CWA) and the Metropolitan Water District of Southern California (MET). This water supply is imported for domestic and industrial uses only. Water distributed from this supply for agricultural use is "surplus water". Should imported water supplies be diminished, agriculture in Southern California will be the first to be cut back. Secondly, an acre of land in agricultural use will consume more water than lands in residential, / commercial or industrial use. Thirdly, the determination as to how much is available to agriculture and the amount of the agri- cultural rebate (the method used to give agricultural users a lower mtr), will bo mrulo by CWA and MET, not by local distributors. Lastly, since CMWD is a member of CWA and, through the Authority, MET, all lands within the District have an "entitlement" to imported water and have pnjd a pro rata share of the cost of water importine faoi litios over a period of 40 years or more. - 18 - 3,0 CRITIQUE OF THE "ANDERSEN REPORT" 3-1 "CITY AUTHORIZES REPORT TO JUSTIFY APPLICATION" Apparently, feeling that the proposal needed justi- fication based upon economic data, the City authorized a study and report by Ralph Andersen and Associates of -i Q Sacramento. It is interesting to note that the re- port is-not a feasibility study; it is written to sup- port the City's proposal. It does not consider any alternative other than the City's takeover of the f operation of the District. This is the'basic premise of the report and, as a result, the objectivity of the report and the integrity of its conclusion are question- able. In terms of its value to LAFCO, the Andersen Report constitutes nothing more than a 100-page argu- ment in favor of the City's proposal. In addition, the report fails to provide valid comparison of District and City water operations, arid it ignores vital criteria LAPCO must take into consideration. The following com- ments are directed at some,.but not all, specific errors and omissions in the report. - 19 3.2 "SUBSIDIARY DISTRICT vs. MERGER" Three methods of accomplishing a change in organi- zation, as provided for in the District Reorganization 19Act, are described in the report. These three alternates are: 1. Subsidiary District;• 2. Merger; and 3. Dissolution.i The report states that the Water District cannot be merged with the City and it outlines the reasons why. It also states that the Water District may be dissolved pursuant to the District Reorganization Act procedures, but it ends there. It merely states that if the Water District were dissolved, the responsibility for pro- 20viding water service would be determined by LAFCO. It finally states that the District may be made a subsidiary district of the City if at least 10% of the District's land area and 70% of its registered voters are within the City's boundaries. The report then out- lines the procedures that must be followed to accomplish 21any change in organization. At a later point in the report, it la recommended that the District be established as a subsidiary dis- trict of the City and several assumptions that are - 20 - unsubstantiated by facts or figures in the report are 22cited to support this recommendation. At this point, the report systematically merges the entire District, including employees} operations and maintenance, assets and all functions of the Dis- trict into the City. All of this, notwithstanding the fact, that earlier it stated that the District cannot be merged with the City. i ************* 3.3 "LAFCO FACTORS" The Knox-Nisbet Act which created LAPCO, esta- blished certain factors for LAPCO to consider when evaluating a proposal. These factors apply to all proposals, whether filed under the Knox-Misbet Act, the District Reorganization Act of 1965 or the Muni- cipal Organization Act of 1977- The following is a discussion of some of those factors that would directly relate to the City's proposal. * * *. ********** (a) The Likelihood of Significant Growth in the Area and Adjacent Areas in the Next Tori Years The Andersen Report does not analyze the impact of the proposal upon grpwth, past or present, within - 21 - the District. There is some vague allusion to the integration of land use planning with water system opera- tion, but no specifics are offered as to how this integration will either stimulate or regulate future growth. As to adjacent areas, there is no discussion of expansion (annexation) t either by the City or the District. There is also no reference to the fact that, as discussed above, most of the growth that has occurred within the City's boundaries within the past few years has been within the retail water service area of either San Marcos CWD or the Olivenhain MWD. ***********#* (b) The Present Cost and Adequacy of Governmental Services and Controls in the Area The report provides a profile of City and District water operations and of the costs associated with each. To this extent, the foregoing factor is "considered". However, the adequacy of these operations is not assessed to the - 22 - point where a conclusion can be drawn that the service of one agency is more or less adequate than that of the other. In the process of developing an organi- zation plan for combined water operation, an assumption is 'made that upon combining the operation "service levels will remain at a level equal to or superior to current service'levels" (emphasis added). Unfor- tunately, there is no evidence to support this assumption. However, it goes on to say .that "In other words, the .City would provide the same or bett.er quality of ser- vice if it were to assume responsibility 20 for a combined water operation." Without any supporting evidence the foregoing assumption leaves one dangling with anticipation as to how a "superior" or "better quality" of