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HomeMy WebLinkAbout1981-01-06; City Council; 6441-1; Petition Re: Charges for sewer serviceJanuary 6, 1981 -- City Attorney __-------------.-- * DEPARTMENT 4 Initial: C. Mgr. -*- - Sub j ec ts. : . PETITION RE CHARGES FOR SEWER SERVICE Statement of the Matter At your December 2, 1980 meeting the City Council directed our office to analyze a petition and legal brief which claims that a portion of the City's sewer service charge, adopted by reso- lution 6244, is a special tax under.ArticLe XI11 A of the California Constitution which cannot be imposed without a vote of the people. The legal brief is based on an assumption that a portion of the capital surcharge will be used for general revenue purposes. We understand the facts to be that the Sur- charge will be used only to pay the costs of meeting a federal mandated requirement to raise the existing plant to secondary treatment. Since the funds are necessary for and will be used solely to allow the continued provision of the service to exist- ing customers, the charge is not a tax. We find the brief to be based on an erroneous view of the facts and the legal authorities cited inapplicable to our situation. A-memorandum from our office discussing the matter in more detail is attached. Exhibits 1. Excerpts from a legal brief 2. Memorandum to Mayor and City Council dated December 4, 1980 3. Resolution No. 6244' 4. City Engineer's letter of September 12, 1980 Recommendation The choice of method to fund the upgrading of the existing sewer facility was a policy question. The new sewer fee is in our opinion certainly legal and is not a special tax. There is no legal reason to take any action in response to the petition beyond a motion to file. The Council fnay wish by motion to reaffirm its intention in the'matter as expressed in the City Engineer's letter of September 12, 1980. Council Action: 1-6-81 Council received the report and filed the matter. 1 c MEMORANDUM TO : FROM: DATE : SUBJECT : Mayor and City Council City Attorney December 4, 1980 Response to Allegations by Association of Carlsbad Taxpayers that the Sewer Service Surcharge is an Illegal Special Tax At your December 2, 1980, Council meeting you requested that our office prepare a response to the allegations by the Association of Carlsbad Taxpayers that the $2.00 sewer service surcharge is an illegal special tax. We have taken the oppor- tunity to review the authorities cited by the unnamed attorney for the association and conclude that (1) the $2.00 sewer service surcharge is not an unlawful special tax, (2) has not been levied for unrelated revenue purposes, and (3) is a charge which does not exceed the reasonable cost of providing sewer service at the level required by the federal government. As the Council is aware, this office prepared an extensive paper on the issue of special taxes which was presented to the League of California Cities, City Attorney Department at their 1979 spring meeting. Since that time, we have paid close and careful attention to the special tax issue as it has developed in the courts, Attorney General's opinions and in legislation. The final complete definition of special taxes under Proposition 13 has not been made. However, it now appears that the courts and the legis- lature have settled on an interpretation that distinguishes fees and charges which do not exceed the reasonable cost of providing a proprietary service or are imposed as part of a regulatory program from special taxes. The term tax, as noted by the Court of Appeal in the recent __ decision of Mills v. County of Trinity, 166 Cal. Rptr. 678, decided in July of 1980, 'I. . . is a term without a fixed definition." interpreting the word, a variety of definitions have arisen. It is important to look at the particular factual circumstance of each case in order to decide whether or not a particular levy is or is not a tax within the scope of the constitutional or statutory language. A tax for purposes of the initiative laws is not the same thing as a special tax. Depending on the purpose for which the court is For this reason many of the cases cited by the Association of Carlsbad Taxpayers' attorney are in opposite to this partic- ular situation. The case of Mills v. County of Trinity held that special taxes referred to in Section 4 of Article XI11 A: 'I. . . does not embrace fees charged in connection with regulatory activities which fees do not exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and which are not levied for unrelated revenue purposes." Although the court does not address the issue of fees charged to provide a