Bob Dunning: We’re subsidizing city’s water use

DAVISITES v. DAVIS … as predicted, a lawsuit was filed yesterday against the city of Davis by a group of Davisites who contend the proposed rate structure to pay for the surface water project is unconstitutional under Proposition 218 … and while city officials no doubt will try to kill the messenger by declaring the lawsuit frivolous and without merit, the lawsuit raises serious issues that place the fate of the rate structure very much in doubt …

Among other violations, the lawsuit alleges that the city of Davis has for years not paid for its own water, which is indeed a clear violation of Prop. 218 … the charge is valid … after several inquiries, the city admitted Wednesday that “presently the city does not separately account for water used at city facilites.” … the city further admitted that it doesn’t even know how much water is uses annually …

One city official answered my question about the city not paying for its water use by saying, “The city recognizes the need to transition to a more formal accounting of revenues and expenses between the water enterprise and the city. Staff are installing and repairing water meters at all city facilities to measure the amount of water being used in order to accurately calculate the water bill to allow payment with the proper city funds.” … in other words, at this point nothing is in place to tell the city how much water it is using and very clearly “proper” payment is not being made …

According to attorney Timothy Bittle, who was intimately involved in the writing of Prop. 218, “Proposition 218 does not exempt public agencies from paying for property-related services such as water, sewer and garbage collection. A property owner’s charges cannot exceed the cost of service attributable to his parcel. If the cost of a utility service is funded 100 percent through user fees, and public property is paying nothing for its use of the service, then private property is necessarily overpaying, in violation. (of Cal. Constitution, Article XIII D, 6(b)(3)” …

Bittle noted that “A few years back, the Sacramento County Grand Jury investigated the city of Sacramento for doing the very same thing; namely, overcharging private customers to subsidize its own free use of utility services. The grand jury found that the city was acting illegally.” … (point of fact: the city of Sacramento was paying only 15 percent of actual cost) …

At this point, the facts are clear … the city of Davis is in violation of Prop. 218 by not paying for its own water use …

EVEN MORE CAUSES OF ACTION … another problem area for the city is the notion that the proposed rate structure to pay for the surface water project violates Prop. 218’s clear statement that “no fee or charge may be imposed for a service unless that service is actually used by, or immediately available to, the owner of the property in question.” … the city admits that the higher fees slated to begin three months from now will be used in part to pay for a project that won’t come online until at least the summer of 2016 …

States Proposition 218: “Fees or charges based on potential or future use of a service are not permitted.” … while the law is the law, perhaps one reason 218 is so clear about prohibiting fees based on “future” use is that many people move around for a variety of reasons and shouldn’t be required to pay for a project they may never realize the fruits of …

AND FINALLY … as mentioned earlier this week in this space, the city’s proposed “Loge-Williams” rate structure is seriously out of compliance with Prop. 218’s requirement that a ratepayer be charged only for the actual cost of delivering water to his or her parcel, and also with the “proportionality” requirement that no ratepayer be forced to pay more than his actual proportion of the whole … the lawsuit touches on these issues as well, and it’s now up to a Yolo Superior Court judge to hear both sides of the case, entertain the various causes of action and make a ruling in accordance with the law … bottled water only will be allowed in the courtroom …

— Reach Bob Dunning at bdunning@davisenterprise.net