The city of Davis and the Yolo Rate Payers for Affordable Public Utility Services (YRAPUS) meet this Friday in a settlement conference. Should that settlement conference fail to produce results, the trial date is set for December 16.
In March of 2013, Davis voters narrowly approved Measure I which authorized the city to move forward with the Woodland-Davis surface water project. This seemed to have ended a nearly year and a half battle over the water however, the YRAPUS filed suit against the city to challenge the validity of the water rates among other claims.
In September 2011, the city Council by a 4-1 vote, adopted an ordinance that established a five-year water rate increase and authorized the city to move forward with Woodland in building its surface water project.
However, those rates were subject to a referendum that qualified for the ballot and instead of challenging the validity of the referendum, the city council opted to rescind the ordinance and “establish a citizen committee to advise the Council on water rates, the Project and related items, and to put the Project on the ballot to provide the community with an opportunity to vote on whether or not the City should move forward with the Project.”
In November 2011, the city established the WAC (Water Advisory Committee) that was composed of 10 citizens and five alternates, appointed by the city Council. Beginning in December 2011, “the WAC began meeting twice a month to analyze the City’s water supply options and whether to continue with the Project. The WAC heard from various experts and reviewed numerous reports and articles.”
The WAC came forward with a smaller project, reducing the capacity to 30 MGD overall and ultimately approved the alternate CBFR rate structure.
In December 2012, the Davis City Council approved the WAC’s recommendation and opted for a hybrid rate structure, with the more traditional Bartle Wells structure in place for the first two years of the project.
The City called for a special election which asked voters to decide whether to proceed with the water project subject to the approval of the rates through a separate but mostly parallel Prop 218 process.
YRAPUS continues to challenge the legality of the water and sewer rates that took effect on May 1, 2013 following the successful Measure I ballot initiative. Writes Michael Harrington, attorney for the plaintiffs, “It is the position of Plaintiffs that the water and sewer rates are in violation of Proposition 218, which was added to the California Constitution in 1996. Plaintiffs seek a Declaratory Judgment establishing that the water and sewer rates are illegal and unconstitutional, together with a Writ of Mandamus to prohibit the City from collecting these rates, and an award of attorney fees pursuant to Code of Civil Procedure Section 1021.5 for bringing this action in the public interest.”
According to the plaintiffs briefing, if there is no settlement, these issues will be resolved in a trial for December 16, with no live witnesses – it will be conducted on the briefing and administrative record.
The initial trial, by agreement will deal with these issue alone, however, “There are additional issues to be addressed, including Plaintiffs’ claims that the City has been illegally helping itself to water and sewer services, and should be required to pay into a fund those charges which it should have paid initially. By stipulation of the parties, those issues, and other issues, have been deferred pending the outcome of other matters.”
The plaintiffs argue, “that the water rates and the sewer rates presently being charged and to be charged in the future violate Proposition 218 and must be enjoined.”
They argue that there are numerous grounds to show that the rates violate Prop 218 and that to date “the City has not offered any suggestion for compromise of this matter, and the primary issues have already been fully briefed.”
The plaintiffs continue that “reasonable starting position for settlement is that the City acknowledge that its present 5-year rate structure violates Prop 218.”
They argue, “the City should halt building the surface water plant pending full compliance with the second of the two conditions that the City itself put into Measure I: the project passes by a majority of the voters; and the rates comply with Prop 218. The rates do not, and therefore Measure I is not legally final until there are legal rates in place, and all deadlines to challenge them have passed.”
The city in their reply brief argues, “The City’s staff, citizens, and elected officials devoted over a year to analyzing water supply options and developing new water rates. The new surface water supply project, approved by City voters, will be the new main water supply to existing customers.”
The city adopted two rate structures, a traditional rate and an “innovative” consumption-based fixed rate (CBFR).
The city argues, “The City is not, as Plaintiffs contend, required to, nor reasonably able to set, a rate for each individual customer based on the customer’s then current use pattern. Indeed, by setting water rates that account for peak demand and peak use, the City is harmonizing its dual constitutional obligations to promote water conservation (Article X, §2) while not charging users more than their proportional cost of service under Proposition 218.”
The city argues that they have 11,000 pages of cost analysis and consumption data that support the new water rates and satisfy the city’s burden of proof.
They argue, “Similarly, the City’s sewer rates satisfy Proposition 218. The only specific charge Plaintiffs level against the sewer rates is that winter water use is not a proportional means of charging sewer customers.”
“Absent sewer meters (which the City does not have) using a customer’s winter months’ water usage is a reasonable and accepted surrogate for estimating wastewater discharges into a sewer system and the burden placed on the system by the users, as opposed to a fixed rate,” the city writes.
“The City has satisfied its burden and established a proportional sewer rate (reasonably based on user class) that complies with Proposition 218.”
The plaintiffs argue that while the city provides the argument regarding 11,000 pages of cost analysis, it “cites no authority for the proposition that the quantity of the record can make up for the absence of substantive proof to justify its position.”
The plaintiffs argue, that “the rates are fatally flawed to the extent they charge different single family residence customers different fixed rates based on the size of the water meter.” They ask, “Does a rate structure where thousands of ratepayers pay 60 times more per unit of water than other Davis ratepayers meet the standard of calculating the amount and distribution of its fees within a range of reasonableness?”
They further argue, “The Bartle Wells rates impermissibly punish the low water users and subsidize the high water users” and that “The City has not justified the tiered water rates under Bartle Wells.”
At this point it seems unlikely that the city would be willing to settle on the terms presented by the plaintiffs, therefore we seem to be headed to a limited trial on December 16 to determine the constitutionality of the water and sewer rates.
—David M. Greenwald reporting