service is going to be achieved. Also, with the same evi- dence at hand, one could conclude that the City's takeover-of a combined opera- tion would result in a lower level of service. In fact, the Andersen Report indicates that the latter possibility has some - 23 - validity. For example, it says that it would be preferable under a combined City- run operation to establish the District's water operations as a separate section of the Utilities Division, at least initially, "... until city officials obtain experi- ence in administering this new program" 2^(emphasis added). t What this admits to is that the City staff has no experience in operating a large wholesale water operation with all that en- tails, such as regulation, treatment, test- ing and assuring that there is an adequate supply of water at the right pressure with the proper amount o'f disinfection. The fact that the District provides these ser- vices for the City also shows a lack of operational duplication. And as far as combining water systems, the District staff could take over the operations of the City retail water service with no indoctrination period required. ************* (c) The Probable Future Needs for such Services and Control The Andersen Report does not provide a future needs analysis. (d) The Probable Effect of the Proposal and of Alternative Courses of Action on the Cost and Adequacy of Services and Controls One of the greatest failures of the Andersen Report is the omission of any dis- cussion about alternative courses of action. It fails,%that is, as an objective disserta- tion that offers the reader some valid and substantive comparisions. An obvious alter- native is for the District to assume all retail water service responsibilities within its boundaries. In other words, the District could serve that area now served by the City. This is an alternative LAPCO should consider. ****#*#***»*** (e) Other Factors which the Andersen Report Fails to Consider (1) The effect of the proposal and of alternative actions upon mutual social and economic interest./ (2) The effect of the proposal on main- taining the physical and economic integrity of lands in agricultural use. 3-4 "CONFLICT BETWEEN ANDERSEN REPORT AND CITY'S 'APPLICATION • There is an apparent conflict between the Andersen Report recommendations and the City's Resolution of Appli- cation concerning the fate of District personnel should Costa Real'become a subsidiary district. For example, the report states: "As indicated in this report, it would be neces- sary to transfer 6 of the 10 District positions to the City in the event that the District was made subsidiary to the City. The City could make the policy decision to hire all District employees and subsequently achieve the econo- mies of consolidation through attrition" ^5 (emphasis added). . . On the other hand, the City "s-Resolution of Application states: "That employees of the Costa Real Water District employed full-time on the date of this resolu- tion (1/15/80) will become employees of the City of Carlsbad. . . ."26 The Andersen Report appears to be recommending that all DlGtriut employee;1, be retained. The Clty'i; po;;J I/Ion appears- to be that only employees working for the District prior to January 15> 1980 would be retained. Aside from the fact that the City's position as ex- pressed in Resolution No. 6063 is an insensitive treatment of employees' rights, both the City and author of the Andersen Report appear to be ignorant of the fact that the ultimate decision as to the retention of employees - 26 - does not lie within the scope of the City's authority. This is a matter that would be considered and determined by LAPCO. The Government Code gives LAFCO the authority to decide upon "employment, transfer or discharge of employees; the continuation, modi- fication or termination of existing employee contracts, civil service rights, retirement rights and other em- 27ployee benefits and rights." This section of the Code applies to all prc-posals filed pursuant to .the District Reorganization Act of 1965. ************* 3.5 "COST OF OPERATIONS" On Page 14 of the report, the District's latest water rates and ready-to-serve charges (as of publica- tion date of the report) are presented. In contrast, City rates presented on Page 46 were those from the previous year. The District's new charges were compared to the City's old ones. The report states "the City has allocated 16.5 29positions to water operations." The accompanying organizational chart actually shows 17.17 positions plus the Public Works Administrator and City Manager. The report goes on to say that in addition to the "16.5" positions assigned to the water department, support services from other departments, plus con- sultants, are required. Some examples are: - 27 - Personnel Services: No allocation of time Is made. Financial Services: All financial services as well as cutomer bill- ing, data processing, budget "preparation, general accounting services, financial reporting and ex- penditure control are provided by this department The report states "it is estimated that the per- i formance of the above services require the equi- valent of three full-time account clerk positions with occasional assistance from the Finance Direc- tor and Assistant"Finance Director."30 These positions are not included in the 16.5 mentioned earlier. Purchasing: The Purchasing Department does all purchasing for the Water Department and while no time allo- cation is rnndo for water, It has to bo a ;• 1r.nl f1- cant percentage of the overall costs for this Department-. Other Departments: There.is no need to comment at length, based on • the above examples; however, other departments which assist water 6perations include Legal, Engineering, Building and Maintenance, arid - 28 - Communications. No mention is made of the City Manager's•office, which, under the subsidiary district proposal, would absorb the work load of the District's General Manager. Indeed, the concept of how the Water District's entire Legal, Engineering and Management work load being ab- sorbed by existing City staff is one of the more interesting omissions of the Andersen Report , **#**#*#***** With the preceding comments in mind, the District's response to the Andersen Report is that the estimated $100,000 per year savings is at best a miscalculation, and at worst, incompetent. Perhaps One of the most "31telling statistics, obtained from the report itself, is that the cost of operations for the District is 25% of all expenses (the cost of water being 75/O, while the cost of operationr, for the City Water Department is 45%. The Andersen Report admits this much, although there is some indication that the true cost of the City's water operations are higher than reported. ***•***«* •****•* A final comment is that LAFCO should consider whether the cost of water'service in Costa Real's area would not increase under City control, and whether the - 29 - cost of service in the City's retail area would not decrease if provided by Costa Real Municipal Water District. A comparison of the responsibilities and the staffing level of the City and the. District, taken from the Andersen Report, 32 indicates the City's per- sonnel needs for water operations by far exceeds those of the District. As the accompanying tables indicate, the City's field operations, which cover.only a third of the area of the> District, requires over twice as many personnel. Based upon metered connections, the City's operation requires one field crew member for every ^1^ connections as compared to the District's which requires one field crew member per every 550 connections. - 3.0 - COMPARISON OF RESPONSIBILITIES CITY DISTRICT TOTAL SERVICE AREA TOTAL WATER PRODUCTION METERED CONNECTIONS TOTAL STORAGE TO MAINTAIN MAJOR METERING STATION PUMP STATIONS PRESSURE REDUCING STATIONS 7,000 ACRES 4,828 AC FT 5,800 8 M,G, 1 9 20,000 ACRES 10,000 AC FT 3,300 200+ M,G, 5 1 23 TABLE A PERSONNEL COMPARISON FIELD OPERATIONS CITY WATER PUMP FOREMAN WATER PUMP OPERATOR WATER MECHANIC WATER MAINT, FOREMAN HEAVY EQUIP, OPERATOR SR, WATER SERVICEMAN WATER SERVICEMAN METER SHOP FOREMAN TOTAL 1 2 1 1 1 3 « 1 » DISTRICT SUPERINTENDENT LEADMAN METER READER WATER OPERATOR UTILITYMAN 1 1 1 2 1 6 TABLE B PERSONNEL COMPARISON SUPPORT SERVICES CITY ADMINISTRATION: DIRECTOR OF UTILITIES SECRETARY UTILITIES SUPT, ENGINEERING AIDE STENOGRAPHIC CLERK BILLING CLERK ENGINEERING: 1/2 ASSOC, ENGR, ) 1/4 ASST, CIVIL ENGR, ) 1/4 CONST, INSPECTOR ) TOTAL 1/3 1/3 •^ 1/2 1 1 3 ' 1 / i/'; DISTRICT GENERAL MANAGER OFFICE MANAGER SECRETARY BILLING CLERK RECEPTIONIST 1 1 1 1 1 '; TABLE C OTHER SUPPORT SERVICES CITY DISTRICT FINANCE DIRECTOR ASST, FINANCE DIRECTOR PURCHASING DEPARTMENT LEGAL DEPARTMENT ENGINEERING CONSTRUCTION INSPECTION EQUIP, MAINTENANCE CONSULTANTS (AS NEEDED) CONSULTING ENGINEER LEGAL COUNSEL ANSWERING SERVICE GARDENING &. CUSTODIAL CONSULTANTS (AS NEEDED) TABLE D O 1 E G A L ISSUES 4.1 DISENFRANCHISEMENT OF VOTERS The boundaries of the City of Carlsbad are wholly inside the boundaries, of Costa Real Municipal Water District, the District being larger than the City. There is, therefore, a portion of Costa Real Municipal Water District tha,t i.s not within the boundaries of the City of Carlsbad. If Costa Real Municipal Water District were to become a subsidiary district of City of Carlsbad, the City Council of Carlsbad would become the Board of Directors of Costa Real Municipal Water District. The 58 voters who reside within the District but outside the City limits of Carlsbad would therefore not be able to vote for members of the Board of Directors of the District. The V/ater Code-33 provides for the division of munici- pal water districts into five divisions, divided in such a mariner as to equalize, as nearly as practicable:, the population in the respective divisions. One member of the Board is elected in each division thereby providing that each of the five divisions has a representative on the Board of Directors. The proposal to make Costa Real Muni- cipal Water District a subsidiary district of City of Carlsbad would deny that class of persons outside the city limits their right to vote on a divisional representative. - 31 The question here lies with the disenfranchisement of those 58 voters outside the city limits. They would be effected by the decisions and policies of a Board of Directors upon which they had no vote.. The establish- ment of such a classification would fall under the Equal Protection Clause of both the California State and the Federal Constitution. . The Fourteenth Amendment to the Federal Constitution and Article I, Section 11, 21 of the California Constitu- tion provide that no state shall deny to any person with- in its jurisdiction the equal protection of the laws. The "equal protection" clause requires that persons under «^ like circumstances be given equal protection and security in the enjoyment of personal and civil rights; it applies not only to property rights, -but personal rights, and political rights, such as the right to vote. There have been numerous court car.es Involving the right to vote. For example, in Weber v. City Council, the court held that, "... If the statutory scheme imposes a ... classifi- cation which infringes on a fundamental interest, such as the right ... to vote ..., the classification must be .closely scrutinized and may be upheld only if it necessary for the furtherance of a compelling 32 - state Interest."