proprietary service, the court does indicate that reference to contemporaneous legislation is important in inter- preting the meaning of a particular constitutional provision. The contemporaneous legislation referred to by the court has been chaptered and added to the Government Code as Section 50076. Section 50076 provides as follows: "AS used in this article 'special tax' shall not include any fee which does not exceed the reasonable cost of providing the service or regulatory activity for which the fee is charged and is not levied for general revenue purposes." As the court notes, where the Legislature has enacted a law in light of constitutional provisions the Legislature's interpretation of a particular constitutional provision is to be given great deference by the courts. Both the courts and the Legislature have clearly stated that fees charged for a proprietary service such as sewers are not special taxes. The City Engineer's letter of September 12, 1980 states that the $2.00 surcharge is levied in order to allow the City to pay its share of the cost of meeting federal requirements. If these federal requirements were not met the City would not be able to provide sewer service to its citizens. The fee is not levied for general revenue purposes or for general plant expansion purposes, but rather is levied simply to recoup the reasonable cost of continuing to provide the required service. After reviewing the evidence developed by the City staff and the calculations used to arrive at the fee, we have concluded that the evidence presented to the Council on the need for this fee more than justifies the levy. The fee is a reasonable charge to provide sewer service and does not exceed the cost of pro- viding for that service. There is specific authority in the Health and Safety Code which allows the City to impose fees and charges for the provision of services and facilities furnished by it. (Health and Safety Code Section 5471.) These fees may include the construction and reconstruction of a sewer system as well as "maintenance and operation" charges. Government Code Sections 54300 et seq. also provide authority for the collection of a sewer charge which includes the entire capital costs of the system. There is also authority for the collection of a sewer fee in Section 54344. In our opinion, there is no doubt about the legal ability of the City to collect a fee for sewer service which includes depreciation, allowances for repair, construction or recon- struction of the system, and for other purposes necessary to keep the system effectively functioning and in good repair. Since Encina cannot continue to function at all unless the new federal requirements are met the collection and use of fees to meet those requirements is authorized by law. The intentions of the Council in adopting Resolution 6244 as we understand them are contained in the City Engineer's letter of September 12, 1980 which was sent to all sewer customers. It clearly states the surcharge will be used to meet the federal requirement and then will be removed. The resolution itself is not specific and says only that the surcharge will be placed in the sewer construction fund for improvements to the system. In our opinion the surcharge could be used for purposes beyond those in the Engineer's letter and still be legal. However, the Council may wish to clarify their intent in imposing the surcharge by a motion approving the letter. Based upon our review of the applicable cases, statutes, and evidence we conclude that the sewer service surcharge is justi- fied and is not a special tax. Since the question is so straight forward and the answer so clear, we have not undertaken any detailed discussion of the law of special taxes. If any member of Council would like to discuss this issue with us further or would like to review a copy of our League paper or other points and authorities that we have on this issue, please do not hesitate to ask. . VINCENT F. BIONDO, JR. City Attorney VFB/jw I i cnyital facilrties surcharge, +:,I b.lr S=::;er Construction Fun?, .fornFz Constitution in that apsrOi.rZ1 of two-tliirds of the A. Legislativ2 Intent -_I------. In c?at.zrniir,hg whether this svxcharge is a special tax one nwst lcok to the intent. of Section XI11 A. Historically, a special tax was a tax on all property used for specific purposesp but for which no direct atid Specir'ic benefit to particular pieces of prc2,erty coulc? be identified (such as with an assessment) and it coai.3 be Imposed., to avoid a general-property tax limitation. An exzmple of this can bo found. in the case of City of Glendale - v. Trondsen, 48C2cl 93, where the City Charter had imposed a 1% property tax limitation, "unless a special %ax be authorized as ' provided by the Chapter." Such specinl tax required a two-thirds vote of e1ectorat.e. The city then set a minimum charge for r:ubhj.sh collection without a vo-te of the electorate. This was challenged as a special tax which required a two-thirds vote. . The court ruled it wasn't a special tax which reqcired a two- thirds vote becacLsc LCe ordinance applied only to a special tax increase in the property ______l_.