The Sewage District's Rate Increase and the Unfairness of Proposition 218 Voting Restrictions

By Ford Greene

Citizens have no real choice but to submit to the sewage district's rate increases. Among other things, this piece explains why.

Article XIII D, section 6 (b) of 218 controls all increases in water and sewage rates. The section requires that the revenues derived from the fee or charge must not exceed the funds required to provide the property-related service and may not be used for any other purpose than that for which the fee or charge is imposed. It also requires that the amount of the fee imposed on any parcel as an incident or property ownership must not exceed the proportional cost of the service attributable to the parcel. The fee may not be imposed for service, unless the service is actually used by, or immediately available to, the owner of the property in question.

Finally, section 6 requires that before the agency imposes any increase in fees, within 45 days it must hold a public protest hearing in which the agency is given the benefit of a fifty-percent presumption of ratepayer approval. In order to overcome this presumption of approval, a majority (more than 50%) of rate payers who oppose the increase must submit written opposition which identifies the A.P. number of their property, the identity of the property owner, the property owners objection and be signed and dated. The last moment that the written objection can count is at the publicly noticed public protest hearing set for June 28th. This means that those who object to the rate increase have had 45 days to organize and submit their written protests in proper form and on time. Thus, to overcome the 50 % leg up standard that 218 imposes on ratepayers who object to the increase is practically impossible to surmount. Thus, when being hit with a notice of rate increase under Proposition 218 the ratepayer is saddled with a fundamental and practical lack of choice. Such lack of choice is one of the fundamental ironies of Proposition 218, "The Right to Vote on Taxes Act." The right to vote means next to nothing when your opponent is given a 50% handicap at the starting gate.

Given such practical lack of the ability to meaningfully participate is approving the cost of management, the responsibility for competent management is amplified. Because the current Ross Valley Sanitary District rate increase, which is based on a flat rate, fails to comply with 218's proportionality requirement, District management is abusing its 50% presumptive advantage. According to the Grand Jury report, released last week, in 2010 the District spent almost $2.5 million on lawyers, was responsible for spilling almost 2,705,000 gallons in raw sewage into the Corte Madera Creek and employed a cyanide-based product to clean sewer pipes without telling anybody. Most recently, the District is reported to have sued Corte Madera because the District's employees failed to accurately identify the location of a sewage pipe for drillers who then inadvertently hit the sewage pipe. The actions of the District appear to be out of proportion to doing what it is supposed to do: get sewage to the Central Marin Treatment Facility.

The District is a special district, which means that it is governed by its board and is not subject to any outside control, until it comes time for the election of its board members. For the better part of six months, the Town of San Anselmo has invited and requested that the District general manager, Brett Richards, come to a town council meeting to discuss District issues that impact San Anselmo residents. He has not done so. Instead of directly interacting with its neighbors, the District appears to rely on press releases drafted a public relations agency which the District intends to pay $84,000 in public funds this year.

Spending huge sums of the public's money on high-priced attorneys and hiding behind a public relations firm instead of honestly confronting your constituents is no way to run a public agency. Even though overcoming the 50% leg up rule may be practically impossible, ratepayers should make the effort to effectively protest. It is the last thing you can do to send a message to the District until the next election. Only then will we have any real remedy.