^ The court in that case also held that, "Annexation procedures clearly constitute state action and thus are subject to the Equal Protec- tion provisions of the Fourteenth Amendment and of the California Constitution (Art. I, Sections 11, 21)."35 ************** t The standard of strict scrutiny is applied particu- larly to classifications involving the right to vote. The United States Supreme Court has established that ."be- cause of the overriding importance-of voting rights, classifications 'which might invade or restrain them must be closely scrutinized and carefully confined' where those rights are asserted under the Equal Protection Clause."36 The principle establishing an. obligation of active and critical analyr.ls hnr, boon oxtondod to Inwr. which touch upon or burden the right to vote, including condi- tions which dilute the vote of residents of one locality 07against those of another.' The interest in this proposal, that is, the establish- ment of Qosta Real Municipal Water District as a subsidiary district of the City of Carlsbad, lacks any compelling state interest and in fact and in practice would violate the fundamental right to vote of those citizens who reside - 33 - outside the Carlsbad city limits and within the District. ************** In another often cited case, the California Supreme Court, in Curtis v. Board of Supervisors held that, "... the philosophic reach of the decisions of the United States Supreme Court has been to afford to each individual citizen a maximum democratic partici- pation in political matters upon an equal basis . . . (the) ideal of maximum participation in democratic decision-making particularly applies to participation in the affairs of the city. One of the most strikingv and encouraging phenomena of our times has been the deep and renewed interest of citizens in local communi- ty matters. To frustrate the endeavor of individuals to fix the unit of their local governance . . . would be to stifle that self-determination."™ In yet another U.S. -Supreme Court decision, the-court found that: "We therefore hold today that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental function, the Fourteenth Amendment requires that each quali- fied voter must be given an equal opportunity to partici- pate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will ensure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials."39 The present proposal clearly falls under the circum- stances addressed above, where the intention of the court was to protect the ^fundamental right of citizens to vote in local elections. Should the City of Carlsbad estab- lish Costa Real Municipal Water District as a subsidiary district, qualified voters within the district could no longer vote on their Board of Directors. This clearly violates the holding of the United States Supreme Court. r It is safely .concluded, therefore, that the establish- ment of Costa Real Municipal Water District as a subsidiary district of the City of Carlsbad"1- would necessarily involve the disenfranchisement of some 58 voters presently in the District. Based on the review of the foregoing cases, the disenfranchisement of those voters violates the Equal Protection clauses of both the Federal and State Con:;t. i tu- tions. - 35 - 4.2 USE OF WATER UTILITY AS LAND USE CONTROL SERVICE The City's application places great emphasis upon the relationship of land use regulation and the control of the water utilities. For example, in its Application Questionnaire, the City states the City Council and the City staff, in place of the District's Board and staff will improve "...planning, coordination and control of development of water utility system to serve patterns of urban development (emphasis added)."^0 Again, in its Resolution of Application, the City states that this pro- posal would result in "Better control of the premature development of undeveloped land ... by the extension of water service infastructure prior to need."^l Not only do the above quoted statements demonstrate a lack of understanding of the water industry (see Part 2 of this Report), they also reveal an ignorance of the laws applicable to the operation of a municipal water dlntrict. As- ntatod prov5ounly , rvrn 1f CMWD wm-p n sub- sidiary district, its governing body would have to operate the District in compliance with the Municipal Water Dis- trict Act of 1911. Such districts have an affirmative legal duty to provide service to the extent of their capa- city arid lack any authority to control land u.se by denial of service. - 36 - In 1976, for example, the Colorado Supreme Court addressed the question of a public utility's duty to provide service to the extent of their capacity in a recent decision. The court in that case reaffirmed the following principle: i:To fall into the class of public utility, a busi- ness or enterprise must be impressed with a public interest and ... those engaged in the conduct there- of must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity. The nature of the service must be such that all members of the 42public have an enforceable right to demand it. . .t; * * * * * * * *.« * * * * * The same question was addressed in a Hastings Law Review article "Thirst for Population Control: Water Hookup Moratoria and the Duty to Augment Supply." That article stated that before a water purveyor may deny ser- vice certain conditions must be established. Those con- ditions should consider•the adequacy of the supply to provide service in response to a reasonable request, re- gardless of whether a shortage or threat thereof is the result of subnormal rainfall or increased consumption. The article concluded that if these conditions justify - 37 - a moratorium (denial of service), the duty of the water distributor to augment its supply and to conserve avail- able water resources is triggered. '3 ************** In a more recent decision the California courts interpreted the Swanson case by stating that the ordi- nances and inititative questioned therein did not prohibit the District's acquisition of new water sources but, "To the contrary, it mandates that the District seek additional sources of water."