-ll_ tax. it was not a spcial tax restrained by this particular ordinance and the court ruled that such a tax did not require a two-thirds vote . -- While it may have been a tax, .I k Section XI11 A appears to recognize this rul-ing and speci.fic6fly provides that local. governments cannot impose . - any speciii.2 taxes '- the purpose of which is to avoid the property tax lixitation or to supply additional funding lost by the Proposition XI11 tax limitation. It is clear then that the courts should strictly construe the lin!i-tation against special taxes. -. In interpreting Section XIIX A, the .legislative intent as expressed in the Legislative Counsel's Opinion slsoulii bear .a. weight. Of spc:cial note is his ,opinion sthat: "Service or regulations fees limited to the cost of the service or regulations program will not be consi.dered a tax and can be validly imposed without a vote of the peop1.e. Howeverl 'excess' . fees or charges will be 2'ound to be a tax subject -. to voter control.. "-.mp?hasis added-r-. I___- - --- The 'question is whether the $2.00 surcharge is an "excess" fee and not limited ta the cost of provj-ding existing services. A strong argument can be made that since the funds will be used for upgrading arid izot supplying service that it is a special tax. This is especially true in light of the Supreme Courts pronouncement in Amador v, State -~ Board of Equilization 22 Cal3d 208, where the court held that Article XI11 A is to be "literally construed and along broad lines so that it nay accomplish the full measure of the 0bjcct.ive.s that it was intended to carry out." The court in Amador --____I also read XI11 A to place restrictions upon imposition of all other .taxes so that the intent of XI11 A could be realized,. slio~ld 1-io.t: try to qisg-iiisc. a tax as a fee to avoid the clear intent of Proposition 13. -7- Amador's clear message is that local govenments B. Controlling .Cases --- -- The decision in Dare v. Lakeport Cj.ty ---- Council 12 C, A3d 864; 91 Cal. Rptr. 1.24 appears to sertle the question as to whether a charge imposed by a charter city for sewage service is a "tax". In -- Dare the city council set a sewage maintenance fee by ordinance. The citizens of the city proposed an initiative modifying the ordinance which met all of -the election code re- ..quirer;lents, but the initj-ative was rejected by the citlj as not being a proper subject for initiative because it interfered with the city's right to tax. a sewer fee was a tax and therefor not subject to the hitiatice process. The court in answering this question ruled: The issue before the court was whether the establishment of,.,- . -. "The imposition and collection of fees for the use of the facilites of Lakeport Municipal Sewer District No. 1 must reasonably be considered a taxation function. Taxes arc defined as burdens imposed by legislativz power on persons or property to raise money for public purposes (Yosemj.tc! Lumber Corqmny v. 1ndustrj.al Accident _^I Commission ----_... 18'7 Cal. 774, 785). It has been expressly held that. a monthly sewage rate imposed by a municipa3. ordinance for the connection and use of sewers is a tax'! (Dare at-. 868). _-_-__. --..--.- _-._-I-_- -_--- The court clearly ruled that the imposition of a monthly sewage fee was a tax inunune from the .~~i~j-ativ~~~~~~~re~d~ process. L ?'his case appears to be fully applicable here since it es- tablishes that a nonthly sewage fee is in fact, a tax. It is ironic that Proposition 13 requires that before a tax can be imposed a two-thirds majority of the electorate must spprove it, whereas before Proposition 13, the citizens could not vote to set w tax aside. But the case dces establish that a sewage fee is a tax. It would appear then that if such 2 surcharge is a tax prior to Proposition 13, and therefore ixnmtine frorn the electoral process; that after Proposition 13 it is still a tax which must be approved by ;1 two-thirds vote of the electorate. Xt should also be pointed out that the term "special tax" appears to be surplusa.ge because all that really needs to be de- teumined is whether the surcharge qualifies RS a "tax", an "assessment" or a direct "gee for use". Only the "tax" is subject to t4ie two-thirds vote. It is my opinion that the term "special" merely confuses the issue since historically a "special tax" wz:g a tax adding GII tc the property tax and which is now specifically prohjbitcd by Sectim SI11 A. The questbn that now mcst be 3ddressed i.s whether this "t.ax" can somehow be justified as a fee for use and not be a "speck1 taxt' under Proposition 13. The case t-.hat qpears most directly on point is City of Madera v. Black 1-81 Cai. 306(X919) (an old case that is st313. good law!) . In ---- Madern, the city imposed a monthly sewage rate cr charge for the use of and connection with the sewer. The rate was OR~ dollar. (A hefty sum in 1919!). The fee was challenged as bein.y ekorbitar,t and for the purpose of raising revenue for other purposes '.than supplyir?g sewage services. The city put the revenue into the "sewer fund" and transferred the excess to the general fund for other purposes. The issue before the 'court was whether the establishment of & sewage fee was a tax and if so whether the city exceeded its taxing ., *_ ' authority - -. In answer to the first questj-on the court ruled that "The money a . . was charge upon persoiis; it was imposed by the legislative authority of the city of Madera for public purposes, and under these definitions it was a tax;. . . It inay also be considered a charge mad2 for .the use of Lie sewer constructed and acquired by the city." . , I, ./. . ! Thi.s seems to raise an unresolved question. The court is saying that it, may be both, Now GO years later we are presented with the sams question. b~eriusc the surcharge appears to be either a tax ohicn must be approved by two-thirds of the electorate or a charge for use which does not have to be approved. V. The court's fur.ther ruling .in Madera helps to resolve this quandzy . The comt goes on to say . . "it is obvious that the power to construct and maintain sewers d02s not include authority to raise revenue foz general purposes by rrteans of a toll or tax for the pr.i.vil.ege or right t-o use the sewer for- the purposes for which it was constructed . . .But the rates hereimposed upon the sewer users were obviously for purposes additional to that of paying expenses of repairs and maintenance. If any was --__I used for extensions to the sewer system, such use was unl.awfu1, for it canxot be cio~5tod that the city has no powcr to lay taxes or - tolls Qn Lhosc who may use the sewer in 'order to obtain money toXi.16 sewers in other streets for the special beneiit of ~ther purposes. " @nphasis. added) ---------.------'- -- --._ -I_-_- -_ -~ l-.--_l_-- -.--..- -. The court goes on to discuss that fees above and beyond the coat of repairs and maintenance are beyond the powers possessed by the city. This case aFpe2rs to be tota-ly applicable here and actually gces bejToric? the prohibitions c\f Article XI11 A. It does establish that a sewage fee is a tax but indicates that j-t may bc considered a charge for service. More importantly, it establishes that any charge above and beyond the cost of repair and mair-itenance of the present sewage system is in fact a sub- skitution for general tax and beyond the power possessed by the cLty- The city of Madera ---- was chastized by the court far trying to do exactly whai-. the city of Carlsbad is trying to do in in- creasirq it's sewer charge. In Madera the court said that the city was attempting to accumuiate a fund "for the general benefit o€ th? city and thereby enable it to fix a lower rate or -- r - taxes for general purposes. , \ It appears that the city of Carlsbad is likewise trying to - avoid t.he Proposition 13 tax limitation by imposing a higher sewer fee than needed for repair and maintenance. General Discuss ion It is my opinion following the intent of Article XI11 A and the. 2 cases cited above, that the surcharge is in fact a "special -. .. I. tax" and that SUC,~ tax is prohibited by Sectj-on XI11 A because the fee charged is not for the purposes of operation and main- -tei-~a~.ce of the sewage system but is i.n fact charged to generate capits3.. fcjr further Improvements, and for general public pur- poses. . . XI11 A specifically enjoins because its purpose is to generate reveaua that prior to Propositi,on 13 were avaiiable through general revenues which are no longer available. This surcharge is the special tax that Section , t .