^ •' ************** A municipal water district's authority to restrict the use of water is statutorily limited by California Water Code, which states: "A district may restrict the use of district water during nny t>mrrp;enc:y ouursrd by drou/''.ht, or ol.hr-r. threatened or existing water shortage, and may prohibit the wastage of district water or the use of district water during such periods for any pur- pose other than household uses or such other restricted uses as the district determines to be necessary. A district may also prohibit use of district water during such"periods for specific uses which it finds to be nonessential. 5 38 - A finding of emergency, shortage or necessity is evi- denced by other provisions of the Water Code, which states "... a finding by the Board upon the existence, threat, or duration of an emergency or shortage, or upon the matter of necessity or of any other matter or condition referred to in Section 716*10, shall be made by resolution or ordinance. The finding is prima facie evidence of the fact or matter so found Absent any such emergency, shortage, or necessity, a municipal water district has no legal authority to restrict the use of district water.. The court in the Swan son case found that with regard to this issue: "In passing, it must be noted that as to Mr. Swanson and others who are similarly situated, we are not unmindful of the? Homewhnt dire coru-equenco;; which flow from our decision in this matter. Politically, the power to 'cut off one's water1 by the simple . expedient of imposing a moratorium such as the one here involved is a potent weapon in effecting a no- growth policy within a community. Since Dintrlct has neither the power nor the authority to initiate or implement such a policy, the imposition of any 39 -Si restriction on the use 'of it's water supply for that purpose would be invalid.... Nevertheless, we do foresee a continuing obligation on the part of the District to exert every reasonable effort to augment it's available water supply in order to meet increas- ,,47ing demands. ' ' *****#«******* Similarly, in the Robinson case, the Supreme Court of Colorado rejected efforts of a city to control land use out- side of the city boundary by refusing to extend water and sewer service. The city had previously approved service extensions to other neighboring developments, but did not approve of the particular kind of development involved in this instance. In holding that the city lacked any author- ity to refuse service on this basis, the court found that, "...Boulder can only refuse to extend it's service to landowners for utility-related reasons. Growth control and land use planning considerations do not suffice.1'148 . • Municipal water districts, such as Costa Real Munici- pal Water District, are established for the express purpose of providing for the development arid sale of water. In the absence of any existing or threatened water shortage - '40 - ' ' or emergency, municipal water districts lack the legal authority to restrict use of district water. It is the purpose and the duty of a municipal water district to con- serve and augment its supply and provide water service to the extent of its capacity; there is a corresponding lack of authority to restrict the use of district water absent statutorily prescribed emergency provisions. In particular, the restriction or denial of water service for the purpose of growth control and land use planning is invalid. Munici- pal water districts, even if governed by a City Council, have neither the power nor the authority to initiate or implement a no-growth policy within a community. Furthermore, all of the lands within CMWD have an "entitlement" to the use of imported water and have paid for a period of several decades che complex system that • brings imported water to Southern California. The Dis- trict, therefore, has a moral as well as legal obligation to extend'water service to lands within its jurisdiction. 4.3 INCOMPATIBILITY OF OFFICES Another significant issue raised by this proposal is the probability that the office of a council member is incompatible with the office of a Municipal Water _X District director. It is a well, settled, rule of the common law that a person may not concurrently hold two offices which are incompatible. Thus., if a person already holding one office is elected or appointed to a second office which is deemed incompatible with the first} acceptance of the second office operates ipso facto as a resignation or" vacation of the former office. The common law tests for incompatibility were dis- cussed in a 19*11 court case in which it was found that, "Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. • Tnnomp.'i I. i h 1 I i t.y ;i rl ;•.!•:•. , I.In- r< • l'< >n • , wln-n there is an inconsistency in the functions of the two ... where the nature and duties of the two offices are such as to render it improper from con- sideration of public policy for one person to retain both.. The true1 to:; t in whether the two ofTi i:c:; arc incompatible in their natures, in the rights, duties or obligations connected with or flowing from them." ' Preliminarily it is necessary to establish that both positions in question here, that of city councilman and director of a municipal water district, are "offices" as used in this common law test of incompatibility. In an opinion by the State Attorney General, it is noted that there is no doubt that the position of county water dis- CQ trict director and city, councilman are offices. That observation is predicated upon the statutory definitions and powers of each position. With respect to the present proposal corresponding sections of the Water Code, Section 71000 et. seq. and Government Code, Section 36500 et. seq., would apply and control. Under these sections it is clear •^ that both positions are offices within the meaning of the common law test of incompatibility. In the Opinion mentioned above, the Attorney General found that the offices of city councilman and director of a county water district are incompatible and may not be held by the same person. The Attorney General relied on the common law tests for incompability as set out in the case discussed above. The court in that case based the test for incompability on the nature of the duties of the offices, especially where the functions of the two are inherently inconsistent or repugnant. In the Attorney General's opinion, it is indicated that sharp clashes could arise between the offices of councilman and district director. The Attorney General relies on specific authorized powers of the two entities in question, citing specific instances where the powers of each body overlap. For instance, the Attorney General notes that the district is authorized to construct sewer facilities and contract with any public agency for sewer outfall facilities (Water Code Section 31100). The city is also authorized to construct sewers (Government Code Section 39900). The district may make Contracts with the City (Water Code Section 310^8-50, Government Code Section 65000-13)- Each of the above authorized powers were cited as examples of potentially conflicting and incompatible duties. In 1957 the Attorney General found in a similar opinion, that members of the city council may not hold office as directors of a rapid transit district.^1 in that opinion the Attorney General found that the doctrine of incompability has its orgins in public policy, and that an officeholder forfeits his first office upon acceptance of the second. That holding has considerable weight in the California Courts.^ -The Attorney General relied on specific examples of potential clashes between the respec- tive offices; in particular, here, the Attorney General argues that particular powers, such as the district's authorization to contract with the city, are in conflict In that circumstance a city councilman would have to serve two masters if he held the two offices concurrently. The Attorney General also stated that: "These examples do not nearly exhause the possibili- ties of.conflict. Indeed, only one significant clash of duties and loyalties is required to make the offices incompatible."-^ * X * * *,** * * * * -X- X * In the present proposal a comparison of the duties, functions and interest of each office clearly illustrate the incompatibility of office. The district, as a munici- pal water district, is authorized to provide for sewage, waste and storm water disposal.5^ The City Council is also authorized to construct and maintain sewers. -* The district may prescribe, revise, and collect rates or other charges for sewer services and facilities.56 ^he city is also authorized to fix sewer service charges.-*7 in addi- tion, the district may exercise the power of eminent do- main. 5" it is possible the director's decision to invoke eminent domain would conflict with the views and interests of the city. The district may contract with the city in t;qcarrying out its designated powers.-'-7 In that situation, as was held, a city councilman would have to sorvo two masters if he held the two offices concurrently. - '15 - The conflicts in these examples are clear and do not begin to name the possible conflicts that coult potentially arise. If Costa Real Municipal Water District were to be- come a subsidiary district of City of Carlsbad the poten- tial for conflict between the offices of city councilman and director of the district is inexhaustible. Should those two offices be held.by the same person concurrently the possibility of conflict is inevitable! According to the reasoning of the California Courts, the California State Attorney General, cited above, and specific authorized powers of the district and the city} the offices of city councilman and director of a munici- pal water district are incompatible and against public policy. Should Costa Real Municipal Water District'become a subsidiary district of City of Carlsbad, there would be an inherent conflict in the powers and duties of the offices of councilman and director. There J L*, a re.-a'I danger that the duties of the offices of city councilman and director overlap such that their exercise may require contradictory or inconsistent action to the detriment of the public interest. Their discharge by one person in both offices concurrently would be contrary to the' public interest. According .to the common law test for incompat- ibility of offices, modern case law and common sense where _ 1)6 - the functions of the two offices are inconsistent, they are incompatible. 