- * 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 .I TELEPHONE: v12) 438-5621 September 12, 1980 Subject: 14onthly Sewer Service Fee Tha Mayor asked that 1 respond to your letter concerning the recent in- crease in sewer user charges. The increase was approved by Council only after considersble del iberation and assurances that funds generated by the increase would be utilized only for upgrading the existing Encina Sewage Treat Plant. The present sewage plant is capable of providing primary treatment for up to 16 million gallons of sewage each day. Primary tresfnent removes about 65% of the solids in sewage by allowing them to settle to the bot- tom of large tanks. The enlarged plant will be able to treat 18 million gallons of sewage a day to a quality which we call secondary treatrnpt- Esseniially, secondary treatment removes 90% of the solids from se;Jage. The Federal Government has mandated that the sewage treatment plant be able to provide secondary treatment. As you can see, the sewage treatment plant wilI be enlarged by 2 million gallons a day capacity and upgraded from primary to secondary treatment. According to the "Financial Plan and Revenue Program" prepared by Brown and Cal'dwell Consulting Engineers in September, 1979, Carl sbad's share of the total project will be $3,167,000. Of this anaunt, about $2.4 mil- lion is required for the expansion, including the new administration building and laboratory. The remaining $750,000 is attributable to the upgrading of the existing faci 1 i ty. The addition of two dollars each month to the user fee will generate an additional $25,000 per month or about $750,000 over the next 30 months, At such time as the $j'~O,OOO has been raised the City Council intends io r-emwe the two dollar surch;irge for upgrading of the sewage treatment ptant. I hope this information will assist you in analyzing the increased sewer user charge. If I can be of furthe-r assistance please call we. Les Evans City Engineer C: Mayor, City Mariagcr I r/' 1 2 3 4 5 6 7 8 9 10 11 12 33 14 15 16 17 19 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 6244 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, SETTING SEWER SERVICE CHARGES WHEREAS, Section 13.12.020 of the Carlsbad Municipal Code pro- irides that all persons served by the City sewer system shall pay a sewer service charge; and WHEREAS, the City Council, upon recommendation of the City ilanager, has determined to add a two-dollar per month capital facilities surcharge to the sewer service fee; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City Df Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the monthly sewer service charge will consist of a service charge and a capital facilities surcharge which shall be applicable to all premises in the City hooked up to Encina Water Pollution Control Facility. u, 3. That the capital facilities surcharge will be effective beginning September 15, 1980, zs shown on Exhibit "A" attached hereto and incorporated herein by reference. 4. That the monthly capital facilities surcharge will be placed in the Sewer Construction Fund and shall be used to pay for the capital improvements of said system, PASSED, APPROVED AND ADOPTED at a regular meeting oz the City Council of the City of Carlsbad held the 15thday of Julv ,1980, by the following vote, to wit: AYES: Council Members Packard, Casler, Anear, Lewis and Kulchin NOES: None ABSENT: None RONALD C. PACKARD, Mayor ATTEST : AEETJlA L. I!I:U'l'ENKI(ANZ, City Clerk I rr . EXH I B IT "A" CAPITAL FACILITIES SURCHARGE t 1 Mon t h 1 y Monthly Sewer Service Capital Faci 1 i ties . Charge Surcharge CLASSIFICATION: A. Residential I i (1) For each single-family dwelling $3.25 $2.00 (2) For each unit a duplex, flat, apart- ment, court, multiple dwelling, mobile home complex or trailer court $3.25 B. Commercial & Industrial $2.00 (1 ) For each unit of a motel, hotel, rooming,' lodging or boarding house, ten units or less $1.30 $3.25 mortuaries and restaurants $8.25 not listed above $3.25 -Each additional unit over ten $1 .oo -Each unit with kitchen facilities (2) Bakeries, markets with disposals, (3) Schools and all other commercial uses (4) Car washes, wash racks, laundries and other enterprises where water is $3.25 per EDU + the primary commodity to carry an $0.32 per each said business and said water is dis- 100 cubic feet chisrged into the sanitary sewer system (5) Each enterprise where water is the primary commodity to carry on said business, said water characteristics $0.32 x ([180+ exceed the sewer service area average S.S.3 f 360) for suspended solids (S.S.) (6) For each unit of an office of commer- cial building or any establishment having faci 1 i ties for trai 1 ers , campers or boats $3.25 $0.80 $0.60 $2.00 $2.00 $2.00 $2.00 :.per EDU + $0.20 per each 100 cubic feet 4 $9.20 x (f180+ S.S.2 + 360) $2.00