5,0 CONCLUSIONS 5.1 PROPOSAL IS UNSUBSTANTIATED AND UNJUSTIFIED None of the documents filed with the subsidiary dis- trict proposal by the City substantively support the proposal. These documents were available to the Dis- trict's and City ' s" Advisory Committees to LAPCO and found wanting. These committees, after extensive review, including Interviews with both City and District repre- sentatives, concluded that, r...the City has not demonstrated that significant economic advantage would result from reorganization of the District. Because the subcommittee could see no apparent benefits accruing to water users as a result of the proposed change, they expressed the belief that the key issues of the proposal are not of a technical nature, but are basically politi- cal. "6l The City has relied upon an obsolete and erroneous argument that as a municipality - that is, a "general purpose" government - it is able to conduct the affairs of CMWD (or any other special district) more effectively. As a general philosophy, the position that a City Council, as opposed to a district board of directors, is more responsive, more capable, more skilled and of greater intelligence has never been proven. However, that very same unproven philosophy is, nonetheless, the City of Carlsbad's basic standard to justify the time and expense of pursuing the present pro- posal. In late August, 1980, the City Council and the CMWD Board agreed to engage in joint meetings to explore the resolution of the conflict created by the City's proposal. Just prior to the first meeting the Council adopted a policy position, presumably to guide it's representatives in these meetings (or perhaps to put the District on notice that there was little about which the City was prepared to negotiate). First, the policy position stated that: r. . "The Council believes that the supply of water, including procurement, development of distribution r.yrjtomn, and oporvitl on and mal ntminncc of 1.ho:;o systems is a proper and legitimate function of general purpose government.""^ (emphasis added) Prom this premise the policy concludes, in part, that: "(The) City Council should be the agency of govern- ment responsible to the voters for the administra- tion arid operation of the water needs of the area within the boundaries of (the) Costa Real Munici- f *Dpal Water District." ^ (emphasis added) With the foregoing as a. starting position for enter- ing into negotiations with the District, it should have been anticipated that the effort was doomed from the outset, as, indeed, it was. The point, however, is that, first, the supply of water and all that involves is also a proper and legitimate function of a municipal water district. Secondly, the statement that the "City .Council should be the agency of government responsible," etc., is a simple value judgement that is unsupported by either fact or authority. Thirdly, the conduct of business of a rather exten- sive wholesale and retail water system is far too impor- tant to sandwich in between deliberations on such items as cardroom ordinances and the location of bicycle paths. Those items and many other more important 1 tomr;, r.ui-h ar> crime, land use and the maintenance of roads, are the "proper and legitimate concern of general purpose govern- ment." The supply of water and the maintenance of a sophisticated water system is far too important to be integrated with these "...other social needs priorities." - 50 - On the contrary, there are facts and authorities that argue for the separation of the policy and management function of a water utility from the other functions of general government. For example, the.CMWD Board of Directors meets twice each month to consider a full agenda of water related business items. These directors also must make themselves available to .perform sub-committee work on a more frequent basis, to consider and make recommendations on a variety of subjects having to do with District operations. As a policy setting Board, the Directors need to have a continuous and immediate expo- sure to all aspects of the water system for which theyv are responsible. ************** The American Water Works Association (AWWA), a nationally recognized authority that actively sets stan- dards for water utility operations has made pertinent ob- servations about the problems that arise when a wator utility is operated by a- departmental unit of city govern- ment. In it's manual of water supply practices, "Water Utility Management," it points out that water utilities that are sub-units of cities "...often find that many of their functions are exercised by other departments of the government, presumably to make the overall, organization more efficient. Thus water utility billing, collections - 51 - and accounting are often handled by the municipali- ty's finance officer, and water department funds are co-mingled with those of all other departments of municipal government."°5 The AWWA Manual also notes that efforts toward effi- ciency are similarly frustrated when the water utility is organizationally dependent upon other units of city government. As an example, it notes that: i "...water supply engineering responsibilities are delegated to the municipality's engineering division, where too .often they can become submerged in the day- to-day requirements for other municipal funds so that long-term planning and construction of water supply facilities become difficult, if not impossible." ° As to the City's argument that the operation of a water utility should be "integrated" into other City functions, the AWWA states: "Without question, the more separated the control of the utility from the affairs of general govern- ment and politics, the less difficult and the more probable is the achievement of maximum efficiency.r°7 5. 2 PROPOSAL HAISISS CJ flNll-'ICANT LEGAL l^UK.'J There are three basic legal issues raised by this proposal which have not been adequately addressed by either the Advisory -Committees, the.LAFCO Staff or the City. The questions regarding the disenfranchisement of voters and the incompatibility of offices could be fatal to the proposal and render its further processing a meaningless exercise. These issues should be referred to competent legal authority for review and opinion. *•#************ 5.3 REALISTIC ALTERNATIVE NOT CONSIDERED The most remarkable defiency in the City's proposal has been the absence of consideration of an obvious, real- istic and relatively simple alternative: the District's assumption of all retail water 'operations within its boundaries. If the City's real motives were to reduce the cost of water operation or improve the level of ser- vice to water users, this alternative would certainly have been explored. Unfortunately, those responsible for the preparation of this proposal chose to give LAI''CU, the Board of Supervisors and the electorate but one option to consider. Such disregard is both unfair to City and Dis- trict, water consumers and prejudicial. As noted above, it destroys the objective credibility of the Andersen .T-Jo- port and denies LAFCO the opportunity to make a fair and impartial decision. In the District's view, this omission alone is suf- ficient for LAPCO to deny the proposal. The simple truth is, in its present form the proposal does not meet the standards set down by the Knox-Nisbett Act or the District Reorganization Act. Over the period of the past year representatives of the City have advanced many arguments in support of this proposal. None of them, either individually or collect- ively, are persuasive. When all else fails, the argument most relied upon by the City is "we've got 10% of the District's land area, so we should get an election." Such a posture is contradictory to the responsibilit-ies of LAFCO and denies the right of the electorate to consider comparable alternatives. NOTES 1. Carlsbad, City of, Resolution No. 6063, "A Resolution of the City of Carlsbad, California, adopting a Reso- lution of Application to the Local Agency Formation Commission Pursuant to the Provisions of the District Reorganization Act of 1965 to Create a Subsidiary Dis- trict of the Costa Real Municipal Water District,'1 January 15, 1980. 2. Costa Real Municipal Water District, Resolution Mo. 395, "Resolution of the Board of Directors of Costa Real Municipal Water District in Opposition to Appli- cation of City of Carlsbad to Create a Subsidiary District of Costa Real Municipal Water District," Jan- uary- 16, 1980. 3. California, State of, Government Code, Sect. 56073- H. Ibid., Sect. 56539- 5. California, State of1, Water Code, Sect. 71000 et. seq. 6. Ibid., Sect. 713^0. 7. Ibid., Sect. 72362. 8. • Carlsbad, City of, "Report on City Water Department/ CMWD Consolidation, Roger W. Greer, Director of Utili- ties and Maintenance, March 31, 1977- 9. Ibid., pg. 10. Water Code, op. cit., Sect. 71616. 11. Carlsbad, City of, Application Questionnaire re forma- tion of a Subsidiary District, January 15, 1980, pg. 2, 12. Andersen, Ralph and Associates, "Water Service in the Carlsbad Area, Final'Report," September, 1979- 13. Carlsbad, op. cit., Application Questionnaire, pg. 2. 14. Ibid. . . - 15. Carlsbad, op. cit., Resolution No. 6063, pg. 3, part 9.b.(3)- 16. Ibid. 17. Ibid., pg. 4, part 9.b.(4). 18. Anderson, op. cit. 19. Ibid. , pg. 6. 20. Ibid., pg. 7. 21. Ibid. 22. Ibid. , pp. 69-71. 23. Ibid., pg. 71. . 21.- Ibid., pg. 79. 25. Ibid., pg. 93. • 26. Carlsbad, op. cit., Resolution No. 6063, Sect. 7. 27- California, op. city., Government Code, Sect. 506470(e). 28. The Report was released in September, 1979; many of the figures used are now obsolete. 29. Andersen, op. cit., pg. 50. 30. Ibid. , pg. 60. 31.- Ibid., pgs. 40- and 66. 32. Andersen, passim. 33. California, op. cit., Water Code, Sect. 71160. 34. Weber v. City Council, 9 C 3d 950, 958 (1973). 35. Ibid. , 958. 36.. McDonald v. Board of Election (1968), 394 U.S. 802, 89 S. Ct. 1HW. 37- Kramer v. Union School District (1969), 395 U.S. 621, Reynolds v. SimsTlfPt ) , 377 U.S. 533. 38- Curtis v. Board of Supervisors, (1972) 7 Cal 3d 942, 965 39- Hadly v. Junior College District, 90 S. Ct., 25 L. Ed. 2d 50. . . 40. Carlsbad, op., cit., Application Questionnaire, pg. 2. 41. Carlsbad, op. cit., Resolution No. 6063, pg. 4, part 9-b.(4). 42. Robinson v. The City of Boulder (colo. 1976) I P 2d 228,referring to Englewood v. Denver (Colo., 1951), 229 P 2d 667. 43. 27 Hastings Law Review, p. 753- 44. Hollister Park Iriv. Co. v Goleta County Water District, 82 Cal. App. 3d 290, 294; 147 Cal. Rptr. 91. 45. Water Code, op. cit., Sect. 71640. 46. Ibid., Sect. 71643. ^7. Swanson v. Marin Municipal Water District, 56 Cal. App. 3d 512, 524; 128 Cal. Rptr. 485. 48. Robinson, op. cit., 228, 229. 49. People ex. rel. Chapman v. Rapsey (1941) 16 C 2d 635, F4l; 101 P.2d 388, 392. 50. California, State of, Attorney .General, Opinion No. 60-224, 1/31/61; 37 Ops. Cal. Atty. Gen. 21. 51. California, State of, Attorney General, Opinion No. 57-192 (1957) 30 Ops. Cal. Atty. Gen. 184. 52. See People ex. rel. Goodell v. Garrett, 72 Cal. App. 452; People ex. rel. Bashaw v. Thompson, 55 Cal. App. 2d 147, People ex... rel. Chapman v. Rapsey, supra. 53. Attorney General, op. cit., Opinion No. 60-224, pg.. 22. 54. Water Code., op. cit., Sect. 71676. 55. Government Code, op. cit., Sect. 38900. 56. Water Code, op. cit., Sect. 71670 et. seq. 57. Government Code, op. cit., Sect. 38902. 58. Water Code, op. cit., Sect. 71693- 59. Water Code, op. cit., Sect. 71722. 60. Attorney General, op. cit., Opinion No. 57-192, pg. 187. 61. LAFCO, memorandum from Special Subcommittee on the City of Carlsbad's Application for a Subsidiary District, to Cities arid Special Districts Advisory Committees, August 13, 1980. 62. Carlsbad, City of, "A Summarized Statement of the Official Position" of the City of Carlsbad on the Proposed Formation of a Subsidiary District Within the Boundaries of the Presently Constituted Costa Real Municipal Water District," adopted August 26, 1980, pg. 2. 63. Ibid. 6^. Carlsbad, op. cit., "Report on City Water Department/ CMWD Consolidation," Greer. 65. American Water Works Association, "Water Supply Management Manual of V/ater Supply Practices," AWWA No. M5, pg. 3, Denver, Colorado. 66. Ibid. 67- Ibid. , pg. l\